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1985 DIGILAW 139 (KER)

KOCHUVARKEY v. THE CIRCLE INSPECTOR OF POLICE

1985-05-10

PAREED PILLAY

body1985
Judgment :- 1. This petition is filed against the order of the Judicial Magistrate of the First Class, Taliparamba in Crime No. 12/1985 of Kudiyanmala Police Station. The petitioners are the accused in Crime No. 12/1985 of Kudiyanmala Police Station. They are alleged to have committed offence under S.302 of the IPC. The Circle Inspector of Police, Taliparamba reported to the court that the petitioners made a confession that the weapon used for committing the offence was kept by them at Kottakunnu in forest area, and their release to police custody is necessary to effect recovery of the weapon. The learned Magistrate allowed police custody. It was ordered that petitioners 1 to 3 would be released to the custody of the Circle Inspector of Police, Taliparamba from 10 a. m. on 19th April 1985 till 2 p. m. on 20th April 1985 and that the Circle Inspector should produce them before the court at 2 p.m. on 20th April 1985. 2. Learned counsel for the petitioners submitted that the petitioners have nothing to tell the police about any weapon and therefore the learned Magistrate went wrong in passing the impugned order. The contention of the petitioners is that they are innocent of the charges levelled against them and that they know nothing about the material objects used for committing the alleged crime. It is the case of the petitioners that in spite of the open denial of any knowledge about the weapon, the learned Magistrate without considering that, passed the order which cannot be supported legally. 3. Learned counsel for the petitioners relied on the decision in Devidas v. State of Kerala 1979 KLT. 642 and contended that as the petitioners have stated that they have nothing to inform the police about the weapon used in the alleged crime, the learned Magistrate was not justified in granting police custody of the petitioners. 3. Learned counsel for the petitioners relied on the decision in Devidas v. State of Kerala 1979 KLT. 642 and contended that as the petitioners have stated that they have nothing to inform the police about the weapon used in the alleged crime, the learned Magistrate was not justified in granting police custody of the petitioners. Learned counsel also relied on the decision in Sreedharan v. State of Kerala 1980 KLT 829 for the same position Relying on the above decision counsel for the petitioners con-fended that in view of the categoric assertion on the part of the petitioners of complete lack of knowledge or information regarding the existence of the material objects sought to be recovered at their instance there is no purpose in directing police custody for the alleged purpose of recovery It is the contention of the petitioners that as they have unambiguously stated that they have no knowledge about the material objects, court cannot allow themselves to be used for the purpose of enabling the investigator to use means of interrogation not approved by law. 4. Justice T. Chandrasekhara Menon in Crl. MC.No.133 of 1982 agreed with the observations in 1979 KLT. 642 and 1980 KLT. 829 and held that in view of the statement of the accused denying the confession, it would be illegal to hand over custody of the accused to the police. This decision was challenged by the State of Kerala before the Supreme Court. The Supreme Court in the petition for special leave to appeal (Criminal) No. 1942 of 1982 held as follows: "We are not satisfied that the law laid down by the High Court is correct. But in as much as the matter arises out of an interlocutory proceeding, we are not to entertain the Special Leave Petition. The Special Leave Petition is dismissed." Though the Special Leave Petition was dismissed, it has been made clear by the Supreme Court that the law laid down by the High Court h not correct. It may be argued that the Supreme Court has not given any reasoning for the aforesaid decision and therefore that decision is not of much assistance to the prosecution. Though reasons are not stated by the Supreme Court, it has been held that the law laid down by the High Court is not correct. 5. It may be argued that the Supreme Court has not given any reasoning for the aforesaid decision and therefore that decision is not of much assistance to the prosecution. Though reasons are not stated by the Supreme Court, it has been held that the law laid down by the High Court is not correct. 