BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/07/2011 CORAM THE HONOURABLE MS.JUSTICE R.MALA Crl.O.P.(MD).No.9334 of 2011 State rep. By The Inspector of Police, District Crime Branch, Madurai District. crime No.42 of 2011 ... Petitioner/Investigation Officer Vs 1.Thalapathi/A1 2.Kodi.Chandrasekar/A3 3.Suresh Babu @ Pottu Suresh/A4 4.Krishnapandi/A8 ... Respondents/Accused PRAYER Petition is filed under Section 482 of the Code of Criminal Procedure praying to call for the records in Cr.M.P.No.6567 of 2011 on the file of the Judicial Magistrate No.1, Madurai and to set aside the order in Cr.M.P.No.6567 of 2011 dated 22.07.2011 and permit the petitioner/investigating officer to take the custody of the accused persons for 7 days for custodial interrogation. !For Petitioners ... Mr.I.Subramanian State Public Prosecutor ^For R - 1 ... Mr.K.Jegannathan For R - 2 ... Mr.Mohankumar for Mr.P.Ragendran For R - 3 ... Mr.R.Shanmugasundaran, senior counsel for Mr.S.Ravi For R - 4 ... Mr.M.Lingadurai :ORDER
This criminal original petition has been filed by the
State/investigating officer to set aside the order dated 22.07.201, passed in
Cr.M.P.No.6567 of 2011 by the Judicial Magistrate No.I, Madurai, dismissing the
petitioner filed by the State for police custodial interrogation of the
respondents, who are arrayed as A1, A3, A4 and A8 respectively in crime No.42 of
2011 on the file of the District Crime Branch, Madurai District.
2.Mr.I.Subramanian, the learned State Public Prosecutor appearing
for the petitioner would submit that on the basis of the complaint given by one
Pappa, a case has been registered against 12 persons, in crime No.42 of 2011,
for the offence under Sections 120(B) 143, 109, 406, 420, 387 and 506(ii) I.P.C.
and the respondents herein are arrayed as A1, A3, A4 and A8 and they were
arrested on 19.07.2011 and remanded to judicial custody on the same day.
3.He would further submit that even though the investigating officer
has filed the petition to take the respondents/accused for police custody under
Section 167(3) Cr.P.C within 15 days as contemplated under the law before the
learned Judicial Magistrate No.1, Madurai, who dismissed the application without
applying the mind that the police interrogation is necessary for obtaining or
securing the documents from the respondents/accused and also to trace the
whereabouts of the other accused and to arrest them.
4.He would further submit that the learned Judicial Magistrate No.1,
Madurai has considered the decision reported in 2007(2) MWN (Cr.) 414 (DB)
(State by Deputy Superintendent of Police, ‘A’ Branch CID, Dharmapuri V.
Sundaramoorthy), which is not applicable to the facts of the present case. He
would further submit that since the case has been registered for the offence
under Section 120(b) I.P.C. to interrogate in respect of the conspiracy, the
police custody is necessary and some of the accused are yet to be arrested and
some of the accused were already filed applications for anticipatory bail, which
are pending before this Court.
5.He would fairly concede that A12 alone neither filed any
application for anticipatory bail nor surrender and hence, he come forward with
the present application and prayed for setting aside the order of the learned
Judicial Magistrate No.I, Madurai and ordering for police custody. To
substantiate his argument, he relied upon the decisions of the Apex Court and
this Court.
6.Repudiating the same, Mr.R.Shanmugasundaram, learned senior
counsel appearing for R3, Mr.K.Jegannathan, learned counsel appearing for R1,
Mr.Mohankumar, learned counsel appearing for R2 and Mr.M.Lingadurai, learned
counsel appearing for R4 would submit that the decisions relied upon by the
learned State Public Prosecutor are not applicable to the facts of the present
case, because, all the respondents/A1,3,4 and 8 were arrested and they were
interrogated and hence, there is no necessity for further interrogation. They
would further submit that the learned Judicial Magistrate has considered all the
aspects in a proper manner.
7.They would further submit that the decision relied upon by the
learned Judicial Magistrate No.I, Madurai in 2007(2) MWN (Cr.) 414 (DB) (State
by Deputy Superintendent of Police, ‘A’ Branch CID, Dharmapuri V.
Sundaramoorthy) is squarely applicable to the facts of the present case.
