Madras High Court
The State vs S.Srinivasan on 7 February, 2012
Author: T.Mathivanan
Bench: T.Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.02.2012 CORAM: THE HON'BLE MR.JUSTICE T.MATHIVANAN Crl.O.P.No.2701 of 2012 The State rep.by the Inspector of Police CBI : SCB., Chennai .... Petitioner Vs. S.Srinivasan ..... Respondent Prayer : Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure to set aside the Order dated 30.01.2012 and made in Crl.M.P.No.104 of 2012 in R.C.09(S)/2011/CBI/SCB, Chennai, on the file of the learned Chief Judicial Magistrate, Chengalpet. For Petitioner : Mr.N.Chandrasekaran Spl.Public Prosecutor for CBI Cases For Respondent : Mr.N.Natarajan, Senior Counsel for Mr.G.Prabhakaran O R D E R
Challenge is made in this criminal original petition to the Order dated 30.01.2012 and made in Crl.M.P.No.104 of 2012 in R.C.09(S)/2011/CBI/SCB, Chennai, on the file of the learned Chief Judicial Magistrate, Villupuram.
2. The facts, which are very much essential for the disposal of this petition are as under:
2.1. The respondent herein Mr.S.Srinivasan has been ranked as A4 in the case in R.C.09(S)/2011/CBI/SCB, Chennai. As alleged in the first information report there was political enmity between Dr.Ramadoss founder of Pattali Makkal Katchi (PMK) and the complainant Mr.C.Ve.Shanmugam, who was functioning as the Minister for Education and Commercial Taxes, Government of Tamil Nadu.
2.2. The accused persons had been giving out openly against the complainant in a life threatening manner in various election campaign meetings during the assembly election in the year 2006, in which the complainant Mr.C.Ve.Shanmugam was contesting against the sixth accused Mr.N.M.Karunanidhi belonging to Pattali Makkal Katchi (P.M.K), in Tindivanam assembly constituency. The respondent herein Mr.S.Srinivasan had threatened the party workers of the complainant not to work in favour of the complainant saying that his brother had fixed the date for the complainant. The accused persons had conspired with each other and that on 08.05.2006 at about 21.30 hours in furtherance of their criminal conspiracy they had sent hired goons under the leadership of one Mr.N.R.Raghu (A5) and the sixth accused Mr.N.M.Karunanidhi, who attacked the complainant and his men with deadly weapons in front of the complainant's house situated at Mottaian Street, Tindivanam, in which one Mr.Murugan, who was trying to save the life of the complainant had succumbed to injuries while the others were severely injured. Besides this, the unruly mob had also caused damages to the properties of the complainant.
2.3. On the strength of a complaint lodged by Mr.C.Ve.Shanmugam, former Minister for Education and Commercial Taxes, Government of Tamil Nadu, a case in Crime No.164 of 2006 was registered on the file of the Roshanai Police Station on 09.05.2006 under Sections 147, 148, 302, 307, 506(ii), 324, 323, 120(B) and 427 I.P.C., against 1.Dr.Ramadoss, 2.Dr.Anbumani, 3.Dr.Parasuraman, 4.Mr.S.Srinivasan, 5.Mr.N.R.Raghu, 6.Mr.N.M.Karunanidhi and 7.Mr.Prithiban and 15 others.
2.4. Thereafter, the investigation was taken up and after the completion of the investigation the investigating officer had laid a final report before the learned Judicial Magistrate No.I, Tindivanam under Sections 147, 148, 302, 307, 324, 323, 506(ii) r/w 34 I.P.C., r/w 3 of T.N.P.P.D. Act. The learned Judicial Magistrate No.1, Tindivanam had taken cognisance of the offences in P.R.C.No.2 of 2008.
2.5. After the completion of the preliminary enquiry, the case was committed to the Court of Sessions viz.Principal Sessions Judge, Villupuram, Sessions Division and it was taken on his file in S.C.No.103 of 2008. Subsequently, the case was made over to the file of the learned Additional Sessions Judge (F.T.C.No.I), at Tindivanam for trial.
