Kerala High Court
Karayi Chandrasekharan vs Inspector Of Police on 25 June, 2012
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
MONDAY, THE 2ND DAY OF JULY 2012/11TH ASHADHA 1934
Crl.MC.No. 2316 of 2012 ()
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CRL.M.P.2191/2012 IN C.P.NO.1/2012 IN RC.2(S)/2008/CBI/SCB/CHENNAI.
CRIME NO.442/2006 OF THALASSERY POLICE STATION OF CHIEF
JUDICIAL MAGISTRATE, ERNAKULAM
PETITIONER(S)/ACCUSED NOS.7 & 8:
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1. KARAYI CHANDRASEKHARAN,
SON OF KUNJIRAMAN, KUTHEYIL HOUSE, KUTTIMAKOOL
THIRUVANGAD P.O., THALASSERY, KANNUR.
2. KARAYI RAJAN,
SON OF POKKAN, THAZHEPUTHIYA VEEDU, KATHIROOR P.O.
THALASSERY, KANNUR.
BY ADVS.SRI.M.K.DAMODARAN (SR.)
SRI.SOJAN MICHEAL
SRI.GILBERT GEORGE CORREYA
SMT.O.V.BINDU
SRI.V.S.BOBAN
SRI.NISHIL.P.S.
SRI.J.VIMAL
RESPONDENT/COMPLAINANT:-:
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INSPECTOR OF POLICE,
CBI SCB, THIRUVANANTHAPURAM
REPRESENTED BY THE STANDING COUNSEL
HIGH COURT OF KERALA, ERNAKULAM.
BY SRI.P.CHANDRASEKHARA PILLAI, S.C. FOR C.B.I.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
02-07-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
APPENDIX
PETITIONERS EXHIBITS:
ANNEXURE I: COPY OF THE PETITION FILED BY THE CBI BEFORE THE CHIEF
JUDICIAL MAGISTRATE, ERNAKULAM DATED 25.06.2012.
ANNEXURE II: COPY OF THE OBJECTION FILED BY THE PETITIONERS
BEFORE THE CHIEF JUDICIAL MAGISTRATE DATED 26.06.2012.
ANNEXURE III: COPY OF THE ORDER DATED 28.06.2012 IN
CRL.M.P.NO.2191/2012 IN C.P.NO.1/2012 OF THE CHIEF JUDICIAL MAGISTRAE,
ERNAKULAM.
//TRUE COPY//
P.A. TO JUDGE
S.S.SATHEESACHANDRAN, J.
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Crl.M.C.NO.2316 OF 2012
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Dated this the 2nd day of July, 2012
O R D E R
Petitioners are two among the accused (A7 and A8) in R.C.2 (S)/2008/CBI/SCB/Chennai, which was re-registered from Crime No.442 of 2006 of Thalassery Police Station. The Central Bureau of Investigation, for short, the 'C.B.I', after investigation, has filed report under Section 173 (2) of the Code of Criminal Procedure, for short, the 'Code', against eight accused persons and the case is now pending before the Chief Judicial Magistrate Court, Ernakulam in committal proceedings numbered as C.P.No.1 of 2012.
2. The case involves murder of one Fasal, a NDF worker and a newspaper agent, in the early hours of 22.10.2006 in a public road, namely, 'JT Road', lying between Saidarpalli and Temple gate, Thiruvangad Amsom, Thalassery in Kannur District. Crl.M.C.No.2316/2012 2 Investigation of the crime registered over his murder was initially conducted by local police, which, later, on a writ petition filed by the widow of the victim, by orders of this Court was handed over to the C.B.I. The C.B.I, after investigation, found that the murder of Fasal was pursuant to a criminal conspiracy hatched on account of political animosity and the murder was masterminded by these petitioners, A7 and A8, and they deployed assailants, eight in number, their party sympathizers, to annihilate the victim. The assailants, who had hacked to death Fasal with sharp edged weapons, numbered eight persons, and six of them were arrested and the other two are yet to be identified. Petitioners have sheltered the assailants and screened them from the police and they have also intimidated the witnesses connected with the crime and further planted false evidence to mislead the investigation of the crime, according to the C.B.I. Further investigation of the crime to trace out the identity of the remaining two assailants, their relationship with the other conspirators including the petitioners, is still going on, Crl.M.C.No.2316/2012 3 was the case of C.B.I seeking formal permission to continue such investigation while filing the report as stated above before the court. Petitioners, who could not be arrested, were reported as absconding. Report was filed by the C.B.I before the court on 12.06.2012. Petitioners surrendered before the court on 22.06.2012, and the learned Chief Judicial Magistrate remanded them to custody for fourteen days. Annexure I petition was, thereupon, filed by the C.B.I for police custody of the petitioners, in which, it was contended that their interrogation for the purpose of further investigation of the crime is essential. That request for police custody was objected to by the petitioners filing Annexure II petition. The learned Chief Judicial Magistrate, after hearing both sides, passed Annexure III order allowing the request of the C.B.I for the police custody of the petitioners. That order is challenged in this petition invoking the inherent jurisdiction of this Court under Section 482 of the Code.
