ORDER
Manjula Chellur, J.
1. Heard the learned Special S.P.P. for the petitioner-State and the learned Counsel for the respondent and perused the records.
2. This Criminal Petition is filed seeking grant of police custody of the respondent herein in crime No. 1100/02 (C.C. No. 37/2003) for interrogation and recovery of incriminating materials in the said crime.
3. Earlier to the registration of this crime, crime No. 545/00 on the file of the Upparpet Police Station, came to be registered against the respondent herein. In the said case, the respondent was housed in Central Prison. As per the body warrant at the instance of the State the respondent/accused was produced in Crime No. 1100/02 on 25.10.2002. The order sheet pertaining to the said case would reveal he was produced under body warrant and then he was sent to judicial custody. On the very same day, an application came to be filed by the investigating Officer seeking police custody of the respondent herein. The learned Counsel for the respondent filed his power for respondent herein/accused No. 1 and sought time to file his objections on the application for police custody of the respondent/accused.
4. In S.C. No. 430/2002 (Crime No. 545/00), an order came to be passed by the learned Sessions Judge permitting this respondent to be taken to Mumbai for his production on 28.10.2002 before the Addl. Chief Metropolitan Magistrate, III Court, Esplanade, Mumbai, as per the production order issued in C.C. No. 200/P/2002. Meanwhile, the respondent filed his objections on the application seeking police custody by the State. On 4.11.2002, when the respondent was still at Mumbai in relation to a different case at Mumbai, an order came to be passed and the relevant portion reads as under:
“A1 Abdul Kareem Lal is ordered to be given to the Police custody of M.K. Ganapathy, Asst. Commissioner of Police, City Crime Branch, Bangalore for a period of 10 days commencing from the day on which A1 would be brought back to Central Jail, Bangalore from Bombay, on or before 08.11.2002 (since J.C period for 15 days comes to an end on 8.11.2002) since it is reported that Bombay police on the basis of the body warrant issued by the Sessions Court, Bombay, have taken away A1 to Bombay from Central Jail, Bangalore”.
5. As on the date of passing of this order, the learned Magistrate was aware that the respondent was neither in police custody nor in judicial custody so far as crime No. 1100/02 or crime No. 545/00 (Section 430/02). However, the fact remains, the respondent herein was never brought to Bangalore as mentioned in the orders of the learned Magistrate dated 4.11.02 before 8.11.02. On the other hand, the respondent was brought to Bangalore from Mumbai only in the month of January 2003. On 24.1.2003, another application came to be filed Under Section 167 Cr.P.C by the Investigating officer, requesting for remand of the respondent to police custody from 24.1.03. An order came to be passed on 6.2.03 rejecting the prayer of the petitioner. The learned Judge observed that the Investigating Officer did not bring to the notice of the Court either on 7.11.02 or on 8.11.02 that respondent was never brought back from Mumbai to Bangalore on or before 8.11.02 and therefore, the order could not be enforced. The other reason for rejecting such prayer is that beyond the first 15 days of remand to judicial custody, the accused cannot be remanded to police custody.
6. Aggrieved by the said order, the present petition is filed challenging the orders dated 6.12.2003.
7. Sri B.R. Nanjundaiah Learned Special Public Prosecutor for the petitioner-State submitted that the lower court was wrong in not noticing the memo filed by the Investigating officer on 8.11.02 explaining the facts and circumstances under which they could not be put into action regarding police custody of the respondent as per the orders dated 4.11.02, certified copy of the said memo is filed along with the petition which goes to show that on 8.11.02, the respondent/accused was not brought back to Bangalore from Mumbai. So far as the other contention is concerned, he brought to the notice of the Court Section 167 Cr.P.C and Section 309 Cr.P.C. and also placed reliance on several decisions, which would be mentioned hereinafter. He further submitted having regard to the nature of offence, where crores of rupees are involved affecting the economy of the nation, the learned Magistrate ought to have ordered remand of the respondent to police custody.
8. As against this, learned Counsel for the respondent/accused contended that after the orders of the learned Magistrate on 6.2.03, the State slept over the matter for two months and there are no bonafides in the present petition. He further submitted though the Court has taken cognizance of the offence, no progress is made on account of the delay tactics played by the petitioner-state. The materials collected so far do not point any nexus between the offence and the respondent. The respondent herein is implicated in three cases within the State of Karnataka. When once the Court has taken cognizance, at this stage when the charge sheet is filed, the Court should not remand the accused to police custody in a mechanical way. That apart, the accused is suffering from serious ailment and handing him over to police custody for further interrogation would worsen his illness and it is nothing but an intention to cause harassment. The power to further investigate the matter do not vest the petitioner-State to re-arrest and take the respondent into their custody. With these contentions, he sought for dismissal of the petition and he also placed reliance on the decision, which would be referred to in the later part of the order.
