HON’BLE Dr. JUSTICE K.G.SHANKAR Crl.P.M.P.No.8936 of 2014 in/and Criminal Petition No.8996 of 2014 Date: 11-8-2014 Between Maddipati Venkatasatya Ramu @ MVS Ramu … Petitioner/ Accused No.1 and The SHO, Humayun Nagar PS, Hyderabad, Rep. by its Public Prosecutor, High Court, Hyderabad;
… Respondent Chinnam Naga Venu Venkata Satyanarayana Reddy … Respondent/
De facto Complainant
HON’BLE Dr. JUSTICE K.G.SHANKAR Crl.P.M.P.No.8936 of 2014 in/and Criminal Petition No.8996 of 2014 Order:
The petitioner assails the order of the learned VI Additional Chief Metropolitan Magistrate, Hyderabad dated 26-7-2014 in Crl.M.P.No.3019 of 2014.
2. A case in Crime No.191 of 2013 of Humayun Nagar Police Station was registered against the petitioner and others on the basis of a complaint lodged by one Chinnam Naga Venu Venkata Satyanarayana Reddy before the VI Additional Chief Metropolitan Magistrate, Hyderabad, when the same was referred by the learned Magistrate to Police under Section 156(3) Cr.P.C.
The petitioner is arrayed as accused No.1 therein.
It would appear that number of First Information Reports (FIRs) were lodged against the petitioner herein.
This Court through orders dated 30-7-2014 in Crl.P.M.P. Nos.8643, 8642 and 8641 of 2014 in Criminal Petition Nos.4359, 4360 and 4361 of 2014 directed the petitioner to surrender before the Trial Court. This Court passed a direction through orders in Crl.P.Nos.4358 to 4362 of 2014 on 26-6-2014 granting liberty to the petitioner herein to surrender before the VI Additional Chief Metropolitan Magistrate, Hyderabad and other Courts before whom he is involved in various cases. It was further directed that the concerned Courts shall take the petitioner into custody under Section 44 Cr.P.C and that the petitioner shall comply with the directions of this Court within 15 days from the date of receipt of copy of that order and move the concerned Courts for grant of bail. Curiously, this Court also directed the concerned Courts to grant bail with conditions. It would appear that the petitioner could not approach the Court within the time prescribed. Consequently, Crl.P.M.P.Nos.8643, 8642 and 8641 of 2014 were filed by the petitioner. Extension of time by 15 days was granted in favour of the petitioner to surrender and move the Court for grant of regular bail.
3. Accordingly, the petitioner surrendered and moved Crl.M.P.No.3018 of 2014 before the learned VI Additional Chief Metropolitan Magistrate, Hyderabad for grant of bail. The learned Magistrate recorded that he has no alternative but to grant bail in view of the directions of this Court through orders in Crl.P.No.4361 of 2014 and imposed certain conditions through the same order, dated 26-7-2014.
4. While so, the prosecution filed a petition in Crl.M.P.No.3019 of 2014 seeking for police custody of the petitioner herein for a period of 7 days. The learned VI Additional Chief Metropolitan Magistrate passed orders on 26-7-2014 on which day orders in Crl.M.P.No.3018 of 2014 were passed, granting police custody of the petitioner for a period of 3 days taking possible precautions. Questioning this order, the petitioner has come forward with the present petition.
5. The first of the contentions of the learned counsel for the petitioner is that the Trial Court is attempting to do something by way of giving with one hand and taking away the same with the other hand. In view of the orders in Crl.P.Nos.4359, 4360 and 4361 of 2014, the learned VI Additional Chief Metropolitan Magistrate had no alternative but to enlarge the petitioner on bail/ anticipatory bail. At the same time, the Court granted police custody thus taking away the bail granted to the petitioner.
6. The learned counsel for the petitioner attacked the case of the prosecution and the impugned order on various grounds. Inter alia, he submitted that under Section 167(1) Cr.P.C., an Investigating Officer who arrests or detains an accused shall submit such a person to the Court together with the C.D. File within 24 hours from the time of arrest. Further, Section 167(1) Cr.P.C reads that the provision applies to an arrest if the same falls within Section 57 of the Code. Section 57 of the Code reiterates that a person arrested shall not be detained with Police for more than 24 hours without prior permission of the Magistrate.
7. The learned counsel for the petitioner submitted that the petitioner was not arrested within the meaning of Section 57 of the Code, so much so, neither Section 57 of the Code nor Section 167 Cr.P.C applies. Section 57 of the Code envisages that a person arrested without warrant cannot be detained in the custody of police. Be it noted that so far as the petitioner is concerned, the petitioner was never arrested.
