Case Law Details
Yogeshbhai Naginbhai Vora Vs State of Gujarat (Gujarat High Court)
The only question that falls for consideration of this Court is whether the police custody / remand of the petitioner – accused can be ordered by the Court pending adjudication and in an interregnum time, when the initial period of 15 days is over?
The remand of an accused is contemplated in two stages: (a) pre-cognizance and (b) post-cognizance. Section 167 (2) of the Cr.P.C. is attracted where cognizance has not been taken and Section 309 of the Cr.P.C. is attracted only after the cognizance has been taken. In the present case, since the case is under the investigation, the provisions of Section 309 (2) would not be applicable and only relevant provision at this stage is Section 167 of the Cr.P.C.
Considering the provisions of Section 167 of the Cr.P.C., it provides for cases where investigation cannot be completed within 24 hours fixed by Section 57 and the police require more time to investigate. In such a case, the police officer is required to produce the accused before a Magistrate and the Magistrate is given discretion to detain the accused either in police custody or judicial custody. The period during which a Magistrate can remand an accused either in judicial custody or in police custody has been limited for a term not exceeding fifteen days in the whole. The proviso to Section 167 provides for detention of an accused in judicial custody beyond the period of fifteen days, if a Magistrate is satisfied that adequate reasons exists for doing so. However, such a detention is limited to 90 days where the offence is punishable with death, imprisonment for life or for a term not less than ten years and the period is limited to 60 days where the investigation relates to any other offence. The proviso further provides for a right of the accused to be enlarged on bail after the aforesaid period of 90 days or 60 days is over. The proviso further gives a mandate that no accused shall be kept in custody unless the accused is produced before a Magistrate and the power of ordering detention in custody is restricted to a Magistrate of the First Class. Such a power has not been granted to a Magistrate of a Second Class who is not specially empowered in this behalf by the High Court to authorise detention in custody of the police. Thus, sub-section (2) of Section 167 makes it clear that a Magistrate can grant such custody as he thinks fit which means he can grant either police custody or judicial custody.
While considering the aforesaid provisions of Section 167 of the Cr.P.C., in my considered opinion, one should not be obliviated the rights of the Investigating Officer. Once the offence is disclosed, then it is the right of the police and/or Investigating Officer to investigate such offence and further, it is the discretion of the Investigating Officer to adopt the mode of investigation. It is needless to say that the right to investigate the offence is the statutory right of the Investigating Agency. Thus, the Investigating Officer is empowered with the provisions of law to investigate thoroughly. Thorough investigation is the base on which the superstructure of the entire criminal jurisprudence exists. The entire criminal trial depends on a material evidence collected during the course of investigation. If, by any means, the investigation is not allowed to be made thoroughly, in that event, the Court would not be in a position to arrive at a just conclusion. In my view, therefore, the investigation is the heart of the criminal jurisprudence based on which the Criminal Court proceeds to do justice. Thus, the investigation is considered to be the most crucial element in criminal trial. In other words, with the assistance of the able and effective investigation, the Criminal Court can achieve its paramount goal to impart substantial justice.
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