KARAYI CHANDRASEKHARAN Vs. INSPECTOR OF POLICE

JUDGEMENT

(1.) Petitioners are two among the accused (A7 and A8) in RC 2(S) / 2008 / CBI / SCB / Chennai, which was re - registered from Crime No. 442 of 2006 of Thalassery Police Station. The Central Bureau of Investigation, for short, the 'CBI', after investigation, has filed report under S.173(2) of the Code of Criminal Procedure, for short, the 'Code', against eight accused persons and the case is now pending before the Chief Judicial Magistrate Court, Ernakulam in committal proceedings numbered as CP No. 1 of 2012.

(2.) The case involves murder of one Fasal, a NDF worker and a newspaper agent, in the early hours of 22/10/2006 in a public road, namely, 'JT Road', lying between Saidarpalli and Temple gate, Thiruvangad Amsom, Thalassery in Kannur District. Investigation of the crime registered over his murder was initially conducted by local police, which, later, on a writ petition filed by the widow of the victim, by orders of this Court was handed over to the CBI. The CBI, after investigation, found that the murder of Fasal was pursuant to a criminal conspiracy hatched on account of political animosity and the murder was masterminded by these petitioners, A7 and A8, and they deployed assailants, eight in number, their party sympathizers, to annihilate the victim. The assailants, who had hacked to death Fasal with sharp edged weapons, numbered eight persons, and six of them were arrested and the other two are yet to be identified. Petitioners have sheltered the assailants and screened them from the police and they have also intimidated the witnesses connected with the crime and further planted false evidence to mislead the investigation of the crime, according to the CBI. Further investigation of the crime to trace out the identity of the remaining two assailants, their relationship with the other conspirators including the petitioners, is still going on, was the case of CBI seeking formal permission to continue such investigation while filing the report as stated above before the Court. Petitioners, who could not be arrested, were reported as absconding. Report was filed by the CBI before the Court on 12/06/2012. Petitioners surrendered before the Court on 22/06/2012, and the learned Chief Judicial Magistrate remanded them to custody for fourteen days. Annexure I petition was, thereupon, filed by the CBI for police custody of the petitioners, in which, it was contended that their interrogation for the purpose of further investigation of the crime is essential. That request for police custody was objected to by the petitioners filing Annexure II petition. The learned Chief Judicial Magistrate, after hearing both sides, passed Annexure III order allowing the request of the CBI for the police custody of the petitioners. That order is challenged in this petition invoking the inherent jurisdiction of this Court under S.482 of the Code.

(3.) The main thrust of challenge raised against Annexure III order by the learned senior counsel for the petitioners is that the remand of the petitioners, after filing of the report under S.173(2) of the Code in the crime by the CBI, is under sub-section (2) of S.309 of the Code after taking cognizance of the offence imputed against the accused in the case. Once such cognizance is taken and the accused persons named are remanded to judicial custody, for the purpose of investigation police custody of the accused persons, which can be done only during the course of investigation under S.167(2) of the Code, cannot be ordered. The learned counsel relied on Mithabhai Pashabhai Patel and Others v. State of Gujarat, 2009 KHC 655 : 2009 (6) SCC 332 : 2009 (2) KLD 244 : 2009 (2) KLT SN 92 : 2009 (7) SCALE 559 and Jeewan Kumar Raut and Another v. Central Bureau of Investigation, 2009 KHC 800 : 2009 (7) SCC 526 : 2009 (3) KLT SN 45 : 2009 (9) SCALE 381 : AIR 2009 SC 2763 : 2009 CriLJ 4109 to contend that when an accused person has been remanded under S.309 of the Code, there cannot be a remand of that accused to police custody. The Court below has gone wrong in relying upon State through CBI v. Dawood Ibrahim Kaskar and Others, 1997 SCC (Crimes) 636, to order police custody and it was so done without taking note of the circumstances presented in the case, in which, the accused was subsequently arrested in the course of further investigation of the crime, according to the counsel. So far as against the present petitioners, the charge indicting them of the offence imputed has already been laid before the Court, and taking cognizance of the offence, they have been remanded to judicial custody under S.309(2) of the Code, on their surrender before the Court, is the submission of the counsel. In such post cognizance stage, the request made by the CBI for their police custody cannot be ordered and Annexure III order passed by the learned Magistrate is patently erroneous and illegal, is the submission of the learned senior counsel. The learned Standing counsel for the CBI resisting the challenges canvassed to assail Annexure III order contended that even when the report was filed under S.173(2) of the Code, the CBI had informed of the further investigation proceeded with seeking permission to do so. The learned Magistrate had also issued non - bailable warrant against the petitioners, A7 and A8, who could not be arrested earlier and also, during the course of further investigation. The learned counsel relying on the observations made in Dinesh Dalmia v. CBI, 2007 KHC 5701 : AIR 2008 SC 78 : 2007 (2) KLD 344 (SC) : 2007 (4) KLT SN 27 : JT 2007 (11) SC 164 : 2007 (8) SCC 770 : 2008 CriLJ 337 contended that even in the same case depending upon the charge sheet filed by the investigating officer, cognizance may be taken as against the person against whom an offence is yet to have been made and against whom no such offence has been made out even when investigation is pending. As against a person when further investigation is still continued, charge sheet filed under S.173(2) of the Code in the crime by the investigating agency would not interdict such agency from seeking its police custody if that is so required for the purpose of further investigation, is the submission of the learned Standing counsel. The learned counsel also banked up Dawood Ibrahim Kaskar's case, cited supra, which has been relied by the learned Magistrate in passing Annexure III order to accede to the request made to the CBI for giving them police custody of the petitioners.