The petitioner moved the High Court for grant of anticipatory bail. The High Court granted the same indirectly. The High Court directed the petitioner to surrender before the Trial Court and directed the Trial Court to accept the surrender of the petitioner under Section 44 of the Code by arresting the petitioner.
The High Court further ordered that after such arrest, the petitioner shall be enlarged on bail by the Trial Court by imposing certain conditions which were enumerated by the High Court itself. The question of the petitioner being arrested by Police therefore did not arise.
8. The learned counsel for the petitioner submitted that when the petitioner was not arrested under Section 57 of the Code, Section 167 Cr.P.C has no application, so much so, the Court cannot treat that the petitioner was under detention and cannot order police custody of the petitioner. The learned counsel for the petitioner placed reliance upon a Full Bench decision of the Punjab and Haryana High Court in support of his contention. I n Gurbaksh Singh Sibia v. State of
[1]
Punjab , it was observed that as soon as anticipatory bail has become effective, Section 167(2) Cr.P.C comes into play. The Full Bench further clarified that the Investigating Agency would be denuded of its right to interrogate the offender in custody. In Manmohan Singh
[2]
v. State of Punjab , it was noticed that the condition incorporated in the order granting anticipatory bail that the Police might obtain police custody of the accused during the period the accused is on bail is not permissible under law. Admittedly, the petitioner was enlarged on bail through orders in Crl.M.P.No.3018 of 2014. It is the contention of the learned counsel for the petitioner that as the petitioner was enlarged on bail/anticipatory bail, the question of handing over the petitioner to Police for custody is per se illegal.
9. The learned Public Prosecutor contended that pursuant to the bail conditions only, police custody was granted and that the bail conditions have not been
[3]
challenged. I n Niranjan Singh v. Prabhakar , it was held by V.R.Krishna Iyer, J. that the appearance of an accused before the Court amounts to custody.
The question of granting police custody however did not arise in this case. The learned Public Prosecutor admitted that the law regarding police custody after filing of the charge-sheet is well settled that the police custody cannot be granted after the charge-sheet is laid. Relying upon Niranjan Singh (3 supra), he contended that if a person surrenders before the Court, it is tantamount to custody. In view of the Full Bench decision of the Punjab and Haryana High Court which certainly is not contrary to the view of the Supreme Court, I consider that once a person is enlarged on bail or anticipatory bail, police custody of the same cannot be granted.
10. Crl.P.M.P.No.8936 of 2014 is allowed.
The petitioner therein, who is the de facto complainant, is impleaded as 2nd respondent in this petition.
A counsel for the de facto complainant appeared.
The learned counsel for the petitioner protested the appearance of the counsel for the de facto complainant on the ground that the impugned order in Crl.M.P. No.3019 of 2014 is a petition where the petitioner herein and the respondent herein alone were parties, so much so, the de facto complainant cannot step in. The learned counsel for the de facto complainant submitted that the petitioner is already in judicial custody and the question of assailing the order in Crl.M.P.No.3019 of 2014 has become infructuous as the period of police custody is already over. I do not wish to go into the question whether th e de facto complainant has right of audience in this matter.
11. I may however point out that the question of police custody is still wide open in this case for the reason that the Police have filed yet another petition seeking for extension of police custody. I am afraid that once the petitioner has been enlarged on anticipatory bail by the learned Magistrate through orders in Crl.M.P. No.3018 of 2014, the question of grant of police custody of such a petitioner does not arise. Such a point has been succinctly put by a learned Single Judge of Punjab and Haryana High Court in Manmohan Singh (2 supra). With great respect, I agree with the view of the High Court in this case and conclude that where the petitioner had already been enlarged on bail, the question of granting police custody of the petitioner does not arise. The orders in Crl.M.P.No.3019 of 2014 indeed become infructuous. However, further police custody shall not be granted in any event. What is the effect of the information gathered by Police during the police custody of the petitioner in view of orders in Crl.M.P.No.3019 of 2014 shall be considered at the time of the trial of the case.
12. This criminal petition accordingly is allowed.
It is held that the police custody of the petitioner cannot be sought for as the petitioner had already been enlarged on bail/anticipatory bail. The miscellaneous petitions, if any, pending in this petition shall stand closed.
Dr. K.G.SHANKAR, J.
11th August, 2014. Ak HON’BLE Dr. JUSTICE K.G.SHANKAR Crl.P.M.P.No.8936 of 2014 in/and Criminal Petition No.8996 of 2014 11th August, 2014. (Ak)
[1] AIR 1978 P & H 1(1)
[2] 1999 CRI. L. J. 4918
[3] AIR 1980 SC 785