2.6. It is significant to note here that while laying the final report, some of the accused which includes the respondent herein viz.Mr.S.Srinivasan and one Mr.N.M.Karunanidhi, whose names were shown in the first information report have been deleted. However, the complainant Mr.C.Ve.Shanmugam had filed a protest petition under Section 173(8) Cr.P.C., in Crl.M.P.No.108 of 2008, on the file of the learned Additional Sessions Judge, (F.T.C. No.I), Tindivanam. That petition was dismissed by the learned Additional Sessions Judge, (F.T.C. No.I), Tindivanam.
2.7. Challenging the Order of dismissal, the complainant had preferred a criminal revision before this Court in Crl.R.C.No.939 of 2009. After hearing both sides, this Court has allowed the petition in the following terms:
i. the Order of the learned Judicial Magistrate No.I, Tindivanam taking cognizance on the final report submitted by the first respondent Police is hereby set aside, ii. the Order of the learned Judicial Magistrate No.I, Tindivanam committing the case to the Court of Sessions is also set aside, iii. the impugned Order of the learned Sessions Judge is set aside iv. the matter is remitted back to the learned Judicial Magistrate No.I, Tindivanam, who shall issue notice to the petitioner, permitting him to file appropriate protest petition or objections and after sufficient opportunity to the petitioner, the FIR named accused and the respondents 2 to 15 to make their submissions and then to pass appropriate Order on the final report, v. the learned Additional Sessions Judge, (F.T.C. No.I), Tindivanam is directed to dispatch the case records forthwith to the learned Judicial Magistrate No.I, Tindivanam.
2.8. In pursuant to the above said Order, it appears that the complainant Mr.C.Ve.Shanmugam had filed two petitions in Crl.M.P.Nos.2118 of 2010 and 2119 of 2010. The first petition viz. Crl.M.P.No.2118 of 2010 was filed against the investigation conducted by the first respondent for having left out the accused 16 to 21 therein and the other petition in Crl.M.P.No.2119 of 2010 was filed under Section 173(8) Cr.P.C., seeking the relief of further investigation in Crime No.164 of 2006.
2.9. The learned Judicial Magistrate No.I, Tindivanam while allowing the petition in Crl.M.P.No.2118 of 2010, had dismissed the other petition in Crl.M.P.Nos.2119 of 2010 with the following observations:
i. this Court disagrees with the final report of the first respondent/investigation officer in Cr.No.164 of 2006, on the file of the Roshanai Police Station, for the aforementioned reasons, ii. the protest petition bearing Crl.M.P.No.2118 of 2010 filed by the defacto complainant is maintainable, iii. The petition under Section 173(8) of Cr.P.C., seeking for further investigation at the instance of defacto complainant is maintainable in law, iv. this Court hereby direct the first respondent/investigation officer to conduct further investigation in Cr.No.164 of 2006, on the file of the Roshanai Police Station in accordance with law and further this Court herewith forwarding the protest petition filed by the defacto complainant bearing Cr.M.P.No.2118 of 2010 for investigation under Section 156(3) of the Code of Criminal Procedure, v. in view of the similar relief granted in fourth findings, stated supra, the petition under Section 173(8) of Cr.P.C., filed by the defacto complainant becomes in fructuous.
2.10. In the meanwhile, the complainant Mr.C.Ve.Shanmugam had filed a writ petition in W.P.No.4183 of 2011 seeking the relief of transferring the investigation relating to the case in Crime No.164 of 2006 from the file of the Roshanai Police Station to the file of CBI for thorough investigation. This writ petition was allowed by this Court on 29.10.2011 ordering to transfer the investigation of the case in Crime No.164 of 2006 from the file of the Roshanai Police Station to the file of the petitioner viz.the Inspector of Police, CBI/SCB, Chennai.
