Kerala High Court

State Of Kerala vs Maju on 27 July, 2021

                                                                  "C.R."



                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                 THE HONOURABLE MR. JUSTICE ASHOK MENON
         TUESDAY, THE 27TH DAY OF JULY 2021 / 5TH SRAVANA, 1943
                         CRL.MC NO. 2815 OF 2021
         CRIME NO.164/2021 OF NEDUMUDI POLICE STATION, ALAPPUZHA
 AGAINST THE ORDER/JUDGMENT IN CRMP 913/2021 OF DISTRICT & SESSIONS
                            COURT, ALAPPUZHA
PETITIONER/S:

             STATE OF KERALA
             REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE,
             AMBALAPPUZHA SUB DIVISION, ALAPPUZHA, REP. BY THE PUBLIC
             PROSECUTOR, HIGH COURT OF KERALA.

             BY ADVS.
             SRI.T.A.SHAJI (SR), DIRECTOR-GENERAL OF PROSECUTION
             SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR



RESPONDENT/S:

     1       MAJU
             AGED 29 YEARS
             S/O. MANOHARAN, MAZHUVAN CHERICHIRA, KAINAKARY
             PANCHAYATH, WARD - 8, KAINAKARY P. O., KAINAKARY SOUTH
             VILLAGE,        PIN - 688 501.

     2       JAYESH
             AGED 34 YEARS
             S/O. MATHAI, ATHITHARA, KAINAKARY P. O.,
             KAINAKARY SOUTH VILLAGE, PIN - 688 501.

     3       SUMESH
             AGED 25 YEARS
             S/O.BABU, ATHITHARA, KAINAKARY P. O.,
             KAINAKARY SOUTH VILLAGE, PIN - 688 501.
 Crl.M.C.No. 2815 of 2021

                                              2




         4          AJEESH
                    AGED 34 YEARS
                    S/O. MATHAI, ATHITHARA, KAINAKARY P. O.,
                    KAINAKARY SOUTH VILLAGE, PIN - 688 501.

                    BY ADV G.PRIYADARSAN THAMPI



OTHER PRESENT:




         THIS       CRIMINAL   MISC.   CASE   HAVING   COME   UP   FOR   ADMISSION   ON
13.07.2021, THE COURT ON 27.07.2021 DELIVERED THE FOLLOWING:
 Crl.M.C.No. 2815 of 2021

                                                  3



                                                                                  "C.R."



                                           O R D E R

Dated this the 27th day of July 2021

The only question that arises for consideration in this

petition filed by the State of Kerala, represented by the

investigating officer in Crime No.164/2021 of Nedumudi

Police Station, is whether the petitioner herein is

entitled to police custody of the accused in the aforesaid

Crime after the expiry of the first 15 days of remand on

the ground that the application for police custody though

filed in time, was not allowed because of the quarantine of

the accused following their getting infected with COVID-19

virus during judicial custody. The crime is registered for

offences punishable under Sections 324 and 302 read with

Section 34 of the I.P.C. and under Section 3(2)(v) of the

SC/ST Prevention of Atrocities Act, 1989. The

investigation was transferred to the Deputy Superintendent

of Police, Ambalappuzha.

Crl.M.C.No. 2815 of 2021

2. The brief facts that led to the filing of the

petition is thus:

Accused 1 to 4 in the aforesaid Crime were arrested on

13.04.2021 and remanded to judicial custody on the same day by

the jurisdictional court. The next day was a holiday for

Vishu and on 15.04.2021, the investigating officer had to

appear before the District & Sessions Court, Kozhikode in

connection with giving evidence in S.C.No.121/2020. On

16.04.2021, the investigating officer submitted Annexure B

application (Crl.M.P.No.913/2021) before the jurisdictional

court for custody of the accused. The court issued a

production warrant to the Superintendent of the Jail to

produce the accused on 20.04.2021. However, on that day the

jail authorities reported, through video conferencing, that

accused 1 and 4 were infected with the COVID-19 virus and the

rest of the accused being primary contacts were all

quarantined. Based on the submission, the custody application

was adjourned to 27.04.2021. On the said day, the jail

authorities filed Annexure C explanation to the Sessions Court Crl.M.C.No. 2815 of 2021

stating that the accused continue to remain in quarantine at

Alappuzha CFLTC and hence could not be produced. The custody

application was thus adjourned to 03.05.2021, on which date

accused 1 and 4 were produced through video conferencing.

