STATE OF WEST BENGAL v. DINESH DALMIA

Citation: [2007] 5 S.C.R. 561

Court: Supreme Court of India

Bench: A.K. MATHUR, TARUN CHATTERJEE

Case summary

STATE OF WEST BENGAL v. DINESH DALMIA.pdf

Judgment text

""'- STATE OF WEST BENGAL v. DINESH DALMIA APRIL 25, 2007 [A. K. MATHURANDTARUN CHATTERJEE,JJ. ] j Code of Criminal Procedure, 1973: °' S. 167(1) and (2), Proviso-Authorisation ofaccused in custody ofthe police-"Custody of the police"-Connotation of-Accused in custody of police in a different case at Chennai-On coming to know that he is required in other cases also at Calcutta, voluntarily surrendering before Magistrate at Chennai-Later, accused produced in connection with Calcutta case before Magistrate at Calcutta and remanded to custody of police for investigation in Calcutta case-Plea of accused for bail on the ground that counted from the date of his surrender; the police failed to file the challan \ within the prescribed period-Held, voluntary surrender cannot be conceived to be detention under the case registered at Calcutta-Judicial custody/ dP-tention in another case cannot be treated as custody of police for investigation purpose in instant case.

Words and Phrases: "Custody of the police" as occurring in s. 167 Cr. PC-Meaning of Respondent was required by Calcutta Police in connection with Crime . ,. Case No. 300/2002 and 476/2002. The Judicial Magistrate, Calcutta by order dated 13. 2. 2006 directed that respondent-accused be produced before him on 22. 2. 2006. Meanwhile, the respondent was arrested and produced before Additional Chief Judicial Magistrate, Egmore, Chennai on 14. 2. 2006 in connection with a CBI case and the order of ChiefJudicial Magistrate, Calcutta was brought to the notice of Addi. Chief Judicial Magistrate, Egmore, -. . , Chennai, who observed that matter of Calcutta Police would be considered after the period of CBI custody was over, the respondent was to remain in CBI Custody till 24. 2. 2006. When the respondent came to know that Calcutta Police required him in two more cases, he voluntarily surrendered before the Magistrate at Chennai on 27. 2. 2006.

The ACJM Egmore, Chennai - / remanded the accused to judicial custody till 13. 3. 2006 and directed production ofaccused before the Court at Calcutta. On 13. 3. 2006 respondent was produced before CJM, Calcutta. The Investigating Officer required 15 days police remand of the respondent. An application for respondent's bail was filed before the ACJM, Calcutta contending that he had surrendered on 27. 2. 2006 before the Magistrate at Chennai and as the period of 15 days was over and the police did not file the challan, he was entitled to be enlarged on bail. The prosecution case was that he was arrested by CBI in different case and in the instant case he was produced before Calcutta High Court on I ~ 13. 3. 2006, so the period of 15 days was not over. The bail application was rejected and respondent was remanded to police custody upto 28. 3. 2006.

Later, on another application for bail filed on behalfofthe respondent, when the matter was taken to High Court in revision, the High Court held that detention of respondent in Case No. 476/2002 should be counted from 27. 2. 2006, i. e. the date he surrendered himself before ACJM, Egmore, Chennai and directed the Metropolitan Magistrate to consider the matter in that light. Aggrieved, the State filed the present appeal. On the question: Whether the detention period in case No. 476/2002 should be counted from 13. 3. 2006 when the police took the accused in custody ' or the period should be counted from 27. 2. 2006 when the accused surrendered before the Magistrate at Chennai. Allowing the appeal of the State, the Court HELD: I. In connection with Case No.

476/2002 ofCalcutta, the accused was produced before the Calcutta Court on 13th March, 2006 and the Court directed the custody of the accused to the police on the same day for _, investigation in the criminal case registered against him in Calcutta. Therefore, the police custody will be treated from 13th March, 2006 and not from 27th February, 2006. The accused was very well aware that there were two cases registered against him in Calcutta for which he was required by the Police, so he voluntarily surrendered before the Magistrate on 27th February, 2006 when he was already in custody in relation to the CBI case. Therefore, this voluntary surrender cannot be conceived to be detention under r--. . case registered at Calcutta i. e. Case No. 476/2002. In this back-ground, the view taken by the single Judge that since he voluntarily surrendered on 27th February, 2006, therefore, he shall be deemed to be under the police custody w. e. f.

