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2005 DIGILAW 593 (MAD)

Varghese v. State of Kerala

2005-04-05

J.M.JAMES

body2005
ORDER: P.M. Varghese alias Kochumon, the first accused in Crime No.497 of 1998 of Nilambur Police Station, has preferred this petition, under Sec.438, Crl.P.C., praying to direct the police authorities investigating the crime to release him on bail, in the event of his arrest, in connection with the crime. 2. The facts reveal that the petitioner along with 10 other accused, unlawfully assembled on 26.11.1993 mid-night, in front of the house of one Samuel, with the common object of murdering him, criminally trespassed into his house and inflicted injuries, because of which Samuel died on 10.12.1998. The widow of deceased Samuel gave a complaint to the local police, who registered the Crime against 11 accused, the petitioner being the first accused. 3. The petitioner-first accused was at that time serving in Assam Regiment in Indian Army. The Investigating Officer addressed letters to the Commanding Officer. But there was no response. On 31.3.2004, the Commanding Officer of Assam Regiment at Shillong, had replied to the Investigating Officer, informing him that the petitioner was discharged from Assam Regiment, Indian Army, with effect from 1.4.2003. But the petitioner was not available in his home town nor could the first accused be traced. Therefore, the Investigating Officer again addressed the Commanding Officer on 11.6.2004, requesting for pension details and particulars of the petitioner. But it was informed by the Commanding Officer on 29.6.2004, that the petitioner had got himself re-enrolled in Defence Security Corps (D.S.C.) on 16.4.2003. Thereafter, the Investigating Officer filed a report dated 25.7.2004 before the Judicial First Class Magistrate Court, Nilambur, stating that the investigation could be completed only after the interrogation of the petitioner, and for that purpose, prayed to the Magistrate Court to direct the petitioner to appear before the Court. It is also further prayed that, on the appearance of the petitioner, his custody may be handed over to the Investigating Officer. 4. At the time of the hearing of this Bail Application, that prayer of the Investigating Officer was challenged. The matter was stayed and continued to be stayed till today. To have the point of law settled, during the pendency of this application, the second respondent, the Commanding Officer, Defence Security Corps Centre, Kannur, Kerala, was also impleaded. The Assistant Solicitor of India, Sri John Varghese, had appeared and represented the second respondent, while the first respondent is represented by the Public Prosecutor, Sri K. Harilal. To have the point of law settled, during the pendency of this application, the second respondent, the Commanding Officer, Defence Security Corps Centre, Kannur, Kerala, was also impleaded. The Assistant Solicitor of India, Sri John Varghese, had appeared and represented the second respondent, while the first respondent is represented by the Public Prosecutor, Sri K. Harilal. 5. I heard all concerned. The question that has arisen for consideration is whether the custody of the accused, who could not be arrested, be handed over to the Investigating Officer for the purpose of completion of the investigation of a non-bailable offence, when the accused is brought or has appeared before the Magistrate. 6. Sec.70 of the Army Act, 1950, in short ‘the Army Act’, lays down that if a person subject to the Army Act commits an offence of murder, against a person not subject to the Army Act, that person shall not be tried by a Court martial, unless he committed the murder while in active service, or at any place outside India, or at a frontier post as notified by the Government in this behalf. 7. Secs.125 and 126 of the Army Act are dealing with the situations where both the Criminal Court and Court martial have got jurisdiction in respect of an offence and the procedure that has to be followed thereafter. In the case at hand, the offence had taken place not against any person subject to the Army Act, and the first accused, petitioner, is also not covered by any of the conditions contained under Sec.70 of the Army Act. Therefore, under the available facts of the case, the Magistrate can proceed against the accused, as per law. 8. Sec.73 of the Code of Criminal Procedure, in short ‘the Crl.P.C.‘, a Magistrate of the first class or the Chief Judicial Magistrate having competent jurisdiction may direct a warrant to any person within his local jurisdiction, who is accused of a non-bailable offence and is evading arrest. 9. The facts stated above show that though the Investigating Officer had addressed the Commanding Officer of the Assam Regiment, the Investigating Officer could not get the custody of the petitioner. Even after his discharge from Assam Regiment, he did not come to his native place. He got himself re-enrolled in D.S.C. service and was stationed at Shillong. He is now attached with the headquarters at Kannur in Kerala. Even after his discharge from Assam Regiment, he did not come to his native place. He got himself re-enrolled in D.S.C. service and was stationed at Shillong. He is now attached with the headquarters at Kannur in Kerala. As per the order of this Court, he continues to remain as attached with the strength of the Kannur Defence Security Corps Centre. 