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2002 DIGILAW 670 (KER)

Anil. P. Sreerangam v. State of Kerala

2002-10-07

N.KRISHNAN NAIR

body2002
Judgment :- The 2nd accused in Crime No. 256/CR/SI/02, CB-CID, Thiruvananthapuram, has filed this petition under Sec. 482 of the Code of Criminal Procedure challenging the order dated 1st October, 2002 of the Chief Judicial Magistrate, Thiruvananthapuram in C.M.P.No. 5574/02. 2. The facts necessary for the disposal of this petition may be stated as follows: Crime No. 256/CR/SI/02/CB-CID was registered against the petitioner and three others alleging the commission of the offences punishable under Secs. 466, 469, 471, 500 and 120 B of the Indian Penal Code. The allegation is that the accused in the case hatched a conspiracy to forge a document purporting to be the intelligence report of the Director General of Police (Intelligence) to the Private Secretary to the Chief Minister of Kerala. It is also alleged that on the strength of the forged intelligence report a news telecast was made in the news edition of Surya TV on 24-6-2002 at 6.30 p.m. and 11 p.m. The petitioner was arrested on 28-9-2002 and he was remanded to judicial custody. As he was suffering from some ailment, he was admitted in the Medical College Hospital, Thiruvananthapuram. While he was undergoing treatment in the hospital, the investigating officer filed an application under Sec. 167 (2) of the Crl.P.C. before the Chief Judicial Magistrate, Thiruvananthapuram for remanding the petitioner to police custody. Though the application was stoutly opposed by the petitioner, the learned Chief Judicial Magistrate allowed the application. The order is seriously challenged in this petition. 3. The learned counsel for the petitioner strongly contended that the order of the court below is clearly illegal and cannot be sustained either in law or on facts. According to the learned counsel, the petitioner was interrogated on several days during investigation and the present attempt of the police is to further extract from the petitioner statements of their choice. He further contended that impugned order is against the spirit of Rule 20 of the Criminal Rules of Practice. 4. On the other hand, the learned Director General of Prosecutions supported the order of the court below and urged that there is no ground for interference. He placed much reliance on the decision of the Supreme Court reported in State of Maharashtra v. Ramesh Taurani (AIR 1998 S.C. 586). 5. The question for consideration is whether the impugned order is sustainable. He placed much reliance on the decision of the Supreme Court reported in State of Maharashtra v. Ramesh Taurani (AIR 1998 S.C. 586). 5. The question for consideration is whether the impugned order is sustainable. No doubt, the learned Chief Judicial Magistrate has not passed the final order giving the custody of the petitioner to the Police under Sec. 167 (2) of the Crl.P.C. Therefore, there would not have been much scope for interference with the order at this stage if the Magistrate has not taken a decision to entrust the petitioner to the police. On going through the impugned order I find that the Magistrate has already taken a decision to hand over the petitioner to the police. The relevant portion of the impugned order reads as follows: "Since I have already taken the decision to entrust the accused to the police custody, the bail application will be considered after the production of the accused after police custody." According to me, the Magistrate should not have taken such a decision in view of the provisions contained in Rule 20 of the Criminal Rules of Practice. Rule 20 of the Crl. Rules of Practice provides that a request for remand to police custody shall be accompanied by an affidavit setting out briefly the prior history of the investigation and the likelihood of further clues which the police expect to derive by having the accused in custody sworn to by the Investigating or other police officer, not below the rank of a Sub Inspector of Police. It is clear from Rule 20 of the Crl.Rules of Practice that the investigating agency is bound to disclose all facts which necessitate the custody of the accused to the police in the affidavit. In this case it is gatherable from the impugned order that the investigating agency has not disclosed all the material facts in the affidavit. It is seen that the Deputy Director of Prosecution has made a submission before the lower court that there are certain other matters which cannot be disclosed now and which necessitate custody of the accused. The learned Director General of Prosecutions submitted that even though such a submission was made by the Deputy Director of Prosecution the facts stated in the affidavit are sufficient to order remand of the petitioner to the police custody. I cannot agree. The learned Director General of Prosecutions submitted that even though such a submission was made by the Deputy Director of Prosecution the facts stated in the affidavit are sufficient to order remand of the petitioner to the police custody. I cannot agree. In view of the submission made by Deputy Director of Prosecution, it has to be held that the affidavit was filed before the lower court suppressing the material facts. In my view, if the investigating agency is not prepared to disclose all the material facts which necessitate the custody of the accused to the police, the court is not bound to order remand of the accused to the police custody under Sec. 167 (2) of the Crl.P.C. The learned Director General of Prosecutions placed much reliance on the decision of the Supreme Copurt reported in State of Maharashtra v. Ramesh Taurani (AIR 1998 S.C. 586). No doubt, in that case the Supreme Court has held that the investigating agency is not required to state in a remand application the materials, if any, collected against the person who is yet to be arrested. According to me, there is nothing in the decision to indicate that the investigating agency is not required to state the material facts in an affidavit filed along with an application for remand of an accused in the police custody. The learned Director General of Prosecutions also placed reliance on the decision of the Supreme Court reported in State v. Anil Sharma (AIR 1997 SCC (Cri) 1039). In that case the Supreme Court held that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favourable order under Sec. 438 of the Code. I do not know how the decision is relevant in this case. Here the question is whether the Magistrate was justified in remanding the petitioner to police custody when the investigating agency is not prepared to disclose all the material facts before the court which necessitate the custody of the petitioner to the police and the court is not taken into confidence. As already stated in my view in such a situation the Magistrate is not bound to remand the accused to police custody. A request for remand to police custody cannot be granted in a mechanical fashion. 6. For the reasons stated above I am unable to sustain the impugned order. As already stated in my view in such a situation the Magistrate is not bound to remand the accused to police custody. A request for remand to police custody cannot be granted in a mechanical fashion. 6. For the reasons stated above I am unable to sustain the impugned order. I set aside the order and remit the matter back to the court below for fresh disposal in accordance with law and in the light of the observations made in this order. The registry is directed to send a copy of the order to the Chief Judicial Magistrate by Special Messenger.