Telangana High Court
T. Ramadevi vs The State Of Telangana on 26 September, 2024
Author: P.Sam Koshy
Bench: P.Sam Koshy, N.Tukaramji
IN THE HIGH COURT FOR THE STATE OF TELANGANA
::HYDERABAD::
***
WRIT PETITION No.21912 of 2024
Between:
Smt. T. Ramadevi, W/o.T. Srinivas Goud
Petitioner
VERSUS
The State of Telangana,
rep. by its Principal Secretary and Others
Respondents
JUDGMENT PRONOUNCED ON: 26.09.2024
THE HONOURABLE SRI JUSTICE P.SAM KOSHY
AND
THE HONOURABLE SRI JUSTICE N.TUKARAMJI
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
__________________
P.SAM KOSHY, J
Page 2 of 27
* THE HONOURABLE SRI JUSTICE P.SAM KOSHY
AND
THE HONOURABLE SRI JUSTICE N.TUKARAMJI
+ WRIT PETITION No.21912 of 2024
% 26.09.2024
# Between:
Smt. T. Ramadevi, W/o.T. Srinivas Goud
Petitioner
VERSUS
The State of Telangana,
rep. by its Principal Secretary and Others
Respondents
! Counsel for Petitioner(s) :: Mr. Yemmiganur Soma Srinath Reddy
^Counsel for respondent(s) :: Mr. Swaroop Oorilla, learned Special
Government Pleader, appearing on
behalf of the learned Advocate General,
for the respondents.
<GIST:
> HEAD NOTE:
? Cases referred
1. 1990 SCC OnLineBom 3
2. 1996 (1) A.P.L.J. 370 (HC)
3. Order dated 29.02.2024 in Criminal Revision Case No.228 of 2024
4. (2010) 11 SCC 500
5. (1997) 9 SCC 132
Page 3 of 27
THE HONOURABLE SRI JUSTICE P.SAM KOSHY
AND
THE HONOURABLE SRI JUSTICE N.TUKARAMJI
WRIT PETITION No.21912 of 2024
ORDER:
(per the Hon'ble Sri Justice P.SAM KOSHY)
Heard Mr. Yemmiganur Soma Srinath Reddy, learned counsel
for the petitioner and Mr. Swaroop Oorilla, learned Special
Government Pleader, appearing on behalf of the learned Advocate
General, for the respondents.
2. The present is a second writ petition seeking for issuance of a
Writ of Habeas Corpus by the same petitioner, and by way of the
present writ petition the petitioner herein seeks for production of the
four detenus viz., Thallapally Srinivas Goud,Thallapally Sai Sharath,
Thallapally Sai Rohith and Palavalasa Siva Saran. This writ petition
has been filed substantially on two questions of law, which are:-
a) Whether the period of apprehension by the police authorities
before the official arrest being shown is also to be considered
for the purpose of fulfilling the requirement of producing the
so-called apprehended person before the Judicial Magistrate
within 24 hours?
b) Whether an accused under the Telangana Protection of
Depositors of Financial Establishments Act, 1996 (for short
'TSPDFE Act') can be produced for the first remand before the
nearest Judicial Magistrate or he needs to be presented only
before the concerned notified Special Court?
3. The aforesaid four detenus are said to be accused and arrested
for the offences punishable under Section 406, 420 read with 120B
of the Indian Penal Code, 1860 (for short 'IPC') and Section 5 of the
TSPDFE Act. The petitioner on an earlier occasion had filed another
writ petition seeking for issuance of a Writ in the nature of Habeas
Corpus i.e. Writ Petition No.21034 of 2024. When the said writ
petition was filed, the grounds raised in the present writ petition
were not available and it was filed at the stage of their apprehension
itself and subsequently when the matter came up for hearing, the
said writ petition was disposed of in the light of the submissions
made by the learned Government Counsel as regards the official
arrest of the four detenus being made and they being sent on judicial
remand vide order dated 02.08.2024. The said writ petition was
rejected on the very same day i.e. on 02.08.2024 itself. That
subsequently after obtaining necessary documents and records, the
present writ of Habeas Corpus has been filed raising two substantial
questions of law which have been framed in the beginning of this
order.
