{"id":238930,"date":"2007-04-25T00:00:00","date_gmt":"2007-04-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-west-bengal-vs-dinesh-dalmia-on-25-april-2007"},"modified":"2017-07-11T01:33:25","modified_gmt":"2017-07-10T20:03:25","slug":"state-of-west-bengal-vs-dinesh-dalmia-on-25-april-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-west-bengal-vs-dinesh-dalmia-on-25-april-2007","title":{"rendered":"State Of West Bengal vs Dinesh Dalmia on 25 April, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of West Bengal vs Dinesh Dalmia on 25 April, 2007<\/div>\n
Author: A Mathur<\/div>\n
Bench: A.K.Mathur, Tarun Chatterjee<\/div>\n
           CASE NO.:\nAppeal (crl.)  623 of 2007\n\nPETITIONER:\nState of West Bengal\n\nRESPONDENT:\nDinesh Dalmia\n\nDATE OF JUDGMENT: 25\/04\/2007\n\nBENCH:\nA.K.MATHUR & TARUN CHATTERJEE\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising out of SLP(Crl.) No. 5124\/06)
\nA.K. MATHUR, J.\n<\/p>\n
Leave granted.\n<\/p>\n
 This appeal is directed against the order dated 27.9.2006
\npassed  in A.S.T. No.570  of 2006 by the Calcutta High Court
\nwhereby  the  learned single Judge of the High Court has set aside
\nthe order dated 16.6.2006 passed  by  the learned Chief
\nMetropolitan Magistrate, Calcutta and  directed the  5th Court  of
\nMetropolitan Magistrate, Calcutta to  consider the matter afresh
\nand  pass necessary order in the light of observation  made by the
\nCourt.\n<\/p>\n
Aggrieved against this order dated 27.9.2006 passed by
\nlearned Single Judge,  the present S.L.P. was  preferred by the
\nState of West Bengal.\n<\/p>\n
Brief facts giving rise to this appeal are  that the
\nRespondent, Dinesh Dalmia filed a petition  under Section
\n397\/482 of the  Code of Criminal Procedure, 1973 in the High
\nCourt of Calcutta  for setting  aside the order  of 27th May,
\n2006 and 16th June, 2006 passed by the  learned Chief
\nMetropolitan Magistrate, Calcutta and  the learned 5th Court of
\nMetropolitan Magistrate, Calcutta respectively in connection
\nwith GDD 476 dated 24.9.2002  corresponding to G.R.No. 2001
\nof 2002 being investigated by  Detective Department (Special
\nCell)  Lalbazar  pending  before the 5th Court of Metropolitan
\nMagistrate, Calcutta.\n<\/p>\n
The Secretary  of the Calcutta Stock Exchange Association
\nLimited lodged a written complaint with the  Hare Street Police
\nStation on 9th September, 2002  alleging  a commission of
\noffences under Sections 120B\/4 20\/409\/467\/468\/471\/477A of
\nthe Indian Penal Code  against Harish Chandra Biyani  and  others.