10. The prayer of the learned counsel appearing for the petitioner Sri.P.Vijaya Bhanu, is that the petitioner is willing to co-operate with the investigation and the case being very old, custodial interrogation may not be necessitated. Hence, submitted that he may be released on bail, in the event of his arrest, in the abovesaid crime. The learned Public Prosecutor, Sri K.Harilal, on the other hand, submitted that for completion of the investigation, the custodial interrogation of the petitioner is necessary. 11. The Bar placed reliance on the decision of the Supreme Court reported in State through C.B.I. v. Dawood Ibrahim Kaskar and others,A.I.R. 1997 S.C. 2494. That was a case relating to the series of Bomb explosions that took place in and around the city of Bombay on 12.3.1993, which resulted in the death of 257 persons, injuries to 713 persons and damage to properties worth Rs.27 crores. The C.B.I. took over the investigation. It filed a miscellaneous application, before the designated Court, for issuance of a warrant of arrest against the accused. It was challenged. Therefore, a question that came up before the Apex Court was that when and under what circumstances, the Court can invoke the provisions of Sec.73 of the Crl.P.C. Answering the same, the Apex Court after elaborately considering the facts and law, came to the conclusion that Sec.73, Crl.P.C., is of general application and that in the course of the investigation, a Court can issue a warrant in exercise of power thereunder to apprehend, inter alia, a person who is accused of a non-bail able offence and, is evading arrest. Further, the Court also answered the related question as to whether such issuance of a warrant could be for the production of the accused before the police in aid of investigation or not. After dealing with the procedure that has to be followed by the Magistrate, in exercise of his judicial discretion, the Apex Court held as follows: 23. . . . After dealing with the procedure that has to be followed by the Magistrate, in exercise of his judicial discretion, the Apex Court held as follows: 23. . . . “On such production, the Court may either release him on bail under Sec.439 or authorize his detention in custody (either police or judicial) under Sec.167 of the Code. Whether the Magistrate, on being moved by the Investigating Agency, will entertain its prayer for police custody will be at his sole discretion which has to be judicially exercised in accordance with Sec.167(3) of the Code.” 12. The law, therefore, is that when an accused is before a Magistrate, and an application is moved before that Court for getting custody of the accused, the custody is not to be given by the Magistrate as a matter of course nor on the mere asking by the police, but only after exercising his judicial discretion based on the materials placed before the Magistrate, as per the principle laid down in State through C.B.I. v. Dawood Ibrahim Kaskar and others, A.I.R. 1997 S.C. 2494, cited above. 13. In view of the facts and law discussed herein, I direct the petitioner-first accused to appear before the Investigating Officer in Crime No.497 of 1998 of Nilambur police station, within ten days from today. After interrogating the first accused, if the Investigating Officer is of the opinion that custodial interrogation of the petitioner is necessary, he may pray for the same either by filing a fresh application for that purpose, or for an order in the existing report dated 25.7.2004 pending before the Magistrate. In such situation, the Magistrate shall pass appropriate orders, considering the materials placed before that Court, applying his judicial discretion in granting the custody of the first accused to the Investigating Officer. Till the Magistrate takes up the matter and decides on the prayer of giving the custody of the petitioner-first accused, petitioner shall be released on bail, in the event of his arrest, on imposing such conditions which are deemed necessary, by the authority arresting him. The petitioner shall continue to be attached under the second respondent and he shall not be allowed to leave Kerala without the prior permission of the Magistrate Court. The petitioner shall continue to be attached under the second respondent and he shall not be allowed to leave Kerala without the prior permission of the Magistrate Court. I clarify that this order shall not stand in the way of the second respondent deploying the petitioner for duty in any of the units in Kerala, and he need be relieved from the duties only for the purpose of attending the Court or to appear before the Investigating Officer. The petitioner-first accused shall appear before the Magistrate Court as and when a notice to that effect is received by him from that Court. The stay granted by this Court on 26.11.2004 and extended on various occasions thereafter is hereby vacated. The bail application is disposed of as above.