4. As regards the first question is concerned, the undisputed fact
which is revealed from the order of first remand itself is that the
accused Nos.3 and 4 were apprehended at 10:00 A.M. on
31.07.2024. From the Counter affidavit filed by respondent No.4 and
which is not in dispute is that after having apprehended accused
Nos.3 and 4 at around 10:00 A.M. on 31.07.2024, the police team
proceeded to Beeramguda in search of the other accused. On
01.08.2024 at around 00:30 hours, accused No.1 Thallapally Sai
Rohith, accused No.2 ThallaMamatha and accused No.6 Palavalasa
Siva Saran were found at their residence at Beeramguda and the
police apprehended them for questioning and at around 01:30 hours
on 01.08.2024 they were brought to Central Crime Station,
Hyderabad, and took them into custody and the arrest was shown on
01.08.2024 at 15:40 hours. That after completing all the formalities,
all the alleged detenues were produced before the concerned Judicial
Magistrate at his residence at Hasthinapuram on 02.08.2024 at
12:30 A.M. Thus, from the finding of facts as per the Counter
affidavit itself, the accused persons were officially apprehended and
subsequently produced before the Judicial Magistrate as indicated in
the table below :
Accused Name Time and Date of Time and Date of Time of producing Number of
No. Apprehension before the Judicial hours spent
Arrest shown
Magistrate in police
detention
Time: 00:30 A.M. Time: 15:40 hours Time: 00:30 A.M.
1. Thallapally Sai 24 hours
Date: 01.08.2024 Date: 01.08.2024 Date: 02.08.2024
Rohith
Time: 00:30 A.M. Time: 15:40 hours Time: 00:30 A.M.
2. ThallaMamatha 24 hours
Date: 01.08.2024 Date: 01.08.2024 Date: 02.08.2024
Time: 10:00 A.M. Time: 15:40 hours Time: 00:30 A.M.
3. Thallapally Sai Date: 01.08.2024 38 hours
Date: 31.07.2024 Date: 02.08.2024
Sharath
Time: 10:00 A.M. Time: 15:40 hours Time: 00:30 A.M.
4. Thallapally Date: 01.08.2024 38 hours
Date: 31.07.2024 Date: 02.08.2024
Srinivas Goud
Time: 00:30 A.M. Time: 15:40 hours Time: 00:30 A.M.
6. Palavalasa Siva Date: 01.08.2024 24 hours
Date: 01.08.2024 Date: 02.08.2024
Saran
5. It was the contention of the learned counsel for the petitioner
that once when the alleged detenu / detenues are apprehended or
taken into custody, it is mandatorily required that the so-called
detenu is produced before the concerned Judicial Magistrate within
24 hours from the date of apprehension. It was also the contention
that the period of 24 hours required to be produced before the
Judicial Magistrate would start from the initial time of apprehension,
which in the instant case for accused Nos.3 and 4 it starts from
10:00 A.M. on 01.08.2024. Therefore the respondent-authorities
ought to have produced the so-called detenues within a period of 24
hours from the time they were first apprehended i.e. 24 hours
starting from 10:00 A.M. on 31.08.2024. For accused Nos.1, 2 and 6
the period of 24 hours would start from 00:30 A.M. of 01.08.2024.
6. While dealing with the first question, it would be relevant at
this juncture to take note of the provisions of Section 57 of Cr.P.C
and Sub-Section (1) of Section 167 of Cr.P.C, which for ready
reference are reproduced herein under:
"57. Person arrested not to be detained more than
twenty-four hours.-No police officer shall detain in custody
a person arrested without warrant for a longer period than
under all the circumstances of the case is reasonable, and
such period shall not, in the absence of a special order of a
Magistrate under section 167, exceed twenty-four hours
exclusive of the time necessary for the journey from the place
of arrest to the Magistrate's Court."
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."
7. Keeping in view the aforesaid statutory provisions, it would be
also relevant at this juncture to refer to a judgment of the Bombay
High Court in the case of Ashak Hussain Allah Detha @ Siddique
and Another Vs. The Assistant Collector of Customs (P) Bombay
and Another 1 wherein at paragraph Nos.10 to 12, it has been held
as under:
"10. It is thus clear that arrest being a restraint on the
personal liberty, it is complete when such restraint by an
authority, commences. [The Law Lexicon--P.