2.11. In pursuant to the above said Order, the petitioner viz.the Inspector of Police, CBI/SCB, Chennai has registered a case in Crime No.R.C.09(S)/2011/CBI/SCB on 19.11.2011 under Sections 147, 148, 302, 307, 506(ii), 323, 324, 120(B) and 427 I.P.C., against Dr.Ramadoss and 21 others and subsequently investigation was taken up. Now, the first information report is pending on the file of the learned Chief Judicial Magistrate, Chengelpet. During the course of investigation, the respondent herein (A4) along with one Mr.N.M.Karunanidhi (A6) were arrested on 25.01.2012 and they were remanded to judicial custody.
2.12. When the matter stood thus, the petitioner herein has filed a petition in Crl.M.P.No.104 of 2012 on the file of the learned Chief Judicial Magistrate, Chengelpet seeking the police custody of Mr.S.Srinivasan, who is the respondent herein (A4) and Mr.N.M.Karunanidhi (A6). After hearing both sides, the learned Chief Judicial Magistrate, Chengelpet while grating police custody in respect of Mr.N.M.Karunanidhi (A6), has rejected the claim in respect of the respondent herein Mr.S.Srinivasan.
2.13. The Order of the learned Chief Judicial Magistrate dismissing the petition seeking the police custody in respect of the respondent herein Mr.S.Srinivasan has been challenged in this petition.
3. While advancing his arguments, Mr.N.Chandrasekaran, learned Special Public Prosecutor for C.B.I.Cases, has adverted to that originally when the investigation was taken up by the investigating officer attached to the Roshanai Police Station, it was revealed that tension was prevailing between PMK and AIADMK during the assembly election in the year 2006 especially on the polling day and preceding days. Incidents of skirmishes were reported in various polling booths of Tindivanam constituency on 08.05.2006 i.e.polling day. He has also maintained that in one such incident at Avvaiyarkuppam Village, tension was very high and AIADMK supporters had manhandled late.N.R.Raghu (A5) of PMK in the presence of Radhakrishnan, brother of the complainant Mr.C.Ve.Shanmugam.
4. He has also canvassed that the incident which was sparked already had heightened the tension and late.N.R.Raghu had met the respondent herein and conspired with other accused persons to carry out the revenge attack against Radhakrishnan. In furtherance to the said criminal conspiracy, the respondent herein Mr.S.Srinivasan and late.N.R.Raghu had mobilised persons with criminal background from Nallavur Village and Villupuram and accordingly around 20 persons had gathered in the rice mandi belonging to the respondent herein, wherein the respondent had given instructions to the attackers to eliminate Radhakrishnan in the presence of other accused persons such as late.N.R.Raghu and Mr.N.M.Karunanidhi.
5. He has also maintained that subsequent to that the attackers had left the rice mandi and reached the scene of crime and carried out the murderous attack with deadly weapons in which one Muruganantham had succumbed to injuries and one V.V.R.Mahesh was injured. Apart from this, an extensive damage was also caused to the properties belonging to the complainant. He would submit further that one of the attackers namely Kumaran was caught in the occurrence place and he was subsequently produced before the Roshanai Police Station at the time of lodging the complaint.
6. He has also submitted that the said Kumaran had given a confessional statement before the Inspector of Police, Roshanai Police Station saying that he and others had assembled in the rice mandi of the respondent and participated in the attack on 08.05.2006.
7. After the investigation was taken up by the Inspector of Police, CBI/SCB, Chennai, it was revealed that seven persons came from Villupuram and participated in the above said attack along with attackers from Nallavur Village, who were mobilised by late.N.R.Raghu. He has also submitted that the accused persons from Nallavur Village were already identified and arrested by the local police. But, the attackers from Villupuram and the conspirators of the crime were not identified by the local police. He would submit further that during the course of investigation by CBI, an extensive investigation was carried out and several witnesses were examined and the petitioner had also proceeded to arrest the accused persons, which revealed that the attackers from Villupuram had also participated along with the persons from Nallavur Village.