8.The second limb of the argument advanced by the learned senior
counsel appearing for R3 is that the criminal original petition is not
maintainable, because the order passed by the learned Judicial Magistrate No.1
is only a final order and since the application for police custody has been
dismissed, the State ought to have filed only a revision under Section 397
Cr.P.C., not criminal original petition under Section 482 Cr.P.C. and hence,
this criminal application is not maintainable and hence, he prayed for the
dismissal of the application. To substantiate his argument, he relied upon the
decisions of this Court as well as the Apex Court.
9.Mr.K.Jegannathan, learned counsel appearing for R1 would submit
that granting of police custody is a judicial discretion of the learned Judicial
Magistrate and it is not the case that the discretion has been not properly
exercised and perverse and hence, the order passed by the learned Judicial
Magistrate is not warranted interference. He would further submit that the case
has been registered for the offences under Sections 406, 420 and 387 I.P.C.,
which are of civil nature and the allegation in the F.I.R. has clearly proved
that even though the occurrence has been taken place in the year 2010, the
defacto complainant has not taken any steps till 14.07.2011 and in the averments
of the complaint, no cognizable offences are made out for the offences under
Sections 406, 420. 387 and 506(2) I.P.C., however, the averments of the
complaint have clearly mentioned the inadequate consideration and thus it is of
civil nature and since all the documents are registered documents, they can be
secured the same from the Registration department and the said factum has also
been considered by the lower Court also and hence, he prayed for the dismissal
of the application stating that the police custody is not necessary. He also
relied upon the decisions of this Court as well as the Apex Court.
10.I have considered the submissions made on either side and perused
the materials available on records and considered the decisions of the Apex
Court as well as this Court relied upon by all the counsel.
11.Now this Court has to consider whether the criminal original
petition is maintainable.
12.The learned counsel appearing for the respondent would rely upon
the decision in V.C.Shukla Vs. C.B.I., reported in 1980 Supp SCC 92 SCC 695, and
submit that since the police custody application has been dismissed and it is a
final order, the criminal original petition is not maintainable. At this
juncture, it is appropriate to consider the above said decisions, wherein, the
Apex Court has held as follows:
“(1) An order framing the charge being an intermediate order falls
squarely within the ordinary and natural meaning of the term “interlocutory
order” as used in Section 11(1) of the Special Courts Act.
If an order is not a final order, it would be an interlocutory order. An
interlocutory order merely decides some point or matter essential to the
progress of the suit or collateral to the issues sought but is not a final
decision or judgment on the matter on issue. So that in ordinary sense of the
term, an interlocutory order is one which only decides a particular aspect or a
particular issue or a particular matter in a proceeding, suit or trial but which
does not, however, conclude the trial at all. One of the tests is to see if the
order is decided in one way, it may terminate the proceedings but if decided in
another way, then the proceedings would continue. A final order finally
disposes of the rights of the parties.”
13.Considering the above said decision, the order passed in the
police custody application is not a final order and it has not been ended into a
finality and it is only an interlocutory order and hence, there is no need to
file a revision and the criminal original petition itself is maintainable.
Hence, argument advanced by the learned counsel appearing for the respondents
that the criminal original petition is not maintainable does not merit
acceptance.
14.The facts of the present case are that the F.I.R. has been
registered in crime NO.42 of 2011 against 12 persons on 19.07.2011 for the
offences under Sections 143, 120(b), 109, 406, 420, 387 and 506(ii) I.P.C. At
this juncture, it is appropriate to consider the averments in the complaint,
wherein, the defacto complainant has stated that to discharge the loan obtained
by her from TIIC, she executed a power of attorney to A11 Nareshkumar and
subsequently, since there was a misunderstanding between both the parties, she
cancelled the power of attorney in favour of A11 on 26.06.2009 and she executed
another power of attorney on 05.04.2010 in favour of Krishnasamy/A6, pursuant to
which A6/Krishnasamy executed the sale deed in favour of one Rengaraj/A9 on
24.09.2010. But, there is no document to show that in between the date of
execution of power of attorney in favour of Krishnasamy/A6 till she gave a
complaint before the District Crime Branch, Madurai, she has taken steps to
cancel the power of attorney or to file a suit for cancellation of the sale
deed. The averment of the F.I.R. would clearly prove that all the transactions
have been borne out by registered documents.
