HIGH COURT OF JUDICATURE AT ALLAHABAD
Case :- APPLICATION U/S 482 No. – 22243 of 2016
Applicant :- Dr. Kuldeep Kaushik
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Sunil Kumar
Counsel for Opposite Party :- G.A.,Vinod Singh
Hon’ble Abhai Kumar,J.
This application under Section 482 Cr.P.C. has been moved for quashing the impugned order dated 14.7.2016 passed by the Additional Chief Judicial Magistrate, Court No. 2, Bulandshahar in Misc. Surrender Application No. Nil of 2016 (State Vs. Dr. Kuldeep Kaushik) in connection with Case Crime No. 179 of 2016, under Sections 304, 314 IPC, Police Station – Siyana, District – Bulandshahar. It is further prayed to direct the Additional Chief Judicial Magistrate, Court Room No. 2, Bulandshahar to decide the surrender application dated 25.6.2016 afresh on its merit after due examination of the grounds taken by the applicant. It is next prayed that the operation, effect and consequences of the impugned order dated 14.7.2016 as well as the proceeding of taking any coercive action as against the applicant on the instant of Investigating Officer in the present matter may also be stayed during the pendency of the present matter.
Brief facts of the case are as follows.
Applicant is a B.A.M.S. Doctor from Chhatrapati Shahuji Maharaj University Kanpur and he is a registered medical practitioner with the Medical Council of India, Uttar Pradesh. Hospital of the applicant is also established as per provisions of law duly licensed and registered hospital as per law with regional Ayuervedic and Unani Officer, Bulandshahar. Deceased died in the hospital when she was under surveillance of competent medical practitioner in a competent hospital, so neither the present case is of medical negligence nor is it a case of commission of any criminal offence at all. In the circumstances, no wrong has been committed by Dr. Anil Kumar Singh, M.B.B.S. M.D.(General Sargon). Smt. Satto, who died was duly informed about the risk of the operation and after signing of the relevant document by the authorised person required treatment was given. Dr. Anil Kumar Singh, who treated the patient Smt. Satto, was a competent doctor and was eligible to provide the treatment to her as well as to do her surgical operation. The deceased died due to medical reasons in spite of proper treatment.
The investigation of the present case is still going on. A criminal Misc. Writ petition No. 15592 of 2016, Dr. Kuldeep and two other Versus State of U.P. and others, against the FIR of the present case was filed but the same was dismissed by this court vide order dated 6.7.2016. Applicant has been made an accused in the present case without any apparent evidence against him as such the applicant filed a surrender application on 25.5.2016 before the court of Additional Chief Judicial Magistrate, Court No. 2 Bulandshahar but the same was dismissed by the impugned order dated 14.7.2016 on the ground that interference in the investigation cannot be done and by the surrender application it has been prayed that various papers allongwith surrender application be sent to Investigating Officer and after taking into consideration the papers, report may be called for from the Investigating Officer.
It is submitted by the learned counsel of the applicant that the observations made by the court below in the impugned order are perverse in nature and the grounds shown for rejection of the surrender application are also not legally sustainable. Provisions of section 167-A of the Cr.P.C. is made applicable in the State of U.P. Amendment Act No. 18 of 1978.
It is further submitted by the learned counsel that magistrate is under obligation to apply his judicial mind regarding the involvement of the accused person in a criminal case whenever he is brought or appears before the court and if allegations made against the accused are illfounded or not proper then remand can be refused and accused will not be sent to jail at all. It is further submitted that the impugned order does suffers from serious illegality, infirmity, incorrectness which is apparent on the face of the record itself.
Learned counsel for respondent no. 3 submitted that hospital of the applicant is registered with Regional Ayurvedic and Unani Officer, Bulandshahar, but modern medicines is being practiced there, for which the hospital is not authorised and due to negligence of the Hospital, Doctors and Staffs, Smt. Satto died and applicant is also equally responsible for above crime.
There are two basic points that are for consideration before this court. Firstly, whether along-with surrender application a prayer for sending the papers that can be relevant or irrelevant for the purposes of investigation can be submitted, and whether magistrate is duty bound to send these papers to the Investigating Officer, and further can any direction be issued in this regard by the magistrate. The second point that is involved in the matter is regarding the scope of section 167-A of the Code, which is inserted by State Amendment as referred above.
