MOHAMMAD AHMED YASIN MANSURI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE question of law that arises in the case and which has been argued before us at great length is, whether the Court has power and discretion while remanding the accused to custody under Section 309, Criminal Procedure Code to remand him into police custody. To put the question in other words, whether the Court has to remand an accused, while dealing with an offence which it has taken cognizance of, only to judicial or jail custody and has no discretion whatever under any circumstances to remand him to police custody. A further question that has been agitated is in respect of the powers conferred on the High Courts under Articles 226 and 227 of the Constitution of India. The question, being, whether the limitations in respect of jurisdiction of Courts, as provided in Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 No. 28 of1987 (hereinafter for the sake of brevity referred as "tada Act") would affect the exercise of the power or the jurisdiction conferred under Arts. 226 and 227 of the Constitution of India. These questions have arisen on the following facts.

(2.) ON the 12th of September, 1992 offences of murder and other related offences was committed. The offence is what is now known as "j. J. Hospital Shoot-out Case". The offence was initially registered by the Byculla Police Station vide its Crime Register No. 446 of 1992. The investigation was, thereafter, taken over by the D. C. P. , C. I. D. under its Crime Register No. 217 of 1992. On the 30th of March, 1993 an application was filed for issue of non-bailable warrants for arrest of the accused involved in the offence. By an order passed on the 1st of April, 1993 order issuing non-bailable warrants was passed. On the 6th of August, 1993 a charge-sheet was filed before the TADA Court and a case was registered being Special Case No. 31 of 1993. The charge-sheet contained the names of several accused, some of them being before the Court and some others were shown as absconding. Petitioner before us was one of the accused who was shown as abscondding. On the very day i. e. on the 6th of August, 1993, the learned Judge of the designated Court took cognizance of the offence.

(3.) ON the 24th of October, 1993, petitioner came to be arrested by the C. B. I. , Delhi in connection with some other offence. On receiving information in respect of the petitioner's arrest the D. C. P. , C. I. D. in Bombay on the 2nd of November, l993 filed an application before the Designated Court for waarrants of arrest and production of the petitioner before it. On the 5th of November, 1993 an order issuing warrants of arrest and production of the petitioner was passed and the same was served on the petitioner in due course after obtaining permission of the Chief Metropolitan Magistrate, Delhi. On the 19th of November, 1993 the petitioner was brought to Bombay and handed over to the D. C. P. , C. I. D. Bombay. On 20th of November, 1993 the petitioner was produced before the Designated Court. On that day, an application was filed by the prosecution for remand of the petitioner to police custody. By an order passed on the 30th of November, 1993 the learned Judge of the Designated Court was pleased to remand the petitioner to police custody. By the very same order, the learned Designated Judge held his order in abeyance till the 3rd of December, 1993 possibly in order to enable the petitioner to challenge his order in superior Court and to pray for interim reliefs.