THE HONOURBLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION Nos.12214 and 12216 of 2011 COMMON ORDER: The present two Criminal Petitions have been preferred by the petitioner challenging his police custody granted by the IV Additional Metropolitan Sessions Judge-cum Special Judge for NIA Cases on 24.11.2011 in Crl.M.P.Nos. 388 and 389 of 2011 in Special Sessions Case No. 1 of 2011. The brief facts of the case are: The petitioner was arrayed as accused No.7 in Special Sessions Case No. 1 of 2011 wherein he was charged for the offences punishable under Sections 302, 307, 326, 511 read with Section 120(B) IPC, under Sections 3,4 and 5 of Explosive Substances Act, 1908 and under Sections 13 and 15 read with Sections 16, 18, 19 and 23 of UA(P) Act. The Respondent-National Investigation Agency approached the Special Court for police custody of the petitioner herein on 24.11.2011. On the request made by the National Investigation Agency, the learned Special Judge ordered for Video Conference, since the petitioner detained in Azmir Prison in Rajasthan State. Accordingly, through Video Conference, when the accused appeared, the respondent- National Investigation Agency shown the arrest of the petitioner- accused No.7. After showing the arrest of the petitioner-accused No.7, the learned Special Judge has passed an order of police custody of the petitioner-accused No.7 for a period of 15 days. The procedure followed by the learned Special Judge is under challenge before this Court. For granting police custody, the Special Judge or Magistrate has to follow the procedure prescribed under Section 167 of Cr.P.C. In the said Section, the relevant provision (2) (b) has been amended by the Act, 2008 (Act 5 of 2009). The amended order reads as follows: “Section 167 (2)(b):- No Magistrate shall authorize detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;” The said provision clearly prohibits the Special Judge or any Magistrate from remanding any person to police custody unless he is produced in person before the Court and further it is also well settled principle and law laid down by the apex Court while granting police custody, the accused should be given an opportunity to make his objections or submissions and also he should be allowed to take some legal assistance in order to protest the request of the National Investigation Agency. The learned Special Judge has not followed any of the provisions mentioned in the Criminal Procedure Code. This Court is of the view that the present detention of the petitioner-accused No. 7 in police custody by order dated 24.11.2011 by the learned Special Judge is liable to be quashed. Accordingly, the order passed by the IV Additional Metropolitan Sessions Judge-cum Special Judge for NIA Cases on 24.11.2011 in Crl.M.P.Nos. 388 and 389 of 2011 in Special Sessions Case No. 1 of 2011 is hereby quashed. If the petitioner has already been taken into police custody by the respondent-National Investigation Agency, the National Investigation Agency is directed to surrender the petitioner-accused No. 7 before the concerned jail authorities on or before 1.12.2011 and the respondent- National Investigation Agency is also directed to inform this Court regarding the surrender of the accused before the concerned jail authorities. With the above observations, both the Criminal Petitions are allowed. However, the respondent-National Investigation Agency is at liberty to take custody of the petitioner-accused No.7 after following due process of law prescribed under the Criminal Procedure Code. This order does not preclude the respondent-National Investigation Agency for taking police custody of the petitioner-accused No.7 in accordance with law. _____________ RAJA ELANGO, J 30.11.2011 N.B Issue Operative portion by wire at party’s costs. BO CHV