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WHAT IS CUSTODY = in obtaining bail, the accused never stated that he is in judicial custody but said that he was harassed by the police . no misrepresentation in obtaining bail and as such cancellation bail not arise = the defacto-complainant who is seeking cancellation of bail to the accused that without there being judicial custody, this Court has no jurisdiction to entertain a bail petition under Section 439 Cr.P.C. It is contended that judicial custody of the accused is a condition precedent for entertaining a bail application by this Court under Section 439 Cr.P.C. Under Section 439 Cr.P.C, this Court as well as the Court of Session are empowered to exercise special powers for releasing on bail ‘any person accused of an offence and in custody’. Custody referred in Section 439 Cr.P.C need not necessarily be judicial custody given under Section 167(2) Cr.P.C. It can be either judicial custody or police custody under Section 167(2) Cr.P.C or detention in custody of an arrested person under Section 57 Cr.P.C. If custody in Section 439 Cr.P.C is to be read as judicial custody, then it amounts to adding something which the Parliament did not intend to add and which the Parliament did not intend to restrict power of the High Court and the Court of Session. Therefore, in the circumstances, the order dated 06.09.2011 in Criminal Petition No.7709 of 2011 is not liable to be set aside or cancelled. 11) In the result, this Criminal Petition is dismissed, with further directions to the following effect: (a) The Director General and Inspector General of Police, Andhra Pradesh, Hyderabad is directed to place Y.T.R.Prasad, Deputy Superintendent of Police/Sub-Divisional Police Officer, Tenali Sub-Division, Tenali, Guntur District under suspension and to initiate departmental disciplinary enquiry against him for violating the constitutional as well as legal provisions as indicated above and take consequential appropriate departmental disciplinary action against him. (b) The Additional Director General of Police, C.I.D, Andhra Pradesh, Hyderabad is directed to register case against Y.T.R.Prasad, Deputy Superintendent of Police/Sub-Divisional Police Officer, Tenali Sub-Division, Tenali, Guntur District along with others, if any, who facilitated him in this regard, under appropriate penal sections of law in the light of the observations made in this order and to investigate into the offence according to law.

THE HONOURABLESRI JUSTICE SAMUDRALA GOVINDARAJULU

The Andhra Pradesh High Court in Hyderabad.

The Andhra Pradesh High Court in Hyderabad. (Photo credit: Wikipedia)

CRIMINAL PETITION No.10864 of 2011

02-01-2012

Alaparthi Chinna

Kota Lakshmi Satyanarayana and another

Counsel for the Petitioner : Sri N.Ravi Prasad

Counsel for the Respondent No.1: Sri Ch.Ravindra Babu
Counsel for the Respondent No.2: Public Prosecutor.

