Madras High Court
Unknown vs Nagaraj on 28 April, 2023
Crl.O.P.No.8883 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 28.04.2023
CORAM
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
Crl.O.P.No.8883 of 2023
State represented by
The Taluk Circle Inspector of Police
Kaveripattinam Police Station
Krishnagiri District
(Crime No.153 of 2023) ... Petitioner
Vs.
1. Nagaraj
2. Murali ... Respondents
This Criminal Original Petition is filed under Section 482 Cr.P.C. to
call for the records relating to Crl.M.P.No.4390 of 2023 dated 10.04.2023
on the file of the learned Judicial Magistrate Court No.1, Krishnagiri, set
aside the same and grant police custody of the respondents/accused (A2 and
A3) for a period of three days.
For Petitioner : Mr.S.Santhosh
Government Advocate (Crl. Side)
For Respondents : Mr.R.Rajan
ORDER
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Crl.O.P.No.8883 of 2023
This Criminal Original Petition is filed challenging the order passed
by learned Judicial Magistrate No.1, Krishnagiri in Crl.M.P.No.4390 of
2023 on 10.04.2023.
2. It is the submission of learned Government Advocate (Criminal
Side) that First Information Report in Crime No.153 of 2023 for the
offences under Sections 341, 302 and 506(ii) IPC was registered against one
Shankar and unidentified male persons. During the course of investigation,
Investigation Officer came to know that one Nagaraj and Murali had also
involved in the commission of offence. Both of them had surrendered
before learned Judicial Magistrate No.IV, Salem on 23.03.2023 and were
remanded to judicial custody till 30.03.2023. Their surrender and remand to
judicial custody was not known to Investigating Officer. Only during the
course of investigation and enquiry of first accused Shankar, Investigating
Officer knew about the involvement of accused Nagaraj and Murali. These
accused were produced before learned Judicial Magistrate No.I, Krishnagiri
on 30.03.2023 and their judicial custody was extended till 12.04.2023. On
05.04.2023, within a period of 15 days of first remand, Investigating Officer
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Crl.O.P.No.8883 of 2023
filed a petition for seeking police custody of accused Nagaraj and Murali.
However, learned Judicial Magistrate No.I, Krishnagiri, without considering
the gravity of offences and necessity of enquiring the accused, dismissed the
petition stating that police custody of accused cannot be granted after the
completion of 15 days of first remand. Challenging this order, this petition
is filed.
3. When the matter came up before this Court on 21.04.2023, this
Court ordered notice to respondents 1 and 2/accused, who are lodged in
Central Prison, Salem, through proper channel and posted the matter on
25.04.2023. On 26.04.2023, the matter was listed and Mr.R.Rajan, learned
counsel submitted that he would appear for respondents and prayed time for
filing vakalath. Therefore, the matter was adjourned to 27.04.2023 for
filing vakalath and counter. On 27.04.2023, it appears that vakalath and
counter were not filed and therefore, this Court heard learned Government
Advocate (Criminal Side) and posted the matter 'for orders' today
(28.04.2023).
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Crl.O.P.No.8883 of 2023
4. When the matter is taken up today, learned counsel for
respondents submitted that petitioner wants police custody of the
respondents for finding out the persons involved in the offence and for
recovery of material objects like weapons, etc,.. It is also submitted that A1
was already taken on police custody and was enquired. Investigating
Officer should have gathered all the necessary information from A1 and it is
not necessary for granting police custody of the respondents to the
petitioner for the purpose of knowing the accused persons involved in the
offence and also for the recovery of material objects like weapons, etc,. .
5. Another submission of the learned counsel for respondents is
that when there are two conflicting judgments expressed by two coordinate
Bench, the Judgment of the earlier one has to be followed.
6. Reading of the order of learned Judicial Magistrate shows that
respondents 1 and 2 / accused surrendered before the learned Judicial
Magistrate No. IV, Salem on 23.03.2023 and were remanded to judicial
custody till 30.03.2023. They were produced before learned Judicial
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Crl.O.P.No.8883 of 2023
Magistrate No. I, Krishnagiri on 30.03.2023 and the judicial custody was
extended till 12.04.2023. Finding that the petition seeking police custody
was filed after completion of 14 days, learned Judicial Magistrate No.I,
Krishnagiri, dismissed the petition stating that respondents 1 and 2 were in
judicial custody for 19 days and therefore, police custody cannot be given.
To reach this conclusion, he relied on the judgment of the Hon'ble Supreme
Court in CBI ..vs.. Anupam J.Kulkarni reported in (1992) 3 SCC 141 and
some other judgments.