9. On perusal of the entire record, it is noticed the first crime number came to be registered against the respondent herein and others is in Crime No. 545/00 which case is already committed to the Court of Sessions and numbered as S.C. No. 430/2002. The case is registered for the offences punishable under Sections 255, 256, 257, 258, 260, 420 r/w 120(5) IPC. When the respondent was housed in the Central Prison, Bangalore, pertaining to S.C. No. 430/02, the Investigating Agency came across similar crime committed by him while he was very much in the Central Prison at Bangalore i.e. this respondent along with others involved in the distribution of fake stamps and also distribution of proceeds from the sale of fake stamps amounting to crores of rupees. It is also alleged that the proceeds by sale of fake stamps are deposited at various banks in the country which is known to the respondent herein alone.
10. It may be a fact that the nature of the offences alleged in these two crime numbers against the respondent herein are one and the same but they pertain to different periods and the cause of action is different. Several cases are pending against this respondent not only in the State of Karnataka but also in the state of Andhra Pradesh, Chennai and Maharashtra. Certain incriminating material and information are collected by the Investigating Officer, which deserves to be confronted to the respondent/accused. Therefore, they are seeking for police custody of the respondent. It is noticed the respondent is in the Central Prison pertaining to S.C. No. 430/02 (Crime No. 545/00). When the order of police custody came to be passed and subsequently, the period for which the police custody was given, this respondent was not at all available as stated above. In other words, the Investigating Agency was not able to take the benefit of the order dated. 4.11.02. The question is whether he could be ordered to police custody for interrogation in Crime No. 1100/02 (CC. No. 37/03).
11. Learned Counsel for the petitioner – State placed reliance on the following decisions:
1. (S. HARSIMRAN SINGH v. STATE OF PUNJAB), 1984 Crl.L.J 253.
There is no inflexible bar against a person in custody with regard to the investigation of a particular offence being either re-arrested for the purpose of the investigation of an altogether different offence. In other words, there is no insurmountable hurdle in the conversion of judicial custody into police custody by an order of the Magistrate under Section 167(2) of the Code for investigating another offence. Therefore, a re-arrest or second arrest in a different case is not necessarily beyond the ken of law. Arrest and detention in custody in the context of Section 167 has to be truly viewed with regard to the investigation of the specific case in which the accused person has been taken into custody. To visualise it as an abstraction in which the rearrest of a person in custody for another offence would become ‘metaphysically impossible, would not be proper. Therefore, the utterly literal emphasis on the opening words of Section 167 is uncalled for, and if the result of such a literal construction would lead to anomalous and glaringly mischievous results, then the same must necessarily be avoided in favour of the view which advances the purpose of the statute rather than frustrating it.
Custody by the police cannot be said to be a matter wholly irrelevant to the investigation of an offence. It cannot be said that the investigation into a series of offences must go on and be conducted in jail premises alone or only when the accused is in the custody of jail officials once the period of 15 days has been exhaused with regard to one single case. It cannot be said that the code in any way inhibits the police custody of an accused person for purposes of investigation or that the jail custody cannot be converted to police custody by an order of the Magistrate under Section 167.
It cannot be said that once the powers conferred by the first part of Section 167(2) of the Code have been exercised by a Magistrate, they become exhausted and cannot be revived and further that an accused cannot be in magisterial custody in one case and police custody in another.
Criminal Judicial process is part and parcel of the trial procedure and if an accused person chooses willingly surrender himself in the court custody, the same cannot be viewed with any disfavour or to compel him to seek the tender mercies of police custody directly.