RamanathaAiyar Reprint Edition 1987, page 85.] Whether a
person is arrested or not does not depend on the legality of
the act. It is enough if an authority clothed with the power to
arrest, actually imposes the restraint by physical act or
words. Whether a person is arrested depends on whether he
has been deprived of his personal liberty to go where he
pleases. [Section 37(1) of the N.O.P.S. Act.] It stands to
reason, therefore, that what label the Investigating Officer
affixes to his act of restraint is irrelevent. For the same
reason, the record of the time of arrest is not an index to the
actual time of arrest, The arrest commences with the restraint
placed on the liberty of the accused and not with the time of
"arrest" recorded by the Arresting Officers."
1990 SCC OnLineBom 3
11. The argument that the applicants were not arrested at
the mid night of 19th July 1989 but were detained for
interrogation is untenable. Since the offences under the
N.D.P.S. Act are cognizable [ R.V. Lemsatef (1977) 2 All E.R.
835."If the idea is getting around amongst either customs
and excise officers or police officers that they can arrest or
detain people, as the case may be, for this particular
purpose, the sooner they disabuse themselves of that idea
the better".] , the Investigating Officers possess the authority
to arrest without warrant. They arrest a suspect or do not
arrest at all. The "detention in custody for interrogation" is
unknown to law. Interrogation is known. A person may be
lawfully interrogated. But during such interrogation he is a
freeman. If he is detained, not allowed to leave the office of
the Respondent No. 1 and compelled to eat and sleep there,
he is under detention. This restraint is in reality an arrest. In
this case, the applicants were not allowed to leave the office
of the Respondent No. 1 after the midnight of 19th July 1989.
In the circumstances of this case, the applicants were
arrested at the midnight of 19th July 1989.
12. The Investigating Officers may lawfully detain a suspect
for an offence. But detention in custody for interrogation is
not authorised by law. The Investigating Officers may detain
for an offence only. In an English case where the Customs
Officers detained a person "for helping with their inquiries", it
was held that there was no authority in the Custom Officers
to detain a person, except, for an offence. [ R.V. Lemsatef
(1977) 2 All E.R. 835."If the idea is getting around amongst
either customs and excise officers or police officers that they
can arrest or detain people, as the case may be, for this
particular purpose, the sooner they disabuse themselves of
that idea the better".] The principal that emerges is this: Any
restrain on a person's liberty except for an offence is illegal.
There is no authority in the Investigating Officers to detain a
person for the purpose of interrogation or helping them in the
enquiry.
8. A similar view has been taken by the High Court of Judicature
of Andhra Pradesh at Hyderabad in the case of Mrs. Iqbal Kaur
Kwatra Vs. The Dist. General of Police, Rajasthan State, Jaipur2
wherein the Andhra Pradesh High Court after dealing with a series of
judgments on the issue, held as under:
"19. It is well settled that "police custody" does not
necessarily mean custody after formal arrests. It also
includes "some form of police surveillance and restriction on
the movements of the person concerned by the police". The
word "custody" does not necessarily mean detention or
confinement. A person is in custody as soon as he comes into
the hands of a police officer.
21. On a reading of Section 57 of the Code of Criminal
Procedure it is evident that no police officer can detain in
custody a person arrested without warrant for a period
longer than twenty-four hours besides the time taken for
journey.
1996 (1) A.P.L.J. 370 (HC)
22.In the case of State v. Ram Autar Chaudhry (6) AIR 1955
Allahabad 138, a Division Bench of the Allahabad High Court
has held that Sec. 61 of the Code of Criminal Procedure,
1898, equivalent to Sec. 57 of theCode of Criminal Procedure,
1973, does not empower a police officer to keep an arrested
person in custody a minute longer than is necessary for the
purpose of investigation and it does not give him an absolute
right to keep a person in custody till twenty-four hours. It has
further held that a police officer is not justified in detaining a
person for one single hour except upon some reasonable
ground justified by the circumstances of the case and under
no circumstances can the period of such detention exceed
twenty-four hours, without, a special order of a Magistrate. In
this case, the inability of admission in jail was not found a
justifying reason for delay. This case has been referred to in
the case of Nabachandra v. Manipur Administration (7) AIR
1964 Manipur 39. A learned Single Judge of the Manipur
High Court has observed that:
"The Criminal Procedure Code does not authorise
detention by the police for 24 hours after the arrest. Secs.
60 and 61, Cr. P.C., makes this quite dear, Section 60
provides that a police officer making an arrest without
warrant shall, without unnecessary delay take or send
the person arrested before a Magistrate. Section 61
repeats this by saying that no police officer shall detain
in custody a person arrested without warrant for a longer
period than under all the circumstances of the case is
reasonable and such period shall not, in the absence of a
special order of a Magistrate under Sec. 167, exceed
twenty-four hours exclusive of the time necessary for the
journey from the place of arrest to the Magistrate's Court.