27th February, 2006 is not correct and 90 days shall be counted from 13. 3. 2006. [Para 14) [569-B, D, F, G) STATE OF WEST BENGAL v. DINESH DALMIA 563 2. Sub-Sections (1) and (2) ofs. 167 Cr. PC with proviso clearly indicate that the incumbent should be in fact under detention of the police for investigation. In the present case, the accused was not arrested by the police nor was he in the police custody before 13. 3. 2006. He voluntarily surrendered before a Magistrate and no physical custody of the accused was given to the police for investigation. The whole purpose is that the accused should not be detained more than 24 hours and subject to 15 days police remand and it can further be extended up to 90/60 days, as the case may be. But judicial custody/ detention in another case cannot be treated the custody of police for ' investigation purpose. The police custody here means the custody ofthe police in a particular case for investigation and not judicial custody in another case.

This notional surrender cannot be treated as police custody so as to count 90 days from that notional surrender. [Para 16) [571-G; 572-A, BJ State ofMaharashtra v. Bharati Chandmal Varma (Mrs. ), [2002) 2 SCC 121 and Central Bureau ofInvestigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni, (1992) 3 SCC 141, relied on. Niranjan Singh & Anr. v. Prabhakar Rajaram Kharote & Ors. , (1980) 2 sec 359, held not applicable. Directorate ofEnforcement v. Deepak Mahajan, (1994) 3 SCC 440, referred to. Uday Mohan/al Acharya v. State ofMaharashtra, [2001) 5 SCC 453; Niranjan Singh & Anr. v. Prabhakar Rajaram Kharote & Ors. , (1980) 2 SCC 559; Central Bureau ofInvestigation, Special Investigation Cell, New Delhi v. Anupam J. Kulkarni, [1992) 3 SCC 141 and Directorate ofEnforcement v. Deepak Mahajan and Anr. , [1994) 3 SCC 440, cited. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 623 of 2007. From the Judgment and Order dated 27. 09.

2006 of the High Court of Calcutta in A. S. T. No. 570 of2006. AltafAhmed, Tara Chandra Sharma, Neelam Sharma and Rajeev Sharma for the Appellant. K. Parasaran and Mukul Rohatgi, Shekhar Basu, Umapathi Ganeshan, Rajendra Singhvi, Anuj Singh, Madhurima Tatia, Madhur Dadlani, Anirudh - .... .. / Shanna, Tirthan Kar Ghosh and Ashok Kumar Singh for the Respondent. The Judgment of the Court was delivered by A. K. MATHUR, J. 1. Leave granted. 2. This appeal is directed against the order dated 27. 9. 2006 passed in A. S. T. No. 570 of2006 by the Calcutta High Court whereby the learned single Judge of the High Court has set aside the order dated 16. 6. 2006 passed by the learned Chief Metropolitan Magistrate, Calcutta and directed the 5th ,, Court of Metropolitan Magistrate, Calcutta to consider the matter afresh and pass necessary order in the light of observation made by the Court. 3. Aggrieved against this order dated 27. 9. 2006 passed by learned Single Judge, the present S. L. P.

was preferred by the State of West Bengal. 4. Brief facts giving rise to this appeal are that the Respondent, Dinesh Dalmia filed a petition under Section 397/482 ofthe Code ofCriminal Procedure, 1973 in the High Court of Calcutta for setting aside the order of 27th May, 2006 and 16th June, 2006 passed by the learned ChiefMetropolitan Magistrate, Calcutta and the learned 5th Court of Metropolitan Magistrate, Calcutta t respectively in connection with GDD 476 dated 24. 9. 2002 corresponding to G. R. No. 2001 of2002 being investigated by Detective Department (Special Cell) Lalbazar pending before the 5th Court of Metropolitan Magistrate, Calcutta. 5. The Secretary of the Calcutta Stock Exchange Association Limited lodged a written complaint with the Hare Street Police Station on 9th September, 2002 alleging a commission ofoffences under Sections 120B/4 20/409/467/468/ 471/477A of the Indian Penal Code against Harish Chandra Biyani and others.

