State of Gujarat Vs. Swami Amar Jyoti Shyam - Court Judgment

SooperKanoon Citationsooperkanoon.com/738295
SubjectCriminal
CourtGujarat High Court
Decided OnJan-01-1988
Judge R.A. Mehta, J.
Reported in1989CriLJ501; (1989)1GLR217
AppellantState of Gujarat
RespondentSwami Amar Jyoti Shyam
Cases ReferredGurubaksh Singh v. State of Punjab
Excerpt:
Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 120]
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 120]
- - the supreme court observed that where the criminal procedure code itself banned the exercise of revisional powers by (he high court, it would indeed require very exceptional circumstances to warrant interference under article 227 of the constitution since the power of superintendence was not meant to circumvent statutory law. thus, it is clear that even though the petition under article 227 of the constitution would be maintainable, the scope would be confined and restricted to the scope of that article of power of judicial superintendence to keep subordinate courts and tribunals within the bounds of their authority and not correct mere errors and it would require very exceptional circumstances to warrant interference under article 227 of the constitution, as observed by the.....
Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 123]
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]
orderr.a. mehta, j.1. the state is aggrieved by the orders of both the lower courts refusing remand of the opponents to the police custody. hence this petition is invoking article 227 of the constitution and section 432 of the code of criminal procedure, 1973.2. the learned counsel for the respondent has raised a preliminary objection that virtually this is a second revision application which is expressly barred under section 397(3) of the code, because the learned metropolitan magistrate had passed an order refusing remand to police custody and that order was challenged by the state by filing a revision application to the city sessions court at ahmedabad and therefore no further application by the same person (state) can be entertained and is not maintainable. the learned counsel for the.....
Judgment:
ORDER

R.A. Mehta, J.

1. The State is aggrieved by the orders of both the lower Courts refusing remand of the opponents to the police custody. Hence this petition is invoking Article 227 of the Constitution and Section 432 of the Code of Criminal Procedure, 1973.

2. The learned Counsel for the respondent has raised a preliminary objection that virtually this is a second revision application which is expressly barred under Section 397(3) of the Code, because the learned Metropolitan Magistrate had passed an order refusing remand to police custody and that order was challenged by the State by filing a revision application to the City Sessions Court at Ahmedabad and therefore no further application by the same person (State) can be entertained and is not maintainable. The learned Counsel for the State submitted that what is barred is a second revision application under Section 397 of the Code and a petition under Article 227 of the Constitution invoking constitutional power of the High Court is not barred. Moreover. Section 482 of the Code provides that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to secure the ends of justice.

3. The learned Counsel for the respondent relied on the judgment in the case of Jagir Singh v. Ranbir Singh : 1979CriLJ318 , wherein it is held that object of Section 397(3) of the Code is to prevent a multiple exercise of revisional powers and to secure early finality to orders and any person aggrieved by an order of an inferior Criminal Court is given the option to approach either the Sessions Judge or the High Court and once he exercises the option, he is precluded from invoking the revisional jurisdiction of the other authority. It was also held that the language of Section 397(3) is clear and peremptory and it does not admit of any other interpretation. It was further held that when the Sessions Judge refused to interfere with the order of the Magistrate, the High Court's jurisdiction is invoked to avoid the order of the Magistrate and not that of the Sessions Judge. It was therefore held that the bar of Section 397(3) could not be circumvented by the subterfuge of treating the revision application as directed against the Sessions Judge's order and it was held that it was not permissible to do so : what may not be done directly cannot be allowed to be done indirectly : that would be an evasion of the statute.

With regard to An. 227 of the Constitution, the Supreme Court observed that the High Court order could not be sustained under An. 227 of the Constitution both because the High Court had not purported to exercise that power and also because the power of judicial superintendence under Article 227 could only be exercised sparingly to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. The Supreme Court observed that where the Criminal Procedure Code itself banned the exercise of revisional powers by (he High Court, it would indeed require very exceptional circumstances to warrant interference under Article 227 of the Constitution since the power of superintendence was not meant to circumvent statutory law. Thus, it is clear that even though the petition under Article 227 of the Constitution would be maintainable, the scope would be confined and restricted to the scope of that Article of power of judicial superintendence to keep subordinate Courts and Tribunals within the bounds of their authority and not correct mere errors and it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution, as observed by the Supreme Court.