Thus, the twenty-four hours prescribed under Sec. 61 is
the outermost limit beyond which a person cannot be
detained in police custody. It is certainly not an
authorisation for the police to detain him for twenty four
hours in their custody. It is only in a case where a police
officer considers that the investigation can be completed
within the period of twenty-four hours fixed by Section 61
that such detention for twenty-four hours is permitted.
This is clear from Sec. 167(1) Crl. P.C. Thus, when the
Police Officer knew in this case that he cannot complete
the investigation within twenty-four hours, the detention
of the petitioner in custody in the Imphal Police Station
which is just opposite the Court where the Magistrate sits
was totally illegal."
Thus it is held that on a construction of Sections 60, 61 and
167 of the Code of Criminal Procedure (old), equivalent to
Sections 56, 57 and 167 of the Code of Criminal Procedure
(new) that unless a police officer considers that he can
complete the investigation within a period of twenty-four
hours, it is his duty to produce the accused forthwith before a
Magistrate.
23.Thus it is seen that a police officer cannot detain any
person in custody without arresting him and any such
detention will amount to a wrongful confinement within the
meaning of Sec. 340 of the Penal Code, 1860. Actual arrest
and detention do not appear to be necessary, A person
incustody cannot be detained without producing him before a
Magistrate under the colourable pretension that no actual
arrest is made and the burden of proving the reasonable
ground is on the arrester that the time occupied in the journey
was reasonable with reference to the distance traversed as
also other circumstances and in case of continuation of
detention for twenty four hours, particularly, when the police
officer has reason to believe that the investigation cannot be
completed within twenty-four hours, he must produce the
accused forthwith before the magistrate and cannot wait for
twenty-four hours."
9. Recently, this High Court in the case of Vishal Manohar
MandrekarVs. The State of Telangana, represented by its Public
Prosecutor 3 dealing with a similar issue had made the following
observations, viz.,
"10. Article 22 (2) of the Constitution of India mandates that
every person who is arrested and detained in police custody
shall be produced before the nearest magistrate within a
period of 24 hours, excluding the time necessary for the
journey from the place of the 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.
11. Section 57 of Cr.P.C. was incorporated in accordance
with the above Article. It mandates that no police officer shall
detain in custody a person arrested without warrant for a
longer period than under all the circumstances of the case
was reasonable, and such period shall not, in the absence of
Order dated 29.02.2024 in Criminal Revision Case No.228 of 2024
a special order of Magistrate under Section 167 Cr.P.C.,
exceed24 hours excluding the time necessary for the journey
from the place of arrest to the Magistrate Court.
12. The above two provisions came up for consideration
before theHon'ble Apex Court on several occasions and the
Hon'ble Apex Court in certain terms held that without the
authorization of the Magistrate, no accused can be detained
in the custody of the police beyond 24 hours from the time of
arrest excluding the time taken for the journey from the place
of arrest to the court."
10. In the given factual backdrop and the judicial precedents
referred to in the preceding paragraphs, what is evident and an
admitted fact is that accused Nos.3 and 4 remained in police custody
for a period of 38 hours before they were produced before the
Judicial Magistrate under Section 57 of Cr.P.C. However, the
accused Nos.1, 2 and 6 though remained in police custody, but were
produced within 24hours before the Judicial Magistrate.
11. In the aforesaid backdrop, when we look into the provisions of
Section 57of Cr.P.C, the very first line of the said provision refers to
the term detention. It does not use the term ''from the time of arrest'',
which further strengthens the case of the petitioner when they say
that period of detention starts the moment they stand apprehended
by the police, as from that moment itself there is a restraint so far as
personal liberty of the concerned person and there is also an arrest
of his movement, as he remains under confines of police personnel.
Thus, it would amount to a detention of a person right from the time
he is apprehended by the police personnel. Thus, in terms of the
judgment of the Bombay High Court in the case of Ashak Hussain
(supra), the arrest of a person commences from the time restraint is
placed on his liberty and not from the time of the arrest officially
recorded by the arresting officers.