Accused 2 and 3 were not produced since they were still in

quarantine. The custody application thereafter came up for

consideration before the Vacation Court and got adjourned to

10.05.2021, on which date there was a State-wide lockdown due

to the pandemic, resulting in the application getting

adjourned again to 10.06.2021. The investigating officer filed

an Annexure D petition to advance the application for custody

to 28.05.2021. On 25.05.2021 the investigating officer also

filed another petition as Annexure E stating that he is ready

to interrogate the accused in custody for three days by

complying with COVID-19 protocol and by using the PPE kit. The

Sessions Court advanced the case to 03.06.2021 and after the

hearing, passed a common order at Annexure F dated 03.06.2021

dismissing the prayer seeking custody for interrogating the

accused.

Crl.M.C.No. 2815 of 2021

3. It is submitted that considering the peculiar

circumstances caused by the pandemic, the Sessions Court

ought to have granted custody of the accused to the

investigating officer. Because of the dismissal of that

application, the accused could not be subjected to

custodial interrogation in a very heinous and grave crime.

The weapons used for committing the murder are yet to be

recovered. The investigating officer has complied with all

the legal formalities to obtain custody and filed an

application on time. The application was rejected solely

on the ground that the Court is not empowered to grant

police custody beyond the initial period of 15 days.

Hence, the petitioner is before this Court seeking

interference and prays that the custody of the accused may

be granted to the investigating officer.

4. Heard the Director-General of Prosecution Senior

Counsel Sri.T.A.Shaji appearing for the State and

Sri.Priyadarshan Thambi, the learned Counsel for the

accused.

Crl.M.C.No. 2815 of 2021

5. It is submitted that Section 167(2)(a) of the

Cr.P.C. does not stipulate that the detention of the

accused in police custody shall be only for the first 15

days. Considering the impact of the Noval COVID pandemic

and the procedure formulated for quarantine by the

Government, the learned Sessions Judge ought to have

considered that a strict interpretation cannot be given in

the matter concerning granting of police custody,

restricting the same to the first 15 days alone.

6. It is to be considered whether the pandemic

restrictions and the quarantine of the accused during the

first 15 days of their arrest which created an unforeseen

embargo in exercising the right of the investigating

officer to get police custody could be taken into account

for relaxing the 15 days period prescribed in Section

167(2)(a) of the Cr.P.C., the relevant portion of which

reads thus:

"S.167 xxxx xxxx xxxx (2) The Magistrate to whom an accused person is forwarded under this Section may, whether he Crl.M.C.No. 2815 of 2021

has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that - (a) the Magistrate may authorise the detention of the accused person otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding: -

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten days.

(ii) sixty days, where the investigation relates to any other offence."

7. After noticing the difficulties created by the

pandemic restrictions and being concerned about the period

of limitation fixed for various purposes, the Hon'ble

Supreme Court had on 23.03.2020 in suo motu W.P.(C) No.3 of

2020 (IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION) passed

an Order observing thus:

Crl.M.C.No. 2815 of 2021

"This Court has taken suo motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/ suits/ appeals/ all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State). To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts / Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or special laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings. We are exercising this power under Art.142 read with Art.141 of the Constitution of India and declare that this order is a binding order within the meaning of Art.141 on all Courts / Tribunals and authorities. This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts / Tribunals within their respective jurisdiction. Issue notice to all the Registrars General of the High Courts, returnable in four weeks."

