1. Heard the learned Counsel for the petitioners and learned HCGP for the respondent.

2. This criminal petition is filed with a prayer to quash the order dated 28.10.2013 passed in Cr.No.280/2013 of Sampige Halli Police Station on the file of the Chief Metropolitan Magistrate, Bengaluru.

3. It is the case of the petitioners that the respondent/police suo motu registered a case in Cr.No.280/2013 for offences punishable under Sections 399 and 402 IPC against themselves and others on 13.09.2013, showing the petitioners as absconding. They have stated in the complaint that on 13.09.2013 at about 11.20 p.m. they received information that on Nagavara Service Road 3 cars are parked and those people are planning to commit dacoity. Upon receipt of the information, the police officer along with his team and panchas reached the spot at about 11.50 p.m and stopped their vehicles at a distance and went near car ChevorletCaptiva and overheard the person sitting beside the driver was saying that lorry filled with steel will come and they will tie the driver and take away the lorry. Thereafter, the Police Officer himself and his staff apprehended 4 persons, 3 among them ran away. Police Officer apprehended 1) Fayaz s/o Abdul Samad, 2) Javeed s/o Mehboob Khan, 3) Saleem @ Ittu, 4) Suhail s/o Allabakash and seized 2 knives, 1 long, 2 machu, 2 wooden clubs, one Chevorlet Captiva, One Mahindra Scorpio and one Maruthi Omni. On the basis of which, he registered the case against those 4 persons and also three persons who ran away from the spot.

4. The petitioners have further stated that they surrendered before the Chief Metropolitan Magistrate on 21.09.2013 as the respondent police were making hectic efforts to arrest them, and they were remanded to judicial custody. Thereafter, on 26.10.2013 the respondent/police moved the learned Magistrat-8 for grant of police custody of the petitioners who were shown as accused Nos.5 and 7 in the case and accordingly, learned Magistrate secured the petitioners from judicial custody on 28.10.20 13 and they were remanded to police custody till 30.10.2013. The petitioners have challenged this order of learned Magistrate dated 28.10.2013 and the relief sought for by the petitioners is to quash the order dated 28.10.2013.

5. Learned Counsel for the petitioners relying upon the decision in the case of Budh Singh Vs. State of Punjab reported in JT 2000 (8) SC 511 [LQ/SC/2000/630] submitted that the order dated 28.10.2013 questioned in the present petition was passed in violation of Section 167 Cr.P.C cannot be sustained in law and he also relies upon the decision in the case of Central Bureau of Investigation, Special Investigation Cell-I, New Delhi Vs. Anupam J. Kulharni reported in (1992) 3 Supreme Court Cases 141 [LQ/SC/1992/398] .

6. Per contra, the learned HCGP submitted that the order dated 28.10.2013 which is sought to be quashed cannot be considered at this stage since the relief sought for has become infructuous.

7. The Hon’ble Apex Court in the above referred case in Budh Singh Vs. State of Punjab reported in JT 2000 (8) SC 511 [LQ/SC/2000/630] has held that;

“That period of 15 days had in this case admittedly expired on 4.1.2000. The impugned order of the High Court violates the statutory provisions contained in Section 167 Cr.P.C. Since it authorizes police remand for a period of seven days after the expiry of the first fifteen days period. In C.B.I., Special Investigation Cell- I, New Delhi Vs. Anupam J. Kulkarni (JT 1992 (3) SC 366 [LQ/SC/1992/398] = 1992 (3) SCC 141 [LQ/SC/1992/398] ) this Court considered the ambit and scope of Section 167 Cr.P.C. and held that there cannot be any detention in police custody after the expiry of the first 15 days even in a case where some more offences, either serious or otherwise committed by an accused in the same transaction come to light at a later stage.”

8. In the said case, the Hon’ble Apex Court considered the provisions of Section 167 Cr.P.C. and held that there cannot be any detention in police custody after the expiry of the first 15 days even in a case where some more offences, either serious or otherwise committed by an accused in the same transaction come to light at a later stage.

9. Similarly, the decision in the case of Central Bureau of Investigation, Special Investigation Cell-I, New Delhi Vs. Anupam J. Kullwrni reported in (1992) 3 Supreme Court Cases 141, [LQ/SC/1992/398] the Hon’ble Apex Court has held that;

“After the expiry of the first period of fifteen days the further remand during the period of investigation can only be in judicial custody. Police custody if found necessary can be ordered only during the first period of fifteen days. If a further interrogation is necessary after the expiry of the period of first fifteen days there is no bar for interrogating the accused who is in judicial custody during the periods of 90 days or 60 days.”

10. Admittedly, in the present case, the petitioners were not arrested by the Police Officer. On the other hand, they surrendered before the learned Chief Metropolitan Magistrate and learned Magistrate took them to judicial custody and were remanded to judicial custody on 21.09.2013. Further, it transpires that the respondent/police moved the learned Magistrate with a request for police custody of the petitioners/accused Nos.5 and 7. There upon these petitioners were secured from judicial custody on 28.10.2013 and they were remanded to police custody till 30.10.2013.

