ORDER
1. The petitioner is the mother of Billa Komalreddy (hereinafter referred to as “the alleged detenu”). She complains that the alleged detenu was taken by police from her house in the intervening night of March 22-23 at about 4.30 a.m. On enquiries she learnt that the alleged detenu was in Guntur II Town Police Station (Kothapeta). She sent her other son to the Police Station, but he was not permitted to see the alleged detenu. When she herself went to the Police Station she was told by the Station House Officer of the Police Station, the 3rd respondent herein, that the alleged detenu was taken away by the CID Anti Dacoity Cell, Hyderabad, on 4-4-1995. She went to Hyderabad and could see her son on 14-4-1995. She alleges that her son was kept in illegal detenu was arrested on 23-5-1995 he was produced before the VII Addl. Munsif Magistrate, Guntur on 23-5-1995. The learned Magistrate remanded him to judicial custody. She moved an application for bail on May 28, 1995 in Cr. No. 1/92 of Chilakaluripet Rural Police Station. But the application was filed before the learned III Addl. Sessions Judge, Guntur, who granted bail on 25-8-1995. In the Case Diary produced before the Court it was noted that he was involved in 15 cases. She says that pursuant to the order of the learned III Additional Sessions Judge, dated August 25, 1995 he was not released on bail, instead a device was adopted by the authorities to get over the bail order by showing his detention in judicial custody in connection with other alleged crimes and because of the said device he is continuously kept in custody. On these facts the petitioner prays for a writ of habeas corpus declaring the detention of the alleged detenu as illegal and setting him at liberty after producing him before this Court.
2. The Deputy Superintendent of Police, attached to the 2nd respondent, filed a counter-affidavit stating that the alleged detenu is a member of a notorious and dangerous inter-State criminal gangs of dacoits of 10 members who are dangerous criminals armed with firearms and knives. They attack innocent passengers travelling by APSRTC or KSRTC buses by getting into the buses as bona fide passengers and then putting the crew and the passengers in the fear of death of showing pistols and knives and rob them of their valuables. The gang which is operating under the leadership of one Tarla Sankara Reddy, committed as many as 60 offences of robberies in 13 districts of Andhra Pradesh. The earliest offence was registered as Crime No. 89/89 of Chillakallu Police Station of Krishna District. During investigation it came to light that the alleged detenu was involved in as many as 15 crimes and he was accused of the offences under the Indian Penal Code and under the Indian Arms Act. On 23-5-1995 he was arrested when he was hiding himself in the premises of the Zilla Parishad High School of Etukuru village in Guntur District. On his confession huge properties, a revolver and a knife were recovered from him. On the same day he was produced before the VII Additional Munsif-Magistrate, Guntur in Crime No. 1/92 under Section 392 of the Indian Penal Code of Chilakaluripet Rural Police Station. It is admitted that though the bail application filed by the petitioner was initially dismissed by the Magistrate, yet bail was granted by the learned III Additional Sessions Judge, Guntur on 28-5-1995. He further states that the alleged detenu obtained bail in five cases but in one case, viz., Crime No. 6/94 of Suryapet Rural Police Station, Nalgonda District, the bail application was rejected by the learned Magistrate on 9-1-1996 and also by the learned Sessions Judge on 30-1-1996. In view of this fact the alleged detenu is in jail which cannot be said to be an illegal custody. In eight cases investigations were completed and charge-sheets were filed against the alleged detenu in various Courts; out of 15 cases, in 12 cases identification parades were held and the alleged detenu was identified in nine cases by the witnesses. In six cases remand orders were passed by the various courts in connection with various crimes against the alleged detenu. On those facts, it is prayed that the Writ Petition be dismissed.
3. The 3rd respondent, Sub-Inspector of Police of II Town Police Station of Guntur, filed a separate counter-affidavit. He denied that the alleged detenu was taken into custody by the Police on the intervening night of March 22nd and 23rd at about 4.30 a.m. and was lodged in Guntur II Town Police Station (Kothapeta). The allegation that the younger son of the petitioner was not permitted to see the alleged detenu is also denied. So also the allegations that the petitioner approached the Police Station in the first week of April and the 3rd respondent informed her that the detenu was taken away by the CID Anti Dacoity Cell, Hyderabad on 4-4-1995, are denied. He says that after coming to know of the filing of the Writ Petition, he caused enquiries into the matter and came to know that the alleged detenu was taken into custody by the Anti Dacoity Cell Police officials on 23-5-1995 and he was produced before the VII Additional Munsif-Magistrate, Guntur and on the same day he was remanded to judicial custody. He adopted the counter-affidavit filed by the 2nd respondent.