The complaint was treated as First Infonnation Report and was registered at Park Street P. S. case No. 476 dated 24. 9. 2002 under the aforesaid Sections of the I. P. C.. Thereafter, the investigation of the case was taken up by the Detective Department. During the course of the investigation, Investigating Officer prayed for issuance of warrant of arrest against the respondent on 12th February, 2006. Prior to that the respondent was arrested in New Delhi ' . .. by the Central Bureau of Investigation, Bank Securities and Fraud Cell, New - Delhi in connection with CBI Case No. RC 4(E)/200 3-BS &F C CBI. He was produced before the learned Additional Chief Judicial Magistrate, Tis Hazari. On transit remand, the respondent was produced before the learned Court of Additional ChiefJudicial Magistrate, Egmore, Chennai on 14th February, 2006. ...

In the mean time, the Investigation Officer of the present case also prayed for issuance of production warrant against the respondent before the Court of learned Chief Metropolitan Magistrate Calcutta, as the respon_dent was arrested and detained ii} the aforesaid CBI case pending before the Chief Metropolitan Magistrate, Egmore, Chennai. The Chief Metropolitan Magistrate, Calcutta by order dated 13th February, 2006 allowed such prayer of the Investigating Officer and directed that the accused-respondent b~ produced before the the Learned Chief Metropolitan Magistrate, Calcutta on or before 22nd February, 2006. A copy of the said order was sent to the Court of ~ Additional ChiefMetropolitan Magistrate, Egmore, Chennai. On 14th February, 2006, the order dated 13th February, 2006 passed by the Chief Metropolitan Magistrate, Calcutta was brought to the notice of the Additional Chief Metropolitan Magistrate, Egmore, Chennai by the CBI in their further remand application. The Addi.

Chief Metropolitan Magistrate, Egmore, Chennai observed that the matter of Calcutta Police would be considered after the period of CBI custody was over. On 17th February, 2006 the Investigating Officer of the present case filed an application before the learned Court of ChiefMetropolitan Magistrate, Calcutta intimating that the accused-respondent was in the custody of CBI till 24th February, 2006 in connection with the aforesaid CBI cases and sought direction for production of the accusedrespondent in Calcutta on or by 8th March, 2006. The Court at Calcutta by order dated 17th February, 2006 observed that looking to the gravity of the offences complained against the accused-respondent in the cases pending in Calcutta, he should not be released in the CBI cases at Chennai.

On 23rd February, 2006, the Investigating Officer in the present case filed an application before the Magistrate at Egmore, Chennai regarding production ofthe accusedrespondent being in the present case before the Court of Chief Metropolitan Magistrate at Calcutta. By that time, the accused-respondent came to know ; that he was wanted in two more cases pending against him in Calcutta. When the accused-respondent was in custody on 27th February, 2006 in connection with the CBI case pending before the Addi. Chief Metropolitan Magistrate, Egmore, Chennai, he voluntarily surrendered before the learned Magistrate, Chennai as he was wanted in connection with the two cases of Calcutta .. Police. i. e_ Case No. 300/2002 and 476/2002. The accused respondent ---do surrendered on 27th February, 2006 and that was accepted by the Addi. Chief Meti:opolitan Magistrate, Egmore, Chennai on the same date.

But the Learned Additional Chief Metropolitan Magistrate Egmore, Chennai remanded the accused respondent to the judicial custody till 13th March, 2006. The learned Additional Chief Metropolitan Magistrate, Chennai further directed production of the accused before the Court at Calcutta. An intimation in this regard was also forwarded to the Chief Metropolitan Magistrate, Calcutta along with surrender papers of both the cases. An intimation dated 28th February, 2006 was also forwarded to the Hare Street Police Station and Park Street Police Station where those two cases were pending. The Investigation Officer requested the learned Addi. Chief Metropolitan Magistrate, Egmore, Chennai for counter signature on the production warrant issued by the learned Chief Metropolitan Magistrate, Calcutta. The Addi. Chief Metropolitan magistrate, Chennai counter signed the production warrant and served upon the Jail Superintendent, Egmore, Chennai.