4. The learned Counsel for the respondent has also referred to a judgment in the case of Mohmad Yunus v. Mohmad Mustaqim : [1984]1SCR211 . In that case, the Supreme Court observed that a mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited to seeing that an inferior Court or Tribunal functions within the limits of its authority and not to correct an error apparent on' the facts of record much less an error of law. Thus, it is clear that the petition under Article 227 of the Constitution is maintainable with a scope much more restricted than the powers of the High Court under Section 397 of the Code, but it cannot be said that this application is not maintainable.

5. In fact the learned Counsel for the State also relied on the principle laid down by the Supreme Court and submitted that the lower Courts have not merely committed some errors, but the errors are so apparent and gross that interference under Article 227 is called for to secure the ends of justice. He has submitted that there is total failure to consider material and germane aspects and the lower Courts have been influencced by irrelevant and extraneous factors and have drawn inference not having factual foundation on record. He has submitted that the lower Courts have not read and considered the circumstances reflected in the record of police diary and failed to bear in mind the scope of. Section 167 of the Code of Criminal Procedure and Section 366 of I.P.C. and there was a basic error in embarking upon and appreciating the material collected and in considering whether the offence is established or not and not limiting the consideration as to whether a case is made out for remand to police custody in light of the investigation made and yet to be made and therefore, according to the learned Public Prosecutor, the lower Courts have acted beyond their jurisdiction and authority and the High Court should act to see that the orders are made so as to confirm the limits of their jurisdiction. On the other hand, the learned Counsel for the respondent has submitted that the lower Courts have passed the orders on proper consideration of relevant material and circumstances and they have considered all the aspects which were brought to the notice by the respective sides and no Court can be said to have committed any error if the Courts have considered all these aspects. In fact the Courts were duty bound to consider whatever submissions were made.

6. The facts are as follows:

The F.I.R. filed on 11-11-1987 alleges that a week before i.e. on 4-11-1987, a major girl Tamanna has been abduced by the accused by deceitful means and it is alleged that the respondent by deceitful means induced the girl Tamanna to go from Ahmedabad to other places and the allegation is that the offence is punishable under Sections 365 and 366 of the I.P.C. That the abduction is with an intent to cause that person to be secretly and wrongfully confined or to marry any person against her will and to seduce her to have immoral physical relations. It is stated that the girl was bright in studies and was religious minded and the respondent who professes to be a Swami and highly religious person and had impressed and influenced the tender and impressible mind of the young girl and attracted her towards him and promised her to take her to Himalaya in pursuit of the religious object of attending salvation.

7. In the complaint, it has been explained that as there was a question of reputation of the family and of the girl, the complaint was not immediately given and attempts were made to trace her and the respondent privately and in the course of their private enquiries, it was found that some disciples of the respondent had also conspired and aliened the respondent in carrying out this abduction by inducement and deceitful means. It is also stated that the girl was taken by the respondent along with one Markand Bhatt in the car in pursuance of an earlier telephone call to meet near law garden near her residence and they had gone from Ahmedabad to Baroda : from Baroda to Indore. It is also slated that the correspondence between the girl and the respondent has been taken away by her. It is also stated in the complaint that the complainant was receiving telephone calls from her frequently and she appeared frightened and that she was believed to have been confined to some place. It is also stated that the complainant was receiving several calls of threat and demand of large amount.

8. The complaint was registered and investigation was started and it appears that immediately the investigation was transferred from Navrangpura Police Station where the complaint was filed to C.B.I. (Crime).