\nThe  complaint was treated as First Information Report and  was
\nregistered at Park Street P.S. case No. 476 dated 24.9.2002
\nunder the aforesaid Sections of the I.P.C..  Thereafter, the
\ninvestigation  of the case  was taken up by the Detective
\nDepartment.  During the course of the investigation,
\nInvestigating Officer prayed for issuance of warrant of arrest
\nagainst the  respondent on 12th February, 2006.  Prior to that the
\nrespondent  was arrested  in New Delhi by  the Central Bureau of
\nInvestigation, Bank Securities  and  Fraud Cell, New Delhi in
\nconnection with CBI Case No. RC 4(E)\/200 3-BS &F C CBI.    He
\nwas produced before the learned Additional Chief Judicial
\nMagistrate, Tis Hazari.    On  transit  remand,   the  respondent
\nwas produced before the learned Court of Additional Chief
\nJudicial Magistrate, Egmore, Chennai on 14th February, 2006.   In
\nthe mean time, the Investigation Officer  of the present case
\nalso prayed  for issuance of  production  warrant against the
\nrespondent before the  Court of  learned Chief Metropolitan
\nMagistrate Calcutta, as  the  respondent  was arrested and
\ndetained in the  aforesaid  CBI case pending before the Chief
\nMetropolitan Magistrate, Egmore, Chennai.  The  Chief
\nMetropolitan Magistrate, Calcutta by  order dated 13th February,
\n2006  allowed   such prayer of the  Investigating Officer  and
\ndirected that the accused-respondent  be produced before the
\nthe Learned Chief Metropolitan Magistrate, Calcutta on or
\nbefore 22nd February, 2006.  A copy of the said order was sent
\nto the  Court of Additional Chief Metropolitan Magistrate,
\nEgmore, Chennai. On  14th February, 2006, the  order dated 13th
\nFebruary, 2006 passed  by the Chief  Metropolitan Magistrate,
\nCalcutta was brought  to the  notice of  the Additional Chief
\nMetropolitan Magistrate, Egmore, Chennai by the CBI in their
\nfurther remand application.   The Addl.  Chief Metropolitan
\nMagistrate, Egmore, Chennai  observed that the matter of
\nCalcutta Police   would be considered after the  period  of CBI
\ncustody was over.  On 17th February, 2006 the  Investigating
\nOfficer of the  present case  filed an application before the
\nlearned Court of Chief Metropolitan Magistrate, Calcutta
\nintimating that the  accused-respondent was in the custody of
\nCBI till  24th February, 2006 in connection with the aforesaid CBI
\ncases and  sought direction for  production of  the accused-
\nrespondent in Calcutta on or by 8th March, 2006.   The  Court at
\nCalcutta by order dated 17th February, 2006  observed that
\nlooking to the gravity of the offences  complained against the
\naccused-respondent  in the cases pending in Calcutta, he should
\nnot be released  in the CBI cases  at Chennai.    On 23rd February,
\n2006,  the Investigating Officer in the present case filed an
\napplication  before the Magistrate at Egmore, Chennai regarding
\nproduction of the accused-respondent being in the present case
\nbefore  the Court of Chief Metropolitan Magistrate at Calcutta.
\nBy that time, the accused-respondent came to know  that he was
\nwanted in two more cases pending against him in Calcutta.    When
\nthe accused-respondent was in  custody on 27thFebruary, 2006  in
\nconnection with the  CBI case  pending before the Addl. Chief
\nMetropolitan Magistrate, Egmore, Chennai,  he voluntarily
\nsurrendered before the  learned Magistrate, Chennai as he was
\nwanted in connection with the two cases of Calcutta Police.   i.e.
\nCase No. 300\/2002 and  476\/2002.    The  accused respondent
\nsurrendered on 27th February, 2006 and  that was accepted by
\nthe Addl. Chief Metropolitan Magistrate, Egmore, Chennai on the
\nsame date.    But  the Learned Additional Chief Metropolitan
\nMagistrate Egmore,  Chennai   remanded the accused  respondent
\nto the judicial custody till 13th March, 2006.  The learned
\nAdditional Chief Metropolitan Magistrate, Chennai further
\ndirected production of the accused before the Court at Calcutta.
\nAn intimation in this regard was  also forwarded to the  Chief
\nMetropolitan Magistrate, Calcutta along with surrender papers of
\nboth the cases.   An intimation dated 28th February, 2006 was
\nalso forwarded  to the  Hare Street Police Station   and  Park
\nStreet Police Station where  those two cases were pending.
