Apprehending arrest in connection with an offence registered with Pethapur Police Station vide CR No.I-56 of 2012 for offences punishable under Sections 467, 468, 471, 409 and 114 of the Indian Penal Code, the present petitioner preferred Criminal Misc. Application No.10303 of 2012 invoking the Section 482 of the Code of Criminal Procedure before this Court making following reliefs: “15. On the premises mentioned as above, the petitioner prays to Your Lordships that,
A) Be pleased to admit this petition.
B) Be pleased to quash and set aside the First Information Report being CR No.I-56 of 2012 with Pethapur Police Station against the petitioner.
C) Pending admission and final disposal of the present petition be pleased to stay further order, proceedings in respect of investigation of CR No.I-56 of 2012 lodged with Pethapur Police Station.
(D) Be pleased to pass such other and further orders as may be deemed fit and proper.”
1.1 This petition was preferred on 11/07/2012. This Court passed following order on 17/07/2012 in the said petition:
“Notice to the respondents returnable on 7th August, 2012. Learned APP Mr.H.L. Jani waives service of notice for respondent no.1-State of Gujarat.
Ad-interim relief in terms of Para No.15c till then. Direct service is permitted.”
2. Before that order was passed, the petitioner was arrested on 16/07/2012. The petitioner was produced before learned JMFC, Gandhinagar at 04:00 p.m. on 17/07/2012. The Police prayed for remand of the petitioner to police custody which was granted by learned JMFC upto 02:00 p.m. of 19/07/2012. The order granting ad-interim-relief in CRMA No.10303 of 2012 in terms of paragraph No.15c was served upon the Investigating Officer and the Investigating Officer, therefore, produced the petitioner before learned JMFC on 19/07/2012 at 11:00 O'clock as per his say in affidavit and the said production report appears to have been recorded by the learned JMFC on 11:55 a.m. on that day (Annexure – H). The petitioner then came to be remanded to judicial custody by order of learned JMFC on that very day and is in judicial custody as on today.
2.1 The petitioner in the meantime has preferred this petition for habeas corpus on 23/07/2012 before this Court and came to be heard on different occasions. The hearing is concluded today.
3. Learned Advocate Mr.Mangukiya for the petitioner submitted that the petitioner's detention in judicial custody though by judicial order of learned JMFC, is illegal and nonest for the reason that the said order is passed in conflict with the order passed by the High Court in CRMA No.10303 of 2012 staying the investigation. Mr.Mangukiya submitted that this type of approach may lead to chaos in judicial system. Mr.Mangukiya submitted that a computer copy of the order passed by this Court in CRMA No.10303 of 2012 was shown to the Police as well as learned JMFC on 19/07/2012 and still this order is passed in sheer disrespect towards this Court's order. Mr.Mangukiya submitted that since the investigation is stayed, there is no investigation and in absence of investigation, learned JMFC could not have exercised powers under Section 167 (2) of the CRPC remanding the accused to custody may be Police or judicial and the factum of his having territorial jurisdiction will be of no consequence. Mr.Mangukiya submitted further that power of the learned JMFC to remand the accused to custody during course of investigation is eclipsed by order of this Court passed in CRMA No.10303 of 2012 and, therefore, learned JMFC had no jurisdiction to remand the accused to custody. The detention of the accused in custody is, therefore, illegal and, therefore, a writ of habeas corpus would lie. According to Mr.Mangukiya a writ of habeas corpus is the only remedy available to the petitioner for the purpose. According to Mr.Mangukiya on passing of order staying the investigation by this Court, the accused – petitioner could not have been detained and his continued detention in custody is illegal. Service of stay order is good enough for release of the accused. According to Mr.Mangukiya there is no investigation and, therefore, learned JMFC could not have exercised powers under Section 167 (2) of the Code.