15.At this juncture, the decision relied upon by the learned senior
counsel appearing for R3 in Latif Estate Line India Ltd., V. Hadeeja Ammal
reported in 2011 (2) CTC 1 and he took me to the Section 54 of the Transfer of
Property Act and submit that once sale deed has been executed and if there is
inadequate consideration or unpaid purchased money, the only remedy available to
the vendor is to file civil suit for recovery of unpaid purchased money/the
balance sale consideration. Since this is an application for police custody and
hence, I do not want to discuss the above said decision here.
16.Now, this Court has to decide whether there is any sufficient
cause or any necessity for interrogation by the police and whether the police
custody is necessary.
17.The learned State Public Prosecutor would submit that since the
case is for the offence under Section 120(b) I.P.C., there is a conspiracy among
the accused and hence, to find out the conspiracy between the accused persons,
the police interrogation is necessary. At this juncture, it is appropriate to
consider the decision in State Vs. Anil Sharma reported in (1997) 7 Supreme
Court Cases 187, wherein the Apex Court has held as follows in para 6 of the
said decision:
“6.We find force in the submission of the CBI that custodial interrogation
is qualitatively more elicitation-oriented than questioning a suspect who is
well ensconced with a favourable order under Section 438 of the Code. In a case
like this effective interrogation of a suspected person is of tremendous
advantage in disinterring many useful informations and also materials which
would have been concealed. Success in such interrogation would elude if the
suspected person knows that he is well protected and insulated by a pre-arrest
bail order during the time he is interrogated. Very often interrogation in such
a condition would reduce to a mere ritual. The argument that the custodial
interrogation is fraught with the danger of the person being subjected to third-
degree methods need not be countenanced, for, such an argument can be advanced
by all accused in all criminal cases. The Court has to presume that responsible
police officers would conduct themselves in a responsible manner and that those
entrusted with the task of disinterring offences would not conduct themselves as
offenders.”
In Muraleedharan Vs. State of Kerala reported in (2001) 4 Supreme Court Cases
638, the Apex Court has held as follows:
“Custodial interrogation of such an accused is indispensably necessary for
the investigating agency to unearth all the links involved in the criminal
conspiracies committed by the persons which ultimately led to the capital
tragedy.”
In Nattarasu V. State reported in 1998 CRI.L.J.1762, this Court has held as
follows:
“183.If such an apprehension is expressed by the prosecution opposing the
anticipatory bail, then the Courts have to gave due consideration for the said
submission, because the custodial interrogation is qualitatively more
elicitation oriented than questioning the accused who is well ensconced with a
favourable order under Section 438 Cr.P.C.
184.As pointed out by the Apex Court in (1997) 7 JT (SC) 651: 1997
Cri.L.J.2989) (Supra), in a case of very serious nature, especially when the
accused wield the wide influence, the custodial and effective interrogation of
the accused is of tremendous advantage in disinterring many useful informations
and materials which would have been concealed.”
18.Considering the above said decisions along with the facts of the
present case, those petitions have been filed for anticipatory bail. In that,
their Lordships have held that they are needed for interrogation during the
investigation and in such circumstances, the Apex Court as well as this Court
have come to the conclusion that they are needed for interrogation and dismissed
the anticipatory applications.
19.But, here, considering the facts of the present case along with
the decisions, as per the version of the learned senior counsel, the complaint
has been given on 14.07.2011 as per the newspaper report, but the case has been
registered only on 19.07.2011. The respondents were appeared on summons before
the police station on 19.07.2011 and they were interrogated and at 8.30 P.M
only, they were arrested and remanded to judicial custody. As per the sworn
statement of the investigating officer, even though, the respondents were
interrogated, no confession has been recorded. As already stated, they were
appeared for interrogation on 19.07.2011 and they were arrested at 8.30 P.M.
but, there is no explanation at the time of interrogation as to what materials
they have collected. Furthermore, as already stated, the main cognizable
offences in this case are under Sections 406 and 420 I.P.C., which are borne out
by records and all the documents are registered documents, which are very much
available in the Registration department. In such circumstances, I am of the
opinion that the argument of the learned State Public Prosecutor that to secure
the documents, the police custody is necessary does not merit acceptance.
20.Now, this Court has to consider whether the police custody is
necessary for finding out the conspiracy, since the case has been registered for
the offence under Section 120(b) I.P.C.