ORDER :
The petitioner/defacto-complainant filed this petition under Section
439(2) Cr.P.C for cancelling bail granted to the 1st respondent/accused in
Crl.P.No.7709 of 2011 on 06.09.2011 by this Court in Crime No.73/2011 of I Town
Police station, Tenali, Guntur District on the ground that by the time order of
bail was passed by this Court, the accused was not arrested and remanded to
judicial custody and that by misrepresentation of facts, the 1st
respondent/accused obtained bail in this crime from this Court.
2) The 1st respondent/accused is accused of offences punishable under
Sections 420, 323, 506, 509 I.P.C and Section 3(1)(x) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989. It is alleged that
the accused obtained Rs.30,000/- from the defacto-complainant for securing job
as Aaya to her on daily wages and that he failed to secure the job and that when
the defacto-complainant demanded for return of the said amount, the accused
abused her in the name of her Madiga caste in filthy language and threatened her
with dire consequences. The case was booked by the police on 30.06.2011 on
report given by the defacto-complainant. This Court noted in the order dated
06.09.2011 that the accused was arrested on 31.07.2011 and had been in custody
since then. It is pointed out by the petitioner’s counsel that though the
accused was taken into custody by the police during the course of investigation,
he was neither arrested nor produced before the Magistrate nor the Magistrate
remanded the accused to judicial custody. It is also pointed out by the
petitioner’s counsel that when the accused approached the Sessions Court for
bail under Sections 437 and 439 Cr.P.C, the IV Additional Sessions Judge, Guntur
by order dated 23.08.2011 dismissed bail petition of the accused on the ground
that he was not remanded to judicial custody by the Magistrate and that there
was no material to show arrest or remand of the accused to judicial custody and
that the accused was not produced before the Magistrate.
3) This Court in this petition called for report of the Deputy
Superintendent of Police, Tenali Sub-Division who is the investigating officer
in this crime. The Deputy Superintendent of Police, Tenali Sub-Division filed
report by way of affidavit dated 12.12.2011 in this Court. Relevant portion of
the said report reads:
“4. It is respectfully further submitted that after collecting prima-facie
evidence, on 31.7.2011 at 1 p.m. in Tenali I Town Police Station, the accused
Kota Laxmi Satyanarayana was arrested duly following all legal requirements.
The arrested person has been referred to the District Hospital, Tenali for
obtaining fitness certificate to enable the Investigating Officer to produce him
along with Remand Report before the Hon’ble Court of I Additional Judicial
Magistrate of First Class, Tenali, since some of the offences are non-bailable
nature. The Deputy Civil Surgeon, District Hospital, Tenali examined the said
accused, Kota Laxmi Satyanarayana and opined that he was suffering with
Hyperglycemia due to not taking insulin and leading to Hyperglycemic coma, that
he was unfit for transportation and the case was being referred immediately to
High Health Centre for better treatment. Thus as per the medical advise, the
accused was shifted to K.I.M.S Hospital, Tenali, where he was admitted as
inpatient in I.C.U ward. It is pertinent to mention here that any accused
person who has been arrested will be taken to medical examination and then will
be produced before Judicial First Class Magistrate for judicial custody. All
the procedures of law has been complied in this case. Hence the procedure is
complied with.”
The record further shows that Sub-Divisional Police Officer/Deputy
Superintendent of Police, Tenali filed memo before the I Additional Judicial
Magistrate of the First Class, Tenali in this crime on 01.08.2011 mentioning the
above facts and stating that he was producing remand report with all the
connected records and medical certificate of the accused for further proceedings
in this case. On that memo, the Magistrate passed the following order.
“The police are directed to produce the accused before the Medical
Officer, District Hospital, Tenali for his examination and police are further
directed to produce the accused along with remand report and other certificates.
Meanwhile, the office is directed to return Remand Report to police for
representation of the same along with the accused.”
4) On 02.08.2011 the Sub-Divisional Police Officer represented the said
memo “after compliance”. In the office note of the Magistrate Court after
resubmission, it is noted that the memo was represented along with a certificate
issued by the Deputy Civil Surgeon, District Hospital, Tenali stating that the
accused was unfit for transit and hence, not produced before the Court on
02.08.2011. The said resubmission endorsement on the memo was not signed by the
Sub-Divisional Police Officer, but some other person singed for Sub-Divisional
Police Officer. It is stated by the Deputy Superintendent of Police in his
report submitted to this Court that the accused was kept under Police guard in
K.I.M.S hospital, Tenali where he was undergoing treatment from 01.08.2011 to
