# Chandra Dev Ram Yadav and Anr v. State of U.P. and Anr

- **Citation:** (2013) 3 ILRA 1166
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-08-29
- **Case number:** Criminal Misc. Case No. 812 of 2013
- **Bench:** Vishnu Chandra Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-dev-ram-yadav-and-anr-v-state-of-u-p-and-anr-42678
- **Pages:** 6

## Headnote

(A)Code of Criminal Procedure Section167(2)- whether the day of surrender
and release on interim bail-would be
taken in consideration of 15 days? held-
'No'-as on day of surrender the court not
changed to custody of applicant either to
police or judicial custody.

Held: Para-10-
So far as inclusion of 10th January, 19th
January, 25th January and 2nd February,
2013 while calculating first 15 days is
concerned, the day on which the petitioners
surrendered and release on interim bail
shall not deem to be the date of remanded
to the judicial custody. No doubt they
surrendered before the court concerned
themselves to be taken into physical control
of the court but the court has not change
the custody either to the police custody or
3 All] Chandra Dev Ram Yadav and Anr. Vs. State of U.P. and Anr.
1167
to judicial custody in jail. Therefore, unless
the accused are remanded either to the
judicial custody or to the police custody by
the court it will not be the date of remand
within the meaning of Section 167 (2)
Cr.P.C.

(B)Code
of
Criminal
Procedure-Section
167(2)- whether court empowered to take
applicant from judicial custody to police
custody-held-'No' beyond 15 days-as per
Section 9 of General Clauses Act 15 days
countable from the date of first remand.

Held: Para-8-
The prosecution cannot take advantage
of the fact that the order has been
passed within 15 days and the court is
competent to send the accused from
judicial custody to police custody beyond
15 day. This cannot be done in view of
the
specific
provision
contained
in
Section 167(2) Cr.P.C.

Case Law discussed:
2009(3) ADJ 322 (SC); 1992 SCC (Cri) 554;
AIR 1980 SC 785; AIR 1963 Alld. 4; 1995 Cri.
L.J. 52; AIR 2001 SC 36.

## Text

1166 INDIAN LAW REPORTS ALLAHABAD SERIES
building is not covered by the above Act, the
termination of lease and eviction will be
governed by the provisions of the Transfer of
Property Act, 1882. The suit was based upon
the notice dated 15.2.1974. The said notice
was a composite notice determining the
tenancy and for demand of arrears of rent. The
tenancy was determined under Section 106 of
the Transfer of Property Act, 1882.The notice
makes clear that the plaintiff respondent does
not want to keep the defendant revisionist as
tenant and therefore, requires him to deliver
possession. A notice which requires a tenant
to vacate the accommodation and handover
possession to the landlord within 30 days is a
valid notice determining the tenancy. The
validity of the said notice is not even under
challenge. It has not been disputed before me.
Therefore, there is dispute that the tenancy
stood determined by the said notice. The
default in paying the rent or that the defendant
revisionist is in arrears of rent or arrears, if any
are not recoverable being barred by time, are
not relevant considerations for eviction where
the tenancy has been validly determined.

20. The limitation of instituting a suit to
recover possession from the tenant under
Article 67 Part V of the Limitation Act, 1963
is 12 years from the date of determination of
the tenancy. The tenancy was determined vide
notice dated 15.2.1974 and the suit on its basis
was instituted in the year 1986. It appears that
the said suit was within 12 years of the
determination of the tenancy, though no exact
date of its institution has come on record. It is
not the case of the defendant revisionist that
the suit for recovery of possession was also
barred by time. Thus, apparently the suit for
recovery of possession is within time.
Accordingly, notwithstanding that the suit for
arrears of rent could not have been decreed
there is no flaw in decreeing the suit for
eviction and awarding damages for its use and
occupation after the determination of tenancy.

21. In view of the aforesaid facts
and circumstances, the decree of arrears
of rent as passed by the court below is set
aside and that with regard to eviction and
damages is maintained.

22. The revision is allowed in part.
No costs.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.08.2013

BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.

Criminal Misc. Case No. 812 of 2013
(U/s 482 Cr.P.C.)

Chandra Dev Ram Yadav and Anr.