Crl.M.C.No. 2815 of 2021

8. The specific reason for passing the aforesaid order

by the Apex Court was for extending the period of

limitation with effect from 15.03.2020 for filing

petitions/ applications/ suits/ appeals/ all other

proceedings indicated in the order itself. Such an order

was passed by the Apex Court to face the situation that had

arisen out of the challenge faced by the Country on account

of the COVID-19 virus and the resultant difficulties that

were faced by the litigants across the Country in filing

petitions/ applications/ suits/ appeals/ all other

proceedings within the period of limitation prescribed.

This was to obviate such difficulties and to ensure that

the litigants and the lawyers do not have to come

physically to file the proceedings in respect of the

courts/tribunals across the Country.

9. In view of the aforesaid Supreme Court order, a

Single Bench of the Madras High Court had permitted the

prosecution to file a charge sheet after the expiry of 60

days/90 days considering the fact that they were not in a Crl.M.C.No. 2815 of 2021

position to complete the investigation and to file the

charge sheet on time, observing thus:

"...The Supreme Court order eclipses all provisions prescribing period of limitation until further orders. Undoubtedly, it eclipses the time prescribed under S.167(2) of the Code of Criminal Procedure also..."

10. This order was challenged before the Apex Court in

Kasi v. State through the Inspector of Police Samayanallur

Police Station, Madurai District, 2020 (3) KHC 600, wherein

a three-Judge Bench of the Apex Court observed thus:

"19. Learned Single Judge in paragraph 13 of the impugned judgment has also observed that the lockdown announced by the Government is akin to proclamation of Emergency. Learned Single Judge has also referred to Financial Emergency under Art.360 of the Constitution. Learned Single Judge also noticed that presently though the State is not passing through Emergency duly proclaimed, but the whole nation has accepted the restrictions for the well-being of the mankind. Let us also examine as to whether in event of proclamation of Emergency under Art.352 of the Constitution, whether right to liberty as enshrined under Art.21 stands suspended ?

Crl.M.C.No. 2815 of 2021

20. We may recall the Constitution Bench Judgment of this Court in Additional District Magistrate, Jabalpur v. Shivakant Shukla (1976 KHC 753 : 1976 (2) SCC 521 : AIR 1976 SC 1207 : 1976 CriLJ 945.), where majority of the Judges (Justice H.R.Khanna dissenting) had taken the view that after proclamation of Emergency under Art.352, no proceedings can be initiated for enforcement of right under Art.21. Justice A.N.Ray, C.J., with whom three other Hon'ble Judges have concurred in paragraph 136 and paragraph 137 laid down the following:

"136. First, In view of the Presidential Order dated June 27, 1975, under clause (1) of Art.359 of our Constitution no person has locus standi to move any writ petition under Art.226 before a High Court for Habeas Corpus or any other writ or order or direction to enforce any right to personal liberty of a person detained under the Act on the grounds that the order of detention or the continued detention is for any reason not under or in compliance with the Act or is illegal or mala fide.

137. Second, Art.21 is the sole repository of rights to life and personal liberty against the State. Any claim to a writ of habeas corpus is enforcement of Art.21 and, is, therefore, barred by the Presidential Order.

xxxxxxxxxxxxxxxxxxx"

25. We, thus, are of the clear opinion that the learned Single Judge in the impugned judgment Crl.M.C.No. 2815 of 2021

erred in holding that the lockdown announced by the Government of India is akin to the proclamation of Emergency. The view of the learned Single Judge that the restrictions, which have been imposed during period of lockdown by the Government of India should not give right to an accused to pray for grant of default bail even though charge sheet has not been filed within the time prescribed under S.167(2) of the Code of Criminal Procedure, is clearly erroneous and not in accordance with law."

11. Section 57 of the Cr.P.C. prescribes only 24 hours

for an accused consequent to his arrest to be produced

before the nearest Magistrate. Under S.167 Cr.P.C., the

Magistrate before whom the accused is produced is entitled

to remand the accused to either police custody or judicial

custody for a period of 15 days and thereafter, the

investigation is still not complete, further custody other

than police custody can be ordered for a period of 60 days

or 90 days depending on the gravity of the offence.

