RAMANBHAI BHOLIDAS PATEL THRO PRIYESH RAMANBHAI PATEL Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
Ramanbhai Bholidas Patel Thro Priyesh Ramanbhai Patel
STATE OF GUJARAT
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NIKHIL S.KARIEL, J. -
(1.) Heard learned Senior Counsel Shri I.H. Syed with learned Advocate Shri Aniq A. Kadri for the applicant and learned Public Prosecutor Shri Mitesh Amnin with learned APP Shri Pranav Trivedi for the respondent - State.
(2.) By way of this application preferred under Section 397 read with Seciton 401 of Code of Criminal Procedure, 1973 (hereinafter referred "Cr.P.C.), the applicant challenges the order passed by the learned Additional Sessions Judge, Ahmedabad (Rural), Mirzapur, in Criminal Misc. Application No.10 of 2021 dated 15.01.2021, whereby the order passed by the learned Chief Judicial Magistrate, Ahmedabad (Rural) refusing to grant police remand of the applicant in connection with Criminal Complaint being FIR No. 11191045202201 for the offences punishable under Section 420, 465, 467, 468, 471 read with 120(B) of Indian Penal Code, has been set aside and the applicant is directed to be remanded to the police custody from 16.01.2021 at 11:00 a.m. to 22.01.2021 at 5:00 p.m.
(3.) At the outset, learned Public Prosecutor has raised a preliminary objection with regard to the maintainability of the present Revision Application inasmuch as according to him, an order remanding the accused to the custody would be an interlocutory order and therefore, the same would not be maintainable as specified under Section 397 (2) of the Cr.P.C. In support of such contention, learned Public Prosecutor has relied upon the decision of the Supreme Court in the case of State Represented by Inspector of Police and Ors. Vs. N.M.T. Joy Immaculate reported in (2004)5 Supreme Court Cases 729 , whereby the Supreme Court has held that an order of granting remand is a pure and simple interlocutory order and in view of bar created by sub-section (2) of Section 397 of Cr.P.C., a revision against the said order is not maintainable. Para 13 of the decision of Supreme Court, which is relevant for the present purpose is quoted herein below.
"13. Section 167 Cr.P.C. empowers a Judicial Magistrate to authorise the detention of an accused in the custody of police. Section 209 Cr.P.C. confers power upon a Magistrate to remand an accused to custody until the case has been committed to the Court of Sessions and also until the conclusion of the trial. Section 309 Cr.P.C. confers power upon a Court to remand an accused to custody after taking cognizance of an offence or during commencement of trial when it finds it necessary to adjourn the enquiry or trial. The order of remand has no bearing on the proceedings of the trial itself nor it can have any effect on the ultimate decision of the case. If an order of remand is found to be illegal, it cannot result in acquittal of the accused or in termination of proceedings. A remand order cannot affect the progress of the trial or its decision in any manner. Therefore, applying the test laid down in Madhu Limaye's case (supra), it cannot be categorised even as an "intermediate order". The order is, therefore, a pure and simple interlocutory order and in view of the bar created by sub-section (2) of Section 397 Cr.P.C., a revision against the said order is not maintainable. The High Court, therefore, erred in entertaining the revision against the order dated 6.11.2001 of the Metropolitan Magistrate granting police custody of the accused Joy Immaculate for one day."
(emphasize supplied) ;
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