8. Mr.N.Chandrasekaran, learned Special Public Prosecutor for C.B.I.Cases has also submitted that the attackers from Villupuram were identified and arrested on 05.01.2012 and remanded to judicial custody and a test identification parade was conducted, in which six eye witnesses had reportedly identified seven accused persons from Villupuram. He has continued further that the police custody of the above arrested persons was also taken and during their interrogation, one of the accused persons had disclosed about the whereabouts of one of the murder weapons. In pursuant to the statement, one Koduval was seized under Section 27 of the Indian Evidence Act, which was used in the commission of offence on 16.01.2012 in the presence of independent witnesses.
9. Mr.N.Chandrasekaran, learned Special Public Prosecutor for C.B.I.Cases has canvassed further that during the course of investigation by the Inspector of Police, CBI/SCB, Chennai, it was revealed that the respondent Mr.S.Srinivasan (A4) had played a crucial role in the criminal conspiracy hatched in the planning and carrying out of the above said murderous attack. He has emphasised that adequate grounds are available to show that the respondent Mr.S.Srinivasan (A4) had mobilised attackers from Villupuram to carry out the murderous attack and passed instructions to eliminate one Mr.Radhakrishnan. He would submit further that till now only one weapon used in the commission of crime was able to be recovered and the other weapons, which were used in the murderous attack are yet to be recovered.
10. He has also submitted that the investigation has also revealed the role of some unknown persons, which is in the exclusive knowledge of the respondent herein and hence he has urged before this Court that the complete details of conspiracy could not be ascertained without the custodial interrogation of the respondent Mr.S.Srinivasan and therefore the custodial interrogation of the respondent Mr.S.Srinivasan (A4) would alone reveal all the ingredients of the said criminal conspiracy and also about the role of other conspirators.
11. Mr.N.Chandrasekaran, learned Special Public Prosecutor for C.B.I.Cases has also argued that without considering the serious involvement of the respondent Mr.S.Srinivasan, the learned Chief Judicial Magistrate, Chengelpet had passed orders rejecting police custody of the respondent Mr.S.Srinivasan (A4) and granted police custody only in respect of another accused Mr.N.M.Karunanidhi (A6) on 30.01.2012 and hence, he has urged before this Court that the order of rejection passed by the learned Chief Judicial Magistrate, Chengelpet with regard to the police custody of the respondent Mr.S.Srinivasan (A4) is liable to be set aside.
12. It is well settled proposition of law that under sub-section 2 to Section 167 Cr.P.C., the Magistrate authorising the detention of the accused for a term not exceeding fifteen days has complete freedom to remand the accused to whatever custody he thinks fit. The custody can also be altered by the Magistrate from judicial custody to police custody during the first fifteen days. But, after fifteen days, the accused cannot be kept in police custody.
13. In support of the above principle of law, this Court would like to place reliance upon the following decisions:
i. Babubhai Parshottamdas Patel vs State Of Gujarat, 1982 Cr.LJ 284, ii. State vs. Dharam, 1982 Cr.LJ 1103 : (1982) 21 Del.LT 50 : 1982 Chand Cr C(D) 114, and iii. Chaganti vs. State, AIR 1986 SC 2130 : (1986) 3 SCC 141 : 1986 SCC (Cr) 321.
14. Section 167(3) Cr.P.C., creates an obligation on the part of the Magistrate authorising under this section detention in the custody of the police to record his reasons for doing so. This mandatory, which is necessary to be followed by the Magistrate while granting detention in the custody of the police.
15. It is judicial parlance that the law evidently views with disfavour the detention in the custody of the police and such detention can be allowed only in special cases and for reasons to be stated in writing under sub-section 3 and not as a matter of course, whenever it may be asked for by the investigating police officer.
16. Mr.N.Chandrasekaran, learned Special Public Prosecutor for C.B.I.Cases, in support of his contention, has placed reliance upon the decision in Central Bureau of Investigation, Special Investigation Cell-I, New Delhi vs. Anupam J.Kulkarni, 1992 SCC (Cri) 554 : (1992) 3 SCC 141. In this case, The learned Additional Solicitor General however submitted that in some of the cases of grave crimes it would be impossible for the police to gather all the material within first fifteen days and if some valuable information is disclosed at a later stage and if police custody is denied the investigation will be hampered and will result in failure.
