PUESH KUMAR GUPTA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This group of petitions raise common question of law and therefore, are taken up, disposed of by this Court by common order.

(2.) The applicants have been admitted to bail in anticipation of their arrest by orders dated 28.08.2017 under Sec. 438 of the Code of Criminal Procedure[ for short 'the Cr.P.C.] inter alia on the following condition: "(g) it would be open to the Investigating officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide the same on merits;"

(3.) Taking advantage of the above liberty, applications under Sec. 167 of Crimial P.C. have been preferred by the investigator. The applicants are therefore here seeking modification of the above referred condition while relying upon the decision in Satyajit Ballubhai Desai and others versus State of Gujarat - 2014 (14) SCC 434 more particularly para 22 which is reproduced for convenience. "22. In fact, the correct course for the investigating authorities seeking police remand of an accused who had been granted bail by the High Court, should have been to approach the High Court as power of the magistrate to grant police remand after the accused has been granted bail by the High Court, would cease to exist and any direction to that effect can be permitted by the High Court only in view of the fact that the High Court considered it just and appropriate to enlarge the accused on bail and the magistrate cannot be permitted to override the order of bail even if it be for a brief period of few days. This in our view is the only appropriate course considering the strict legal provisions in the Code of Criminal Procedure wherein the Legislature has earmarked 24 hours minus the period of transportation of the accused from police station to the magistrate as the maximum period of police custody during the initial stage and not more than fifteen days by order of the Judicial Magistrate clearly is an indication that police custody cannot be permitted without adherence to strict judicial scrutiny from which it is obvious that it cannot be allowed without assigning clear and cogent reason for enhancement of the period of police remand and the same would all the more be essential when police remand is sought for an accused who has been enlarged on bail by the High Court. The inference is thus candid and clear that police remand of the accused more so, who has been enlarged on bail cannot be granted for an undisclosed or a flimsy reason." The question is whether the quoted texts from Satyajit Ballubhai Desai(supra) constitute "ratio" or "obiter dictum" to an effect that whenever the High Court exercises the powers under Sec. 438 of Cr.P.C admitting the accused to bail in anticipation of his arrest, the powers under Sec. 167 of Cr.P.C are not exercisable.