 ...Petitioners
Versus
State of U.P. and Anr.
 ...Opp. Parties

Counsel for the Petitioner:
Sri Kapil Misra, Sri Sayendra Kumar Singh

Counsel for the Respondents:
A.G.A.

(A)Code of Criminal Procedure Section167(2)- whether the day of surrender
and release on interim bail-would be
taken in consideration of 15 days? held-
'No'-as on day of surrender the court not
changed to custody of applicant either to
police or judicial custody.

Held: Para-10-
So far as inclusion of 10th January, 19th
January, 25th January and 2nd February,
2013 while calculating first 15 days is
concerned, the day on which the petitioners
surrendered and release on interim bail
shall not deem to be the date of remanded
to the judicial custody. No doubt they
surrendered before the court concerned
themselves to be taken into physical control
of the court but the court has not change
the custody either to the police custody or
3 All] Chandra Dev Ram Yadav and Anr. Vs. State of U.P. and Anr.
1167
to judicial custody in jail. Therefore, unless
the accused are remanded either to the
judicial custody or to the police custody by
the court it will not be the date of remand
within the meaning of Section 167 (2)
Cr.P.C.

(B)Code
of
Criminal
Procedure-Section
167(2)- whether court empowered to take
applicant from judicial custody to police
custody-held-'No' beyond 15 days-as per
Section 9 of General Clauses Act 15 days
countable from the date of first remand.

Held: Para-8-
The prosecution cannot take advantage
of the fact that the order has been
passed within 15 days and the court is
competent to send the accused from
judicial custody to police custody beyond
15 day. This cannot be done in view of
the
specific
provision
contained
in
Section 167(2) Cr.P.C.

Case Law discussed:
2009(3) ADJ 322 (SC); 1992 SCC (Cri) 554;
AIR 1980 SC 785; AIR 1963 Alld. 4; 1995 Cri.
L.J. 52; AIR 2001 SC 36.

(Delivered by Hon'ble Vishnu Chandra
Gupta, J.)

1. By means of this petition under
section 482 of Criminal Procedure Code (for
short 'Cr.P.C.') petitioners have prayed for
quashing the order dated 16.02.2013 passed
by learned in-charge District & Sessions
Judge/ Additional Sessions Judge, Court No.1
Lucknow relating to case Crime 64 of 2012,
under Sections 409, 420, 467, 468, 471, 204,
301, 174A, 120B IPC and 7/13(1)d r/w 13(2)
of Prevention of Corruption Act, Police
Station
Hussainganj,
District
Lucknow
remanding the petitioners/accused persons in
the police custody from 9AM of 17th Feb,
2013 to 9.00 AM of 18th Feb 2013.

2. The brief facts for deciding the case
are that both the petitioners were accused in
the
above
mentioned
case
and
they
surrendered before the court for the first time
on 10.01.2013 and moved application for their
bail before the court concerned. The Court
keeping in view the judgement rendered by
the Apex Court in Lal Kamlendra Pratap
Singh Vs. State of U.P.). 2009 (3) ADJ 322
(SC) released the petitioners on interim bail
because the bail could not be disposed of on
that day. The court fixed 19.01.2013 for
hearing of the regular bail. On 19.01.2013 the
petitioner again surrendered but the bail
application could not be disposed of and case
was listed for final disposal on 24.01.2013 and
they were released on interim bail till
24.01.2013. As 24.01.2013 was holiday on
account 'Barabafat' the petitioners surrendered
in court on 25.01.2013. On that date too the
bail could not be disposed of and they were
released on interim bail till 02.02.2013. They
again surrendered on 02.02.2013 and their bail
application was rejected and they were taken
into custody and remained to judicial custody
and send to jail. On 05.02.2013 an application
has been moved for police custody remand of
petitioners by the investigating officer. The
court fix 11.02.2013 for disposal of
application. On 11.02.2013 the court directed
the police to inform purpose of remand and
for showing the provision on 15th February.
The case was again adjourned and listed on
15.02.2013. On 15.02.2013 State sought
adjournment, consequently the application
was fixed on 16.01.2013 for disposal. On 16th
February, 2013 the application was allowed
and petitioners were ordered for police
custody remand from 9 AM of 17.02.2013 to
9 AM of 18.02.2013. They were given in
police custody and sent back to the jail in
terms of the order passed by the Court.