12. Accordingly, this Bench has no hesitation in reaching to the
conclusion that question No.1 as regards the commencement of the
period of apprehension is concerned, it is held that the period of
apprehension is also to be taken into consideration for the purpose
of calculating the period of 24 hours as is envisaged under Section
57 of Cr.P.C. In other words, 24 hours is not to be calculated from
the time of the official arrest being shown by the police personnel in
the arrest memo, but from the time he was initially apprehended or
taken into custody. In view of the same, accused Nos.3 and 4 have
been produced before the Judicial Magistrate only after completion of
24 hours from the time they were apprehended.Accused Nos.1, 2 and
6 were produced before the Judicial Magistrate before completion of
24 hours. Therefore, there is clear violation of the statutory
requirement under Section 57 of Cr.P.C so far as accused Nos.3 and
4 are concerned, and they are accordingly liable to be given the
benefit for the illegal act which the respondent-authorities have
committed.
13. We now venture into the second question of law to be
considered in the instant case i.e. whether the order of first remand
passed by the Judicial Magistrate is proper and legal when in terms
of Section 6, 13 and 14 of the TSPDFE Act which mandates the
proceedings under the said Act to be exercised only by a special
Court duly nominated?
14. In the instant case, the reason for the said dispute is that after
the detenues were apprehended, and later arrested, they were
produced before the nearest Judicial Magistrate which in the instant
case is Hon'ble XIIAddl. Chief Metropolitan Magistrate at Nampally,
Hyderabad and were not produced before the special Court notified
and constituted under the TSPDFE Act.
15. It was the contention of the learned counsel for the petitioner
that as per Section 6(1) and 6(2) of the TSPDFE Act, the Government
shall by notification constitute a District and Sessions Court as the
special Court to deal with matters under the TSPDFE Act. It was also
contended by the learned counsel for the petitioner that as per
Section 6(2) of the TSPDFE Act, no Court other than the special
Court notified to hear TSPDFE Act cases shall have jurisdiction in
respect of any matter to which the provisions of this Act applies.
16. Referring to the aforesaid provisions of Section 6(1) and 6(2) of
the TSPDFE Act, the learned counsel for the petitioner contended
that from the plain reading of Section 6(1) as also of Section 6(2),
there is a clear exclusion of jurisdiction of all other Courts to deal
with matters under the TSPDFE Act except the Court which has
been duly notified under the special Act. Referring to the said
provisions, it was further contended that once when there is a
notified special Court to deal with matters pertaining to the said Act,
the very initiation of proceedings for remand also should had been
only before the notified Court and not before any other Court.
Therefore, the proceedings of first remand before the Judicial
Magistrate which is under challenge in the present writ petition is
bad in law and without jurisdiction.
17. Learned Special Government Pleader opposing the second
question of law contended that the presentation of the detenues
before the Judicial Magistrate was strictly in accordance with the
provisions of Cr.P.C. The applicability of Cr.P.C has not been ousted
under the TSPDFE Act, rather the special Act also prescribes that so
far as the procedures are concerned, it would be the procedure of the
Cr.P.C which would be applicable for the special Court while trying
the matter under the said Act. Learned Special Government Pleader
referred to Section 13(1) of the TSPDFE Act and contended that the
framers of law had deliberately used the term 'may' in the said Sub-
Section and therefore it has to be read in a harmonious way enabling
the provisions of Cr.P.C as also the provisions of TSPDFE Act to be in
sink while being in operation. It cannot be said that the provisions of
TSPDFE Act totally ousts the applicability of Cr.P.C right from the
inception stage itself.
18. According to the learned Special Government Pleader, the plain
reading of Section 13(2) also gives a clear indication that the
provisions of Cr.P.C 'shall', 'so far as may be' apply to the
proceedings under the TSPDFE Act and the special Courts
constituted under the said Act. Referring to Sub-Section (1) of
Section 3, the learned Special Government Pleader contended that
the special Court can also directly take cognizance of an offence
under the TSPDFE Act without the accused being committed to it for
trial by any of the jurisdictional Magistrate. This in other words
according to the learned Special Government Pleader also means
that the powers vested under Sub-Section (2) of Section 167
continues to remain with the Judicial Magistrate. This in other words
according to the learned Special Government Pleader also means
that the jurisdictional Magistrate after taking cognizance under
Section 167 of Cr.P.C also can commit the accused for trial under
Section 209 before the notified special Court for the proceedings
under the TSPDFE Act.