Crl.M.C.No.2316/2012 4
3. The main thrust of challenge raised against Annexure III order by the learned senior counsel for the petitioners is that the remand of the petitioners, after filing of the report under Section 173 (2) of the Code in the crime by the C.B.I, is under sub section (2) of Section 309 of the Code after taking cognizance of the offence imputed against the accused in the case. Once such cognizance is taken and the accused persons named are remanded to judicial custody, for the purpose of investigation police custody of the accused persons, which can be done only during the course of investigation under Section 167 (2) of the Code, cannot be ordered. The learned counsel relied on Mithabhai Pashabhai Patel and Others v. State of Gujarat ((2009) 6 SCC 332) and Jeewan Kumar Raut and another v. Central Bureau of Investigation ((2009) 7 SCC 526) to contend that when an accused person has been remanded under Section 309 of the Code, there cannot be a remand of that accused to police custody. The court below has gone wrong in relying upon State through C.B.I. v. Dawood Ibrahim Kaskar Crl.M.C.No.2316/2012 5 and Others (1997 SCC (Crimes) 636), to order police custody and it was so done without taking note of the circumstances presented in the case, in which, the accused was subsequently arrested in the course of further investigation of the crime, according to the counsel. So far as against the present petitioners, the charge indicting them of the offence imputed has already been laid before the court, and taking cognizance of the offence, they have been remanded to judicial custody under Section 309 (2) of the Code, on their surrender before the court, is the submission of the counsel. In such post cognizance stage, the request made by the C.B.I for their police custody cannot be ordered and Annexure III order passed by the learned Magistrate is patently erroneous and illegal, is the submission of the learned senior counsel. The learned Standing counsel for the C.B.I resisting the challenges canvassed to assail Annexure III order contended that even when the report was filed under Section 173 (2) of the Code, the C.B.I had informed of the further investigation proceeded with seeking permission to do so. The Crl.M.C.No.2316/2012 6 learned Magistrate had also issued non-bailable warrant against the petitioners, A7 and A8, who could not be arrested earlier and also, during the course of further investigation. The learned counsel relying on the observations made in Dinesh Dalmia v. C.B.I. (AIR 2008 SC 78) contended that even in the same case depending upon the charge sheet filed by the investigating officer, cognizance may be taken as against the person against whom an offence is yet to have been made and against whom no such offence has been made out even when investigation is pending. As against a person when further investigation is still continued, charge sheet filed under Section 173 (2) of the Code in the crime by the investigating agency would not interdict such agency from seeking its police custody if that is so required for the purpose of further investigation, is the submission of the learned Standing counsel. The learned counsel also banked up Dawood Ibrahim Kaskar's case, cited supra, which has been relied by the learned Magistrate in passing Annexure III order to accede to the request made to the C.B.I for giving them police Crl.M.C.No.2316/2012 7 custody of the petitioners.