The liberty of the person cannot be curtailed without due process of law as has been guaranteed by the Constitution under Article 21. Moreover, if any action is to be taken against any person, enquiry or trial, regarding that should be fair, impartial, without any prejudice, and more importantly, compliance of natural justice should also be there. In a recent judgment of the Supreme Court in Lalita Kumari Vs. State of U.P. and others, (2014) 2 SCC 1, it has been held that the essential requirement for recording the FIR is that there must be information and that information must disclose a cognizable offence. If information falling within the meaning of Sub-Section (1) of Section 154 is laid before an officer in-charge of a police station, he has no option but to enter substance of that information in the prescribed form and register a case on the basis of such information. Section 154(1) Cr.P.C. significantly uses the expression information without qualification of an adjective, such as reasonable or credible, hence registration of an FIR is not preceded by a credible information but information relating to the commission of cognizable offence is sufficient, but the arrest of an accused immediately on the registration of an FIR has been held not to be mandatory. Police Officer can foreclose an FIR before any investigation under section 157 Cr.P.C. If it appears to him that there is no sufficient ground to investigate, the police officer is also empowered to investigate the matter and file a final report under section 173 Cr.P.C. seeking closure.
Whenever an FIR is being lodged, it does not mean that investigation is certainly to be taken place and there is no inbuilt safeguards with the Code to prevent a likelihood of misuse. It is further held by the constitution bench in Lalita Kumari that after receipt of information relating to the commission of a cognizable offence is mandatory, yet there may be instances where a preliminary enquiry is required. The observation of the Supreme court court are as follows:
“120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/ family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months’ delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.”
It is worthwhile to mention here that present case also comes under the category of death by medical negligence and in the circumstances it can be said that this is one of the case where utmost caution was required for launching any criminal proceeding against accused persons who are said to be guilty of committing a cognizable offence. In the context of this matter, applicant is liable to be probed.
Learned magistrate while passing the impugned order observed that court cannot interfere in the investigation. The observation of the magistrate can be correct up to certain extent, but what does interfere mean is entirely dependent upon the facts and circumstances of the case. Applicant before the magistrate clearly based its arguments on the basis of law propounded by the Apex Court in the Case of Sakiri Vasu Vs. State of U.P. and others, (2008) 2 SCC 409.
By the impugned order it was observed that the facts of that case was different and were not applicable in the matter. But the observation of the trial court can hardly said to be correct. Hon’ble Apex Court in the matter clearly stated that magistrate is having supervisory power of the investigation although cannot get the investigation done, but certainly magistrate can very well supervise the investigation and in case, proper investigation is being not done, then certainly make an interference in that. As already said, free, fair and impartial investigation is the right of the accused person and in case any investigation is not being conducted on the said principles then interference by the magistrate can very well be made. Observation of the Apex Corut in Sakri Basu (Supra) can be summed up in the following paras:
“11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.
13. The same view was taken by this Court in Dilawar Singh vs. State of Delhi JT 2007 (10) SC 585 (vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) Cr.P.C., and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C.
14. Section 156 (3) states:
Any Magistrate empowered under Section 190 may order such an investigation as abovementioned. The words `as abovementioned obviously refer to Section 156 (1), which contemplates investigation by the officer in charge of the Police Station.
15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.
16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power, and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order re-opening of the investigation even after the police submits the final report, vide State of Bihar vs. A.C. Saldanna AIR 1980 SC 326 (para 19).
18. It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution.
21. An express grant of statutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective. Thus in ITO, Cannanore vs. M.K. Mohammad Kunhi, AIR 1969 SC 430, this Court held that the income tax appellate tribunal has implied powers to grant stay, although no such power has been expressly granted to it by the Income Tax Act.
24. In view of the abovementioned legal position, we are of the view that although Section 156(3) is verybriefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision.
25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3).
A special duty has been casted by the Apex Court upon the magistrate while monitoring the investigation. Doctrine of implied power is also applied by the Apex Court and even asserted that Income Tax Appellate Tribunal has implied power to grant stay, although no such power expressly granted to it by the Income Tax Act.