09.09.2011. In pursuance of bail order granted by this Court on 06.09.2011 the
Magistrate issued official memo to the Station House Officer, Tenali I Town
Police Station directing release of the accused who was in police custody
undergoing treatment, after obtaining bond papers from the accused and his
sureties.
5) According to certificate dated 02.08.2011 of Deputy Civil Surgeon,
District Hospital, Tenali, the accused was suffering from Hyperglycaemia as he
did not take insulin leading to Hyperglycaemic coma. Dr.Kowshik Kolluru of
Spark Diabetic and Multi Speciality Hospital gave certificate dated 01.08.2011
that the accused met him at 09.30 P.M on 31.01.2011 for management of
Hyperglycaemic coma and Transient Ischaemic Attack and that he was a known
history of diabetic and past history of C.V.A and that he was admitted under his
care as inpatient in K.I.M.S hospital I.C.U for further management and that he
might require bed rest. As per memo dated 01.08.2011 filed by Sub-Divisional
Police Officer before the Magistrate, the accused was arrested on 31.07.2011 at
13.00 hours at I Town Police Station, Tenali and that the accused was sent to
District Area Hospital, Tenali for medical fitness to produce him before the
Court for judicial remand. When the accused was arrested by the Sub-Divisional
Police Officer at 13.00 hours on 31.07.2011 at I Town Police Station, Tenali,
the accused could not have met Dr.Kowshik Kolluru of Spark Diabetic and Multi
Speciality Hospital, Tenali at 09.30 P.M. (21.30 hours) on 31.07.2011. The
certificate dated 01.08.2011 said to have been issued by Dr.Kowshik Kolluru of
Spark Diabetic and Multi Speciality Hospital is ex facie false and it is a
managed certificate. There is no certificate issued by Deputy Civil Surgeon,
District Hospital, Tenali to the effect that the accused was produced before him
on 31.07.2011 after his arrest or on 01.08.2011 for medical examination by the
police. Certificate dated 02.08.2011 given by Dr.Athota Ravindra Kumar, Deputy
Civil Surgeon, District Hospital, Tenali reads that the accused was referred to
Higher Centre for better management and that at that time, the accused was unfit
for transport. The Deputy Civil Surgeon was certifying condition of the accused
on 02.08.2011. It is not as if the accused had to be transported from Tenali to
any distant place. The accused had to be produced before the Magistrate who is
located at Tenali itself. The certificate issued by Dr.Kowshik Kolluru of Spark
Diabetic and Multi Speciality Hospital shows that the said hospital is located
in front of Judges’ Quarters at Tenali. In the light of the above factual
aspects of the case, I proceed to examine whether action/inaction of the Sub-
Divisional Police Officer, Tenali in not producing before the Magistrate after
his arrest is in accordance with Indian Constitution and in accordance with law.
6) Article 22 of the Indian Constitution provides for production against
arrest and detention in custody of a person. Sub-Article (2) thereof prescribes
production of any person arrested and detained in custody before the nearest
Magistrate within a period of 24 hours of such arrest in the following terms.
“Art.22. (1)- – — – – – – –
(2) Every person who is arrested and detained in custody shall be produced
before the nearest Magistrate within a period of twenty-four hours of such
arrest excluding the time necessary for the journey from the place of arrest to
the Court of the Magistrate and no such person shall be detained in custody
beyond the said period without the authority of a Magistrate.
(3) Nothing in clauses (1) and (2) shall apply –
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for
preventive detention.
Exceptions are provided for such production within a period of twenty-four
hours of arrest in Sub-Article (3) only in case relating to enemy alien and
preventive detention.”
7) Section 54 Cr.P.C provides for examination of arrested person by
medical officer. Section 54 Cr.P.C as it stands after Amending Act 5 of 2009
with effect from 31.12.2009, reads as follows:
“54. Examination of arrested person by medical officer:-
(1) When any person is arrested, he shall be examined by a medical officer in
the service of Central or State Governments and in case the medical officer is
not available by a registered medical practitioner soon after the arrest is
made:
Provided that where the arrested person is a female, the examination of
the body shall be made only by or under the supervision of a female medical
officer, and in case the female medical officer is not available, by a female
registered medical practitioner.
(2) The medical officer or a registered medical practitioner so examining
the arrested person shall prepare the record of such examination, mentioning
therein any injuries or marks of violence upon the person arrested, and the
approximate time when such injuries or marks may have been inflicted.
(3) Where an examination is made under sub-section (1), a copy of the
report of such examination shall be furnished by the medical officer or
registered medical practitioner, as the case may be, to the arrested person or
the person nominated by such arrested person.”