4. Mr. L. Ravichander, the learned counsel for the petitioner, submits that the power under Section 167 of the Code of Criminal Procedure is exercised piece-meal to ensure the detention of the alleged detenu, which is illegal. The methodology adopted by the Police officials in keeping the alleged detenu in jail amounts to detaining him illegally without a proper detention order.
5. It is contended on behalf of the learned Addl. Advocate-General that there cannot be a common remand in all the 15 cases in which the alleged detenu was involved and that as the bail is refused in one case he cannot be released inspite of the fact that bail was granted in the other five cases as the alleged detenu was kept in judicial custody by virtue of a valid remand order passed by the concerned Magistrate, it cannot be said that he was kept in illegal detention without a valid detention order.
6. The short question that arises for consideration in this case is, where a person is accused in many cases of various Police Stations and is lodged in jail, pursuant to the order of remand passed in some of the cases, even though he was released in some other cases, can his retention in jail be treated as illegal detention ?
7. The personal liberty of a person is of paramount importance in all civilised societies. Our constitution regards personal liberty of a person so sacrasant that it is enshrined in Articles 21 and 22 in Part III of the Constitution which deals with fundamental rights. Article 21 reads as under :
“21. Protection of life and personal liberty :-
No person shall be deprived of his life or personal liberty except according to procedure established by law.
It protects the life and personal liberty of an individual irrespective of whether he is a citizen or not and mandates that no person – shall be deprived of his life or personal liberty, except according to procedure established by law.
8. Article 22 of the Constitution grants protection against arrest and detention in certain cases. Clauses (1) and (2) are relevant for our purpose and may be reproduced here :
“22. Protection against arrest and detention in certain cases :-
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest of the Court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.”
9. Clause (2) of Article 22 enjoins that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate and further mandates that no person shall be detained in custody beyond the period of 24 hours of such arrest without the authority of the Magistrate. This is the constitutional obligation on the State, which must be complied with by all those who have to make arrests in discharging their legal duties.
10. Section 56 of the Code of Criminal Procedure directs every Police Officer making arrest without warrant to take or send the person arrested before a Magistrate having jurisdiction in the case or before the officer in charge of a Police Station without necessary delay and of course subject to the provisions as to bail. Section 57 of the Code of Criminal Procedure specifically injucts a Police Officer not to detain in custody a person arrested without warrant for a longer period than, under all the circumstances of the case, is reasonable and specifies that such period shall not exceed 24 hours, exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court. Section 167 of the Code of Criminal Procedure prescribes procedure for steps to be taken by the Officer in charge of the Police Station or the Police Officer making investigation when investigation cannot be completed within 24 hours. Section 167 of the Code of Criminal Procedure is in the following terms :
“167 (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in-charge of the police station or the police officer making the investigation, if he is not below the rank of Sub-Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody, as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction;
Provided that –
(a) The Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, –
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the Police.
Explanation I :- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a) the accused shall be detained in custody so long as he does not furnish bail.
Explanation II :- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention.
2A. Notwithstanding anything contained in subsection (1) or sub-section (2), the Officer in charge of the Police Station or the Police Officer making the investigation, if he is not below the rank of a Sub-Inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and where an order for such further detention of the accused person has been made by a Magistrate competent to make such order; and where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2);
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the Officer in charge of the Police Station or the Police Officer making the investigation, as the case may be.
(3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summon-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.”
11. A reading of sub-section (1) of Section 167 Cr.P.C. shows that on arrest and detention of any person in the custody by a Police Officer, if it appears to him that the investigation cannot be completed within the period of 24 hours fixed by Section 57 Cr.P.C. and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the Police Station or the Police Officer making investigation, not below the rank of Sub-Inspector of Police, has to transmit a copy of the entries in the diary relating to the case as prescribed and forward the accused to the nearest Judicial Magistrate. Sub-clause (2) of Section 167 Cr.P.C. prescribes the scope of the power of the Magistrate to whom an accused person is forwarded. Such Magistrate may have the jurisdiction to try the case or may not have the jurisdiction to try the case but he is vested with power to authorise detention of the accused in the custody of police or judicial custody, as he may think fit, for a term not exceeding 15 days in the whole. This may be done from time to time or at one time. In a case where the Magistrate has no jurisdiction to try the case or commit it for trial, he has the discretion to order the accused to be forwarded to the Magistrate having such jurisdiction if he considers further detention unnecessary. The exercise of power under sub-section (2) is subject to the following conditions. The Magistrate may authorise detention of the accused person otherwise than in the custody of Police beyond 15 days, if he is satisfied that adequate grounds exist for doing so. In other words, the Magistrate can authorise detention in judicial custody beyond the period of 15 days, (i) but not more than 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years; (ii) but not exceeding 60 days where the investigation relates to any other offence. On the expiry of the afore-mentioned period, the accused person has to be released on bail if he is prepared to and does furnish bail. Explanation I, however, declares that notwithstanding expiry of the period mentioned above, the accused shall be detained in custody so long as he does not furnish bail. The same would be the position where the bail has been refused.