12. The Hon'ble Supreme Court in Achpal @ Ramswaroop v.

State of Rajasthan, 2018 KHC 6714: 2019 (14) SCC 599 after

referring several earlier judgments of the Supreme Court, Crl.M.C.No. 2815 of 2021

including Uday Mohanlal Acharya v. State of Maharashtra,

2001 KHC 902 : 2001 (5) SCC 453 and Rakesh Kumar Paul v.

State of Assam,2017 (4) KHC 470 : 2017 (15) SCC 67 laid

down that the provisions of the Code do not empower anyone

to extend the period within which the investigation must be

completed. The Hon'ble Supreme Court specifically stated

that the period fixed under Section 167 for completing the

investigation cannot be extended at all.

13. The question of whether custodial interrogation can

be given to the police after the expiry of 15 days has come

up for consideration before the Apex Court as early as in

1992 in CBI v. Anupam J.Kulkarni, 1992 KHC 863 : 1992 (3)

SCC 141, wherein it has been clearly stated that under

Section 167(2)(a) of the Cr.P.C., remand of the accused to

police custody can only be during the first 15 days alone

and thereafter further remand for 60 days or 90 days can

only be in judicial custody.

14. The above view of the Hon'ble Supreme Court was

reiterated in Budh Singh v. State of Punjab, 2000 KHC 764 : Crl.M.C.No. 2815 of 2021

2000 (9) SCC 266 wherein it was held that police custody

after the expiry of 15 days is not possible even if some

more offences have been committed by the accused in the

same transactions comes to the light at a later time.

Several other High Courts have also upheld this view. In

Amar Pal v. State of U.P., 1995 KHC 2432 : 1995 Crl.LJ 52,

the Allahabad High Court while considering the provisions

under Section 167(2) held that after the expiry of the

first 15 days, the detention of the accused in police

custody cannot be authorised on any ground whatsoever. The

Madras High Court in K.S.Palanichamy v. State rep. by the

Inspector of Police, Economic Offences Wing-II (EOW)

Dindigul, 2012 KHC 3369: 2012 Crl.LJ 2464 and State

represented by the Inspector of Police v. R.Vaidyanathan &

others, 2013 KHC 3506 : 2013 Crl.LJ 4368, repeatedly held

that remand of the accused to police custody is possible

only within 15 days from the date of the arrest and

production before the Magistrate, and after the expiry of

15 days from the date of the first remand, the Magistrate Crl.M.C.No. 2815 of 2021

has no power to grant police custody.

15. In Union of India v. Mahaboob, 2019 KHC 2139 : 2019

Crl.LJ 138, a Division Bench of the Hyderabad High Court

has held that even if there is a change in the

investigating agency and adding of new sections of law

during the course of the investigation, police custody can

only be in the first 15 days of remand and not

thereafter.

16. The Hon'ble Supreme Court has again in Satyajit

Ballubhai Desasi & others v. State of Gujarat, 2014 KHC

2511 : 2014 (14) SCC 434 held that police remand should be

an exception and not a rule, for that investigating agency

is not required to make out a strong case and must satisfy

the learned Magistrate that without the police custody it

would be impossible for the police authorities to undertake

further investigation. It is also reiterated 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 him in Crl.M.C.No. 2815 of 2021

the same transaction comes at a later stage. It is also

observed by the Hon'ble Supreme Court that it is apparent

from the provisions of the Cr.P.C. that the order

permitting police remand cannot be treated lightly or

casually and strict adherence to the statutory provision is

mandatory.

17. Coming to the facts of the present case, the only

ground which has been urged by the learned Senior Counsel

is that the prosecution was not able to get the custody of

the accused because of no fault of their own and that the

accused were quarantined because of the present pandemic

situation. The application for custody was filed in time,

but it was only considered at a later point of time because

the accused were quarantined and this led to the expiry of

15 days, and therefore, the prosecution should be given an

exception to get the custody of the accused. The learned

Senior Counsel submits that this Court has sufficient

powers under Section 482 of the Cr.P.C. to grant police

custody of the accused even if the application is filed Crl.M.C.No. 2815 of 2021

beyond the period of 15 days in case there are compelling

reasons for not getting the custody.