2. C.B.I. SPECIAL INVESTIGATION CELL-I, NEW DELHI v. ANUPAM J. KULKARNI, 1992 S.C.C (CRI) 554
Whenever any person is arrested under Section 57 Cr.P.C. he should be produced before the nearest Magistrate within 24 hours as mentioned therein. Such Magistrate may or may not have jurisdiction to try the case. If Judicial Magistrate is not available, the police officer may transmit the arrested accused to the nearest Executive Magistrate on whom the judicial powers have been conferred. The Judicial Magistrate can in the first instance authorise the detention of the accused in such custody i.e. either police or judicial from time to time but the total period of detention cannot exceed fifteen days in the whole. Within this period of fifteen days there can be more than one order changing the nature of such custody either from police to judicial or vice-versa. If the arrested accused is produced before the Executive Magistrate, he is empowered to authorise the detention in such custody either police or judicial only for a week, in the same manner namely by one or more orders but after one week he should transmit him to the nearest Judicial Magistrate along with the records. When the arrested accused is so transmitted the Judicial Magistrate, for the remaining period, that is to say excluding one Magistrate, may authorise further detention within that period of first fifteen days to such custody either police or judicial. After the expiry of the first period of fifteen days the further remand during the period of investigation can only be in judicial custody. There cannot be any detention in the police custody after the expiry of first fifteen days even in a case where some more offences either serious or otherwise committed by him in the same transaction come to light at a later stage. But this bar does not apply if the same arrested accused is involved in a different case arising out of a different transaction. Even if he is in judicial custody in connection with the investigation of the earlier case, he can formally be arrested regarding his involvement in the different case and associate him with the investigation of that other case and the Magistrate can act as provided under Section 167(2) and the proviso and can remand him to such custody as mentioned therein during the first period of fifteen days and thereafter in accordance with the proviso as discussed above. If the investigation is not completed within the period of ninety days or sixty days then the accused has to be released on bail as provided under the proviso to Section 167(2). The period of ninety days or sixty days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the police. Consequently, the first fifteen days mentioned in Section 167(2) has to be computed from the date of such detention and after the expiry of the period of first fifteen days it should be only judicial custody.
3. (KOSANAPU RAMREDDY v. STATE OF ANDHRA PRADESH AND ORS.), 1994 CRI.L.J. 2121: –
2. In this petition under Article 32 of the Constitution of India the legality of the order dated 3.6.92 made by the Designated Court directing the accused person, a certain Ashok Reddy against whom a case under the Terrorists and Disruptive Activities (Prevention) Act, 1987 is registered and is under investigation, be handed over from Judicial custody to Police custody for a period of three days for purposes of investigation of the case is assailed. The learned Magistrate before whom the accused person was initially produced for detention pending investigation had ordered the accused to judicial custody. Thereafter, an application was made before the Designated Court for police custody for purposes of investigation. It is not disputed that the impugned order dated 3.6.1992 made by the Designated Court was well within the period of 60 days. Section 20 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 enlarges the period of 15 days referred to in Sub-section (2) of Section 167 of the criminal procedure Code, into 60 days – had not expired. The circumstances that the operation of the order was subsequently stayed by this Court in these proceedings and that during the period of such stay the sixty days period has run out does not affect the validity and efficacy of the order dt. 3.6.1992 if the challenge thereto fails.
4. We have considered the submissions of learned Counsel on both sides. That a person held in judicial custody could, if circumstances justify, be transferred to police custody or vice-versa within a period of 15 days referred to in Section 167(2) of the Criminal Procedure Code, 1973 – which by virtue of Section 20 of the Terrorists and Disruptive Activities (Prevention) Act, 1987, is to be read as 60 days in this case – cannot be disputed. There must, of course, be sufficient grounds for such a change of custody. In the present case, having regard to the nature of offence and the stage of the investigations, it cannot be said that grounds for such custody do not exist.
4. (STATE THROUGH C.B.I. v. DAWOOD IBRAHIM KASKAR AND ORS.),
There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to Section 309(2) are different from detention in custody under Section S AND DIS. While remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since, however, even after cognizance is taken of an offence, the police has a power to investigate into it further, which can be exercised only in accordance with Chapter XII, there is no reason whatsoever why the provisions of Section S AND DIS thereof would not apply to a person who comes to be later arrested by the police in course of such investigation. If Section 309(2) is interpreted – to mean that after the Court takes cognizance of an offence it cannot exercise its power of detention in police custody under Section S AND DIS, the Investigating Agency would be deprived of an opportunity to interrogate a person arrested during further investigation, even if it can on production of sufficient materials, convince the Court that his detention in its (police) custody was essential for that purpose. Therefore, the words “accused if in custody” appearing in Section 309(2) refer and relate to an accused who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further investigation. So far as the accused in the first category is concerned he can be remanded to judicial custody only in view of Section 309(2), but he who comes under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the Court which has taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfillment of the requirements and the limitation of Section 167.
5. In an unreported decision of High Court of Bombay in Criminal Application No. 4623 of 2002, to stress on the point when fresh material has been obtained against the accused, further interrogation of the respondents is required to be carried out in police custody.