7. Learned Government Advocate (Criminal Side) further
submitted that in CBI ..vs.. Vikas Mishra reported in
MANU/SC/0342/2023, the Hon'ble Supreme Court permitted the police
custody even after completion of 15 days and also made an observation that
the decision in Anupam J.Kulkarni case requires reconsideration.
8. It is no doubt that in CBI ..vs.. Anupam J.Kulkarni reported in
(1992) 3 SCC 141 (cited supra), it was held that police custody could not be
given once the first 15 days of judicial custody is over. However, in a case
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Crl.O.P.No.8883 of 2023
reported in MANU/SC/0342/2023 (CBI ..vs.. Vikas Mishra), the issue came
up was as to whether police custody can be given after completion of first
15 days of judicial custody. The Hon'ble Supreme Court has taken a
positive view of the matter in the light of the facts and circumstances of the
case. In the said case, police custody was given for a period of 7 days from
16.04.2021 to 22.04.2021. During the period, accused fell ill and
subsequently also he fell ill and therefore, CBI could not take his custody
for investigation. When the matter came up before the Hon'ble Supreme
Court, relying on the judgment in CBI ..vs.. Anupam J.Kulkarni reported in
(1992) 3 SCC 141 (cited supra), it was contended that police custody
cannot be given once the first judicial remand period of 15 days is
completed. While dealing with this matter, the Hon'ble Supreme Court
observed as follows:--
“7.1 It is true that in the case of Anupam J.
Kulkarni (supra), this Court observed that there
cannot be any police custody beyond 15 days from
the date of arrest. In our opinion, the view taken by
this Court in the case of Anupam J. Kulkarni (supra)
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Crl.O.P.No.8883 of 2023
requires re-consideration. When we put a very
pertinent question to Shri Neeraj Kishan Kaul,
learned senior counsel appearing on behalf of the
respondent-accused that in a given case it may
happen that the learned trial/Special Court refuses
to grant the police custody erroneously which as
such was prayed within 15 days and/or immediately
on the date of arrest and thereafter, the order passed
by the trial/Special Court is challenged by the
investigating agency before the higher Court,
namely, Sessions Court or the High Court and the
higher Court reverses the decision of the learned
Magistrate refusing to grant the police custody and
by that time the period of 15 days is over, what
would be position? The learned senior counsel is not
in a position to answer the court query.”
9. The judgment of the Hon'ble Supreme Court in CBI ..vs.. Vikas
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Crl.O.P.No.8883 of 2023
Mishra (cited supra) squarely applies to this case in all fours. This case is
identical case in the sense that though Investigating Officer filed petition
seeking police custody within 15 days ie., on 14th day, ie., 05.04.2023,
learned Judge has not passed order immediately on the same day and he
passed order of dismissal on 10.04.2023. Considering the gravity of the
offence and requirement of police custody for unearthing the truth, learned
Judicial Magistrate should have disposed the petition seeking police custody
in Crl.M.P.No.4390 of 2023 on the same day of filing ie., on 05.04.2023
itself. However, without doing so, he passed order only on 10.04.2023. It is
not correct and legal. He should have decided the matter on 05.04.2023
itself. Without deciding the petition on 05.04.2023 and dismissing the
petition on 10.04.2023, on the ground that 15 days of judicial custody is
over, is nothing but an erroneous order requiring interference from this
Court. In this view of the matter, the order passed by learned Judicial
Magistrate No.1, Krishnagiri, in Crl.M.P.No.4390 of 2023 on 10.04.2023 is
set aside.
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Crl.O.P.No.8883 of 2023
10. In the result, this Criminal Original Petition is allowed and the
order passed by learned Judicial Magistrate No.1, Krishnagiri, in
Crl.M.P.No.4390 of 2023 on 10.04.2023 is set aside. Learned Judicial
Magistrate No.1, Krishnagiri is directed to give police custody of the
respondents to Investigating Officer for the purpose of investigation for 24
hours, by following necessary procedure within a period of one week from
the date of receipt of a copy of this order.
28.04.2023
mra
Index :Yes/No
Internet:Yes
Speaking Order/Non-speaking Order
To
1. The Judicial Magistrate No.1
Krishnagiri.
2. The Taluk Circle Inspector of Police
Kaveripattinam Police Station
Krishnagiri District
(Crime No.153 of 2023)
3. The Public Prosecutor,
Madras High Court,
Chennai.
G.CHANDRASEKHARAN,J.
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Crl.O.P.No.8883 of 2023
mra
order in
Crl.O.P.No.8883 of 2023
28.04.2023
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