4. Mr.Mangukiya submitted that the real question that would arise for this Court to determine would be whether detention of the petitioner – accused under Section 167 of the Code can be said to be legal after investigation was stayed. According to him, Section 41 of the Code provides for arrest without warrant in case of cognizable offence by Police. Section 57 of the Code authorises detention for period of 24 hours. However, the detention in police custody or in judicial custody can be authorised in sub-section (2) of Section 167 of the Code, if the investigation is going on and is not completed within 24 hours. Since there is no investigation today, the power of investigation stands eclipsed by virtue of order of this Court passed in CRMA No.10303 of 2012 and, therefore, continued detention of the petitioner is illegal and lacks jurisdiction.
5. Learned APP, Mr.Neeraj Soni appearing on advance copy, on the other hand submitted that it cannot be said that there is no investigation. The investigation is only stayed. The order granting remand of the accused to police custody as well as judicial custody has not been challenged by the petitioner before higher forum and has therefore attained finality and, therefore, this petition may not be entertained. According to Mr.Soni, alternative remedy is available to the petitioner and, therefore, also the petition may not be entertained.
5.1 Learned APP, Mr.Soni has relied upon following decisions:
1. Col. Dr.B. Ramchandra Rao Vs. The State of Orissa & Ors., reported in AIR 1971 SC 2197.
2. Kanu Sanyal Vs. Dist. Magistrate, Arjeeling & Ors., reported in AIR 1974 SC 510.
3. Sanjay Datt Vs. the State, through , CBI, Bombay reported in 1994 (2) GLH 257.
4. Naranjan Singh Nathwan & Ors. Vs. State of Punjab reported in AIR 1952 SC 106.
5.2 Learned APP, Mr.Soni, therefore, submitted that the petition may be dismissed.
6. Having examined the rival side submissions and the material on record, at the outset, we would like to quote the prayers made in this petition, which runs as under:
“19. On the premises mentioned as above, the petitioner prays to Your Lordship that:
1. Be pleased to admit this petition,
2. Be pleased to issue a writ of Habeas Corpus or a writ in the nature of Habeas Corpus or any other writ, order or direction and direct the respondents to produce the petitioner before this Hon'ble Court forthwith and direct the petitioner to be set free forthwith;
3. Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other writ, order or direction and direct and quash the order passed by the ld. 6th Addl. Chief Judicial Magistrate, Gandhinagar directing the petitioner to be kept in judicial custody;
4. Pending admission and final disposal of the present petition, be pleased to direct the respondents that the petitioner be granted interim bail during pendency of this petition;
5. Be pleased to pass such other and further orders as may be deemed fit and proper.”
7. From the chronology of events as emerging from the petition as well as affidavit-in-reply, it is not in dispute that the arrest of the petitioner was effected on 11/07/2012. Whereas the quashing petition came to be filed on 17/07/2012 and the stay order was granted on 17/07/2012 at about 04:30 p.m. and the remand of the accused – petitioner to police custody was granted on 17/07/2012 till 02:00 p.m. of 19/07/2012. It is also required to be noted that order passed by learned JMFC has not been challenged anywhere and has attained finality. Thereafter, the order passed by this Court in CRMA No.10303 of 2012 has been served on the Police authority on 17/07/2012 at 09:30 p.m. On the next day i.e. on 18/07/2012, the Investigating Officer seems to have informed learned JMFC about the stay granted by the High Court and has attended High Court in connection with anticipatory bail application preferred by the petitioner. It is also not the case of the petitioner that after the service of order of stay, any other investigation has been carried by the Investigating Officer. On 19/07/2012 itself the applicant preferred an application for bail under Section 437 of the Code, which came to be rejected and the accused was remanded to judicial custody and as such the petitioner – accused is in judicial custody as on now. It is pertinent to note that the learned JMFC has rightly observed in his order upon bail application that the High Court has stayed further investigation only.