12. Learned Counsel for the respondent/accused placed reliance on:
(SMT NANDINI SATPATHY v. P.L. DANI AND ANR.),
HELD: A Police Officer is clearly a person in authority. Insistence on answering is a form of pressure especially in the atmosphere of the police station unless certain safeguards erasing duress are adhered to. Frequent threats of prosecution if there is failure to answer may take on the complexion of undue pressure violating Article 20(3). Legal penalty may by itself not amount to duress but the manner of mentioning it to the victim of interrogation may introduce an element of tension and tone of command perilously hovering near compulsion. Self-incrimination or tendency to expose one-self to a criminal charge is less than ‘relevant’ and more than ‘confessional’. Irrelevance is impermissible but relevance is licit but when relevant questions are loaded with guilty interfere in the event of an answer being supplied, the tendency to incriminate springs into existence. The accused person cannot be forced to answer questions merely because the answers there to are not implicative when viewed in isolation and confined to that particular case. He is entitled to keep his mouth shut if the answer sought has a reasonable prospect of exposing him to guilt in some other accusation actual or imminent, even though the investigation under way is not with reference to that. However, fanciful claims, unreasonable apprehensions and vague possibilities cannot be the hiding ground for an accused person. He is bound to answer where there is no clear tendency to criminate.
13. From the above discussions and on going through the principles laid down in the above decisions, it is seen though the learned Magistrate ordered for police custody of this respondent, the same could not be put into effect as the respondent herein was brought to Bangalore only in the month of January 2003 i.e., 24-1-03. Immediately on 24.1.03, another application was filed. On both the occasions, learned Magistrate as per Karnataka Criminal Rules of Practice has notified the said requisitions of the investigating officer to the respondent and on hearing the objection, has disposed of the matter. The respondent is represented by a Counsel before this Court as well. Though on 6.2.03 an order came to be passed, they could file this petition on 10.4.02 on account of administrative procedures that had to be followed for sanction by the Government to prefer the petition under Section 482 Cr.P.C before this Court. Meanwhile, the charge sheet is filed in this case but further investigation is being carried on with permission.
14. It is alleged against this respondent that when he was placed in Central Prison, Bangalore pertaining to a crime, had committed the crime in question inside the Central Prison by using mobile phones etc. along with his associates and amassed wealth amounting to more than 200 crores of rupees. When he is lodged in the Central Prison this came to the notice of the Investigating officer and he suo moto registered present crime number.
15. From the discussions and keeping in mind the principles laid down in the above decisions, it becomes clear that the limit for police custody prescribed under Section 167(2) of the Code continues to be a period not exceeding 15 days in the whole for investigation would definitely apply to single case and is not attracted when the accused is involved in series of different cases. It may be a fact the investigation is against the same accused for the same nature of offences, but they are all different cases. It is alleged in the present case when the respondent is arrested in one case where he is in custody already, some more similar offence are committed , but not in the same case, but at different point of time at different places.
16. Even if cognizance of the offence is taken, the police have every power or right to investigate further. The learned Counsel for respondent fairly admits that from the beginning till this day, the respondent is in custody in Crime No. 545/00 (Section 430/02) only. Therefore, respondent was never taken to custody in this matter. Under these circumstances, especially having regard to the fact the order dated. 4.11.02 could never be put into effect for the reasons mentioned above, the present petition deserves to be allowed. Accordingly, the petition is allowed setting aside the order dated 6.2.03. Accordingly, I proceed to pass the following:
ORDER
Respondent herein Abdul Kareem Telgi @ Kareem Lala, is ordered to be given to police custody i.e. Sri M.K. Ganapathy, the Asst. Commissioner of Police and Investigating officer, CCB, Bangalore, for a period of 10 days commencing from 06.08.2003 to 15.08.2003. The above said order granting police custody is subject to following terms and conditions:
a) The Investigating Officer concerned is directed to keep in mind and take utmost care of the ailment of the respondent/accused No. 1 and he shall consult the concerned Medical Expert (cardiology) whenever he intends to take respondent outside Bangalore for the purpose of interrogation during investigation;
b) He is further directed that during the period of police custody, the Investigating Officer shall get the respondent herein examined by medical expert atleast once in 24 hours.
c) He is further directed to get such medical examination as and when required during the period in police custody;
d) The respondent shall not be subject to any harassment or maltreatment either physical or mental, during such custody;
e) The respondent is also at liberty to seek legal consultation from any lawyer of his choice prior to interrogation by the Investigating Officer during such custody period either at Bangalore or outside Bangalore;
f) The Investigating Officer shall not use any illegal methods of interrogation either at his instance or at the instance of anyone else;
g) The Investigating Officer is directed to produce the respondent before the concerned learned Magistrate before the end of 10th day of police custody from the date of taking him to police custody;
h) The order of police custody comes to an end on 15.08.2003.
Issue necessary directions to the superintendent of Central Prison, Bangalore, to hand over the respondent to the custody of Sri M.K. Ganapathi, Asst. Commissioner of Police & Investigating Officer, CCB, Bangalore.