4. Though an argument was canvassed before me by the learned senior counsel for the petitioners that no orders have been passed by the learned Magistrate on the request made for further investigation after filing of the report under Section 173 (2) of the Code by the C.B.I, I do not find much merit in that challenge to assail Annexure III order. Going through Annexure III order, it is evidently clear that the learned Magistrate was conscious of the fact that further investigation continued in the crime over the involvement of two unidentified assailants and also about the conspirators. Further investigation of a crime after filing of a report under Section 173 (2) of the Code, it cannot be stated require obtaining of prior permission from the court. Permission of the court in most cases may be formal, but it is for the court to decide whether further evidence collected in such further investigation has to be taken note of, for which permission was granted or not may assume significance. Crl.M.C.No.2316/2012 8 Petitioners remained at large when the investigation of the crime continued. A report was filed under Section 173 (2) of the Code by the C.B.I, pointing out that further investigation in the crime to determine the identity of two assailants and also the role of conspirators in committing the heinous crime is in progress. Once cognizance of the offence was taken on the report, petitioners appeared and surrendered before the court and they were remanded to judicial custody. They have been remanded to judicial custody on such surrender. Does it confer on them impenetrable insulation from being asked for their police custody for the purpose of further investigation, is the question emerging for consideration in the case. In Dawood Ibrahim Kaskar's case, cited supra, the Apex Court has held that Section 309 (2) of the Code does not stand in the way of a court, which has taken cognizance of an offence, to authorise detention of a person, who is subsequently brought before it by the police after arrest during further investigation, in police custody, in exercise of the power under Section 167 of the Code. Here, on Crl.M.C.No.2316/2012 9 the facts presented in the case, non-bailable warrant issued against the petitioners was pending execution. When such warrant was pending, after cognizance was taken on the report filed, they appeared and surrendered before the court. If the petitioners had been arrested by the C.B.I in connection with the further investigation of the crime and produced before the court, there could be no doubt that the provisions of Section 167 of the Code would apply in their case. They have surrendered before the court and got themselves remanded to judicial custody, in the given facts of the case, would not insulate them from resisting the request made by the C.B.I for police custody if it is found essential for further investigation of the crime. The decision rendered in Mithabhai Pashabhai Patel's case, cited supra, dealt with a case where police custody was granted while the accused persons had already been enlarged on bail, and that too, without passing any order for cancellation of the bail. In that decision, while stating that once cognizance is taken of the offence, there could be only a remand under Section 309 (2) of Crl.M.C.No.2316/2012 10 the Code it is made clear that they could not be remanded again unless the bail is cancelled. The decision does not lay down the proposition that once cognizance of the offence is taken and there is a remand for judicial custody made under Section 309 (2) of the Code, there could be no change of such custody to one of police custody if the facts and circumstances demand such custody for further investigation of the crime. Similarly, the decision rendered in Jeewan Kumar Raut's case, cited supra, which too canvassed by the learned senior counsel for the petitioners, do not assist them in any manner to contend that at a post cognizance stage, under no circumstances judicial custody of an accused person cannot be changed to one of police custody. There could be cases even after taking cognizance and remand of the accused to judicial custody for allowing police custody. In Dawood Ibrahim Kaskar's case, cited supra, the Apex Court found that the conclusion formed by the High Court of Bombay in the order impugned in that case that the provisions of the Code conferred no power for providing for police custody after Crl.M.C.No.2316/2012 11 cognizance of the offence is taken, is unsustainable under law. The Apex Court has held in the aforesaid decision thus:
"There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to the above sub-section are different from detention in custody under Section 167. While remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since, however, even after cognizance is taken of an offence the police has a power to investigate into it further, which can be exercised only in accordance with Chapter XII, we see no reason whatsoever why the provisions of Section 167 thereof would not apply to a person who comes to be later arrested by the police in course of such investigation. If Section 309(2) is to be interpreted - as has been interpreted by the Bombay High Court in Mansuri1 - to mean that after the Court takes cognizance of an offence it cannot exercise its power of detention in police custody under Section 167 of the Code, the Investigating Agency would be deprived of an opportunity to interrogate a person arrested during further investigation, even if it can on production of sufficient material, convince the Court that his detention in its (police) custody was essential for that purpose. We are, therefore, of the opinion that the words "accused if in custody" appearing in Section 309 (2) refer and relate to an accused who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of Crl.M.C.No.2316/2012 12 further investigation. So far as the accused in the first category is concerned, he can be remanded to judicial custody only in view of Section 309(2), but he who comes under the second category will be governed by Section 167 so long as further investigation continues.
That necessarily means that in respect of the latter the Court which had taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfillment of the requirements and the limitation of Section 167."
5. When such be the position of law enunciated by the Apex Court that there could be conversion of judicial custody into police custody even after cognizance of the offence in a case is taken under Section 309 (2) of the Code for the simple reason that the petitioners were not arrested and produced during the further investigation by the C.B.I, that too, after issue of non-bailable warrants issued against them from the court, their police custody cannot be declined since they surrendered before the court after cognizance of the offence was taken on the report filed under Section 173 (2) of the Code.
6. Challenge against Annexure III order is only to be Crl.M.C.No.2316/2012 13 turned down, and I do so.
7. The Chief Judicial Magistrate shall take steps forthwith for production of the aforesaid petitioners before him, and to hand over their custody as directed under Annexure III order giving such other directions as may be required to ensure the wellbeing of the petitioners.
Crl.M.C. is dismissed.
Registry to communicate over phone to the Chief Judicial Magistrate to take further steps on Annexure III order forthwith.
S.S.SATHEESACHANDRAN JUDGE prp