\nThe Investigation Officer requested the  learned Addl.  Chief
\nMetropolitan Magistrate, Egmore, Chennai    for counter
\nsignature on the production warrant issued by the  learned Chief
\nMetropolitan Magistrate, Calcutta.    The  Addl. Chief
\nMetropolitan magistrate,  Chennai counter signed the  production
\nwarrant and served upon the  Jail Superintendent, Egmore,
\nChennai.   On  3rd March, 2006 in response to the prayer made by
\nthe CBI, the learned Magistrate at Chennai directed for
\nconducting of Polygraph, Brain Mapping and Nacro Analysis tests
\non the  accused-respondent.   The learned Magistrate directed
\nthe Superintendent, Central Jail, Chennai to hand over  the
\naccused for  the aforesaid test to Inspector, CBI and  produce
\nhim before the Court on 9.3.2006. Thereafter on 11.3.2006 on
\nthe request of Calcutta Police accused was handed over to
\nCalcutta Police to be escorted to Calcutta for production before
\nthe Magistrate at Calcutta. Therefore, on the request  made by
\nthe CBI , the  accused respondent  was handed over to the  CBI
\nteam   for the  above tests.  On  13th March, 2006  pursuant to
\nthe  order of the learned Magistrate at Calcutta the accused
\nrespondent was produced  in the Court  of Chief Metropolitan
\nMagistrate, Calcutta.   The Investigating Officer of the instant
\ncase  requested the Court of Chief  Metropolitan Magistrate,
\nCalcutta to hand over the accused for 15 days for police remand
\nfor investigation.  An application  was moved  by the defence
\npraying for bail on behalf of the accused-respondent  before the
\nCourt of Addl. Chief Metropolitan Magistrate, Calcutta.  It was
\ncontended  that  the accused-respondent had surrendered  on
\n27th February, 2006   before the Magistrate at Chennai and the
\nperiod of   15 days was over and Police had not filed the challan,
\ntherefore accused be enlarged on bail. As against this,   it was
\nsubmitted that he was arrested by CBI  and the accused was
\nproduced before the Calcutta Court  in this case on  13th March,
\n2006   so the period of 15 days  was not over.    The case  was
\nfixed   for  16th March, 2006 for further hearing and on that
\ndate the  bail application was rejected and  the accused    was
\nremanded to police  custody up to 24.3.2006 and the Court
\ndirected to produce  the  accused on the fixed date.
\nThe learned Chief  Metropolitan Magistrate, Calcutta
\nafter  considering the submission   took the view that the
\ncustody of the petitioner cannot be considered unless and until
\nhe is physically produced before the  Court and  since in the
\npresent case   it was  done on March 13, 2006  on the strength
\nof the production warrant issued by the learned Chief
\nMetropolitan Magistrate, Calcutta,  the period  of police
\ncustody was to be considered    from the date of his  physical
\nproduction.   The accused-respondent  was remanded to the
\npolice custody till 28th March, 2006.    Hence aggrieved against
\nthis order the respondent approached the Calcutta High Court
\nin revision. The learned  Single Judge has taken the view that
\nthe Chief Metropolitan Magistrate has not correctly approached
\nthe matter and has wrongly taken the view that the accused did
\nnot surrender before the Metropolitan Magistrate, Egmore,
\nChennai on 24.2.2006.  However, the accused was given liberty
\nto file application before the said Court afresh and  the
\nMagistrate was directed to consider the same in the light of the
\naforesaid judgment. It was also mentioned that still 8  more
\ndays  from 19.5.2005 to 27.5.2006 were left to the Police to
\nfile final report. The Police still did not file the final report.
\nThen again accused moved  the bail application before the
\nChief Metropolitan Magistrate, Calcutta. The Chief
\nMetropolitan Magistrate, Calcutta rejected the bail application
\nholding that statutory period of 90 days has not expired by his
\norder dated 27.5.2006.\n<\/p>\n
The final report under Section 173(2) of the Code of
\nCriminal Procedure was submitted before the Chief
\nMetropolitan Magistrate, Calcutta and the case was transferred
\nto Vth Court of Metropolitan Magistrate, Calcutta. Then again
\non 12.6.2006 a bail application was filed before the Vth
\nMetropolitan Magistrate, Calcutta. Learned Metropolitan
\nMagistrate rejected the bail application holding that this bail
\napplication amounted to review of the order and he has no power
\nof review, therefore, the same was rejected by order dated
\n16.6.2006.\n<\/p>\n
Aggrieved against that order the present revision petition
\nwas filed before the High Court.\n<\/p>\n
The Calcutta High Court  took the view that the  detention
\nof the accused  should be counted w.e.f. 27th February, 2006
\nwhen the accused alleged to have surrendered himself  in the
\ncase of 476\/2002 before the  Additional Chief Metropolitan
\nMagistrate, Egmore, Chennai  and accordingly held that  more
\nthan 90 days period has expired.  Therefore,  the matter should
\nbe considered by the Metropolitan Magistrate again in the light
\nof observation made by the Court, by order dated 27.9.2006.
