1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:22.09.2011 CORAM THE HONOURABLE MS.JUSTICE R.MALA Crl.O.P.(MD).No.12248 of 2011 Pottu Suresh alias Sureshbabu : Petitioner/Accused -Vs- State rep. by The Inspector of Police, Central Crime Branch Madurai City, Madurai. Crime No.70/2011 : Respondent PRAYER: Petition is filed under Section 482 of the Code of Criminal Procedure praying to set aside the order passed in Cr.M.P.No.7076 of 2011 dated 13.09.2011 on the file of the learned Judicial Magistrate No.I, Madurai. For Petitioner : Mr.Veerakathiravan For Respondent : Mr.A.Ramachandran Addl. Public Prosecutor O R D E R This criminal original petition has been filed to set aside the order dated 13.09.2011, passed in Cr.M.P.No.7076 of 2011 by the Judicial Magistrate No.I, Madurai, allowing the petition filed by the State for police custodial interrogation of the petitioner, who has been arrayed as accused, in crime No.70 of 2011 on the file of the District Crime Branch, Madurai District. 2.The learned counsel for the petitioner would submit that the petitioner was arrayed as accused No.4 in Crime No.70 of 2011 on the file of the respondent police and a formal arrest has been made in some other case on 25.08.2011, since he was arrested and remanded to judicial custody in another case. He was remanded to judicial custody on 26.08.2011. The respondent has filed a petition for police custody on the same day, i.e. on 26.08.2011. But the petition has been disposed of only on 13.09.2011, after the expiry of 15 days. The order passed by the trial Court for ordering the police custody, after the expiry of first spell of 15 days is illegal as per the dictum laid down by the Apex Court and hence he prayed for setting aside the order passed by the Judicial Magistrate No.I, Madurai. 3. The learned Government Advocate (Crl. Side) would submit that the petitioner was arrested on 25.08.2011 and remanded to judicial custody on 26.08.2011 and on the same day, a petition has been filed for police custody, but the same has been disposed of on 13.09.2011. He https://hcservices.ecourts.gov.in/hcservices/ 2 further submits that the petition for police custody has been filed in time and hence he prayed for the dismissal of this petition. 4. Considering the rival submissions made by both sides, the petitioner has been arrayed as A4 in Crime No.70 of 2011 and a formal arrest has been made on 25.08.2011 and remanded to judicial custody on 26.08.2011. Admittedly, the petition for police custody has been filed on the same day, i.e on 26.08.2011. But the application was disposed of only on 13.09.2011. The first period of 15 days has been expired on 09.09.2011 itself. The police custody has been granted after the first judicial custody of 15 days. 5.At this juncture, it is appropriate to consider the decision of the Apex Court, which is relied upon by the learned counsel for the respondent, reported in 1992(3) SCC 141 (Central Bureau of Investigation, New Delhi Vs. Anupam J.Kulkarni), wherein the Supreme Court has held as follows: "13. ...After the expiry of the first period of 15 days the further remand during the period of investigation can only be in judicial custody. There cannot be any detention in the police custody after the expiry of first fifteen days even in a case where some more offences either serious or otherwise committed by him in the same transaction come to light at a later stage. But this bar does not apply if the same arrested accused is involved in a different case arising out of a different transaction. Even if he is in judicial custody in connected with the investigation of the earlier case he can formally be arrested regarding his involvement in the different case and associate him with the investigation of that other case and the Magistrate can act as provided under Section 167(2) and the proviso and can remand him to such custody as mentioned therein during the first period of fifteen days and thereafter in accordance with the proviso as discussed above. If the investigation is not completed within the period of ninety days or sixty days then the accused has to be released on bail as provided under the proviso to Section 167(2). The period of ninety days or sixty days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the Police. Consequently the first period of fifteen days mentioned in Section 167(2) has to be computed from the date of such detention and after the expiry of the period of fifteen days it should be only judicial custody." The said decision has been followed in 2010(3) SCC (Cri.)223 (Devender Kumar and another Vs. State of Haryana and others). 6.Further, he would rely upon the order of this Case made in Crl.O.P.(MD) No.10350 of 2011, wherein, this court has already decided a similar case of this nature and as per the dictum laid down by the Apex Court in Udaya vs. State by Inspector of Police, D6 Police Station, Madras, reported in 1994 (2) LW 751, the petition for police custody has been filed in time, but the officer has decided the matter after the expiry of the time and hence, the order of the learned Judicial Magistrate is illegal. https://hcservices.ecourts.gov.in/hcservices/ 3 7. Considering the facts and circumstances of the case and considering the decisions of the Apex Court in CBI vs. Anupam J.Kulkarni reported in 1992 (3) SCC 141, and Devandar Kumar & Another vs. State of Haryana & Others reported in 2010 (6) SCC 753 and the decision of the Apex Court in Udaya vs. State by Inspector of Police, D6 Police Station, Madras, reported in 1994 (2) LW 751, the police custody can be granted only during the first spell of 15 fifteen days judicial custody and if it is granted after the expiry of the first spell of fifteen days judicial custody, it is illegal and hence the order passed by the learned Judicial Magistrate, No.I, Madurai, in Cr.M.P.No.7076 of 2011 is illegal and it is liable to be set aside and the petition is liable to be allowed. 8.Accordingly, this criminal original petition is allowed and the order passed in Cr.M.P.No.7076 of 2011 dated 13.09.2011 on the file of the learned Judicial Magistrate No.I, Madurai is hereby set aside. RR SD/- Assistant Registrar[Crl side] /True copy/ To Sub Assistant Registrar 1. The Judicial Magistrate No.I, Madurai. 2. The Inspector of Police, District Crime Branch, Madurai District 3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Crl.O.P.(MD).No.12248 of 2011 Dated:22.09.2011 3P/4C RPB 12.10.2011 https://hcservices.ecourts.gov.in/hcservices/