17. While considering this piece of argument, the Apex Court has observed that There may be some force in this submission but the purpose of police custody and the approach of the legislature in placing limitations on this are obvious. The proviso to Section 167 is explicit on this aspect. The detention in police custody is generally disfavoured by law. The provisions of law lay down that such detention can be allowed only in special circumstances and that can be only by a remand granted by a magistrate for reasons judicially scruitnised and for such limited purposes as the necessities of the case may require.
18. The Apex Court has further observed that the scheme of Section 167 is obvious and is intended to protect the accused from the methods which may be adopted by some overzealous and unscrupulous police officers. Article 22 (2) of the Constitution of India and Section 57 of Cr.P.C give a mandate that every person who is arrested and detained in police custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of the arrest to the court of the magistrate and no such person shall be detained in the custody beyond the said period without the authority of a magistrate.
19. The Apex Court has therefore observed that these two provisions clearly manifest the intention of the law in this regard and therefore it is the magistrate who has to judicially scrutinise the circumstances and if satisfied can order the detention of the accused in police custody. Section 167(3) requires that the magistrate should give reasons for authorising the detention in the custody of the police. It can be thus seen that the whole scheme underlying the Section is intended to limit the period of police custody.
20. In an another decision viz.Kosanapu Ramreddy vs. State of A.P. and others, AIR 1994 SC 1447 the Apex Court in paragraph No.4 has held as follows:
"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 vice versa within a period of 15 days referred to in Section 167(2) of the Criminal Procedure Code, 1973 - which by virtue of Section 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."
21. Mr.N.Chandrasekaran, learned Special Public Prosecutor for C.B.I.Cases has also placed reliance upon an another decision in State rep.by the C.B.I Vs. Anil Sharma, (1997) 7 SCC 187. In this case, His Lordship Hon'ble Mr.JUSTICE K.T.THOMAS while speaking on behalf of the Division Bench has observed in Paragraph No.6 as follows:
"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 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 during the time he 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."
22. Rule 76 of the Criminal Rules of Practice and Circular Orders, 1958 creates an embargo on the Judicial Magistrate to grant remand to police custody, but with some extent of elasticity saying that unless they are satisfied that there is good ground for doing so.
23. Rule 76 of the Criminal Rules of Practice and Circular Orders, 1958 reads as follows:
76.Remands:
(1) Magistrates shall not grant remands to police custody unless they are satisfied that there is good ground for doing so and shall not accept a general statement made by the investigating or other Police officer to the effect that the accused may be able to give further information. Where the object of a remand is the verification of an accused's statement, he shall, whenever possible, be remanded to the charge of a Magistrate; and the period of remands shall be as short as possible.
(2) When application for remand is made to a Magistrate of a class lower than the second-class, the Magistrate shall direct the Police to go to a Magistrate of a higher class, (3) It is the duty of Magistrates, who remand accused persons to custody other than that of the Police, and of Magistrates in executive charge of sub-jails to which accused persons are remanded, to guard with the greatest care against the possibility of any undue influence.
24. In this connection, Mr.N.Chandrasekaran, learned Special Public Prosecutor for C.B.I.Cases has also placed reliance upon the decision of the Division Bench of this Court in State by Deputy Superintendent of Police, 'Q' Branch CID, Dharmapuri vs. Sundaramoorthy, 2007 (2) MWN (Cr.) 414 (DB). In this case it has been held that the application for grant of police custody must be strictly considered on materials as it involves fundamental right and personal liberty of individual.
25. On the other hand, Mr.N.Natarajan, learned senior counsel appearing for Mr.G.Prabakaran, learned counsel on record for the respondent while advancing his arguments has made reference to the first information report registered by the Inspector of Police, CBI/SCB, dated 18.11.2011, wherein the offence under Section 120(B) has also been included. In this connection, he has submitted that there was no witness for conspiracy and that no over tract had been attributed to the petitioner that he had conspired with regard to the alleged commission of crime.