\nThe revision petition of the accused was allowed.
\nAggrieved against the  order of the  Calcutta  High Court,
\ndated 27.9.2006 the present appeal was filed.
\nWe heard learned counsel for both the parties and
\nperused the record. The   crucial  question before us is whether
\nthe detention period should be counted from 13th March, 2006
\nwhen the police took the accused in  custody or  the period
\nshould be counted from 27th February, 2006 when the accused
\nsurrendered  in the case of 476\/2002 before the Metropolitan
\nMagistrate, Egmore, Chennai. Learned  counsel  for the State
\nsubmitted that  under Sub-Section  2 of Section 167  of
\nCriminal Procedure Code the period  should only be counted
\nwhen he is arrested\/ taken in custody  by the police not before
\nthe date  when he surrendered  before the Magistrate on 27th
\nFebruary, 2006.  Learned counsel  submitted that in fact the
\naccused was taken in custody  by the police on 13th March, 2006
\nand was produced before the Magistrate on 13th March, 2006
\nand on that date the police sought the custody of accused   for
\ncompletion of the investigation.  Therefore, the period
\ncommences from 13th March, 2006.    In  respect thereof,
\nlearned  counsel invited  our attention to a case of  Uday
\nMohanlal Acharya  v.  State of Maharashtra<\/a>  reported in
\n(2001) 5 SCC 453    as against  this Learned counsel for the
\nrespondent submitted that  the period should be counted from
\nthe date  when the accused-respondent surrendered in case No.
\n476\/2002 before the Metropolitan  Magistrate, Egmore,
\nChennai.\tThe challan has not been filed within the period of
\n90 days. Therefore, the accused-respondent is entitled to bail
\nas per sub-section (2) of  Section 167 of the Cr.P.C.   In respect
\nthereof, learned counsel invited our attention to cases  of
\nNiranjan Singh & Another  v.   Prabhakar Rajaram Kharote &
\nOrs.<\/a>  reported in (1980) 2 SCC 559, Central Bureau of
\nInvestigation, Special Investigation Cell, New Delhi  v.  Anupam
\nJ. Kulkarni<\/a> reported  in  (1992) 3 SCC 141  and learned
\ncounsel  also invited our attention to the case Directorate of
\nEnforcement  v. Deepak Mahajan and Another<\/a>  reported in
\n(1994)3 SCC 440 (para 44).\n<\/p>\n
\tWe have considered the rival submissions  of  the parties
\nand perused the record.\n<\/p>\n
\tThe  admitted position is that there were  two cases
\npending in the  Calcutta Court against the accused  and the
\naccused-respondent was arrested at Delhi in CBI case  and he
\nwas produced before the  Additional Chief Metropolitan
\nMagistrate Egmore, Chennai under the investigation of CBI.
\nThe accused was remanded for the investigation before the CBI
\nafter that the accused was sent for judicial custody in  the CBI
\ncase.    The Calcutta  Court directed the production of the
\naccused-respondent and  a request was made before the
\nAdditional Chief Metropolitan Magistrate, Egmore, Chennai for
\nthe custody of the accused in the cases pending before the
\nCalcutta.    In fact the accused was detained  in CBI   case
\npending in Egmore, Chennai.    The CBI   sought the  police
\nremand of  accused  for some scientific test and the accused
\nwas   sent for the test and  after that the accused  was sent
\nback by the CBI to the  Egmore, Court.  Then   an order  dated
\n11th March, 2006 was passed  for  handing over  of the accused
\nto the Calcutta Police for being produced before the Magistrate
\non 13th March, 2006  and on 11th March, 2006 Police took
\nphysical custody of the accused  under the order of the
\nMetropolitan Magistrate,  Egmore, Chennai  and on the  basis of
\nthe  transit warrant, the accused was taken over  on 11th March,
\n2006 and was produced before the  Calcutta court  on 13th
\nMarch, 2006 and  from there the accused  was sent to the
\ncustody of the police for investigation.    Therefore,  in  the
\nsequence of event,    physical custody of the accused was taken
\nover  for  investigation by the Calcutta Police on 13.3.2006.