3. The impugned order was assailed
by the petitioners on the following
grounds.
1168 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) That period of first 15 days shall
be counted from the date of first remand
on 02.02.2013, hence, the 17.02.2013
would be the 16th day as such the remand
of the petitioner from 17.02.2013 onwards
would be illegal and would be hit by
Section 167(2) Cr.P.C..

(ii) That the petitioners were not
present in the court when the impugned
order has been passed. Hence, in view of
provision contained in Clause (b) of
proviso of sub-Section 2 of Section 167
Cr.P.C. remanding the petitioners in the
police custody on 17.02.2013 would be
illegal.

(iii) That the day on which the
accused person surrendered before the
court i.e. on 10.02.2013, 19.01.2013,
25.01.2013 and 02.02.2013 would be
included while calculating first 15 days
for the purpose of remaining the petitioner
in the police custody. As such the police
remand granted in this case beyond period
of 15 days would be illegal.

(iv)
That
accused
persons
surrendered on 10.01.2013 and they
remained on interim bail till 02.02.2013.
The period during which they were
remained on interim bail shall be deemed
to be in custody for the purpose of Section
167(2) Cr.P.C. and 15 days expired
during
this
period,
therefore,
the
petitioners cannot be remained in the
police custody. Hence police custody
remand granted beyond first 15 days by
the impugned order would be illegal.

4. Learned senior counsel appearing
for the petitioners Sri Jyotinjay Mishra
submitted that the Apex Court in Central
Bureau
of
Investigation,
Special
Investigation Cell-1, New Delhi Vs.
Anupam J. Kulkarni [1992 SCC (Cri)
554] has held that police custody remand
could be granted initially for first 15 days
by single order or in part. It was further
submitted that the period of detention
shall be computed from the first date of
remand. It was further submitted that the
Apex Court has categorically held that
after expiry of the period of first 15 days
of custody further remand for 60 or 90
days as the case may be, under subsection 2 of sec.167 shall only be to
judicial custody. After relying upon the
judgement of Apex Court in Niranjan
Singh & anr. Vs. Prabhakar Rajaram
Kharote & Ors (AIR 1980 SC 785). It has
been submitted that even if the accused is
on bail he shall deem to be in custody. He
also relied upon the judgement of
Division Bench of this Court in Zaheer
Abbas Vs. Ganga Prasad (AIR 1963
Alld 4) and contended that even if the
accused is on bail may file petition for
habeas corpus and will deem to be in
custody for all practical purpose.

5. After relying upon the judgement
it has been submitted by learned counsel
for the petition that remand of the
petitioner from 9.00 A.M. Of 17.02.2013
to 9.00 A.M. Of 18.02.2013 would be
illegal.

6. Learned AGA Smt. Suniti Sachan
contended on behalf of the State that this
petition has become infructuous as the
accused has already remanded to judicial
custody after police custody remand, hence
the petitioner shall have no right to challenge
the impugned order and no fruitful purpose
would be served even if the impugned order
is set a-side. It was further submitted on the
strength of authority of this Court in Amar
Pal and Ors. Vs. State of U.P., (1995 Cri.
L.J. 52) that grant or refusal of authorization
of detention of an accused in police custody
3 All] Chandra Dev Ram Yadav and Anr. Vs. State of U.P. and Anr.
1169
are bilateral proceedings between the
prosecuting agency and the court and
accused does not come in picture at all.
Hence the presence of the accused at the time
of remanding the accused from one custody
to other is not at all required, specially when
court after hearing the parties pass order to be
affected from a particular date after the date
of passing the order. The Magistrate would
be fully competent to direct the Jail
Authorities and the investigating officer for
giving and taking the physical custody of an
accused i.e. from judicial custody to police
custody and again from police custody to
judicial custody.