19. According to the learned Special Government Pleader, Sub-
Section (2) of Section 167 is amply clear that the said provision so far
as production of a person before a Judicial Magistrate within 24
hours from the time of apprehension can also be before a Judicial
Magistrate who may or may not have jurisdiction to try the case and
as such there is no illegality on the part of the respondent-
authorities in producing the detenues before the Judicial Magistrate
and not having produced only before the notified special Court under
the TSPDFE Act.
20. For all the aforesaid reasons, the learned Special Government
Pleader contended that the second question of law to be considered
by this Court needs to be answered in negative holding that it was
permissible under the TSPDFE Act also for the detenues to be
produced so far as first remand is concerned before the nearest
Judicial Magistrate instead of the notified special Court alone.
21. Having heard the contentions put forth on either side and on
perusal of records, it would be relevant at this juncture to take note
of Section 167(2) of the Cr.P.C., which for ready reference is
reproduced herein under:
"(2)The Magistrate to whom an accused person is forwarded
under this section may, whether he has or has not
jurisdiction to try the case, from time to time authorise the
detention of the accused in such custody as such Magistrate
thinks fit, for a term not exceeding fifteen days in the whole;
and if he has no jurisdiction to try the case or commit it for
trial, and considers further detention unnecessary, he may
order the accused to be forwarded to a Magistrate having
such jurisdiction:"
A plain reading of the said Sub-Section clearly indicates the
power which is conferred upon the Judicial Magistrate under Section
167(2). While framing the said provision of law, it has been very
emphatically taken note of by the law makers that the said provision
of law needs to be taken care of in the process of subsequent acts
being made and also taking note of the ground whether the Judicial
Magistrate before whom the apprehended / detained person is being
produced has the jurisdiction or not to deal with the offences upon
which the detained person stands charged. When we read the
provisions of Sub-Section (2) of Section 167 along with Section 13(1)
and (2) of the TSPDFE Act, it will clearly give an indication that the
TSPDFE Act has not completely ousted the applicability of Cr.P.C.
Rather it is a case where the procedure to be adopted by the special
Court notified under the said Act also follows the procedure laid
down under Cr.P.C. We find sufficient force in the contentions of the
learned Special Government Pleader that Sub-Section (1) of Section
13 of TSPDFE Act categorically envisages that the special Court may
take cognizance of the offence even without the offence being
committed to it. This does not mean that after a person is
apprehended for an offence under the TSPDFE Act even for obtaining
the first remand under Section 167(1), it has to be only before the
special Court notified under the said Act and not the nearest Judicial
Magistrate as is envisaged under Cr.P.C. Reading Section 167 of
Cr.P.C along with Section 13 and 14 of TSPDFE Act would clearly
force us to reach to the conclusion that the word 'may' used in Sub-
Section (1) of Section 13 is a discretionary power and not a
mandatory direction.
22. What is also required to be noted, at this juncture, is that even
Article 22(2) of the Constitution of India envisages that every person
who is arrested and detained in custody "shall be produced before
the nearest Judicial Magistrate" within 24 hours of such arrest
and detention with exceptions carved out, those which are not
applicable in the present case. Same is the provision that is reflected
in Section 167 of Cr.P.C. as well and if we further read the provisions
of Sub-Section (2) of Section 167, it also provides for the power upon
the Judicial Magistrate to even entertain those applications / cases
of accused persons produced before him irrespective of whether he
has or does not have jurisdiction to try the case. In cases where the
Judicial Magistrate does not have jurisdiction, under the said
circumstances also Sub-Section (2) empowers the nearest Judicial
Magistrate to consider granting of judicial custody and order the
accused to be forwarded before such Court which otherwise has the
jurisdiction.
23. The Hon'ble Supreme Court in the case of Dinesh Chandra
Pandey Vs. High Court of Madhya Pradesh 4 in paragraph No.15has
held as under:
"15. The courts have taken a view that where the expression
"shall" has been used it would not necessarily mean that it is
mandatory. It will always depend upon the facts of a given
case, the conjunctive reading of the relevant provisions along
with other provisions of the Rules, the purpose sought to be
achieved and the object behind implementation of such a
provision. This Court in SarlaGoel v. Kishan Chand [(2009) 7
SCC 658], took the view that where the word "may" shall be
read as "shall" would depend upon the intention of the
legislature and it is not to be taken that once the word "may"
is used, it per se would be directory. In other words, it is not
merely the use of a particular expression that would render a
provision directory or mandatory. It would have to be
interpreted in the light of the settled principles, and while
ensuring that intent of the Rule is not frustrated."