26. It may be more relevant to note here that, he has submitted his arguments on the following grounds:
The petitioner viz.CBI Police in Crl.M.P.No.104 of 2012 had assigned three reasons to seek police custody of the respondent herein. They are:
a. that the investigation is in the crucial stage, b. that the conspirators, who organized the attack on 08.05.2006 in front of the house of the complainant are to be identified, c. further weapons used for the commission of offence are to be recovered.
27. In this regard, Mr.N.Natarajan, learned senior counsel appearing for Mr.G.Prabakaran, learned counsel on record for the respondent has adverted to that regardless to such specific reasons as stated above upon which the custody of the respondent was sought for the petitioner in this petition had invented various other grounds which were not even whispered before the learned Chief Judicial Magistrate, Chengelpet.
28. Secondly, he would submit that mere stage of investigation would not automatically entitled the CBI to seek police custody of the respondent and that the ground that conspirators, who organised the attack on 08.05.2006 are to be identified by taking the respondent into custody is not a valid reason to seek custody of the respondent.
29. Thirdly, he has submitted that the petitioner himself had admitted in paragraph No.6 of the petition that he had already identified the persons who were organized the attack and he had also claimed that the attack was organised by one Mr.N.R.Raghu by arranging goons from Nallavur Village and other Goons from Villupuram were allegedly arranged by the respondent herein. In such circumstances, no necessity is prevailing to take the respondent into police custody to find out the police, which were already within his knowledge.
30. Fourthly, he would submit that the reason assigned by the petitioner that the custody of the respondent is required to recover the other crime weapons is also fallacious and cannot be countenanced as a valid reason to seek police custody. He has also added that even according to the case projected by the CBI the respondent herein is alleged to be conspirator of the crime and it is not at all alleged that he had participated in the crime.
31. He has also maintained that the Deputy Superintendent of Police, Tindivanam Division, who had conducted the original investigation of the case had ceased the weapon from the accused concerned and that CBI which is pursuing the further investigation has also specifically claimed in paragraph No.6 that the murderous weapon was already seized on 16.01.2012. In this connection, he has raised a question that when the crime weapons were recovered already by the Deputy Superintendent of Police, where the question of seizure of further crime weapons in this case. He has also added that only to harass the petitioner as he happened to be the brother of the founder of PMK Dr.Ramadoss the petitioner has sought for police custody which could not be considered.
32. Fifthly, the learned counsel appearing for the respondent has submitted that the respondent was already interrogated for about five hours during his arrest on 25.01.2012 and this fact has also been stated in the written objections filed on behalf of the respondent before the learned Chief Judicial Magistrate and that the claim that the police custody in respect of the respondent for custodial interrogation does not arise.
33. He has also submitted that the petitioner has not come forward with this claim neither before the Court below nor even in the present petition that the said interrogation for about five hours is not sufficient or they were unable to cull out necessary information during such interrogation, and therefore the demand made by the CBI for police custody after the lapse of two days on 27.01.2012 is quietly unjustifiable. He would submit further that the CBI has not offered any explanation as to why they failed to avail custodial interrogation after his arrest within 24 hours as provided under Sections 57 and 167 Cr.P.C.,
34. Sixthly, he has also adverted to that there was no whisper before the Court below that there were role of some unknown persons in the criminal conspiracy and that the same is within the knowledge of this respondent herein and in such circumstances no custodial interrogation is necessary to unearth the alleged picture of conspiracy.
35. Seventhly, the learned counsel has canvassed that the learned Chief Judicial Magistrate has rightly rejected the plea of granting of custody of the respondent upon assigning valid, factual and legal reasons and no infirmities much less legal infirmity of any sort could be attributed to the said Order.
36. He has also argued that the Court below has distinguished the relative role of the respondent herein and the sixth accused in the alleged commission of crime in the light of the records available and has duly applied his mind and thereupon rightly rejected the custody petition in respect of the respondent. Hence, this petition seeking to set aside the Order of the learned Chief Judicial Magistrate and to grant police custody in respect of the respondent herein is liable to be dismissed.