It can be inferred that there is no express power to the magistrate regarding the monitoring of the investigation but under section 156 of the Cr.P.C., that implied power is there and magistrate is having whole sole authority to monitor the investigation and in case investigation is not going on proper or in fair manner in that case, magistrate is even having authority to interfere in the investigation.
This power alonwith the observation made by the Apex Court in Lalita Kumari. It can be said that more responsibility is casted upon the magistrate in the cases covered under the circumstances referred by the apex court. Hon’ble Apex Court in Lalita Kumar also observed that the circumstances mentioned by the court is not exhaustive and other matters may also be included in that, so in the facts and circumstances of every case, a duty is casted upon the magistrate to look the matter on the merits of the case and in case it is required then proper direction may be issued in regard to investigation.
Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others reported in 2010 (8) Supreme Court 353, considered the provision of Section 438 Cr.P.C. regarding Anticipatory Bail wherein the power of the court is also discussed and observed by the apex court as follows:-
“……..A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hall mark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail”.
It is further observed by the apex court as follows:
28. Mr. Bhushan referred to a Constitution Bench judgment in Sibbia’s case (supra) to strengthen his argument that no such embargo has been placed by the said judgment of the Constitution Bench. He placed heavy reliance on para 15 of Sibbia’s case (supra), which reads as under:
“15. Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises. Therefore, even if we were to frame a `Code for the grant of anticipatory bail’, which really is the business of the legislature, it can at best furnish broad guide-lines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the court, by providing that it may grant bail “if it thinks fit”. The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the courts by law.”
Any apprehension that can arose by imparting the unfettered power to the magistrate is blown away by the apex court by observing like that and that it cannot be said that if magistrate exercises such power that can be misused. What are the powers of an accused during the enquiry and trial is also to be seen, and whether a door can be shut on the face of the accused during the enquiry is also relevant factor that can be attributed to the power of a magistrate during the investigation.
Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi reported in (2005) 1 SCC 568 has clearly observed that accused is not having any right to produce any evidence or material before the court at the time of cognizance or at the time of framing of charge. The phrase that has given the right to the accused of being heard as has been mentioned in Section 227 as well as in Section 239 of the Code, does not connote any right to the accused for production of any material before the court.
It is further observed by the apex court that application of Section 91 is also ruled out before the trial starts. The principle held by Apex Court in Satish Mehra Vs. Delhi Administration reported in 1996 (9) SCC 766 was not found to have led correct view. In Satish Mehra Vs. Delhi Administration, a two Judge Bench of Apex Court observed as follows:
“…..if the accused succeeds in producing any reliable material at the stage of taking cognizance or framing of charge which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material should be looked into by the court at that stage. It was held that the object of providing an opportunity to the accused of making submissions as envisaged in Section 227 of the Code of Criminal Procedure, 1973 (for short, ‘the Code’) is to enable the court to decide whether it is necessary to proceed to conduct the trial. If the materials produced by the accused even at that early stage would clinch the issue, why should the court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. It was further observed that there is nothing in the Code which shrinks the scope of such audience to oral arguments and, therefore, the trial court would be within its power to consider even material which the accused may produce at the stage contemplated in Section 227 of the Code.”
After considering the various pronouncement of the court, Hon’ble Apex Court observed as follows:-
“As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra’s case holding that the trial court has powers to consider even materials which accused may produce at the stage of Section 227 of the Code has not been correctly decided.”
Section 91 of the Code was also discussed. For ready reference, Section 91 is reproduced below:
“91. Summons to produce document or other thing.(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.”
Observation of the Apex Court in this regard is relevant to be reproduced which runs as follows:
“Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is ‘necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code’. The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the Court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. In so far as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it whether police or accused. If under Section 227 what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by Court and under a written order an officer in charge of police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof.”
In the above given facts, if we consider the right of the accused person, then we come to the conclusion that at the stage of cognizance as well as at the stage of charge, accused is not having any right to place any material before the court, and only right that has been given to the accused is being heard only. Therefore a precognizance stage is certainly a vital stage wherein accused is being given right, and he can certainly approach the magistrate in case proper investigation is not being done, and if it is so, the magistrate cannot say that he is powerless and any such action will be interference in the investigation.