9. On 21-11-1987. in the early morning at about 3-00 a.m. while the accused and the girl Tamanna were coming towards Ahmedabad from Rajasthan they were intercepted at Chiloda, few kilometers away from Ahmedabad and the accused was arrested and girl Tamanna was handed over to her parents. On the same day i.e. on 21-11-1987, the police produced the accused before the learned Metropolitan Magistrate and moved an application for police custody of the accused under Section 167 of the Code. In that application, it was stated that the accused who is stated to be the resident of Amarnath Cave, Kashmir, is required to be remanded to police custody for the purpose of further investigation as he was required to be taken out of Gujarat and many evidences were to be gathered, and it was necessary to investigate and find out the places they have visited and the part they played and since these were unknown places, his custody with the police was necessary and remand to police custody was requested for seven days. It was submitted in the course of arguments that the presence of the accused was absolutely necessary for pointing out all these places and the allegation in the complaint was that the accused had abducted and taken away the girl against her wishes and the case diary was also produced.

10. On the trial court enquiring from the accused, he had submitted that the girl had come voluntarily on her own accord with him and they had married and in fact the girl Tamanna had informed the Secretary of the complainant that she had gone on her own and she knew what was her way and there was no necessary to go to police station. This telephone talk was tape recorded by the accused and was placed before the learned Magistrate. It was seized from the accused at the time of his arrest. The accused had also stated that he wanted the statement of the girl be taken as early as possible in the Court. The accused had also produced a xerox copy of the marriage certificate showing that the marriage had taken place on 17-11-1987 at Arya Samaj, Jaipur. There was also a zerox copy of the affidavit of the girl Tamanna made before the Notary at Jaipur on 17-11-1987. It was submitted on behalf of the accused that the girl Tamanna was his wife and there was no offence and a false case was filed.

11. The learned Metropolitan Magistrate considering all these facts and the case diary, observed that although there is a complaint of abduction of girl Tamanna. the girl Tamanna had married with the accused and she is major aged above 18 years and the police had not taken any statement of girl Tamanna. The fact of late filing of the complaint was also noted and the learned Magistrate came to the conclusion that it was not a case fit for remand of the accused to the police custody.

12. The State carried the matter in revision to the City Sessions Court, Ahmedabad and the learned City Sessions Judge rejected that application by his order dated 2-12-1987, The learned City Sessions Judge rejected the revision application on the grounds that no case was made out for interference in the revision and that the request for police remand and the revision application were influenced by extraneous considerations. The learned City Sessions Judge held that the investigating officer did not feel any necessity of challenging the order of the learned Magistrate for about eight days and did not apply for the certified copy of the judgment and order of the learned Metropolitan Magistrate. The learned City Sessions Judge also observed that the ease has acquired lot of publicity and in such a case, the investigating agency could have immediately applied for a certified copy and filed the revision application. However, the learned City Sessions Judge has not based his judgment on that ground as is clear from para 8 of his judgment. He proceeded to consider the matter on merits and considered that the learned Metropolitan Magistrate has considered the fact that the major girl Tamanna had married the accused and, therefore, the case was not fit for granting the police custody and the statement of girl Tamanna was not recorded. In these circumstances, on the material before the learned Magistrate, the order refusing police remand was held not to be perverse. Even on considering the material that was subsequently available, the learned City Sessions Judge came to the same conclusion. The learned City Sessions Judge considered that the statement of the girl Tamanna was recorded on 23-11-1987 in an unusual manner wherein she had purported to state that she had come in contact with the accused in the month of April 1986 and thereafter the accused had induced a belief in her mind that it was through him that she would be able to achieve salvation and she was taken by this idea and was thus induced to leave of her home by deceitful means. This statement of the girl Tamanna has become a matter of arguments. It is a statement written by her in her own hand and signed by her in presence of two social workers. This is not a statement on oral examination by the police officer. No questions were put to her and she merely signed a prepared statement in presence of two social workers. Her statement was not recorded on 21-11-1987 and the reason given by the prosecution is that she was not well and a medical certificate was produced from a private medical practitioner that she was not fit to give any statement to the police. The allegation of the accused is that she was not allowed to make any statement and the police has obliged the complainant. Who is alleged to be a rich and influential Mill owner. It is submitted that even though the medical certificate was produced showing that she would be fit for giving statement to the police for ten days, after two days she gives a prepared statement in her own handwriting. The learned Public Prosecutor has shown me that statement running into four pages in her own handwriting. It is a statement which is coincidentally in many respects on the same lines and sometimes in same phraseology as is in the complaint and the statements of some of the witnesses. This statement running into four pages is very neat without any erasur or any other indication of natural writing. From the manner of neat and clean writing and the curious coincidence of the narration and language corresponding to the complaint and statements of some of the witnesses, it is clear that this statement was not in her own words. It is a statement which has been well prepared and drafted with considerable thought given to the same by persons other, than whose statement it is. The neatness of the statement also corroborates that she had written it in her own handwriting by copying some writing or taking down dictation. This is still further fortified from her own statement recorded immediately by the police again before two social workers who have signed the same as well as bearing the signature of the girl Tamanna. In that statement, she states that her health was not good and she has written down her statement as she remembered things as under:

(Vernaculur matter is omitted -Ed.)

She further slated that when she wrote the above statement, she was perfectly well. She has also staled that voluntarily she has come to the house of her father i.e. complainant where she wants to stay for the present. She has stated that she has done as told by the. accused and she did not remember what she has done; and whatever she remembered, she has written in her handwriting. She has stated that:

(Vernacular matter is omitted. Ed.)

She has also stated that they had gone to Baroda, Indore, Kota and they were both alone. She has also stated that a lawyer advised Swami to marry and, therefore, the accused had taken her signatures and the accused had also signed the same. She also stated that she had stayed along with the accused. But she did not know whether she had any physical relation with him or not. She has also stated that at present she was not willing to go with Swami. She has also stated that she did not know whether there was legal marriage with her, but signatures were taken before Advocate Sharma and there was no ceremony of Hindu marriage. This statement of the girl, though taken after lot of time and opportunity of improving, makes it prima facie clear that she had gone voluntarily on her own.

13. After recording this statement on 23- 11-1987, two days later on 25-11-1987, an application is made under Section 164 of the Code to the learned Metropolitan Magistrate for recording a statement of the girl in the course of investigation. However, the same was withdrawn on 30-11-1987, Making of this application and withdrawal of the same has also been attacked by the accused. It is submitted that the prosecution knew that the girl Tamanna had gone with the accused and married the accused voluntarily and therefore it was necessary for the prosecution to pen down her statement at that stage to the version which would accord with the complaint and such statement before the Magistrate might carry more weight than the statement before police. It is also submitted on behalf of the accused that subsequently it was realised that the girl Tamanna may not give the statement before the Magistrate after the Magistrate advises her of the legal provisions and legal rights and gives her time to think over. It is therefore submitted that there has been a consistent and deliberate attempt to withhold voluntary statement from the girl whose evidence is most material and basic to the entire prosecution case. It is, therefore contended by the accused that the investigation is highly partisan and motivated and not a bona fide investigation and the request of remand to police custody is absolutely lacking in bona fides.