37. In support of his contention, he has placed reliance upon the following decisions:
i. S.Mahaveer vs. State rep.by Inspector of Police CCB, Team IX-A, Egmore, Chennai-8, (2011) 3 MLJ (Crl) 466, ii. State by Deputy Superintendent of Police, 'Q' Branch CID, Dharmapuri vs. Sundaramoorthy, 2007 (2) MWN (Cr.) 414 (DB),
38. In the former decision, the learned Single Judge of this Court has held that the Order for police custody cannot be made just for sake of asking but only when in opinion of Court that such an order for Police Custody is necessary for effective completion of investigation.
39. This Court has carefully perused the impugned Order passed by the learned Chief Judicial Magistrate as well as the related materials available on record.
40. It is to be reiterated that the petitioner has claimed that during the investigation by CBI it was revealed that the attackers from Villupuram had also participated along with the persons from Nallavur Village. He has also claimed that the investigation has also disclosed the fact that the respondent had played crucial role in the conspiracy hatched in the planning and carrying out of the above said murderous attack and it has also been disclosed that the respondent herein had mobilised attackers from Villupuram to carry out the attack and passed instructions to eliminate Mr.Radhakrishnan. He has also claimed that the complete details of the conspiracy could not be ascertained without the custodial interrogation of the respondent and therefore the custodial interrogation of the respondent would only reveal all the ingredients of the criminal conspiracy and also about the role of other conspirators.
41. Having given careful consideration to the Order passed by the learned Chief Judicial Magistrate, this Court finds that the Order of the learned Chief Judicial Magistrate rejecting the claim of police custody in respect of the respondent herein seems to be unreasonable. It is apparent that while granting police custody in respect of Mr.N.M.Karunanithi, the learned Chief Judicial Magistrate has rejected the claim of police custody in respect of the respondent herein. The Order of the learned Chief Judicial Magistrate seems to be perverse in nature and this Court is of considered opinion that the reason assigned by the learned Chief Judicial Magistrate to reject the claim of the petitioner have not been justified and hence it is liable to be set aside.
42. On coming to the instant case on hand, it is manifested from the records that the respondent was arrested by the Inspector of Police, CBI/SCB on 25.01.2012 and his initial custody of fifteen days will expire on 09.02.2012. It is to be borne in mind that while passing the Order dated 29.10.2011 and made in W.P.No.4183 of 2011 this Court has directed the CBI to complete the investigation within a period of four months from the date of receipt of a copy of the Order and submit its report in accordance with the law.
43. Before parting with this petition, this Court likes to place it on record that the circumstances justify that the respondent be transferred to Police custody. Besides this, this Court also find force in the submission of Mr.N.Chandrasekaran, learned Special Public Prosecutor for CBI cases that the custodial interrogation of the respondent could be more elicitation oriented mechanism which would give more favourable and useful information to assist the court for rendering criminal justice effectively.
44. Having regard to the related facts and circumstances and on considering the submissions made on behalf of both sides, this Court finds that it may be better in the interest of justice to allow this petition and grant police custody in respect of the respondent for one day. Since the grant of police custody is related to the fundamental rights and personal liberty of the respondent, his personal liberty and fundamental rights should be protected as guaranteed under Article 21 of the Constitution of India.
45. In the result, this criminal original petition is allowed and the police custody in respect of the respondent is granted subject to the following conditions:
i. the period of police custody in respect of the respondent Mr.S.Srinivasan is from today (i.e.07.02.2012) 01.00 p.m. till tomorrow (i.e.08.02.2012) 04.00 p.m., ii. the respondent shall not be harassed both physically and mentally, iii. the respondent shall be produced before the learned Chief Judicial Magistrate, Chengelpet, after the completion of the period of police custody, iv. the respondent shall be provided with the assistance of Doctor, if he so desire, v. the respondent shall be provided with necessary food at the Government costs.
07.02.2012
Index : Yes/No
Internet : Yes/No
krk
To
1.The Inspector of Police
CBI : SCB., Chennai
2.The Public Prosecutor,
High Court, Madras 600 104.
T.MATHIVANAN, J.
krk
Crl.O.P.No.2701 of 2012
07.02.2012