Criminal writ Petn. No. 1419 of 1993. Case: Mohamad Ahmed Yasin Mansuri Vs State of Maharashtra through D.C.B. C.I.D. Bombay. High Court of Bombay (India)
| Case Number | Criminal writ Petn. No. 1419 of 1993 |
| Counsel | For Petitioner: Ram Jethmalani with Mahesh Jethmalani with Miss. Reshma Ruparel and L. P. Kanal, Advs. and For Respondents: R. F. Lambay, Addl. Public Prosecutor, Advs. |
| Judges | A. C. Agarwal , J. and I. G. Shah , J. |
| Issue | Criminal Procedure Code (2 of 1974) - Sections 57, 73, 167, 204, 309; Constitution of India - Articles 20(3), 226, 227; Terrorist and Disruptive Activities (Prevention) Act (28 of 1987) - Sections 19(1), (2) |
| Citation | 1994 CriLJ 1854 |
| Judgement Date | January 20, 1994 |
| Court | High Court of Bombay (India) |
Judgment:
Ashok Agarwal, J.:-
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The question of law that arises in the case and which has been argued before us at great length is, whether the Court has power and discretion while remanding the accused to custody under Section 309, Criminal Procedure Code to remand him into police custody. To put the question in other words, whether the Court has to remand an accused, while dealing with an offence which it has taken cognizance of, only to judicial or jail custody and has no discretion whatever under any circumstances to remand him to police custody. A further question that has been agitated is in respect of the powers conferred on the High Courts under Articles 226 and 227 of the Constitution of India. The question, being, whether the limitations in respect of jurisdiction of Courts, as provided in Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 No. 28 of1987 (hereinafter for the sake of brevity referred as "TADA Act") would affect the exercise of the power or the jurisdiction conferred under Arts. 226 and 227 of the Constitution of India. These questions have arisen on the following facts.
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On the 12th of September, 1992 offences of murder and other related offences was committed. The offence is what is now known as "J.J. Hospital Shoot-out Case". The offence was initially registered by the Byculla Police Station vide its Crime Register No. 446 of 1992. The investigation was, thereafter, taken over by the D.C.P., C.I.D. under its Crime Register No. 217 of 1992. On the 30th of March, 1993 an application was filed for issue of non-bailable warrants for arrest of the accused involved in the offence. By an order passed on the 1st of April, 1993 order issuing non-bailable warrants was passed. On the 6th of August, 1993 a charge-sheet was filed before the TADA Court and a case was registered being Special Case No. 31 of 1993. The charge-sheet contained the names of several accused, some of them being before the Court and some others were shown as absconding. Petitioner before us was one of the accused who was shown as abscondding. On the very day i.e. on the 6th of August, 1993, the learned Judge of the designated Court took cognizance of the offence.
3. On the 24th of October, 1993, petitioner came to be arrested by the C.B.I., Delhi in connection with some other offence. On receiving information in respect of the petitioner's arrest the D.C.P., C.I.D. in Bombay on the 2nd of November, l993 filed an application before the Designated Court for waarrants of arrest and production of the petitioner before it. On the 5th of November, 1993 an order issuing warrants of arrest and production of the petitioner was passed and the same was served on the petitioner in due course after obtaining permission of the Chief Metropolitan Magistrate, Delhi. On the 19th of November, 1993 the petitioner was brought to Bombay and handed over to the D.C.P., C. I.D. Bombay. On 20th of November, 1993 the petitioner was produced before the Designated Court. On that day, an application was filed by the prosecution for remand of the petitioner to police custody. By an order passed on the 30th of November, 1993 the learned Judge of the Designated Court was pleased to remand the petitioner to police custody. By the very same order, the learned Designated Judge held his order in abeyance till the 3rd of December, 1993 possibly in order to enable the petitioner to challenge his order in superior Court and to pray for interim reliefs. -
The petitioner has, thereafter, preferred the present Criminal Writ Petition. By an order passed on the 3rd of December, 1993 the learned single Judge Tipnis, J. continual the stay granted by the designated Court till further orders. On the 7th of December, 1993 Tipnis, J. refered the petition to a larger bench by passing the following order.
After having heard Mr. Jethmalani, leaned counsel appearing for the petitioner, and Mr, Lambay, Addl. Public Prosecutor, at some length and having considered the Peculiar facts and circumstances of the case and the importance of the matter regarding maintainability of the petition against the order passed by the judge of the Designated Court under the T.D. A.A. Act and in view of the legal position qua the powers of the Court under Sections 167 and 309 of the Cr. P.C. 1 am of the view that it is expedient that the matter is dealt with by a Division Bench of this Court rather than by single Judge......