14. On behalf of the State, the learned Public Prosecutor has submitted that all this is not relevant for the purpose of considering the question of remand to police custody. If the prosecution shows that there are grounds for believing that accusation or information is well founded and that the investigation is not completed and is continuing and that the detention of the accused in police custody is necessary for further investigation. The Court cannot refuse such remand to police custody because of any of the defects or illegalities in the investigation. The learned Public Prosecutor submits that the delay of eight days in filing the complaint or delay in recording a statement of a witness even if be a material witness or recording of the statement in unconstitutional or unusual manner or getting it signed by the girl before social workers or making an application under Section 164 of the Code and withdrawal of the same have no bearing on the question of remand to police custody. In fact even at the trial, these irregularities in investigation would not be fatal to the prosecution. It will be a matter of appreciation of evidence at the trial and admissibility and probative value of evidence. Therefore, in submission of the learned Public Prosecutor, when these irregularities are not necessarily fatal even at the stage of the trial, they cannot be fatal during the course of investigation to a request for remand to police custody. In this connection, he has invited my attention to certain provisions of Chap. 12 of the Code. Under Section 154, the police officer is bound to record every information regarding commission of a cognizable offence, Under Section 156, such police officer has power to investigate the cognizable offence without any order of the Magistrate. Under Section 157, if the police officer has reason to suspect commission of an offence, he has to send forthwith a report to the Magistrate and proceed to investigate the facts and circumstances of the case and to take measure for discovery and arrest of the offender. Under Section 160, the police officer has power to require attendance of witnesses who appear to be acquainted with the facts and circumstances of the case and such person is bound to attend before him. Section 161 provides that the police officer making an investigation may examine orally any person who is supposed to be acquainted with the facts and circumstances of the case. 'Any person' includes a person accused of offence and Sub-section (2) makes it clear that such person shall be bound to answer truly all questions relating to such case put to him by such officer other than the questions the answers to which would have a tendency to expose him to a criminal charge to a penalty or forfeiture. Sub-section (3) provides that a police officer may reduce into writing any statement made to him to the course of an examination. Section 162 provides that no such statement if reduced to writing be signed by the person making. Section 164 provides for recording of a statement on oath before Magistrate in the manner of recording of evidence. Section 167 provides for custody of an accused person if investigation cannot be completed within 24 hours of his arrest. It provides that whenever a person is arrested and detained in custody and the investigation cannot be completed within 24 hours, and whenever there are grounds for believing that the accusation or information is well founded, the investigating officer shall transmit to the nearest Judicial Magistrate a copy of the entries in the diary and also at the sametime, forward the accused to such Magistrate. Section 167(2) provides that the Magistral may authorise detention of the accused in such custody as such Magistrate thinks fit for a term not exceeding 15 days in the whole. It is under this provision that the present request of the prosecution is that the accused be remanded to police custody for a period of seven days for the purpose of further investigation. Sub-section (3) provides that a Magistrate authorising detention in the custody of the police shall record his reasons for so doing. The learned Public Prosecutor has drawn my attention to the statutory powers of police to investigate and some of the judgments of the Courts on this line. He has submitted that there is a statutory duty as well as right to make investigation into a cognizable offence and it is the executive function of the investigating agency and the judiciary has minimal role to perform.

15. Reliance has been placed on the following observations in the case of Emperor v. Khwaja Nazir Ahmad .

In their Lordships' opinion however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491, Criminal Procedure Code, to give directions in the nature of habeas corpus.

Relying on these observations, it is submitted that at the stage of investigation, there is an attempt to find out the truth and evidence and at that stage, the functions of the police and judiciary are complimentary and the common cause at that stage is to see that the investigation is carried out without any interference. It is also submitted by the learned Public Prosecutor that as a result of complete investigation, the investigating agency may come to the conclusion in favour of the accused, and it is not necessarily that the investigation would result in a charge against accused. It is his submission that the Courts should not interfere with the police investigation in matters which are within their province and to which law imposes upon them the duty of enquiry and investigation. When the police is conferred upon statutory right to investigate into the commission of an alleged crime without requiring any authority from any Court, the Court should not hamper any investigation.

16. This judgment was referred to in a Full Bench judgment of Punjab and Haryana High Court in the case of Gurubaksh Singh v. State of Punjab AIR 1478 Punj & Har 1 : 1978 Cri LJ 20. It was a ease regarding anticipatory bail and that case had gone to the Supreme Court and the Supreme Court reversed many of the propositions laid down by the Full Bench judgment of Punjab and Haryana High Court in the matter of granting anticipatory bail. : 1980CriLJ1125 . However, the observations made by the Full Bench regarding powers of investigation have not been reversed by the Supreme Court. The Full Bench judgment of Punjab and Haryana High Court had followed the aforesaid Privy Council judgment, and held that the Code confers a statutory right upon the police to investigate into cognizable crime without the sanction of any judicial authority and in a serious cognizable offence, the Code authorises the arrest and detention in custody of the offender for the first twenty four hours without the interposition of the Magistracy and further police custody up to a period of 15 days with the authority of the Magistrate. It was held that it was thus clear that the arrest and interrogation in police custody for cognizable crime is not only visualised but expressly authorised by the Code. In coming to this conclusion, the Full Bench also considered and accepted the submissions that mere joining in the investigation by a person on bail is indeed far from being the equivalent an effective interrogation of the offender whilst in custody. It was also held that the most important aspect of investigation is surprise speed and swiftness and the very purpose of Section 167(2) was to allow an investigator to interrogate an accused person in isolation and to confront him with incriminating evidence regarding which he may have no answer such interrogation is a delicate and expert job in which the relevant isolation of the offender is one of the most material contributing factors and it ensures continuity of investigation and ready availability of person for interrogation from time to time. The Full Bench was clearly of the view that:

A mere joining of a person in the course of the investigation whilst on anticipatory bail is no substitute for investigation in custody in all those cases where his personal interrogation may be legitimately required. We have yet to come across a case where a party seeking bail would not zealously offer to join the investigation thereof and to similarly undertake not to tamper with the witnesses. If this by itself were to be sufficient then perhaps the provisions of Section 167(2) need hardly ever be resorted to.