On 3rd March, 2006 in response to the prayer made by the CBI, the learned Magistrate at Chennai directed for conducting of Polygraph, Brain Mapping and Nacro Analysis tests on the accused-respondent. The learned Magistrate directed the Superintendent, Central Jail, Chennai to hand over the accused for the aforesaid test to Inspector, CBI and produce him before the Court on 9. 3. 2006. Thereafter on 11. 3. 2006 on the request of Calcutta Police accused was handed over to Calcutta Police to be escorted to Calcutta for production before the Magistrate at Calcutta. Therefore, on the request made by the CBI, the accused respondent was handed over to the CBI team for the above tests. On 13th March, 2006 pursuant to the order of the learned Magistrate at Calcutta the accused 1 respondent was produced in the Court of Chief Metropolitan Magistrate, Calcutta.

The Investigating Officer of the instant case requested the Court of ChiefMetropolitan Magistrate, Calcutta to hand over the accused for 15 days for police remand for investigation. An application was moved by the defence praying for bail on behalf of the accused-respondent before the Court of Addi. Chief Metropolitan Magistrate, Calcutta. It was contended that the accused-respondent had surrendered on 27th February, 2006 before the Magistrate at Chennai and the period of 15 days was over and Police had not filed the cha! lan, therefore accused be enlarged on bail. As against this, it was submitted that he was arrested by CBI and the accused was produced before the Calcutta Court in this case on 13th March, 2006 so the period of 15 days was not over. The case was fixed for 16th March, 2006 for further hearing and on that date the bail application was rejected and the accused was remanded to police custody up to 24. 3.

2006 and the Court directed to produce the accused on the fixed date. 6. The learned Chief Metropolitan Magistrate, Calcutta after considering the submission took the view that the custody of the petitioner cannot be considered unless and until he is physically produced before the Court and since in the present case it was done on March 13, 2006 on the strength of the production warrant issued by the learned Chief Metropolitan Magistrate, ~ Calcutta, the period of police custody was to be considered from the date of - his physical production. The accused-respondent was remanded to the police custody till 28th March, 2006. Hence aggrieved against this ord~r the respondent approached the Calcutta High Court in revision. The learned Single Judge has taken the view that the Chief Metropolitan Magistrate has not correctly approached the matter and has wrongly taken the view that the accused did not surrender before the Metropolitan Magistrate, Egmore, Chennai on 24. 2. 2006.

However, the accused was given liberty to file application before the said Court afresh and the Magistrate was directed to consider the ' same in the light of the aforesaid judgment. It was also mentioned that still 8 more days from 19. 5. 2005 to 27. 5. 2006 were left to the Police to file final report. The Police still did not file the final report. 7. Then again accused moved the bail application before the Chief Metropolitan Magistrate, Calcutta. The Chief Metropolitan Magistrate, Calcutta rejected the bail application holding that statutory period of 90 days has not expired by his order dated 27. 5. 2006. 8. The final report under Section 173(2) ofthe Code ofCriminal Procedure t was submitted before the Chief Metropolitan Magistrate, Calcutta and the case . \ras transferred to Vth Court of Metropolitan Magistrate, Calcutta. Then again on 12. 6. 2006 a bail application was filed before the Vth Metropolitan Magistrate, Calcutta.

Learned Metropolitan Magistrate rejected the bail application holding that this bail application amounted to review of the order and he has no power of review, therefore, the same was rejected by order dated 16. 6. 2006. 9. Aggrieved against that order the present revision petition was filed f before the High Court. IO. The Calcutta High Court took the view that the detention of the accused should be counted w. e. f. 27th February, 2006 when the accused alleged to have surrendered himself in the case of476/2002 before the Additional Chief Metropolitan Magistrate, Egmore, Chennai and accordingly held that • more than 90 days period has expired. Therefore, the matter should be ~- considered by the Metropolitan Magistrate again in the light of observation made by the Court, by order dated 27. 9. 2006. The revision petition of the accused was allowed. 11. Aggrieved against the order of the Calcutta High Court, dated 27. 9. 2006 the present appeal was filed. . ;/ 12.