8. It may also be noted that so far as jurisdiction of learned JMFC is concerned, it is nobody's case that he has no jurisdiction to remand the accused to either police custody or judicial custody. The main question that requires to be considered is whether the custody of the petitioner can be said to be illegal as of now. In this context, the main contention is that because the investigation is stayed it has to be treated as nonest and because there is no investigation, learned JMFC could not have exercised jurisdiction under Section 167 (2) of the Code, which authorises him to pass such order remanding the accused to custody where the investigation is going on and is not completed within stipulated time period. It is not possible for us to accept this contention for the reason that stay of investigation would not eradicate the FIR or the investigation that has been carried out pursuant to FIR before the service of stay order passed by the High Court. It is only an ad-interim order and if the stay is vacated and that quashing petition is not entertained, the investigation may further be persuaded. It, therefore, cannot be said that because of investigation was stayed, there was no investigation and, therefore, order was passed in absence of pending investigation. In our view, the investigation is pending. It is suspended by virtue of the order and possibility of its revival cannot be ruled out in future.
No.10303 of 2012 dated 17/07/2012 is only the investigation and the order passed by the learned JMFC remanding the accused to custody cannot be said to be part of investigation. It is a judicial order to be passed exercising judicial discretion and, therefore, by no stretch of imagination can it be said that order remanding the accused to custody was passed in contravention of or in conflict with the order of this Court staying investigation passed in CRMA No.10303 of 2012.
10. To come to the conclusion, we rely on the definition of investigation as given in Section 2(h) of the Code which runs as under:
"2(h) Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf;
10.1 It is clear from plain reading of this definition that investigation would include proceedings under the Court for collection of evidence conducted by the Police or any other person other than Magistrate. The order cannot be termed as part of investigation which is stayed.
11. It was vehemently argued by learned Advocate for the petitioner that once the investigation was stayed by the Court, nothing could have been done including passing of order by learned JMFC. Effectively, the accused was arrested before the order of stay of investigation was passed by this Court and accused was aware about it. We may stop only by observing that the accused did not ask for any relief about his release either on bail or his release from custody in any other manner by order of this Court. Nor did he ask for any relief against passing of an order by learned JMFC.
11.1 The grant of stay of investigation after the arrest of accused cannot be read to mean that accused is to be set free establishing status-quo ante because, even at the time of passing order of staying investigation, the accused was arrested. It would not be possible to interpret the order of stay of investigation that the Investigating Officer should release him from custody, because that is possible only under Section 169 of the Code and, that can be done only at the end of investigation where the Investigating Agency finds that there is no material to send the accused for a trial. In the instant case, the investigation is stayed and, therefore, it is not possible to hold that no material is likely to be unearthed, if the investigation is permitted.
12. Further, when the accused is produced before the Magistrate, the Magistrate is required to pass a judicial order using his judicial discretion either remanding him to police custody if it is prayed for or remanding him to judicial custody and, in case bail is applied for to consider the question of bail. All these orders are judicial orders and are not part of investigation and cannot be treated to have been stayed by the order passed in CRMA No.10303 of 2012 staying the investigation.
13. Considered from any angle, the petitioner cannot be held to have been illegally or unlawfully to be in illegal or unlawful custody or illegal or unlawful confinement and, therefore, also the petition cannot be entertained.
14. To reiterate, this petition cannot be entertained for two reasons. First being that stay of investigation by an ad-interim order passed by this Court would only result in suspension of investigation, but would not eradicate or extinct the investigation, which was carried out pursuant to FIR before service of the order and, is subject to revival. It, therefore, cannot be said that when the order was passed by the learned JMFC, there was no investigation and, therefore, there is no force in the argument that learned JMFC could not have remanded the accused in such a situation in exercise of powers under Section 167 of the Code. And secondly, the act of learned JMFC remanding the accused to custody is a judicial act, which cannot be termed as part of investigation and cannot be considered to have been covered under the stay granted by this Court in CRMA No.10303 of 2012.
15. Illegal or unauthorized detention or confinement is a sine qua non for entertaining a petition for writ of Habeas Corpus. The custody of the petitioner is, therefore, judicial and cannot be considered to be illegal. As such, the relief sought in the petition cannot be granted. The petition must fail and stands dismissed.
(A L DAVE, J.) (A J DESAI, J.) sompura