24. Likewise, in the case of Mohan Singh Vs. International
Airport Authority of India 5 again the Hon'ble Supreme Court held
(2010) 11 SCC 500
that the words 'may' and 'shall' in the legal context are synonymous
and can be used interchangeably if the context requires such an
interpretation. In paragraph No.26 of the said judgment, the Hon'ble
Supreme Court held as under:
"26. Thus, this Court, keeping in view the objects of the Act,
had considered whether the language in a particular section,
clause or sentence is directory or mandatory. The word
'shall', though prima facie gives impression of being of
mandatory character, it requires to be considered in the light
of the intention of the legislature by carefully attending to the
scope of the statute, its nature and design and the
consequences that would flow from the construction thereof
one way or the other. In that behalf, the court is required to
keep in view the impact on the profession, necessity of its
compliance; whether the statute, if it is avoided, provides for
any contingency for non-compliance; if the word 'shall' is
construed as having mandatory character, the mischief that
would ensue by such construction; whether the public
convenience would be subserved or public inconvenience or
the general inconvenience that may ensue if it is held
mandatory and all other relevant circumstances are required
to be taken into consideration in construing whether the
provision would be mandatory or directory. If an object of the
enactment is defeated by holding the same directory, it
should be construed as mandatory whereas if by holding it
mandatory serious general inconvenience will be created to
(1997) 9 SCC 132
innocent persons of general public without much furthering
the object of enactment, the same should be construed as
directory but all the same, it would not mean that the
language used would be ignored altogether. Effect must be
given to all the provisions harmoniously to suppress public
mischief and to promote public justice."
25. In the light of the aforesaid judicial precedents and upon
reading of the two provisions of law, we have no hesitation in
reaching to the conclusion that TSPDFE Act has not in any manner
ousted the applicability of the provisions of Cr.P.C. so far as the
mandatory requirement which includes the fundamental right of any
person who stands apprehended or arrested to be produced before
the nearest Judicial Magistrate. If the said interpretation is not
accepted or followed; the very purpose, object and intention of the
law makers at the first instance so far as the fundamental right
guaranteed under Article 22(2) of the Constitution of India and
secondly under the statute i.e. Section 167(1) and (2) of Cr.P.C.
would render the two provisions redundant, which in the opinion of
this Court would give rise to far more complications and
repercussions and which perhaps is also not the intention of the law
makers in the course of enacting the TSPDFE Act.
26. The second question of law so far as competence and
jurisdiction of the Judicial Magistrate entertaining the first remand
petition is answered in the affirmative holding that the Judicial
Magistrate does have the competency and jurisdiction and there does
not seem to be any jurisdictional error so committed by the Judicial
Magistrate while passing the impugned order dated 02.08.2024
which is under challenge in the present writ petition.
27. However, as regards the first question of law being decided in
favour of the detenues i.e. accused Nos.3 and 4 to the extent of the
period of initial apprehension itself being the time from which the
period of 24 hours commences within which the detenues had to be
produced before the Judicial Magistrate. In view of the chart which
is reflected in paragraph No.4 of this order, admittedly accused Nos.3
and 4 seem to have been under police custody for a period of more
than 24 hours from the time they were initially apprehended. In the
light of the judgment quoted in the case of Ashak Hussain (supra)
that of the Bombay High Court and also in the case of Mrs. Iqbal
KaurKwatra (supra) from the unified Andhra Pradesh High Court,
the respondent-authorities seem to have clearly violated the
provisions of Article 22(2) of the Constitution at the first instance
and also there is a clear violation of Section 167(1) of Cr.P.C. Thus,
the accused Nos.3 and 4 in the instant case are entitled for relief of
issuance of a Writ of Habeas Corpus and they are therefore ordered
to be released from the custody forthwith. However, since the
accused Nos.1, 2 and 6 have been produced before the Judicial
Magistrate before completion of 24 hours; their claim for being
released deserves to be and is accordingly dismissed.
28. In the result, the instant Habeas Corpus petition to the
aforesaid extent so far as accused Nos.3 and 4 stands allowed, and
so far as accused Nos.1, 2 and 6 are concerned, stands dismissed.
No costs.
29. As a sequel, miscellaneous petitions pending if any, shall stand
closed.
__________________
P.SAM KOSHY, J
__________________
N.TUKARAMJI, J
Date: 26.09.2024
Note : LR copy to be marked
B/o.
GSD