We heard learned counsel for both the parties and perused the record. The crucial question before us is whether the detention period should be counted from 13th March, 2006 when the police took the accused in custody or the period should be counted from 27th February, 2006 when the accused surrendered in the case of 476/2002 before the Metropolitan Magistrate, Egmore, Chennai. Learned counsel for the State submitted that under Sub-Section 2 of Section 167 of Criminal Procedure Code the period should only be counted when he is arrested/ taken in custody by the police not before the date when he surrendered before the Magistrate on 27th , February, 2006. Learned counsel submitted that in fact the accused was taken in custody by the police on 13th March, 2006 and was produced before the Magistrate on 13th March, 2006 and on that date the police sought the custody of accused for completion of the investigation. Therefore, the period commences from 13th March, 2006.

In respect thereof, learned counsel invited our attention to a case of Uday Mohan/al Acharya v. State ofMaharashtra, reported in [200 l] 5 SCC 453 as against this Learned counsel for the respondent submitted that the period should be counted from the date when the accusedrespondent surrendered in case No. 476/2002 before the Metropolitan Magistrate, Egmore, Chennai. The challan has not been filed within the period of 90 days. Therefore, the accused-respondent is entitled to bail as per subsection (2) of Section 167 of the Cr. P. C. In respect thereof, learned counsel invited our attention to cases ofNiranjan Singh & Anr. v. Prabhakar Rajaram Kharote & Ors. , reported in [1980] 2 SCC 559, Central Bureau ofInvestigation, Special Investigation Cell, New Delhi v. Anupam J Kulkarni, reported in [1992] 3 SCC 141 and learned counsel also invited our attention to the case Directorate ofEnforcement v. Deepak Mahajan and Anr. , reported in [1994] 3 sec 440 (para 44). i 13.

We have considered the rival submissions ofthe parties and perused the record. 14. The admitted position is that there were two cases pending in the Calcutta Court against the accused and the accused-respondent was arrested at Delhi in CBI case and he was produced before the Additional Chief Metropolitan Magistrate Egmore, Chennai under the investigation of CBI. The accused was remanded for the investigation before the CBI after that the accused was sent for judicial custody in the CBI case. The Calcutta Court directed the production of the accused-respondent and a request was made before the Additional Chief Metropolitan Magistrate, Egmore, Chennai for the custody of the accused in the cases pending before the Calcutta. In fact the ~- accused was detained in CBI case pending in Egmore, Chennai. The CBI sought the police remand of accused for some scientific test and the accused was sent for the test and after that the accused was sent back by the CBI to the Egmore, Court.

Then an order dated I Ith March, 2006 was passed for handing over of the accused to the Calcutta Police for being produced before the Magistrate on 13th March, 2006 and on I Ith March, 2006 Police took physical custody of the accused under the order of the Metropolitan Magistrate, Egmore, Chennai and on the basis of the transit warrant, the accused was taken over on 11th March, 2006 and was produced before the • . , Calcutta court on 13th March, 2006 an Therefore, their Lordships observed; "the occurrence constituting to different transactions give rise to two different cases and the exercise of power under Sections 167(I) and (2) should be in consonance with the object underlying the said provision in respect of each of those occurrences which constitute two difference cases.

Arrest and detention in custody in the context of Section 167(I) &(2) of the Code has to be truly viewed with regard to the investigation of that specific case in which the accused person has been taken into custody. 17. Therefore, for the separate offenc~ the accused has to be tried separately and for that the proceedings will be initiated separately and independent remand can be sought by the accused. 18. In view of the above discussion, we are of the opinion that the view taken by the learned Single Judge of the Calcutta High Court is not correct and we accordingly set side the order of the Calcutta High Court dated 27. 9. 2006 and allow the appeal filed by the State of West Bengal and direct }. the Metropolitan Magistrate to proceed in the matter in accordance with law. RP. Appeal allowed.