5. Whatever be the impact of the above Supreme Court decision, the position is settled by a Division Bench of this Court in Viswanathan v. State 1971 KLT. 80. It has been held that police are entitled to request the Magistrate to give custody to them of the persons for questioning and simply because there is a possibility of the police compelling the accused person to give out incriminating material, their right to question them cannot be denied. The decisions in 1979 KLT. 642 and 1980 KLT. 829 (both Single Bench decisions) have not advered to the Division Bench ruling in 1971 KLT. 80. Chandrasekhara Menon, J. in the unreported decision in Crl. M. C. No. 133/1982 has distinguished 1971 KLT. 80 holding that there was no provision for anticipatory bail under the old Criminal Procedure Code and the case in 1971 KLT. 80 was not dealing with a person who has been released on bail and so he did not consider it necessary to refer the matter to a Bench regarding the correctness of the observations made in that decision. So far :as the facts of the case in hand is concerned, it is not a case where anticipa-.lory bail was granted to the petitioners. It is a case where the petitioners voluntarily surrendered before the Court of the Judicial Magistrate of the First Class and the Circle Inspector made a request for police custody when they were in judicial custody. The distinction sought to be made by Chandrasekhara Menon, J. in the decision in Crl. M.C. 133/1982 has therefore no application to the facts of the case in hand. 1n 1971 KLT. 80 the position was similar as in the present case. In that case also the accused surrendered before the Magistrate and the police officers applied to the Magistrate to give custody of the accused persons to them to be questioned. The question that has to be considered was as to whether the police have a right, in such cases, to question the accused persons. It has been held in 1971 KLT. The question that has to be considered was as to whether the police have a right, in such cases, to question the accused persons. It has been held in 1971 KLT. 80 at page 86 as follows: "We warn not to confuse issues: the power of the police to question the accused is one thing, and if. in questioning, they used methods which would lead to the conclusion that testimonial compulsion was used, then the question may be different. Simply because there is possibility of the police compelling the accused persons to give out incriminating material, their right to question them cannot be denied. Such material, if found to have been obtained in such manner, the court will eschew from consideration. Moreover, the accused persons are not bound to answer questions the answers to which have a tendency to incriminate them. Therefore, we cannot accede to the request of the counsel that the accused persons in these cases should not be handed over to the police for fear that the police might compel them to give out material which might be used as evidence against themselves." In view of the above Division Bench ruling the right of the police to question the petitioners cannot be denied. Learned Public Prosecutor submitted that the petitioners were absconding and they surrendered before the court only on 1st April 1985 and therefore the police could not interrogate them. If it is held that police have no right to question the accused who surrendered before the Court, it would lead to an absurd position as it would be open to an accused to abscond and surrender before a court later and state that he has no information to pass on to the police in order to avoid him being questioned by the police. Under S.160 of the Code of Criminal Procedure any police officer making an investigation may require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case. The expression "any person" in S.161 and 162 of the Code of Criminal Procedure have the same meaning and that expression includes an accused person and therefore under S.161 police can question an accused during the investigation. The expression "any person" in S.161 and 162 of the Code of Criminal Procedure have the same meaning and that expression includes an accused person and therefore under S.161 police can question an accused during the investigation. That right cannot be allowed to be defeated by the declaration of the accused before the Court that he has nothing to say to the police. As has been held in Viswanathan v. State 1971 KLT. 80 the power of the police to question the accused is one thing and if they use underhand methods, it is a different matter. Merely because there is a possibility of the police compelling the accused to give out incriminating material, their right to question him cannot be denied. As police are vested with the right to question accused during investigation of the case it cannot be presupposed that they would adopt third degree methods to extract confession, if the accused is given to police custody. 6. In view of the decision in 1971 KLT. 80, the Single Bench decisions referred to by the petitioners cannot have any binding force. As already pointed out the decision of Chandrasekhara Menon, J. in Crl. M. C. No. 133/1982, which relied on 1979 KLT. 642 and 1980 KLT. 829, has been held by the Supreme Court to have not laid down the correct law. As the petitioners surrendered before the Court and as the police could not interrogate them, the learned Magistrate was right in granting custody of the petitioners to the police. There is no merit in the petition and hence the same is dismissed. 7. The learned Magistrate is directed to fix the time and other necessary details for granting custody of the petitioners to the police Communicate the order to the learned Magistrate immediately.