\nThe accused  was  very well aware that  there were two cases
\nregistered against him  in Calcutta for which he was required by
\nthe  Police,  so he voluntarily surrendered  before the
\nMagistrate on 27th February, 2006 when he was  already in
\ncustody in relation to  the CBI case.   Therefore,  this voluntary
\nsurrender cannot be conceived to be detention under a case
\nregistered at Calcutta i.e.476\/2002.  Though knowing well that
\na requisition was  sent by the Metropolitan Magistrate, Calcutta
\nbut in fact the physical custody  of the accused was given by
\nthe Calcutta Police for investigation by the order of the
\nMetropolitan Magistrate  on 13th March, 2006.   Therefore, so
\ncalled  notional surrender of the  accused in the case  No.
\n476\/02 of  Calcutta cannot  be   deemed  to  be  a  custody    of
\nthe    police for  investigation  for   a case    registered
\nagainst   the  accused at Calcutta.. In  fact the accused
\ncontinued to be under the judicial custody in relation to the CBI
\ncase. It may be relevant to mention here that  the CBI again
\ntook  the accused in custody for scientific test  and he was
\nsurrendered back on 10th of March, 2006 and on 11th March, the
\nCalcutta police was given a custody  of the  accused by the
\nEgmore  Court, Chennai to be produced before the Magistrate in
\nCalcutta on 13th March, 2006 and he was produced before the
\nCalcutta Court on 13th March, 2006 and the Court directed the
\ncustody of the accused to the police on 13th March, 2006 for
\ninvestigation in the criminal case  registered against him in
\nCalcutta.  Therefore,  the police custody will be treated from
\n13th March, 2006 and not from 27th February, 2006.  In  this
\nback-ground, the view taken by the learned single Judge that
\nsince he voluntarily  surrendered on 27th February, 2006,
\ntherefore, he shall be  deemed to be under the police custody
\nw.e.f. 27th February, 2006  is far from correct and 90 days shall
\nbe counted from that date only i.e. 13.3.2006.
\n Section 167 of the CR.P.C.  clearly  lays down that  where
\ninvestigation cannot be completed within twenty four hours  and
\naccused is under arrest with Police, he has to be produced
\nbefore Magistrate for further detention if necessary. This is a
\nsalutary provision to safeguard the citizen’s liberty so that
\nPolice cannot illegally detain any citizen.  Sub-sections (1) & (2)
\nof Section 167 which are relevant  for our purposes read as
\nunder:\n<\/p>\n
“167 Procedure when investigation cannot be completed
\nin twenty-four hours.\n<\/p>\n
\t(1) Whenever any person is arrested and detained in
\ncustody, and it appears that the investigation cannot
\nbe completed within the period of twenty four hours
\nfixed  by Section 57, and there are grounds for
\nbelieving that the  accusation or information is well-
\nfounded, the officer in charge of the police  station
\nor the police officer making the investigation,  if he
\nis not below the rank of sub-inspector, shall
\nforthwith transmit to the nearest Judicial
\nMagistrate a copy  of the entries in the diary
\nhereinafter prescribed relating to the case, and
\nshall at the same time forward the accused to such
\nMagistrate.\n<\/p>\n
\t(2) The Magistrate to whom an accused person is
\nforwarded under  this  section may, whether he has
\nor has not jurisdiction to try the case, from time to
\ntime, authorize the detention of the accused in such
\ncustody as such Magistrate thinks fit, a term not
\nexceeding fifteen days in the whole; and if he has no
\njurisdiction to try the case or commit it for trial, and
\nconsiders further detention unnecessary,  he may
\norder the accused to be forwarded  to a Magistrate
\nhaving such jurisdiction:\n<\/p>\n
Provided that
\n{(a)  the Magistrate may authorize the detention of
\nthe accused person, otherwise than in the custody of
\nthe police, beyond the period of fifteen days, if he is
\nsatisfied that adequate grounds exist for doing so,
\nbut no Magistrate shall authorize the detention of
\nthe accused person in custody under this paragraph
\nfor a total period exceeding-\n<\/p>\n
(i) ninety days, where the investigation relates to an
\noffence punishable with death, imprisonment for life
\nor imprisonment for a term of not less than ten
\nyears;\n<\/p>\n
(ii) sixty days, where the investigation relates to any
\nother offence, and, on the expiry of the said period
\nof ninety days, or sixty days, as the case may be, the
\naccused person shall be released on bail, if he is
\nprepared to and does furnish bail, and every person
\nreleased on bail  under this sub-section shall be
\ndeemed to be released under the provisions of
\nChapter XXXIII for the purposes of that Chapter;\n<\/p>\n
(b) no Magistrate shall authorize detention in any
\ncustody under this section unless the accused is
\nproduced before him;\n<\/p>\n
) no Magistrate of the second class, not specially
\nempowered in  this behalf by the High Court, shall
\nauthorize detention in the custody of the police.”\n<\/p>\n
Sub-section (1) says that when a person is arrested and
\ndetained in custody and it appears that investigation cannot
\nbe completed within 24 hours fixed under Section 57 and
\nthere are grounds  of believing that accusation or
\ninformation is well-founded,   the officer in charge of the
\nPolice Station  or  the Police Officer making  the
\ninvestigation not below the rank of sub-inspector shall
\nproduce  the accused before the nearest judicial magistrate.
