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1973 DIGILAW 337 (KER)

MATHEW ZACHARIA v. STATE OF KERALA

1973-12-19

GEORGE VADAKKEL, V.P.GOPALAN NAMBIYAR

body1973
Judgment :- 1. The matter has come on before us on a fairly detailed order of reference by Bhaskaran J. Although the learned judge refrained from expressing his final view, he stated more than once in the order of reference, that there is enough to cast doubts on the correctness of the decision of a Division Bench of this Court in Velu Viswanathan & Others v. The State (1971 KLT. 80), and that the question of law involved should be settled by a Division Bench, or a larger Bench, before which this petition may be placed by the Chief justice. 2. The petitioner is the President of the Kerala Non-Gazetted Officers' Union. On the night/ morning of the 9th/10th November 1973 at 3-30 A.M. the 2nd and 3rd respondents with a post of constables are stated to have searched the petitioner's Vettikkunnel House, Mannarcad in the petitioner's absence, and, according to his wife, asked her to direct the petitioner to contact either the 2nd or the 3rd respondent with a sum of not less than Rs. 5,000/-, as he was the accused in a criminal case. The petitioner, on enquiry, learnt that Crime No. 145/1973 of Karukachal Police Station had been filed against him and others for offences under S.467, 471, 472, 419 and 420, read with S.34 of the IPC. The petitioner has not so far been arrested, but, by his petition he stated that he has been advised to surrender himself before this Court and get released on bail. The prayers in the petition are to release the petitioner on bail and to declare that respondents 2 and 3 cannot claim custody of the petitioner for the purpose of Crime 145 of 1973. For the purpose of the latter prayer there are averments in the petition that if the petitioner is taken into police custody he would be subjected to physical torture to extract confessions or to effect recoveries, and that he has been advised by Counsel, not to answer any questions put by the police, an advice, which he proposes scrupulously to follow. It is said, that questioning by the police, in such circumstances would amount to testimonial compulsion, and therefore offend Art.20(3) of the Constitution. The argument proceeded much further, and would deny even the very right of the police to interrogate an accused under S.161 of the Crl. It is said, that questioning by the police, in such circumstances would amount to testimonial compulsion, and therefore offend Art.20(3) of the Constitution. The argument proceeded much further, and would deny even the very right of the police to interrogate an accused under S.161 of the Crl. PC., on which, the Division Bench ruling in Velu Viswanathan's case (1971 KLT. 80) is directly in point. 3. The petition has appeared to us rather curious and extra-ordinary. As an application for bail, the petitioner would rest it on S.497 Crl. PC., on the ground that the Section covers even the case of a "person accused or suspected of any non-bailable offences", who appears or is brought before a court ". We do not think that an option of appearing in any of the hierachy of courts is left to the sweet will and pleasure of the accused; and we are quite unable to see any ground to allow the petitioner to frog-leap the Magistrate and the Sessions Judge and make a direct approach to us for bail. On that ground, we would dismiss the application is so far as it relates to bail. 4. But it was frankly admitted that the main object of the petition was to declare that the petitioner was not liable to be handed over to police custody for investigation. The right of examining orally "any person supposed to be acquainted with the facts and circumstances of the case" is conferred on any police officer making an investigation under Chapter XIV of the Cr. P.C., by S.161 (1) of the Code. A Division Bench of this Court (Raghavan and Moidu JJ.) in Velu Viswanathan's case (1971 KLT. 80) has ruled that "any person" in the above Section includes an accused person. The Division Bench relied on the decision of the Privy Council in Pakkala Narayana Swami v. Emperor (AIR. 1939 Privy Council 47) which interpreted the words "any person" in S.162 of the Cr.P.C. as including an accused person. It differed from a contrary view taken by a learned judge of the Bombay High Court in Amrut Soma Kumbi v. State of Bombay (AIR. 1960 Bom.488) that the words immediately following "any person" in S.161, which are absent in S.162, would make a difference, and that it would not be altogether appropriate to transplant the reasoning of the Privy Council in Pakkala Narayana Swami's case (AIR. 1960 Bom.488) that the words immediately following "any person" in S.161, which are absent in S.162, would make a difference, and that it would not be altogether appropriate to transplant the reasoning of the Privy Council in Pakkala Narayana Swami's case (AIR. 1939 P.C. 47), to the interpretation of S.161. It is this aspect of the decision which is said to require re-consideration. We are not satisfied that it does; and certainly not, we should think, at this stage, or in these proceedings. Whether the petitioner would be committed to police custody, and if so, whether he would be interrogated unfairly, as apprehended by him, and whether be would, in accordance with his professed resolve and the advice of his Counsel, keep silent, if questioned, are all matters, which at this stage, should rest on conjecture; and we see no ground to pronounce on the correctness of the Division Bench ruling on such surmises. And we should think that the decision of the Supreme Court in State of Bombay v. Kathi Kalu Oghad (AIR. 1961 S.C.1808) especially propositions 1 and 2 in Para.16 is sufficient authority that there is no compulsion, where all that is proved is that the accused made a statement while in police custody, and that the mere questioning of an accused, by police resulting in a voluntary statement which is incriminatory, is not compulsion. What is more, we need hardly point out that the right of interrogation under S.161 (1) of the Cr. P.C. is one thing, and the result of it (where unfair means are employed), vis a vis Art.20(3) of the Constitution, is a totally different thing altogether. 