This court is certainly of the view that magistrate is all empowered to monitor the investigation and in case it is required then proper direction may also be issued and if in view of the Code certain papers that are being filed by the accused to be sent to the Investigating Officer, that right can very well be given to the accused, although magistrate will refrain from expressing any opinion regarding the papers and further accused can also not claim that papers may be taken into consideration by the Investigating Officer and after taking all those papers, opinion should be found by the Investigating Officer and only then the wanting report be submitted.
It is always expected from Investigating Officer to do the investigation in a proper manner and to collect all the evidence that are relevant for the purpose of free, fair and impartial investigation. The matter of investigation is a State-affair, if State is doing any act, he is not doing on behalf of any person, rather act is being done in pursuance to bring the justice to all, and in case any paper throw the light upon the innocence of the accused person, that is certainly ought to be taken into consideration, but rider is that magistrate cannot say that such papers ought to have been taken into consideration in a particular perspective and in that regard Investigating Officer is fully empowered to take its own decision and the paper furnished and critical analysis cannot be demanded by the accused persons as has been demanded in the present case and if Investigating Officer can show the magistrate that on the basis of the relevant evidence that is being collected during the investigation, there is a case made out against the accused, then a report against the accused person can be submitted to the court for taking him into custody.
In the present case applicant never tried to submit the papers before the Investigating Officer. There is nothing on record on which it can be accepted that papers were being tried to be given to the Investigating Officer either personally by the accused or through anybody and Investigating Officer has refused to accept these papers, and if in the circumstances learned Magistrate passed the impugned order that applicant is not cooperating with the investigation then this observation cannot be said to be perverse, illegal or arbitrary.
Had applicant tried to submit the papers before the Investigating Officer and had he refused for taking the papers into consideration, only then the right of accused could have accrued for praying the magistrate to direct the Investigating Officer for a proper investigation under Section 156 Cr.P.C.
The second point raised regarding the provision of Section 167-A of the Code incorporated by U.P. Amendment and same is reproduced below:
“167-A. Procedure on arrest by Magistrate. – For the avoidance of doubts, it is hereby declared that the provisions of Section 167 shall, so far as may be, apply also in relation to any person arrested by, or under any order or direction of, a Magistrate, whether executive or judicial.”
Controversy regarding the taking of surrender application by magistrate is removed by the amendment and Section 167-A has been incorporated and from that it can be inferred that if under the order of magistrate either executive or judicial, a person is being arrested then provisions of Section 167 shall so far as may apply.
It is submitted by the learned counsel that whenever a report is being submitted under Section 167-A Cr.P.C., a complete report is not submitted rather only report that is being submitted before the magistrate that is called upon on the application of accused is a short one regarding the wanting of accused and proper papers are not being produced and in the circumstances a proper remand under Section 167 Cr.P.C. cannot be given by the magistrate unless he thinks fit.
It is further submitted by the learned counsel that in absence of complete report and proper papers, bail application of the accused can also not be decided by the magistrate and he is bound to fix date in the matter wherein disposal of the bail application by the magistrate on the same day is required.
There are slight difference when accused is arrested under Section 167 Cr.P.C. and when he is being taken into custody under Section 167-A of the Cr.P.C.