\nThe mandate of sub-section (1) of Section 167, Cr.P.C. is that
\nwhen it is not possible to complete investigation within 24
\nhours then it is the duty of the Police to produce the accused
\nbefore the Magistrate. Police cannot detain any person in
\ntheir custody beyond that period.  Therefore,   Sub-Section
\n(1) pre-supposes  that the police should have custody of an
\naccused in  relation to certain accusation for which the
\ncognizance has been taken  and the  matter is under
\ninvestigation.  This check is on police   for detention of any
\ncitizen .  Sub-Section (2) says that if the  accused is
\nproduced before the Magistrate and if the Magistrate is
\nsatisfied looking to accusation then he can give a  remand to
\nthe  police for investigation not exceeding 15 days  in the
\nwhole.   But  the proviso further  gives a discretion to the
\nMagistrate that he can authorize  detention  of the accused
\notherwise then  the police  custody beyond the period of  15
\ndays  but no Magistrate shall authorize detention of the
\naccused in  police custody for a total period of 90 days  for
\nthe offences punishable   with death, imprisonment for  life
\nor imprisonment  for a term  of not  less than  ten years  and
\nno magistrate shall authorize the detention of the accused
\nperson in custody for a total period of 60 days when  the
\ninvestigation relates to  any other offence and on expiry of
\nthe period of 90 days  or  60 days as the case may be. He
\nshall be released if he is willing to furnish bail. Therefore,
\nthe reading of sub-Sections (1) & (2)  with proviso  clearly
\ntranspires that the  incumbent should be  in fact under  the
\ndetention of police for  investigation.    In the present case,
\nthe accused was not  arrested by the police nor was he in the
\npolice  custody before 13.3.2006. He voluntarily surrendered
\nbefore a Magistrate and no physical custody of the accused
\nwas given to the police for investigation.  The whole purpose
\nis that the accused should not be detained more than 24
\nhours and  subject to 15 days  police remand and it can
\nfurther be extended up to 90\/60 as the case may be.   But
\nthe custody of police for  investigation purpose cannot be
\ntreated judicial custody\/ detention in another case.   The
\npolice custody here means the Police custody in a particular
\ncase  for investigation and not judicial custody in another
\ncase. This notional surrender cannot be treated as Police
\ncustody so as to count 90 days from that notional surrender.
\nA notorious  criminal may have number of cases  pending in
\nvarious police station in  city or outside city, a notional
\nsurrender in pending case for another FIR outside city or of
\nanother police-station  in same city, if the notional surrender
\nis counted then the police will not get the opportunity to get
\ncustodial investigation.  The period of detention  before a
\nMagistrate can be treated as device to avoid physical custody
\nof the police and claim the  benefit of proviso to Sub-Section
\n1 and can be released on bail.  This  kind of device cannot be
\npermitted under Section 167 of the Cr.P.C.   The condition is
\nthat the accused must be in the custody of the police and  so
\ncalled deemed surrender in another criminal case cannot be
\ntaken as starting point for counting 15 days police remand or
\n90 days or 60 days as the case may be. Therefore,  this kind
\nof surrender by the accused cannot be deemed to  be in  the
\nPolice custody  in the case of 476\/02 in Calcutta.  The
\nMagistrate at Egmore, Chennai could not  have released the
\naccused on bail as there was already cases pending against
\nhim in Calcutta for which a production warrant had already
\nbeen issued by the Calcutta Court.    In this connection  in
\nthe case of  State of Maharashtra  Vs. Bharati Chandmal
\nVarma (Mrs.)  reported in (2002)2 SCC 121  their Lordships
\nhas very clearly  mentioned that:\n<\/p>\n
“For the application of the proviso to Section 167(2)
\nof the Code, there is no necessity to consider when
\nthe investigation could legally have  commenced.
