STATE OF KERALA Vs. GEORGE

JUDGEMENT

(1.) This revision petition by the State is against the order of the Sub Magistrate, Irinjalakuda, refusing to hand over accused 1 and 5 in the Preliminary Enquiry Case No. 2 of 1972 to police custody after they surrendered before the Magistrate on 7 4 1972.

(2.) The case against these accused persons, as well as accused 2, 3 and 4, was that they formed themselves into an unlawful assembly at about 7.30 p.m. on 3-2-1972 armed with country bombs, and committed roiling, in the course of which the 1st accused threw a bomb against one Anthu and caused injuries to him with the result that he died on the same day at 10.30 p.m. at the Headquarters Hospital, Trichur, and that the 5th accused with the same common object to cause the death of prosecution witnesses Nos. 1, 2 and 3 threw a similar bomb against them, with the result that they sustained serious injuries. Accused 2, 3 and 4 were arrested and they had been remanded to custody. But accused 1 and 5 were absconding and their whereabouts were not known. So the Magistrate issued a non bailable warrant on 6-4-1972 to those accused persons returnable on 13-4-1972. In the meanwhile the police had laid charges against these five accused persons before the Magistrate on 3-4-1972 in respect of offences under S.148, 307 and 302 read with S.149 IPC. and also under S.5(3)(b) of the Indian Explosives Act. On 7-4-1972 accused 1 and 5 themselves surrendered before the Court. On the same day the Magistrate advanced the bearing of the case and remanded those accused persons to the Sub Jail, Irinjalakuda. On that day the Magistrate also posted the case for evidence to 13 4 1972, to which day it stood posted originally. On 8 4 1972, the Inspector, Chalakkudy Circle, filed an application before the Sub Magistrate alleging that it was necessary in the interests of justice to trace the source of the explosives and other details which led to the crime. Hence the Inspector wanted accused 1 and 5 to be handed over to the police custody for 5 days.

(3.) The Sub Magistrate stated that after filing a final report under S.173(1) Cr. PC. no further investigation in the case was possible as the Magistrate had already taken cognizance of the offence under S.190(b). The learned Magistrate also considered the scope of a decision of the Andhra Pradesh High Court in The State of Andhra Pradesh v. Golla Ramulu ( 1971 CriLJ 1368 ) wherein in a similar situation the accused persons were handed over to the police custody. But the Magistrate was of the view that after a final report under S.173(1) Cr. P. C. was filed by the police there was no scope of any further investigation in the case and therefore the Magistrate did not comply with the request to remand the accused 1 and 5 to police custody.