Relying on this, the learned Public Prosecutor submitted that the lower courts have utterly gone wrong in refusing remand to police custody. The learned Public Prosecutor has submitted that the accused has been posing as having unusual powers and having no antecedents or whereabouts and all these things require investigation especially in view of the fact that although he professes to be a religious preacher belonging to religious order has ultimately purported to disrobe his religious clothes and landed himself and the girl into earthly things and. thus, by deceitful means, a girl of tender age and impressible mind has been abducted with improper and criminal intentions.

17. It is true that when the need for remand to police custody is made out. the Court should grant such remand and should facilitate proper and complete investigations. But it cannot be said that an order of remand to police custody is to be granted as a mutter of course. Section 167(3) makes it clear that Magistrate has to record reasons for granting remand to police custody. He does not expressly provide that for refusing such custody, reasons shall be recorded. This is an indication that though investigating agency is to investigate into cognizable offence without any interference from judiciary, it does not mean that whenever request for police remand is made, it is to be granted. The police has to make out a case that the custody of the accused with the police is necessary for further investigation.

18. In the present case, the alleged offence is that the girl Tamanna has been abducted by deceitful means. Therefore, the most material witness in the present case is the girl Tamanna herself and any investigator aware of his duty to investigate would first ascertain from her of the facts about her alleged abduction. Ordinarily, she would be the best person to throw light regarding the incident. It is she who is alleged to have been induced by deceitful means. It is she whose evidence may terminate the proceedings one way or the other. If she is not required for investigation and interrogation, how can it be said that the custody of the accused is necessary for the purpose of investigation. Can it be said that such request is bona fide and genuine?

19. The learned Public Prosecutor has submitted that even if her statement was recorded immediately and even if she had stated everything in favour of the accused, the prosecution case or the investigation would not have necessarily ended there. She may state anything under the influence of the deceitful means practised upon her and therefore for the investigation and interrogation, custody of the accused would be necessary. According to him, both the Courts have failed to consider the real and relevant question whether the police custody of the accused was necessary for the purpose of further investigation and according to him the other questions about interrogation and non-interrogation of girl Tamanna are irrelevant for the present question before this Court. It is not possible to accept the submission of the learned Public Prosecutor. It is not that at this stage the respondent is attacking the admissibility or probative value of the statement. The attack is on the probity and the bona fide of the investigation agency itself. The question is whether the police custody of the accused is necessary for the purpose of investigation and the argument is that if the investigation was really interested in finding out the truth and in investigating into the alleged offence, the prosecution would not have stopped the investigation in the directions available and open to them. The learned Public Prosecutor has pointed out me several portions of the police diary and statements of witnesses already recorded and submitted that from the material before the police, it appears that the girl was induced by deceitful means and promise of salvation was given and ultimately the accused has purported to marry. The learned Magistrate has merely acted on the marriage certificate which itself should be a subject matter of further investigation and in fact it transpired from the subsequent statement recorded at Arya Samaj, Jaipur that the marriage certificate was satelthily taken away by the accused without performing marriage ceremony and the girl had appeared confused to the priest. It is therefore, submitted that the learned Magistrate or the Sessions Court could not have acted merely on the fact that the girl was major and they should have considered whether the offence of abduction of a major person by deceitful means is committed and whether there were reasonable grounds for believing that the accusation is well founded and whether the investigation is incomplete and further investigation is necessary and lastly whether the custody of the accused with the police is necessary for such further investigation. Really it is the last question to which we have to find out an answer. But to answer that question, would it be proper or permissible to ignore all the things which appear from the record? Before the learned Magistrate, material was produced by the accused to show that the girl had of her free will gone with the accused and had told that nobody need go to police station. This is a telephonic talk by the girl with the secretary of her father. That talk is tape recorded by the accused and is seized from the accused by the police and was made available before the learned Magistrate, Even in the complaint itself, there is a reference that from time to time, there were frequent telephone calls from Tamanna. However, according to the complainant, she appeared frightened. However, the investigator has not recorded any statement of any person who had received such telephone calls and what talk had taken place with Tamanna. Even from the complaint itself, the statement of the complainant that the telephone calls were received from Tamanna frequently, it would have been an obvious thing to inquire into or interrogate the persons who has talked. It would appear that if such statements were recorded and the correct record of such talk has been given, it might have been revealed that she has been saying all along that she has gone voluntarily and that nobody need go to police station. However these, things art-withheld from the police. The police also does not care to investigate from persons who had telephone talk. Only such person could have said whether she appeared frightened or in what manner or what talk had taken place and it is such person who can really explain and state what was the talk and what was his impression about the person talking from the other end. However, no such investigation is directed. When the tape is played .before the Court of the learned Magistrate, there is nothing before him to show that the talk is unreliable, The learned Public Prosecutor has submitted that the fact that such conversation was tape recorded shows that there was an element of guilt and an attempt was being made to prepare the defence and that by itself would require investigation. But that investigation is required to be made from the persons who have heard Tamanna talking from the other end. No such investigation has been made. This telephone talk which is purported to be with the Secretary of the complainant is not denied. In fact no attempt whatsoever has been made even though a month has passed thereafter to ascertain from the persons who are purported to have talked and -whose names appeared in the talk. Even till today, after about 40 days from the recovery and playing of tape, there is no attempt made by the investigating agency to find out the truth about the talk that had taken place on telephone with Tamanna.