21.Considering the arguments of the learned State Public Prosecutor
along with the arguments advanced by the learned counsel appearing for the 1st
respondent, he took me to the complaint given by the defacto complainant,
wherein, she has not mentioned any dates. But, he forcibly submitted that the
power of attorney has been came into existence on 29.06.2009 and that has been
cancelled and on 05.04.2010, she executed another power of attorney in favour of
A6/Krishnasamy. Therefore, it is clear that till the execution of sale deed in
favour of Rengaraj/A9 on 24.09.2010, the defacto complainant has not taken any
steps. Hence, I am of the view that the defacto complainant was silent for more
than one year from the date of execution of power of attorney in favour of
A6/Krishnasamy. In such circumstances, the argument advanced by the learned
State Public Prosecutor that to find out the conspiracy between the accused, the
police custody is mandate, is an unacceptable one.
22.At this juncture, it is appropriate to consider the decision
relied upon by the learned State Public Prosecutor appearing for the petitioner,
in Kosanapu Ramreddy V. State f Andhra Pradesh reported in AIR 1994 Supreme
Court 1447, wherein, the Apex Court has held as follows:
“Para 4.We have considered the submissions of learned counsel on both
sides. That a person held in judicial custody could, if circumstances justify,
be transferred to police custody or viceversa within a period of 15 days
referred to in S.167(2) of the Criminal Procedure Code, 1973 – which by virtue
of S.20 of the Terrorists and Disruptive Activities (Prevention) Act, 1987, is
to be read as 60 days in this case – cannot be disputed. There must, of course,
be sufficient grounds for such a change of custody. In the present case, having
regard to the nature of offence and the stage of the investigations it cannot be
said that grounds for such custody do not exist.
Para 5.As to the safety of the person of the accused during police
custody is concerned, Shri.D.Ram Reddy, the Investigating Officer who is present
in Court, says that he undertakes before and assures the Court that during the
period of police custody no physical harm would ever be caused to the accused
and that he would ensure that no illegal methods of interrogation would be
restored to either at his instance or at the instance of anybody else. As a
further precaution, we also provide that Shri Barala kishna Rao counsel of the
accused be entitled to visit the place of detention once in the morning and once
again in the night every day during the period of the police custody and if the
counsel discovers evidence of any mal-treatment, he shall be entitled to require
the District Medical Officer to examine Ashok Reddy forthwith and make a report.
The District Medical Officer of the District shall be required to act forthwith
on any request made to him by the said Shri Barala Kishna Rao.”
23.Considering the above said decision along with the facts of the
present case, the said case is related to Terrorist and Disruptive Activities
(Prevention) Act 1987. But, here, it has been admitted in the complaint that
there is insufficient sale consideration and therefore, the said decision is not
applicable to the facts of the present case.
24.In Assistant Director, Direct of Enforcement Vs. Hasan Ali Khan
reported in 2011(4)SCALES 53, the Apex Court has held as follows:
“Having regard to the extra ordinary circumstances and complexity of
the issues involved and the magnitude of the case, we consider it appropriate to
authorise the detention of the respondent/accused herein for his custodial
interrogation.”
25.At the time of filing the application for police custody, it has
been stated that police interrogation is necessary to find out the whereabouts
of the other accused. It is an admitted case that except A6, who is none other
than the sister’s son of the defacto complainant, some of the accused were
arrested, some of the accused filed petitions for anticipatory bail and one of
the accused was surrendered before the learned Judicial Magistrate and hence,
since except A6/Krishnasamy, the whereabouts of the other accused was known to
the investigating officer, the argument of the learned State Public Prosecutor
that to obtain the particulars in respect of the other co-accused, the police
custody is necessary does not merit acceptance.
26.For the above stated reasons, I am of the view that the criminal
original petition is maintainable, since the order has been passed as
interlocutory order, and the matter is of civil nature and all the documents are
public documents, which are very much available in the Registration department,
the trial Court has considered all the aspects in a proper manner and come to
the correct conclusion. Hence, I do not find any perversity in the order passed
by the learned Judicial Magistrate No.I, Madurai and I find no reason for
granting police custody and the petitioner deserves to be dismissed.
Accordingly, this criminal original petition is dismissed.
ARUL
To
1.The Inspector of Police,
District Crime Branch,
Madurai District
2.The Judicial Magistrate No.I,
Madurai.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.