18. I am afraid, that in view of the overwhelming

precedents of the Supreme Court as well as other High

Courts, no exceptions can be made even during COVID

pandemic to the statutory provisions under Section 167 of

the Cr.P.C. In Kasi (supra), the Hon'ble Supreme Court has

held that the court has no power to extend the period

prescribed in Section 167 for completing the investigation

on any grounds, even in the name of the COVID-19 pandemic.

Under the circumstances, the police cannot get custody of

the accused after the expiry of the 15 days. The learned

Senior Counsel is anxious that recovery is not yet effected

by the police and recovery under Section 27 of the Evidence

Act can only be made under police custody. The Hon'ble

Supreme Court has in The State (NCT of Delhi) v. Navjot

Sandhu Alias Afsan Guru 2005 KHC 2054 : 2005 (11) SCC 600

(Parliament Attack case) the Apex court had considered the

controversy centred around two aspects concerning S. 27 of Crl.M.C.No. 2815 of 2021

the Evidence Act:

(i) Whether the discovery of fact referred to in S.27 should be confined only to the discovery of a material object and the knowledge of the accused in relation thereto or the discovery could be in respect of his mental state or knowledge in relation to certain things -- concrete or non- concrete.

(ii) Whether it is necessary that the discovery of fact should be by the person making the disclosure or directly at his instance. The subsequent event of discovery by the police with the aid of information furnished by the accused -- whether can be put against him under S.27.

19. Relying on the Privy Council decision in the

Kottaya case (Pulukuri Kottaya v. Emperor, AIR 1947 PC 67

the Apex court held thus:

"142. There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of S.27. We think that the answer should be in the negative.

Though in most of the cases the person who makes the disclosure himself leads the police officer to the place where an object is concealed and points out the same to him, however, it is not essential Crl.M.C.No. 2815 of 2021

that there should be such pointing out in order to make the information admissible under S.27. It could very well be that on the basis of information furnished by the accused, the investigating officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the investigating officer will be discovering a fact viz. the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the police officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of S.27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the police officer chooses not to take the informant accused to the spot, it will have no bearing on the point of admissibility under S.27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence."

20. Though the decision in Navjot Sandhu @ Afsan Guru

(supra) stands overruled on certain other aspects in Anvar

P.V. v. P.K.Basheer and Ors 2014 KHC 4602: AIR 2015 SC 180,

the finding regarding Section 27 of the Evidence Act is not

interfered with.

21. The Apex Court had even earlier, considered the

requirement of the investigating officer regarding the need Crl.M.C.No. 2815 of 2021

for custodial interrogation for the purpose of recovery

under Section 27 of the Evidence Act while granting

anticipatory bail to the accused. In Gurbaksh Singh Sibbia

and another v. State of Punjab. Citation. 1980 KHC 665:

1980 (2) SCC 565 it was observed thus:

"While granting relief under S.438 (1), appropriate conditions can be imposed under S.438 (2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under S.27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of S.27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya, 1961 (1) SCR 14 at p. 26: (AIR 1960 SC 1125) to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed to have surrendered himself to the police."

22. The argument of the learned Senior Counsel DGP,

that the investigation in the case cannot proceed without Crl.M.C.No. 2815 of 2021

affording an opportunity to interrogate the accused in

police custody for the purpose of recovery under Section 27

of the Evidence Act, in view of the above precedents, is

not acceptable. The accused can still be subjected to

interrogation in judicial custody with the permission of

the court for the purpose of discovery under Section 27 of

the Evidence Act, but not in police custody. The

information, if any, given by the accused to the

investigating officer shall be used for the purpose of

recovery under Section 27 of the Evidence Act.