20. From the statements of some witnesses shown to me by the learned Public Prosecutor, it appears that Tamanna had left a written note that she was going away of her own free will and nobody need worry about her. Some other witnesses have denied such note having been left by her. It would be natural therefore that the investigator would have asked her whether she had left any such note. However, she has not been interrogated on this line. In fact her socalled interrogation and statement of one page can hardly be said to be interrogation and investigation. In these circumstances when the investigating agency does not investigate and interrogate the girl Tamanna and find out from her, her own voluntary version by putting her questions and cross checking, material which they have with them, how can it be said that they bona fide require the custody of the accused for further investigation and how can it be said that such request is bona fide and genuine request?

21. As discussed earlier, in this case, the girl Tamanna is the star witness (not merely one of the witnesses as the learned Public Prosecutor would like to put it). She is alleged to have been abducted, she is alleged to have been deceived and she is the best person to state and from whom the investigating officer should ascertain the facts. The interrogation and investigation with the custody of the accused can only be for corroboraine evidence. But if the primary evidence is utterly and grossly neglected, it cannot be said that the request for custody of the accused is in any manner legitimate, justified or bona fide. The learned Public Prosecutor has submitted that there might be some defect, irregularity or even inefficiency or foolishness on the part of the investigating agency, however that cannot be a ground for refusing the request for the custody of the accused. It is not possible to accept this submission. The Investigation right from the first day has been transferred to C.I.D. Crime branch which is reputed to be far more efficient than the ordinary investigating agency. Even an ordinary investigator would first resort to investigate primary and star witness. It is difficult to believe that not recording of her statement was the result of any defect, irregularity or inefficiency. The consistent effort of making untenable excuses to avoid recording her statement is eloquent and speaks for itself against the investigating agency. The accused and the girl Tamanna, both were available since early morning of 21-11-1987, Fairly lengthy and detailed statement of the accused was recorded immediately. The cassette was recovered from him. However the girl Tamanna was allowed to go with her parents without recording her statement and thereafter on the strength of medical certificate from a private practitioner, her statement was not recorded. This is merely an excuse. Even in cases where persons are far more seriously injured or even on the verge of death, they are interrogated. However, in this case, even though she was not suffering from any serious physical or mental disorder so as to render her incapable of making any statement, her statement is not recorded under the excuse of that medical certificate. Thereafter on 23-11-1987. within two days unusually prepared and well drafted statement is got written in her own handwriting and thereafter signed before two social workers. Thereafter, a very brief statement is recorded by the police on the same day as discussed earlier. Even in that statement, she had stated that she had gone voluntarily with the accused. Thereafter, an attempt is made to have her statement recorded before the Magistrate. That also goes to show that the investigating agency was not sure that the girl would not stick to her written statement. Subsequent withdrawal of that application instead of showing anything better investigation confirms the allegation further and leads to an argument that the police did not want any public authority to record her statement. Even though by now 40 days have passed after her being available, she is not shown to have been interrogated further. This consistent trend of the investigating agency to keep away from the star witness could not be explained by the learned Public Prosecutor. He merely tried to underplay the same by stating that it may be unwise, inefficient or improper for the investigator to omit to do that, but according to the learned Public Prosecutor, it has no bearing on this question of police custody for further investigation It is not possible to accept his submission. 'Hamlet' cannot be played without the Prince of Denmark. It is this girl who is alleged to be abducted and deceived and she is the best person to say as to whether and how she was deceived and it would be for her to state and explain her acts, omissions and those of the accused. If the investigating agency does not feel any need of making that investigation, it cannot be said that the investigating agency need the custody of the accused for further investigation. This request cannot be said to be bona fide.