\nThat proviso is intended only for keeping an arrested
\nperson under detention for the purpose of
\ninvestigation and the legislature has provided a
\nmaximum period for such detention..  On the expiry
\nof the said period the further custody becomes
\nunauthorized and hence it is mandated that the
\narrested person shall be released on bail if he is
\nprepared to and does  furnish bail.  It may be a
\ndifferent position if the same accused was found to
\nhave been involved in some other offence
\ndisconnected from the offence for  which he is
\narrested.  In such an eventuality the officer
\ninvestigating such second offence can exercise the
\npower of arresting  him in connection with the second
\ncase.  But if the investigation into the offence for
\nwhich   he was  arrested initially had revealed other
\nramifications associated therewith, any further
\ninvestigation would continue to relate to the same
\narrest and hence the period envisaged in the proviso
\nto Section 167(2) would remain unextendable.”\n<\/p>\n
               Therefore, it is very clearly mentioned that the
\naccused must be in  custody of the police for the investigation.
\nBut if the investigation into the offence for which he is
\narrested initially  revealed  other ramifications associated
\ntherewith, any  further investigation  would continue to relate
\nto the same arrest and hence the period envisaged  in the
\nproviso to Section 167(2) would remain unextendable.
\nMeaning thereby that  during the course   of  the investigation
\nany  further  ramification comes to the notice of the Police
\nthen the period will not be extendable.    But  it clearly  lays
\ndown that the accused must be  in custody of police. In the
\ncase of Directoate of Enforcement  v. Deepak Mahajan and
\nAnother<\/a>  reported in  (1994)3 SCC 440   their   Lordships
\nobserved that Section 167   is one of the provisions falling
\nunder Chapter XII of the  Code commencing from Section 154
\nand ending with Section 176 under the caption “Information to
\nthe police and other powers to investigate”.    Their Lordships
\nalso observed that main object of Section 167 is the
\nproduction of an arrestee before a Magistrate within twenty
\nfour hours as fixed by Section 57 when investigation cannot be
\ncompleted  within that period so that the Magistrate can take
\nfurther course of action as  contemplated  under sub-Section
\n(2) of section 167.   In para 54 their Lordships  have also
\nobserved with regard to  the pre-requisite condition  which
\nreads as under:\n<\/p>\n
“54.  The above deliberation leads to a derivation that
\nto invoke Section 167(1),  it is not an indispensable
\npre-requisite condition that in all circumstances, the
\narrest should have been effected only by a police
\nofficer and none else and that there must necessarily
\nbe records of entries of a case diary.  Therefore,  it
\nnecessarily follows that a mere production of an
\narrestee before a  competent Magistrate by an
\nauthorized  officer or an officer empowered to arrest
\n(notwithstanding the fact that he is not a police
\nofficer in its stricto sensu)on a reasonable belief that
\nthe arrestee ” has been guilty of an offence
\npunishable”  under the provisions of the  Special Act
\nis sufficient for the Magistrate  to take that person
\ninto his custody on his being satisfied of the three
\npreliminary conditions, namely (1) the arresting
\nofficer is legally competent to make the arrest; (2)
\nthat the  particulars of the  offence or the accusation
\nfor which the person is arrested  or other grounds for
\nsuch arrest do exist and are well-founded; and (3)
\nthat the provisions of the special Act in regard to the
\narrest of the persons and the productions of the
\narrestee serve the purpose  of Section 167(1) of the
\nCode.”\n<\/p>\n
As against this  learned counsel for the accused respondent  has
\ninvited our attention   to the case of Niranjan Singh & Anr. v.
