VELU VISWANTHAN Vs. STATE

JUDGEMENT

(1.) One of these revisions is by the accused persons and the other by the State, in two different cases. Both the cases are now at the investigation stage; and the accused persons in both the cases surrendered before two magistrates. Shortly after the surrender, the police officers concerned applied to the magistrates to give custody of the accused persons to them to be questioned; and one of the magistrates allowed it while the other did not. The revision by the accused persons is against the former; and the revision by the State is against the latter.

(2.) When these petitions came before Narayana Pillai, J., the order in In re the Sub Inspector of Police, Meenachil (Crl. RP. No. 152 of 1961) by a Division Bench of this Court was placed before the learned Judge. In that case what happened was that the magistrate remanded the accused to police custody first and then went back on the order and declined to give custody of the accused to the police. The matter came to this Court; and Raman Nayar J. (as he then was) and Govinda Menon J. dismissed the petition without considering the question on merits. The learned Judges just observed that, since the averment in the petition by the Sub Inspector was that the accused told him when he was questioned in the Sub Jail that he was prepared to point out the weapon used for committing the offence and since the accused denied it and said that he had nothing to tell the police and was "not willing to cooperate in the investigation, there was no use handing him over to the police. Narayana Pillai J. has observed in the Reference Order that, if in such cases where the accused persons surrender before magistrates the police have no right to question them, then the accused persons have only to abscond and surrender before magistrates and tell the magistrates that they have no information to pass on to the police in order to avoid their being questioned by the police. The question we have to consider in these cases is whether the police have a right, in such cases, to question the accused persons. The first aspect of the question is whether, under S.161 of the Code of Criminal Procedure, the police can question an accused person during the investigation. It is urged by the counsel of the accused persons that S.161 applies only to witnesses and not to accused persons. A few decisions have been brought to our notice on this question; and the most important one is the decision of the Privy Council in Pakala Narayana Swami v. Emperor ( AIR 1939 PC 47 ). The Judicial Committee was considering the meaning of the expression "any person" in S.162 of the Code of Criminal Procedure; and their Lordships held that that expression was wide enough to include even a person who might ultimately be the accused. In this connection, it is worth while to consider the language of three sections, S.160, 161 and 162. S.160 provides that a police officer making an investigation may require the attendance before himself of "any person......who,...........appears to be acquainted with the circumstances of the case". S.161(1) states that a police officer making an investigation may examine orally "any person supposed to be acquainted with the facts and circumstances of the case". S.162(1) then provides that no statement made by "any person" to a police officer in the course of an investigation shall, if reduced into, writing, be signed, etc. The marginal note of S.160 and 161 are "Police Officers' power to require attendance of witnesses" "and Examination of witnesses by police" respectively. We need not mention the marginal note of S.162.

(3.) The argument before us is that the expression "any person supposed to be acquainted with the facts and circumstances of the case" will not include the accused. For this some reliance has been placed on the marginal notes of S.160 and 161 as well, which speak of "witnesses". It is a well established proposition that marginal notes to sections cannot be relied upon to interpret the sections. We do not think that any authority is required in support of this proposition; but if one is required, the decision in Balraj Kunwar v. Jagatpal Singh (ILR XXVI All. 393), a decision of the Privy Council, may be referred to. The Privy Council, in Pakala Narayana Swami's case, considered and approved the decision of the Full Bench of the Madras High Court Syamo Maha patro v. Emperor ( AIR 1932 Mad. 391 ), where the Full Bench held that "any person" in S.162 included a person accused of the offence under investigation. In this connection, we shall also refer to the decision of the Supreme Court in State of Gujarat v. Shyamlal Mohanlal Choksi ( AIR 1965 SC 1251 ), where their Lordships considered S.94 of the Code of Criminal Procedure and observed that, though the word "person" in that section was general, there were other indications in the section that the legislature did not intend to include therein an accused person. The reason was that the words "attend and produce" were rather inept to cover an accused person and that it would be an odd procedure for a court to issue summons to an accused person present in court "to attend and produce" a document. Their Lordships also observed that it would be still more odd for a police officer to issue a written order to an accused person in his custody "to attend and produce" a document. If we examine the language of S.160 in the light of this reasoning, what will emerge is that "any person" in this section will not include an accused person, because the section says that the police officer may "by order in writing, require the attendance before himself of any person", etc., which cannot apply to an accused person. But, the language of S.161(1) does not indicate any such intention contra to take away from the general nature of the expression (any person) occurring in S.162 as well that was considered by the Privy Council in Pakala Narayana Swami's case. Thus, it is clear that "any person" in S.161 includes an accused person.