22. The learned Public Prosecutor submitted that neither the learned Magistrate nor the Sessions Court have addressed themselves to the right question and, therefore, their orders are required to be set aside. It cannot be said that the lower Courts have gone wrong in passing the impugned orders. It is merely a way of expression and writing orders, The learned Magistrate has referred to the fact that the statement of the girl Tamanna is not recorded. He was also apprised of the fact that girl Tamanna had a talk on telephone that she had voluntarily gone there and nobody need go to the police station. As against that, the investigating agency had failed to show anything to the learned Magistrate that what is recorded in the tape is false on that the girl Tamanna states anything different now. Before the learned Sessions Judge also, the prosecution could not point out anything on that aspect. The learned Sessions Judge has found that the request for police custody is made for extraneous considerations. It cannot be said that the lower Courts have gone wrong in any manner.

23. The learned Public Prosecutor has also attacked the observations of the learned Sessions Judge that the purpose of granting police remand of an accused under Section 167 of the Code is not to enable the police to collect evidence against the accused. The learned Public Prosecutor has submitted that this proposition is not correct and it is also not correct that the learned Public Prosecutor who had appeared before the Sessions Court had made any such concession. As discussed earlier, Section 161(i) authorises interrogation of the accused person also and only safeguard to accused person is that he is not bound to answer the questions which would incriminate him. That is provided by Sub-section (2). Therefore, the custody and interrogations of the accused is authorised by law for certain purposes, and it is not correct to say that such custody is to collect the evidence against the accused. The learned Public Prosecutor is also right when he says that the observations of the learned Sessions Judge are erroneous when the learned Sessions Judge has observed that the law basically is against granting the police remand of the accused and it is only in exceptional cases where it is absolutely necessary that an accused is ordered to be handed over to the police under police remand for the purpose of effective investigations. The law is not against granting of police remand nor it is that only in exceptional cases the remand is granted. Remand is granted ordinarily in all cases where it is necessary for the purpose of effective further investigation. Therefore, to that extent, the observations of the learned Sessions Judge are required to be disapproved and explained. The attack of the learned Public Prosecutor on the aspect of publicity and late filing of the application for certified copy has no bearing on the result of this application. The learned Sessions Judge has also not-based his judgment and conclusion on that aspect.

24. In view of the above discussion, it is not possible to uphold the contention of the State that for the purpose of further and complete investigation and interrogation of the accused, the custody of the accused is necessary to ensure continuity and speed in investigation and to secure the evidence which may be useful at the trial or which might be useful to arrive at the truth which may or may not incriminate ultimately the accused respondent.

25. In the result, there is no case for any interference with the impugned orders of the lower Courts of refusing remand of the accused to the police custody. Hence the Special Criminal Application is dismissed. Rule discharged. Interim relief vacated.