Under Section 167 Cr.P.C. Investigating Agency gets 24 hours of time after the arrest of the accused as has been fixed by Section 57 of the Cr.P.C. wherein there is no such time provided to the Investigating Officer whenever accused is taken into custody under Section 167-A of Cr.P.C. but the apprehension of learned counsel is illfounded. Whenever a report is being asked from the Investigating Agency by the court then Investigating Officer is bound to submit a report regarding the association of accused in the matter and alongwith that satisfaction of the Investigating Officer is also required to be submitted that on the basis of evidence that is before the Investigating Officer accused can be taken into custody as per provision of Section 167-A of the Cr.P.C. Whenever such report is being submitted, it is upon the magistrate to take into consideration all the relevant facts and if magistrate thinks fit remand can be extended to the police. The word ‘thinks fit’ is certainly a discretionary word but even then whenever a magistrate passes any order that is a judicial order after applying the judicial mind. Any discretion that is being used should be used judiciously. Remand under Section 167 Cr.P.C. draws different elucidation at different stage. In Section 167(2) the word thinks fit is being used whenever the detention of the accused in custody either judicial or police is being made for a period not exceeding 15 days a whole although whenever a police custody is being given then reasons are to be recorded as per provision of Section 167(3) Cr.P.C. but no such reason is required to be given by the magistrate when judicial custody is authorised under Section 167(2) Cr.P.C. A proviso is appended to Section 167(2) of the Cr.P.C. and the relevant Sub-Section (2A) is reproduced below:-
“Section 167(2)(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 purpose of that Chapter;] Hereinabove it is provided that magistrate may authorise the detention of the accused person otherwise than in custody of the police beyond the period of 15 days if he is satisfied with adequate grounds exist to do so.
So there is difference between granting the remand first time under Section 167(2) and in that case no specific reasons are required to be given by the magistrate and if magistrate thinks fit a remand can be given but after fifteen days there should be satisfaction to the magistrate that adequate grounds exist for providing further remand only then further remand can be given.
In the ensuing facts it can be said that whenever a report is being submitted by the Investigating Officer or the police that certain person is required in connection of commission of a cognizable offence and relevant facts are being provided to the magistrate. It is upon the magistrate to look into the matter whether remanding the accused either in police custody or judicial custody and pass order accordingly and in case magistrate does not think so, remand can also be refused by the court but no hard and fast rule can be drawn regarding that and in every case magistrate is to decide this as per its discretion, certainly a judicial discretion.
The next contention of the learned counsel is regarding the bail that is to be decided by the magistrate court on the day of presentation of bail application and it is submitted by the learned counsel that in absence of all the relevant papers, bail application cannot be disposed of properly by the magistrate and in that circumstances magistrate should accord the benefit of the principle that is being laid down by the full bench of this court in Amrawati and another Versus State of U.P. reported in 2004 (57) ALR 290.
The constitution bench of this court in Amrawati (supra) has not accorded the benefit to the accused before the magistrate, so this court is also refraining exercising any opinion regarding that but in Amrawati’s case itself it has been directed by the court that bail application of the accused will be decided by the magistrate on the same day and in case it is not decided by the court on the same day then reasons will have to be given for not deciding that.
The grounds for providing remand under Section 167(2) Cr.P.C. and granting bail to the accused under Sections 436 and 437 Cr.P.C. by the magistrate are entirely on different grounds and grounds for both cannot be intermingled. Once remand under Section 167(2) Cr.P.C. is being ordered by the magistrate and if any bail application is being moved then it is to be considered by the magistrate as per provision of Section 436 and 437 of the Cr.P.C. as the case may be and magistrate is liable to decide the same on the same day, but if is not being done by him on the same day then specific reasons are to be mentioned regarding that and for that the law propounded by constitution bench of this court in the case of Amrawati (supra) is to be followed.
On the basis of discussion above, this court is of the view that the order passed by the learned magistrate was justified. In the circumstances it cannot be said that there is any irregularity, illegality or perversity in the order on the ground that applicant never moved to the Investigating Officer alongwith papers that are being asked to be sent alongwith Surrender Application upon which impugned order was passed.
Applicant cannot be allowed to bye-pass the regular procedure and only on the apprehension that applicant will be arrested, he cannot be allowed not to cooperate with the investigating agency and thereby prolonging the investigation. Prayer for quashing of FIR by co-accused Dr. Kuldeep Kaushik and others is also refused by this Court.
From the discussion above it can be said that there are no grounds for warranting interference by this Court and prayer for quashing the impugned order dated 14.7.2016 passed by the Additional Chief Judicial Magistrate, Court No. 2, Bulandshahar in Misc. Surrender Application No. Nil of 2016 (State Vs. Dr. Kuldeep Kaushik) in connection with Case Crime No. 179 of 2016, under Sections 304, 314 IPC, Police Station – Siyana, District – Bulandshahar, is hereby refused.
The application lacks merit and is accordingly dismissed.
Order Date :- 2.9.2016