Judicial custody - regarding
Y. T. R. Rao, Advocate, VIZAG
(Querist) 14 October 2011
This query is : Resolved
SIR! WHAT IS THE MAXIMUM PERIOD OF DETENTION IN JUDICIAL CUSTODY THAT A MAGISTRATE CAN AUTHORISE ACCORDING TO CR.P.C., FOR THE OFFENCE PUNISHABLE U/S 395 OF I.P.C.? AND ALSO PLEASE SUGGEST LATEST CASE-LAWS.
ajay kumar mishra
(Expert) 15 October 2011
Mr.Rao,
A Magistrate can detain a person in J/C not more than 90 days in total for the offense committed u/s 395 IPC. If during the detention period police submitted the charge sheet the Magistrate may take cognizance and commit the case to Secession Judge.The Magistrate authorize for such period of detention u/s 167(2ai) crpc.
kuldeep kumar
(Expert) 15 October 2011
Where the presence of informant and other witnesses at the time and place of incident was established and their positive evidence regarding the way in which the dacoity was committed found reliable having no previous enmity with accused, no case of false implication established therefore, conviction of accused under section 395 was just and proper; Chhedu v. State of Uttar Pradesh, 2000 Cr LJ 78 (All)
kuldeep kumar
(Expert) 15 October 2011
Surinder ..... Appellant
Through: Mr. S.K. Sharma and
Mr. Anurag Mangla for the appellant.
Versus
State ..... Respondent
Through: Mr. Sunil K. Kapoor for the State.Date of Decision : October 04, 2006In
Ashfaq Vs. State (Govt. of NCT of Delhi) JT 2004 (5) SC 484, the Hon'ble Apex
Court has held as under:-
“ Section 397, does not create any new substantive offence as such but merely serves as
complementary to Sections 392 and 395 by regulating the punishment already provided
for dacoity by fixing a minimum term of imprisonment when the dacoity committed was
found attendant upon certain aggravating circumstances viz. use of deadly weapon, or
causing of grievous hurt of attempting to cause death or grievous hurt. For that reason, no
doubt the provision postulates only the individual act of the accused to be relevant to
attract section 397 IPC and thereby inevitably negates the use of principle of constructive
of via carious liability engrafted in section 34 IPC. Each one of the accused in this case
were said to have been wielding a deadly weapon of their own, and thereby squarely
fulfilled the ingredients of Section 397 IPC de hors any reference to section 34 IPC.”
7 In view of law laid down by the Hon'ble Apex Court, the individual role of the
accused has to be considered in relation to use or carrying a weapon at the time of dacoity
for attracting the provisions either of Section 397 IPC or Section 398 IPC. Since in the
present case, the prosecution could not establish that the appellant was also carrying a
deadly weapon with him at the time of alleged dacoity when he intruded into the house of
the complainant alongwith his other co-accused persons, his conviction under Section
398 IPC can not be legally sustained. However, the prosecution has proved beyond
reasonable doubt that the appellant alongwith other co-accused persons had intruded into
the house of the complainant and had participated in committing of dacoity for which he
was tried. Therefore, the appellant is liable for conviction under Section 395/34 IPC. The
impugned judgment of conviction passed by the Court below against him is accordingly
modified.
8 I have heard the learned counsel for the parties on the point of sentence also. It is
submitted that the appellant after his conviction by the Court below has got married 8
years back. He is a young person and is making his livelihood by vending vegetables at
Azadpur Mandi. By the time, the sentence of the appellant was suspended vide order
passed by this Court on 26.05.2003, he had already suffered rigorous imprisonment for
about 4 years. The fine imposed on him by the Court below is stated to has already been
deposited. The incident has become almost two decades old. Having regard to the
circumstances of the case, I am of the considered view that the ends of justice shall be
adequately met by sentencing the appellant to sentence already undergone by him. The
impugned order on sentence also stands modified accordingly.
9 In view of the above, this appeal is partly allowed and stands disposed of.
kuldeep kumar
(Expert) 15 October 2011
RAGHUBIR SINGH VS STATE OF BIHAR,AIR 1987 SC 149
UDAY MOAHANLAL CHARYA VS STATE OF MAHARASHTRA AIR 2001 SC 1910
ABOVE 2 CASE DEAL WITH EXACTLY WHAT U HAVE ASKED.