Section 55A Cr.p.C prescribes that it shall be duty of the person having
the custody of the accused to take reasonable care of the health and safety of
the accused. The duty under Section 55A is subject to the duty under Section 56
Cr.P.C. Section 56 Cr.P.C enjoins duty on the police officer making arrest to
take the person so arrested or send that person before a Magistrate having
jurisdiction in the case or before the officer in-charge of a police station.
In the case on hand, it was a superior police officer viz., Sub-Divisional
Police Officer, Tenali, who effected arrest of the accused. Therefore, it is
his duty to take or send the person arrested before the Magistrate having
jurisdiction in the case. Section 57 Cr.P.C commands that no police officer
shall detain in custody a person arrested for a longer period exceeding twenty-
four hours, which period is exclusive of the time necessary for the journey from
the place of arrest to the Magistrate. The only relaxation for production of
the arrested accused within twenty-four hours contained in Section 57 Cr.P.C is
in case the Magistrate under Section 167 Cr.P.C by special order authorised the
police officer to detain such person for a period of more than twenty-four
hours. Section 167(1) Cr.P.C reiterates duty of the police officer in the
following language:
“167. Procedure when investigation cannot be completed in twenty-four
hours:- (1) Whenever any person is arrested and detained in custody, and it
appears that the investigation cannot be completed within the period of twenty-
four hours fixed by Section 57, and there are grounds for believing that the
accusation or information is well-founded, the officer in charge of the police
station or the police officer making the investigation, if he is not below the
rank of sub-inspector, shall forthwith transmit to the nearest Judicial
Magistrate a copy of the entries in the diary hereinafter prescribed relating to
the case, and shall at the same time forward the accused to such Magistrate.”
On such production of the arrested person by the police officer who
effected arrest, before the Magistrate, it is open to the Magistrate under Sub-
section (2) of Section 167 Cr.P.C to authorise detention of the accused person
to such custody as such Magistrate thinks fit for a prescribed term. Such
authorised custody by the Magistrate may be custody of the accused in prison by
way of judicial remand or custody of the person to the police by way of police
custody.
8) Without such authorisation from the Magistrate under Section 167(2)
Cr.P.C the police officer who arrested the accused person has no discretion to
keep the accused person in his custody either in police station or in his house
or in a hospital or in any other place, in the light of the above provisions of
the Constitution of India and the Code of Criminal Procedure, 1973. The
action/inaction of the Sub-Divisional Police Officer, Tenali in not producing
the accused person in this crime before the Magistrate and in allowing the
accused person to remain in hospital, is in clear violation of the above
constitutional and legal provisions. Any custody of the accused beyond twenty-
four hours without production of the accused before the Magistrate, becomes
illegal as well as un-constitutional. When the accused was arrested on
31.07.2011 at 13.00 hours at I Town Police Station, Tenali, the accused should
have been produced before the Magistrate at Tenali immediately thereafter or
within reasonable time. Without there being prima facie case against the
accused from the evidence collected by the Sub-Divisional Police Officer, he
would not have arrested the accused on 31.07.2011 at 13.00 hours. Instead of
producing the accused before the Magistrate either on the same day or within
twenty-four hours thereof by 13.00 hours on 01.08.2011 after getting the accused
examined by medical officer of the Government Hospital, Tenali either on
31.07.2011 or on 01.08.2011 before 13.00 hours, the Sub-Divisional Police
Officer prima facie in collusion with the accused person obtained a certificate
from Dr.Kowshik Kolluru of Spark Diabetic & Multi Speciality Hospital on
01.08.2011 as if the said doctor examined the accused at 09.30 A.M. on
31.07.2011. On the next day, Dr.Athota Ravindra Kumar, Deputy Civil Surgeon,
District Hospital, Tenali, gave medical fitness certificate dated 02.08.2011 as
if he examined the accused on that day and referred him to higher centre for
better management. Detention of the accused with the Sub-Divisional Police
Officer beyond 13.00 hours on 01.08.2011 makes it illegal as well as
unconstitutional. In case an arrested accused person acquired any health
problem after his arrest, then it is for the police officer to produce the
accused before the Magistrate within twenty-four hours after obtaining medical
certification of the accused from a Government doctor and thereafter it is for
the Magistrate who after authorising the custody of the accused to the specified
authority under Section 167(2) Cr.P.C to take a decision and to give a direction
either to prison authorities in case the accused is authorised to be detained in
prison or to the police authorities in case the accused is authorised to be
