K SUNDARAM Vs. VANAN ALIAS TAMILVANAN ALIAS RAJI

JUDGEMENT

(1.) THE petitioner herein seeks to set aside the order, dated 18. 04. 2009, passed in CMP No. 935 of 2009 with reference to Crime No. 314 of 1978 by Judicial Magistrate No. II (i/c), Tirupattur, in and by which, the request for police custody was declined; and to permit the petitioner to have police custody of the respondent/accused.

(2.) THE respondent herein was absconding in a double murder case with reference to an occurrence that took place during 1978. Trial of the case was proceeded against the available accused and the case ended in acquittal and the split up case as against the respondent herein was pending. Under such circumstances, the respondent was arrested on 12. 04. 2009. A Petition for further investigation was filed in CMP No. 920 of 2009 and on 13. 04. 2009, the same was permitted by the learned Magistrate; however, the petition seeking police custody has been refused. By stating that the request was turned down by the learned Magistrate on erroneous grounds, the petitioner seeks to set aside the order and to issue a positive direction.

(3.) LEARNED Government Advocate points out that after filing of the present petition before this court, notice was ordered and since the accused is in judicial custody, attempts were made to serve the notice on him, however, he refused to receive it. He submits that the learned Magistrate has failed to take note of the position that in view of the permission granted by him, virtually investigation is pending and, in such circumstances, it has become absolutely necessary that police custody is granted so as to receive information and collect materials and by denying the same, the learned Magistrate did not proceed in a proper perspective and rather passed a self-contradictory order which warrants interference of this Court.