5. It was said that having surrendered to this Court, the petitioner was entitled to an order for judicial custody under S.344 of the Cr. P.C. That the Section applies even to the pre-enquiry and pre-trial stage, was the view expressed by the Division Bench in Velu Viswanathan's case (1971 KLT. 80), having regard to sub-s. (1A), and the Explanation to the Section. And while noticing the trend of rulings of the Travancore-Cochin, Allahabad and Delhi High Courts, that the remand of the accused contemplated by the Section was to judicial lock-up and not to police custody, the Division Bench expressed some doubts, without expressing its final opinion, on the question. 80), having regard to sub-s. (1A), and the Explanation to the Section. And while noticing the trend of rulings of the Travancore-Cochin, Allahabad and Delhi High Courts, that the remand of the accused contemplated by the Section was to judicial lock-up and not to police custody, the Division Bench expressed some doubts, without expressing its final opinion, on the question. This is claimed to be another reason for re-considering this aspect of the Division Bench ruling, as the same is said to be against the principle of the decision in Gouri Shankar Jha's case (AIR. 1972 S.C. 711). Assuming this to be so, there was no final expression of opinion by the Division Bench; and we think that the present proceedings are by no means an appropriate stage to consider the correctness of the expression of doubt by the Division Bench. 6. According to Velu Viswanathans' case (1971 KLT. 80), a surrender by the accused who bad not been arrested by the police, before a Magistrate, attracts S.167 of the Cr. P. C. We need not consider this aspect, as the petitioner's Counsel contended before us that the matter is governed by S.344 Cr. P. C. All that we need say is, that if S.167 applies, there is power in the Magistrate under Sub-s. (2) to authorise detention in such custody as he thinks fit; and if he orders detention in police custody, he should, under sub-s.(3) record his reasons for so doing. 7. As for S.344, assuming without deciding, that it contemplates or sanctions a surrender to this Court in the way in which the petitioner has done, we are quite unable to see any "reasonable cause" to take action under the Section. The course of investigation, inquiry, and trial, has been laid down in the Cr. P.C.; and judicial decisions like Velu Viswanathan's case which have expounded these provisions, are to be used as aids in the proceedings. The petitioner's attempt to short circuit the course thus provided by getting the Division Bench ruling re-considered at this stage, on academic grounds appears to us to be quite unwarranted and premature. 8. We may conclude by quoting the following observations of the Supreme Court in State of West Bengal v. S. N. Basak (AIR. 1963 S.C. 447): "(3). The petitioner's attempt to short circuit the course thus provided by getting the Division Bench ruling re-considered at this stage, on academic grounds appears to us to be quite unwarranted and premature. 8. We may conclude by quoting the following observations of the Supreme Court in State of West Bengal v. S. N. Basak (AIR. 1963 S.C. 447): "(3). At the time the respondent filed the petition in the High Court only a written report was made to the police by the Sub Inspector of Police Enforcement Branch and on the basis of that report a First Information Report was recorded by the Officer-in-charge of the Police Station and investigation had started. There was no case pending at the time excepting that the respondent bad appeared before the Court, had surrendered and had been admitted to bail. The powers of investigation into cognisable offences are contained in Chapter XIV of the Code of Criminal Procedure. S.154 which is in that Chapter deals with information in cognizable offences and S.156 with investigation into such offences and under these sections the police has the statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of the police to investigate cannot be interfered with by the exercise of power under S.439 or under the inherent power of the court under S.561A of the Criminal Procedure Code. As to the powers of the judiciary in regard to statutory right of the police to investigate, the Privy Council in 71 Ind. App. 203 at p. 212 (AIR. 1945 P. C. 18 at p. 22), observed as follows: "The functions of the judiciary and the police are complementary, not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course subject to the right of the court to intervene in an appropriate case when moved under S.491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present however, the court's functions begin when a charge is preferred before it, and not until then." 9. We dismiss this petition. Dismissed.