detained in police custody, for getting necessary medical aid and to provide
necessary medical facilities to the accused so detained. It is not for the
police officer to admit the arrested accused in a hospital and to violate legal
and constitutional mandate of production of the arrested accused before the
Magistrate within twenty-four hours of his detention under arrest. Such action
on the part of police officers is likely to lead unscrupulous tendencies like in
the present case, where the accused was allowed to remain in hospital from
31.07.2011 to 09.09.2011 after his arrest without production before a
Magistrate, till the accused was ordered to be released on bail by this Court.
Such activity on the part of the police officers will give wrong signals to the
society and to the public at large that rich and influential persons can manage
unscrupulous police officers, so that they need not go either to a Court or to a
prison even after arrest while in custody. The Sub-Divisional Police Officer,
Tenali prima facie committed a constitutional violation in not producing the
accused before the Magistrate within twenty-four hours of his arrest. His
action/inaction in this regard is highly deplorable. This is a fit case for
keeping the said police officer under suspension and to conduct departmental
disciplinary enquiry against him as well as to book a criminal case against him
as well as others who facilitated him in this regard, by C.I.D and to make
investigation about their illegal and unconstitutional activity mentioned above.
9) In so far as granting of bail to the accused in this crime by this
Court under Section 439 Cr.P.C is concerned, it has to be seen whether it was
granted in accordance with law and whether there was any misrepresentation on
the part of the accused before this Court for obtaining bail. In Criminal
Petition No.7709 of 2011 filed by the accused for bail under Section 439 Cr.P.C
it was stated that the police called him to the police station on 31.07.2011 at
about 7.00 A.M. and that the police have detained and arrested him and informed
his kith and kin about the arrest and that due to continuous interrogation and
torture, at about 6.30 P.M the accused fell unconscious in the police station
with illness and that he was taken to Area District Hospital and to private
hospital. It was never stated in Criminal Petition No.7709 of 2011 that the
accused was in judicial custody. In that petition, the accused also enclosed
copies of remand report, medical certificates of both the doctors as well as
order dated 23.08.2011 passed by the IV Additional Sessions Judge, Guntur
refusing bail to the accused on the ground that he was not remanded to judicial
custody. Therefore, it cannot be said that the accused obtained bail from this
Court in Criminal Petition No.7709 of 2011 by making any misrepresentation
before this Court.
10) It is contended by the counsel for the defacto-complainant who is
seeking cancellation of bail to the accused that without there being judicial
custody, this Court has no jurisdiction to entertain a bail petition under
Section 439 Cr.P.C. It is contended that judicial custody of the accused is a
condition precedent for entertaining a bail application by this Court under
Section 439 Cr.P.C. Under Section 439 Cr.P.C, this Court as well as the Court
of Session are empowered to exercise special powers for releasing on bail ‘any
person accused of an offence and in custody’. Custody referred in Section 439
Cr.P.C need not necessarily be judicial custody given under Section 167(2)
Cr.P.C. It can be either judicial custody or police custody under Section
167(2) Cr.P.C or detention in custody of an arrested person under Section 57
Cr.P.C. If custody in Section 439 Cr.P.C is to be read as judicial custody,
then it amounts to adding something which the Parliament did not intend to add
and which the Parliament did not intend to restrict power of the High Court and
the Court of Session. Therefore, in the circumstances, the order dated
06.09.2011 in Criminal Petition No.7709 of 2011 is not liable to be set aside or
cancelled.
11) In the result, this Criminal Petition is dismissed, with further
directions to the following effect:
(a) The Director General and Inspector General of Police, Andhra Pradesh,
Hyderabad is directed to place Y.T.R.Prasad, Deputy Superintendent of
Police/Sub-Divisional Police Officer, Tenali Sub-Division, Tenali, Guntur
District under suspension and to initiate departmental disciplinary enquiry
against him for violating the constitutional as well as legal provisions as
indicated above and take consequential appropriate departmental disciplinary
action against him.
(b) The Additional Director General of Police, C.I.D, Andhra Pradesh, Hyderabad
is directed to register case against Y.T.R.Prasad, Deputy Superintendent of
Police/Sub-Divisional Police Officer, Tenali Sub-Division, Tenali, Guntur
District along with others, if any, who facilitated him in this regard, under
appropriate penal sections of law in the light of the observations made in this
order and to investigate into the offence according to law.

_______________________________
SAMUDRALA GOVINDARAJULU, J
January 02, 2012

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