The petition was, thereafter, placed before a Division Bench consisting of G. D. Kamat and Patankar, J.J. and rule was issued subject to the maintainability of the petition. It is in these circumstances that the petition is taken up by us for hearing and final disposal.
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Before the petition was taken up for hearing on merits, we enquired with Shri Lambay, the learned Addl. Public Prosecutor, whether he would be satisfied if the petitionei is handed over to the police during day time for certain number of days in order to facilitate investigation against the accused. During the course of hearing, Shri Jetmalani, the learned counsel appearing on behalf of the petitioner offered, and in fact made a with prejudice statement, that the petitioner can be handed over to the notice during specified hours of the day, during day time in order to facilitate investigation as against him. Shri Lambay, however, has declined the offer and has insisted that unless police custody is given effective progress in the investigation will not be possible.
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Shri Jethmalani, the learned counsel appearing on behalf of the petitioner has submitted that Section 309 of Criminal Procedure Code leaves no discretion in a Court and the only order that can be passed, after cognizance of an offence has been taken, is to admit the accused on bail or to remand him to judicial custody. According to Mr. Jethmalani, the power of granting police custody can only be exercised at a stage prior to the traking of the cognizance of an offence and the said power can be found in Section 167 of the Code of Criminal Procedure. However, once the investigation is complete and a chargesheet is filed, the provisions of Section 309 come into operation and subsection (2) of Section 309 leaves no discretion in a Court, The only course open is to remand the accused to judicial custody. Shri Jetmalani has conceded that it may be that the prosecution may require some time for making more and further investigation to enable the police to complete the investigation but that does not mean that the petitioner should be remanded to police custody. According to him, it is always open to the investigating agency to apply, while the petitioner is in jail custody, for permission to have the custody during the specified hours of the day for the purpose of carrying out the necessary investigation. According to him, judicial custody does not mean that the police cannot interrogate the accused in jail, that they can always do with the permission of the Court. Even if an accused is prepared to make a confession leading to a discovery that can also be done while he is in judicial custody. Thus, all reasonable investigation is possible even if the petitioner is in jail custody. According to him, jail custody is contemplated for avoiding unfair and undesirable methods of investigation by the police. Remitting the petitioner from jail into the custody of the police would result in encouraging such matters. The intendment of the Code is clearly against this. Hence, whereas Section 167 confers the discretion of granting either judicial custody or police custody the said discretion is completely absent in Section 309 of the Code. Section 309 postulates only judicial custody and nothing else. It does not contemplate any exceptions and to say that the Court has discretion to remand the accused to police custody in extra-ordinary cases is to read something into Section 309 which is not there. Hence, according to Shri Jethmalani, the order passed by the Designated Court granting police custody remand is without jurisdiction and is liable to be set aside.
6A. On the question of jurisdiction of this Court under Articles 226 and 227 of the Constitution Shri Jethmalani has made it clear that he is not impugning the order of the Designated Court on merits. He is not impugning a discretionary order passed by the Designated Court. He is challenging the very jurisdiction of the Desginated Court to grant police custody remand. According to Shri Jethmalani, it has now been well settled that an order of bail is an interlocutory order. Hence, if the granting or refusing bail is an interlocutory order an order imposing terms for grant of bail or imposing the nature of custody either judicial or police, is all the more a discretionary order. In the circumstances, no appeal can lie to the Supreme Court under Section 19 (1) of the TADA Act. As far as sub-section (2) of Section 19 is concerned, it no doubt bars an appeal or revision to any Court. That, however, cannot and does not in any way abridge the powers bestowed upon the High Court under the Constitution. If sub-section (2) of Section 19 were to do so, the said provision itself would become ultra vires and would be liable to be quashed. A power conferred by the Constitution cannot be tinkered with by a legislation of the Parliament or of a State Legislature. The same can only be done by another Constitutional amendment. Even if it were to be held that there is an alternative remedy open to the petitioner which, according to Shri Jethmalani, there is none, the same can be no bar to the power of the High Court to interfere when the order impugned is without jurisdiction.
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Shri Lambay, the learned Additional Public Prosecutor, contends that the learned Judge of the Designated Court has enough discretion under Section 309 Criminal Procedure Code to remand the accused to police custody. According to him, it would he unjust and unfair to hold that Section 309, in no...
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