THE EFFECT OF TRANSIT ORDER? IS IT A PRODUCTION ORDER THOUGH SOURCED UNDER SECTION 167 CR.P.C.?
77. The Respondent contends that the transit remand order is not a remand for detention under Section 167 of the Cr.P.C. but only one for production. Reliance is placed on Section 57. It is in other words, pointed out that Section 57 contemplates that in the absence of ‘special order’ under Section 167, a person arrested without warrant must be produced withing 24 hours excluding the time taken for journey from the place of arrest to the place where the Magistrate is located. Therefore, if a ‘special order’ under Section 167 is obtained, it is for the purpose of extending the time in Section 57 for production of the arrestee.
78. Per contra, Appellant contends that Section 167 specially covers cases where a judicial Magistrate who has no jurisdiction to try a case, can order a remand. There is no other provision for ordering transit remand.
79. In this case the transit remand was ordered on 28.08.2018. The Appellant was to be produced under the same on 30.08.2018 before the Magistrate in Pune. A person may be arrested by a police officer in any part of India (Section 48 of Cr.P.C.). Under Section 56 the person arrested without warrant is to be sent before the Magistrate having jurisdiction or before the officer in charge of a police station. It is thereafter, that Section 57 forbids the person so arrested:
i. from being detained for a period more than what is reasonable.
ii. from being detained beyond 24 hours from the time of arrest, excluding the time necessary for the journey from the place of arrest to the Magistrate Court.
80. Now, the ‘Magistrate Court’ referred to in Section 57 is the Magistrate competent to try the case. Section 57 contains the peremptory limit of 24 hours exclusive of the period for journey, in the absence of ‘special order’ under Section 167.
81. The words ‘special order’ is not found in Section 167 of the Cr.P.C. Therefore, could it not be said that but for Section 57 permitting the Magistrate to allowing time by passing an order under Section 167, detention in violation of Section 57 would be rendered illegal? What is the nature of the custody on the basis of the special order under Section 167 referred to in Section 57? Is it police custody or is it judicial custody? Is it any other custody? Will the period of remand for statutory bail begin from the date of this ‘special order’? Will it begin only when the competent Magistrate orders remand?
82. Now as far as this case is concerned, we notice findings of the High Court of Delhi as follows : (para 11 and para 15)
“(11) Mr. Navare next tried to draw a distinction between the scope of the function of a Magistrate before whom an application for transit remand is moved and the jurisdictional Magistrate who should be approached for an order of remand in terms of Section 56 of the Cr.P.C. According to Mr. Navare, at the stage of transit remand the concerned Magistrate would not be required to satisfy himself anything more than whether an offence is made out and whether the Police Officer seeking the remand is in fact the one authorized to do so.”
“(15) Therefore, when a person who after arrest is required to be produced before a jurisdiction Judicial Magistrate is detained in a place which is away from that jurisdiction, and therefore cannot be produced before the jurisdictional Magistrate within 24 hours, as mandated both by Article 22(2) of the Constitution and by Section 57 Cr.P.C., he will be produced before the ‘nearest Judicial Magistrate’ together with ‘a copy of the entries in the diary’. Therefore, even before a Magistrate before whom a transit remand application is filed, the mandatory requirement of Section 167(1) Cr.P.C. is that a copy of the entries in the case diary should also be produced. It is on that basis that under Section 167(2) such ‘nearest Judicial Magistrate’ will pass an order authorising the detention of the person arrested for a term not exceeding 15 days in the whole. Where he has no jurisdiction to try the case and he finds further detention unnecessary, he may order the accused to be forwarded to the jurisdictional Magistrate.”
83. In fact, as already noticed the submission of the State of Maharashtra was also that once a person was in judicial custody a writ of habeas corpus would not lie which also was rejected.
84. Now, the question may persist as to whether the remand pursuant to a transit remand is to police custody or judicial custody. It cannot be judicial custody as the police is exclusively entrusted with the man no doubt to produce him before the Magistrate having jurisdiction. It is therefore, police custody. Could the police be engaged in questioning/investigating the case by interrogating the accused on the basis of the transit order either before, embarking on the journey or during the course of the journey and after the journey before producing him? If it is thought that during the journey it is impermissible, then such interrogation would equally be impermissible during the time of journey permitted without obtaining an order under Section 167. If also during such journey the accused volunteers with a statement otherwise falling under Section 27 of Evidence Act, it would be one when the accused is in the custody of the police. If it is police custody then, the order of the Magistrate granting transit remand would set the clock ticking in terms of (1986) 3 SCC 141 to complete the period for the purpose of default bail.
85. We may also notice that the interplay of Section 57 and 167 was considered in the judgment of this Court in Chaganti Satyanarayana (supra). It was held as follows:
“(12) On a reading of the subsections (1) and (2) it may be seen that sub-section (1) is a mandatory provision governing what a police officer should do when a person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of 24 hours fixed by Section 57. Sub-section (2) on the other hand pertains to the powers of remand available to a Magistrate and the manner in which such powers should be exercised. The terms of sub-section (1) of Section 167 have to be read in conjunction with Section 57. Section 57 interdicts a police officer from keeping in custody a person without warrant for a longer period than 24 hours without production before a Magistrate, subject to the exception that the time taken for performing the journey from the place of arrest to the magistrate's court can be excluded from the prescribed period of 24 hours. Since sub-section (1) provides that if the investigation cannot be completed within the period of 24 hours fixed by Section 57 the accused has to be forwarded to the magistrate along with the entries in the diary, it follows that a police officer is entitled to keep an arrested person in custody for a maximum period of 24 hours for purposes of investigation. The resultant position is that the initial period of custody of an arrested person till he is produced before a Magistrate is neither referable to nor in pursuance of an order of remand passed by a magistrate. In fact the powers of remand given to a magistrate become exercisable only after an accused is produced before him in terms of sub-section (1) of Section 167.”
“(13) Keeping proviso (a) out of mind for some time let us look at the wording of sub-section (2) of Section 167. This sub-section empowers the magistrate before whom an accused is produced for purpose of remand, whether he has jurisdiction or not to try the case, to order the detention of the accused, either in police custody or in judicial custody, for a term not exceeding 15 days in the whole.”
86. We would hold that the remand order be it a transit remand order is one which is passed under Section 167 of the Cr.P.C. and though it may be for the production of the Appellant, it involved authorising continued detention within the meaning of Section 167.
In the Supreme Court of India
(Before Uday U. Lalit and K.M. Joseph, JJ.)
Gautam Navlakha Vs National Investigation Agency
Criminal Appeal No. 510 of 2021,
Decided on May 12, 2021
Citation: 2021 SCC OnLine SC 382
No comments:
Post a Comment