Point No.(i)

7. It is not in dispute that police
custody remand would be granted during
first 15 days from the date of first remand as
held by the Apex Court in Aupam J.
Kulkarni's case (supra). It has been held by
Hon'ble Supreme Court in Tarun Prasad
Chatterjee vs. Dinanath Sharma, AIR 2001
SC 36 that use of word 'from' indicate the
beginning, hence the first day of the period
,therefore, is to be excluded in view of sec.
9 of General Clauses Act. Of course, the
period of first 15 days shall be counted from
the date of first remand, i.e. 02.02.2013 but
the day on which the bail of accused person
was rejected and taken in physical custody
by the court and remanded to judicial
custody would be treated to be first day of
remand. While calculating first 15 days the
calculation would start from 03.02.2013 and
02.02.2013 would be excluded, so the
17.02.2013 would be the 15th days.

8. The prosecution cannot take
advantage of the fact that the order has
been passed within 15 days and the court
is competent to send the accused from
judicial custody to police custody beyond
15 day. This cannot be done in view of
the
specific provision
contained in
Section 167(2) Cr.P.C.

Point No (ii)

9. So far transfer of custody from
judicial custody to police custody is
concerned
if
court
direct
the
jail
authorities and the investigating officer to
take physical custody of the accused from
jail for a certain period would be fall
within the domain of the court concerned.
In such situation it would not necessary
that the accused should be brought first
before the Magistrate or the court and
then handed over to the police in his
presence. The presence of the accused is
necessary at the time of hearing of the
matter regarding police custody remand.
It is not the case that petitioner were not
given opportunity of being heard before
passing the impugned order. I do not find
any substance in any of the submissions
raised by learned counsel for the
petitioner in this regard.

Point No.(iii)

10. So far as inclusion of 10th
January, 19th January, 25th January and
2nd February, 2013 while calculating first
15 days is concerned, the day on which the
petitioners surrendered and release on
interim bail shall not deem to be the date of
remanded to the judicial custody. No doubt
they surrendered before the court concerned
themselves to be taken into physical control
of the court but the court has not change the
custody either to the police custody or to
judicial custody in jail. Therefore, unless the
accused are remanded either to the judicial
custody or to the police custody by the court
it will not be the date of remand within the
meaning of Section 167 (2) Cr.P.C.
1170 INDIAN LAW REPORTS ALLAHABAD SERIES

Point No.(iv)

11. So far as question of custody is
concerned technically the accused if on
bail shall deem to be under some
restrictions but would not be in physical
custody of the court. In Niranjan
Singh'case (supra) in para 7 this
controversy has been set at rest, which is
reproduced herein below;

" 7. When is a person in custody, within
the meaning of s.439 Cr. P.C. ? When he is
in duress either because he is held by the
investigating agency or other police or allied
authority or is under the control of the court
having been remanded by judicial order, or
having offered himself to the court's
jurisdiction and submitted to its orders by
physical presence. No lexical dexterity nor
precedential profusion is needed to come to
the realistic conclusion that he who is under
the control of the court or is in the physical
hold of an officer with coercive power is in
custody for the purpose of s. 439. This word
is of elastic semantics but its core meaning is
that the law has taken control of the person.
The equivocatory quibblings and hide-andseek niceties sometimes heard in court that
the police have taken a man into informal
custody but not arrested him, have detained
him for interrogation but not taken him into
formal custody and other like terminological
dubieties are unfair evasions of the
straightforwardness of the law. We need not
dilate on this shady facet here because we are
satisfied that the accused did physically
submit before the Sessions Judge and the
jurisdiction to grant bail thus arose"

12. So person cannot be remanded
either to judicial custody or in police custody
if he is not in actual physical control of the
court. An accused on bail cannot deem to be
in custody within the meaning of Section 167
Cr.P.C.. Such accused could not be
remanded either to judicial or police custody,
as in both the situation accused sent to in
physical custody of jail authorities or police.
as the case may be, which would not be
possible if the accused is on bail . This is
crystal clear from the scheme of Section 167
Cr.P.C. The perusal of Section 167 (2)
Cr.P.C. provides that in case of default of
submitting the charge sheet in 60 or 90 days
as the case may be, the accused would be
entitled for bail, so if the accused already on
bail cannot be granted bail in default of filing
the charge sheet by the investigation agency
in 60 days or 90 days. Hence it cannot be
said that accused released on interim or
regular bail by the court shall deem to be in
custody for the purpose of Section 167
Cr.P.C. I fortified my view with judgement
of Apex Court reported in Mithabhai
Pashabhai Patel Vs. State of Gujrat, AIR
2009 SC (Supp) 1658

13. Having considered all the facts and
circumstance of the case and keeping in view
the law cited on the subject it is held that the
order of remand of the petitioners in police
custody from zero hours to 9.00 a.m. on 18.
02.2013 would not a valid remand being
beyond first 15 days. The order to that extent
is,thus,liable to be set aside. Consequently to
that extent this petition deserve to be allowed.