\nPrabhakar Rajaram Kharote & Ors.<\/a> [ (1980) 2 SCC 359]. This
\ncase only relates to ‘custody’ under section 439 Cr.P.C.
\nTherefore, this case does not provide us any assistance
\nwhatsoever. In another case, Central Bureau of Investigation,
\nSpecial Investigation Cell-I, New Delhi v. Anupam J. Kulkarni<\/a>
\n[(1992) 3 SCC 141] their Lordships observed in paragraph 11
\nas follows :\n<\/p>\n
“In one occurrence it might so happen that the
\naccused might have committed  several offences  and
\nthe  police may arrest him in connection with one or
\ntwo offences on the basis of  the available
\ninformation and obtain police custody.  If during the
\ninvestigation his complicity in more serious offences
\nduring the same occurrence is disclosed that does not
\nauthorize the police to ask  for police custody for a
\nfurther period after the expiry of the first fifteen
\ndays.    If that is permitted then the police can go on
\nadding some offence or the other of a serious nature
\nat various stages and seek further detention in police
\ncustody repeatedly,   this would defeat the very
\nobject underlying Section 167.  But their Lordships
\nput an occasion  and added that limitation shall not
\napply to a different occurrence in which complicity of
\nthe  arrested accused is disclosed.  That would be a
\ndifferent transaction and if an accused is in judicial
\ncustody in connection with one case and to  enable the
\npolice to complete their investigation of the other
\ncase they can require his detention in police custody
\nfor the purpose of associating him with the
\ninvestigation  in other case.   In such a situation he
\nmust be formally arrested  in connection with other
\ncase and then obtain the  order of the Magistrate for
\ndetention in police custody.”\n<\/p>\n
Their Lordships have clarified that if one case is registered
\nagainst  the accused  in which during the course of investigation
\nit is found that  he has committed more than one offence then
\nit will be treated to be one investigation and  for each offence a
\nseparate police remand cannot be sought.   But in case it is a
\ndifferent offence which has been  committed by him then it will
\nbe a separate case registered   and separate investigation will
\nbe  taken up and for that the detention by the  accused in the
\nprevious case cannot be counted towards a new case or
\ndifferent case registered against the accused. In fact, the
\nobservation in this  case answers the question raised in this
\npetition.   Therefore, their Lordships observed;
\n“the occurrence constituting to different
\ntransactions give rise to two different cases and the
\nexercise of power under Sections 167(1) and (2)
\nshould  be in  consonance with the  object underlying
\nthe said provision in respect of  each of those
\noccurrences which constitute two difference
\ncases.  Arrest and detention in  custody in the
\ncontext of Section 167(1) &(2)   of the Code has to
\nbe  truly viewed  with regard to the investigation of
\nthat specific  case in which the  accused person has
\nbeen taken into custody.\n<\/p>\n
Therefore,  for the separate  offence the accused has to
\nbe tried  separately and for that  the  proceedings will be
\ninitiated separately and independent  remand can be  sought by
\nthe accused.\n<\/p>\n
In view of the above discussion, we are of the opinion
\nthat the  view taken by the learned Single Judge of the
\nCalcutta High Court is not correct and  we accordingly  set
\nside the order  of the Calcutta High Court dated 27.9.2006
\nand  allow  the  appeal  filed  by the  State of West Bengal and
\ndirect the Metropolitan Magistrate to  proceed  in  the matter
\nin accordance with law.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of West Bengal vs Dinesh Dalmia on 25 April, 2007 Author: A Mathur Bench: A.K.Mathur, Tarun Chatterjee CASE NO.: Appeal (crl.) 623 of 2007 PETITIONER: State of West Bengal RESPONDENT: Dinesh Dalmia DATE OF JUDGMENT: 25\/04\/2007 BENCH: A.K.MATHUR & TARUN CHATTERJEE JUDGMENT: J U D G M E N T […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-238930","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of West Bengal vs Dinesh Dalmia on 25 April, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-west-bengal-vs-dinesh-dalmia-on-25-april-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of West Bengal vs Dinesh Dalmia on 25 April, 2007 - 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