11. The learned RCGP submitted that absolutely there is no bar under Section 167 of Cr.P.C., for remanding of an accused to police custody after expiry of 15 days from the first remand. Therefore, any decision against this Law cannot be considered.

12. The Hon’ble Apex Court in the case of Budh Singh Vs. State of Punjab reported in JT 2000(8) SC 511 [LQ/SC/2000/630] considered the case under Section 167 of Cr.P.C. The facts in the said decision are similar to the facts of the case on hand. In that case, the accused had surrendered before the learned Judicial Magistrate First Class, he was remanded to the judicial custody, thereafter while in judicial custody, by order dated 23.12.1999 the matter was adjourned at the request of the. Investigation Agency to 02.01.2000. The appellant in that case was again remanded to the judicial custody till 02.01.2000. It transpires that on 02.01.2000 at the request of the Investigating Agency for grant of police remand of the appellant, one day police remand was granted by the Court and police remand was further extended by one day on 03.01.2000. On 04.01.2000 the Investigation Officer made another application seeking further police remand of the appellant for a period of seven days. The learned Judicial Magistrate First Class Ludhiana declined the request of the police for further police remand of the appellant and remanded him to judicial custody till 18.01.2000. This order was challenged by the State in revision before the learned Sessions Judge, Ludhiana, which was dismissed on 17.01.2000. The State, thereafter filed a petition under Section 482 of Cr.P.C., in that, the High Court directed the Judicial Magistrate First Class, Ludhiana to grant police remand of the appellant for a further a period of seven days. This order was challenged before the Hon’ble Apex Court. Under those circumstances, the Hon’ble Apex Court in its order at Para No.5 has held as under:

“5. In the face of facts, as noticed above, the order of the learned Judicial Magistrate, dated 4.1.2000, in our opinion, did not require any interference. The man date of Section 167 Criminal Procedure Code, 1973 postulates that there cannot be any detention in police custody, after the expiry of the first 15 days, so far as an accused is concerned. That period of 15 days had in this case admittedly expired on 4.1.2000. The impugned order of the High Court violates the statutory provisions contained in Section 167 Cr.P.C. Since it authorises police remand for a period of seven days after the expiry of the first fifteen days period. In C.B.I., Special Investigation Cell- I, New Delhi Vs. Anupam J. Kulkarni (JT 1992 (3) SC 366 [LQ/SC/1992/398] = 1992 (3) SCC 141 [LQ/SC/1992/398] ) this Court considered the ambit and scope of Section 167 Cr.P.C. and held that there cannot be any detention in police custody after the expiry of the first 15 days even in a case where some more offences, either serious or otherwise committe d by an accused in the same transaction come to light at a later stage. The Bench, however clarified that the bar did not apply if the same arrested accused was involved in so me other or different case arising out of a different transaction, in which event the period of remand needs to be considered in respect to each of such cases. The impugned order of the High Court under the circumstances, cannot be sustained. The direction to grant police remand for a period of seven days by the High Court is, accordingly, set aside. The appeal, therefore, succeeds and is allowed to the extent indicated above.”

13. Therefore, in that case the Hon’ble Apex Court has observed that :he order of the learned Judicial Magistrate First Class dated 04.01.2000 did not require any interference. The mandate of Section 167 of Cr.P.C. 1973 is that there cannot be any detention in police custody after the expiry of first 15 days so far as accused is concerned. In that case the period of 15 days had admittedly expired on 04.01.2000. Therefore, it is crystal clear that the accused in that case was in judicial custody for a period of 15 days and the said period expired on 04.01.2000. Under those circumstances, the Hon’ble Apex Court has held that after expiry of the said period of 15 days, the accused would not have been remanded to police custody which is in violation of statutory provisions contained in Section 167 of Cr.P.C. Therefore, the same principle is applicable to the present case.

14. Admittedly, the petitioners/accused herein surrendered before the learned Magistrate on 21.09.2013 and they were remanded to judicial custody. Thereafter on the requisition of the respondent-police these petitioners were secured before the learned Magistrate on 28.10.2013 after the expiry of more than 30 days and they were remanded to police custody on 28.10.2013 for a period of three days. This order is impugned in this petition.

15. In view of the above referred decision of the Hon’ble Apex Court, it is crystal clear that, the impugned order dated 28.10.2013 remanding the petitioners to police custody after expiry of 15 days of their detention in judicial custody, is in violation of statutory provisions contained in Section 167 of Cr. P.C.

16. Learned HCGP submitted that the order dated 28.10.2013 is sought to be quashed in this petition and as such now it has become infructuous and there is no meaning in quashing the said order.

17. Learned Counsel for the petitioners submitted that the petitioners would not get any benefit out of it, but it is a question of law and as such this Court requires to decide the same. Under these circumstances, in view of above referred decision of the Hon’ble Apex Court, there is no other way than holding that the impugned order is illegal and violative of Section 167 of Cr.P.C., and as such the same is liable to be quashed.

18. Accordingly, petition is allowed and the impugned order dated 28.10.2013 passed in Cr.No.280/2013 of Sampige Halli Police Station on the file of the Chief Metropolitan Magistrate, Bengaluru is hereby quashed.