14. Hence petition is partly allowed.
The impugned order dated 16.02.2013
remanding the petitioner to police custody
remand from 9.00 A.M. of 17.02.2013 to
midnight, i.e. till 12.00 A.M. would be
valid and upheld but police custody
remand from zero hours to 9.00 A.M. on
18.02.2013 would be illegal and is
accordingly set a side.

15. However, the petitioners were
subsequently
remanded
in
judicial
3 All] Smt. Vijay Devi and Anr. Vs. State of U.P.
1171
custody by a valid remand from time to
time, the illegality stand cured.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.08.2013

BEFORE
THE HON'BLE RAMESH SINHA, J.

Criminal Misc. Application No. 1118 of
2002
(u/s 482 Cr.P.C.).

Smt. Vijay Devi and Anr.
...Applicants
Versus
State of U.P.

...Opp. Party

Counsel for the Petitioner:
Sri Sushil Shukla, Sri Rama Shankar
Mishra

Counsel for the Respondents:
A.G.A.

Cr.P.C.-Section 482- Application to quash
the order rejecting discharge applicationoffence
under
section
379/411
IPC
readwith 4/10 U.P. Protection of Trees Act
1976-applicant
being
village
pradhanpursuant to resolution of Gaon Sabhaapproved by S.D.O. sale deed word Trees of
Shisham, Neem and Sagon of Gaon Sabha
Land-auction
purchaser
deposited
the
amount of bid in Gaon Sabha fund-I.O.-
without
considering
these
documents
submitted charge sheet-cognizance taken
by Magistrate on mechanical manner-and
the discharge application also got the same
fate with same manner-no offence made
out-entire
proceeding
consequent
to
impugned order quashed.

Held: Para-13
Hence in view of the above discussions,
no offence against the applicants is
made out on the basis of impugned
charge
sheet.
Thus,
the
entire
proceedings based on the impugned
charge sheet and the consequential
proceedings are hereby quashed.
(Delivered by Hon'ble Ramesh Sinha, J.)

1. Heard Sri Rama Shanker Mishra,
learned counsel for the applicants and
learned A.G.A for the State.

2. This application under Section 482
Cr.P.C. has been filed for quashing the entire
proceeding of Criminal Case No.1203 of
1998 u/s 379, 411 IPC and Section 4/10 of
U.P. Protection of Trees Act, 1976, P.S.
Salempur, district Bulandshaher, pending
currently in the Court of A.C.J.M. Court
No.3, Bulandshaher.

3. The prosecution case in brief is
that on 22.7.1998 at about 11 p.m. when
the police party was on it's patrolling
duty, an information was received that
Smt. Vijay Devi, the Gram Pradhan of the
village and her husband Rameshwar
Dayal had got the green woods of
Sheesham, Neem and Saijan treeof the
Gram Samaj which were cut down and were
it hidden in the Jungle and was likely to be
taken to some other place in the midnight.
On the said information, the two police
constables namely Sukhbir Singh and Mohar
Singh who were on patrolling duty had
reached at Marauni Tiraha at about 11.30
hours. They saw truck No.U.P.13-0828
coming from the village Marauni and the
said truck was stopped at that Tiraha and was
checked by the constables and they found
that the truck was loaded with green woods
of Sheesham, Neem and Saijan trees. A
person sitting on the said truck Prem
Chandra informed the police party that the
said trees were cut down by the husband of
the Pradhan namely Rameshwar Dayal and
he showed some papers of village Pradhan
namely Smt. Vijay Devi regarding the said
woods on which there was signature of the
village Pradhan. It was further informed that
they did not have permission for cutting