Criminal Misc. Application No. 5455 of 1982. Case: Bholey alias Jaswant Singh and Anr. Vs State of U.P. and Anr.. High Court of Allahabad (India)

Case NumberCriminal Misc. Application No. 5455 of 1982
CounselFor Appellant: Lal Vijai Singh and V.B. Singh, Advs. and For Respondents: A.G.A. and R.R.K. Trivedi, Adv.
JudgesP.N. Bakshi, J.
IssueUttar Pradesh Police Regulation - Section 121; Code of Criminal Procedure, 1973 - Sections 438(2), 482; Indian Penal Code - Sections 142, 147, 148, 149, 201, 302, 307, 404
Citation1982 AWC 897
Judgement DateNovember 18, 1982
CourtHigh Court of Allahabad (India)

Judgment:

P.N. Bakshi, J.

  1. Applicants Bholey alias Jaswant Singh and Kalloo are co-accused in case crime No. 141/82 State v. Balbir and Ors. Under Sections 147, 148, 149, 302, 307, 404, 201 & 142, IPC, of Police Station Atarra. The case is under investigation. The applicants along 18 others surrendered before the Magistrate on 23rd August, 82 and were ordered to be taken in Judicial custody. On 24th August, 1982, Station Officer Atarra moved the court for the remand of the two applicants in police custody, for a period of 5 days in connection with the investigation and recovery of the gun, cartridges etc. used in the commission of the crime. On 25th August, 1982, applicants filed their affidavits asserting that they had received information that the looted articles were handed over to the police by the complainant and that these things were in possession of the police who wanted to plant them as recovery from the accused-applicants. They alleged that the police would harass and intimidate them and give them a severe beating in order to extort their confession. They did not have any knowledge of the incriminating articles. The Magistrate heard both the parties and examined the case diary. He passed an order on 28th August, 1982 remanding the accused to police custody for 3 days. By the same order he directed that the accused be medically examined before being given in police custody and thereafter again on their return. Aggrieved by this order, a revision was filed before the Sessions Judge which is still pending there. It also appears that the applicants moved this Court by way of an application under Section 482 Code of Criminal Procedure on 30th August, 82. This application was admitted and an interim order passed by this Court staying the operation of the order of the Munsif-Magistrate dated 28th August, 1982. In these circumstances, the instant application has come up before me for (disposal.

  2. I have heard learned Counsel for both the parties at considerable length. I have also perused the affidavits, counter affidavits, and the annexures filed by the parties. I have also examined the relevant case law, which has been cited by counsel of either side.

  3. The applicant's counsel did not dispute that an accused held in judicial custody by the order of the Magistrate, could subsequently be given in police custody. What he stressed was that in the instant case the circumstances were such that the applicants should not have been given in police custody. He argued that since the applicants have taken-up this stand that they do not know anything about the incriminating articles, they could not be compelled to make a statement against themselves which itself is incriminatory. The applicants apprehended that they would be tortured and the police would apply third-degree method in order to plant recoveries of incriminating articles at their pointing out.

  4. Counsel for the State has on the other hand argued that the impugned order of the Magistrate dated 28th August, 82 was an order in accordance with law and the same had been passed by the Magistrate after perusing the case diary. He was satisfied that there was sufficient ground for remanding the accused in police...

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