12. Two further safe-guards are provided and they are – authorisation in the custody cannot be ordered unless the accused is produced before the Magistrate and that a Magistrate of the II Class, unless specially empowered in this behalf by the High Court, cannot authorise detention in the custody of police.
13. Sub-section (2A) of Section 167 Cr.P.C., inserted by Act 45 of 1978, is enacted to meet the situation where the judicial Magistrate is not available; it enables such a Police Officer to transmit to the nearest Executive Magistrate, on whom the powers of Judicial Magistrate or Metropolitan Magistrate have been conferred a copy of the entry in the diary relating to the case and forward the accused to such an Executive Magistrate. The Executive Magistrate is empowered to authorise the detention of the accused in such custody as he may think fit for a term not exceeding seven days in the aggregate. On the expiry of such period of detention so authorised the accused person has to be released on bail except where an order for further detention of the accused person has been made by a competent Magistrate, the said period has to be taken into account for computing the period mentioned above. A duty is cast on the Executive Magistrate to transmit the records of the case, together with copy of entries received by him from the Police Officer to transmit the same to the nearest Judicial Magistrate. If a Magistrate authorises detention of the accused person in the custody of the Police, he has to record his reasons for so doing and he has to forward a copy of the order to the Chief Judicial Magistrate, unless the Magistrate making the order is himself the Chief Judicial Magistrate.
14. In Directorate of Enforcement v. Deepak Mahajan , the Supreme Court dealing with the scope of Section 167 of the Code of the Criminal Procedure, observed in Para 40 thus :
“The caption of Section 167 reads “Procedure when investigation cannot be completed in twenty-four hours”. A conjoint reading of Section 57 (corresponding to Section 61 of the old Code) and Section 167 (1) and (2) barring the provisos to sub-section (2) of the Code together, manifestly shows that the legislature has contemplated that the investigation of the offence in case of a person arrested without a warrant should be completed in the first instance within twenty-four hours and if the investigation cannot be completed within that period, then the Magistrate can authorise the detention of the accused in such custody as he thinks fit for a term not exceeding 15 days,”
In Para 46 it further pointed out :
“Section 167 is one of the provisions falling under Chapter XII of the Code commencing from Section 154 and ending with Section 176 under the caption ‘Information to the Police and other powers to investigate’. Though Section 167 (1) refers to the investigation by the police and the transmission of the case diary to the nearest Magistrate as prescribed under the Code etc., the main object of sub-section (1) of Section 167 is the production of an arrestee before a Magistrate within twenty-four hours as fixed by Section 57 when the investigation cannot be completed within that period so that the Magistrate can take further course of action as contemplated under sub-section (2) of Section 167.”
15. From the above discussion it follows that the above provisions of the Code of Criminal Procedure ensure compliance with the constitutional mandate contained in clauses (1) and (2) of Article 22 so that an arrestee should not be kept in the custody of the police beyond 24 hours without producing him before a Magistrate.
16. Thus in a case where a person is accused in more cases than one, the officer in charge of the Police Station or the Investigating Officer, not below the rank of Sub-Inspector, has to produce the accused in each case and obtain order as to remand in the police custody or otherwise. In our view the above provisions cannot be so construed as to enjoin the Police Officer to produce the accused in all the cases at one and the same time and obtain one order of remand; in some cases even it may not be beneficial to the accused himself. Where the offences are committed within the jurisdiction of various Police Stations or where a single agency like the Anti Dacoity Cell, is entrusted with the task of investigation and prosecution of the accused persons, no different principle for production of the accused person or obtaining order of remand can be laid down. Where the accused person is lodged in jail pursuant to an order passed by any Magistrate and his application for bail is rejected in a case or in one of the several cases filed against him or where he does not obtain or apply for bail, his detention in jail, commonly known as ‘judicial custody’, cannot be held to be illegal.
17. Reverting to the facts of this case, the alleged detenu is said to be involved in 15 cases; out of these cases he was remanded to judicial custody in six cases. Though he was granted bail in five of the six cases, in the sixth case his bail application was rejected both by the learned Magistrate as well as the learned Sessions Judge. In these circumstances it cannot be held that the alleged detenu who is lodged in jail, is in illegal custody.
18. Having regard to the facts and circumstances of the case and having taken note of the fact that an application has been filed before this Court for permission to try all the cases together and also the fact that the petitioner was identified in nine out of fifteen cases, in as many as eight cases charge-sheets have been filed, it would be just and appropriate that the trial should be commenced and concluded as expeditiously as practicable.
19. For the afore-mentioned reasons, the Writ Petition deserves dismissal and accordingly we dismiss the same.
20. Petition dismissed.