IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 Crl.MC.No. 231 of 2009(F) ------------------------------------- CMP.5950/2008 AND 8142/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KOLLAM .................... PETITIONERS/ACCUSED ------------------------------------ 1. EDISON, S/O.JOSEPH, KIZHAVOOR KUNNUVILA VEEDU, KIZHAVOOR CHERRI, THRIKKOVILVATTOM VILLAGE. 2. UNNIKRISHNAN, S/O.PURUSHOTHAMAN,VALAVIL DINESHMANDIRAM, THAZHAMVADAKKU CHERRI, MEENADU VILLAGE. BY ADV. MR.C.RAJENDRAN, RESPONDENTS/STATE --------------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. * ADDL. R2 & R3 IMPLEADED ADDL.R2: MURALEEDHARAN, SON OF GOPALAN, BINU BHAVAN, OTTAPLAMOOTTIL, THAZHUTHALA CHERRY, KOTTARAKKARA. ADDL.R3: BIJU, S/O.MURALEEDHARAN, BINU BHAVAN, OTTAPLAMOOTTIL, THAZHUTHALA CHERRY, KOTTARAKKARA. * ARE IMPLEADED AS ADDL. 2ND AND 3RD RESPONDENTS AS PER ORDER DATED 26/02/2009 IN CRL.MA.NO.664/2009. R1 BY PUBLIC PROSECUTOR MR.K.S. SIVAKUMAR. R2 & R3 BY ADV. MR.H. HARIKUMAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/03/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 231 of 2009(F) ORDER ON CRL.MA. NO.591/2010 IN CRL.MC.NO.231/2009 DISMISSED 04/03/2010. SD/- M.SASIDHARAN NAMBIAR, JUDGE //TRUE COPY// P.S. TO JUDGE rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 231 OF 2009 =========================== Dated this the 4th day of March,2010 ORDER Can police custody be given after the expiry of the first fifteen days of production of the accused before the Magistrate? Can police custody of an accused could be given the expiry of the first fifteen days on the ground that the offence was subsequently altered to a grievous offence? These are the short but important questions to be settled. 2. Petitioners were arrested in Crime No.344/2003 of Kottiyam police station registered for the offences under sections 323 and 324 read with section 34 of Indian Penal Code. They were produced before the learned Magistrate and were enlarged on bail. Subsequently after completing the investigation a final report was submitted. Judicial First Crl.M.C.231/2009 2 Class Magistrate took cognizance of the offences under sections 323 and 324 read with section 34 of Indian Penal Code in C.C.1432/2003. Aggrieved by the non submission of a charge for the offences under sections 326 and 307 of Indian Penal Code, de facto complainant, the injured, filed CMP 7070/2003. The Magistrate sent the said CMP 7070/2003 to Kottiyam Police Station. The de facto complainant thereafter approached this court by filing Crl.M.C.2795/2004 contending that inspite of order of the Magistrate offences under sections 326 and 307 of Indian Penal Code are not being investigated. By Annexure A1 order, this court directed further investigation under section 173(8) of Code of Criminal Procedure after obtaining permission of the Magistrate, directing that de facto complainant shall co-operate with the further investigation. CMP 5950/2008 and 8148/2008 were thereafter filed for cancellation of the bail already granted and to remand the petitioners to Crl.M.C.231/2009 3 police custody. By Annexure III order, learned Magistrate cancelled the bail originally granted and directed the petitioners to appear before the Magistrate to execute a fresh bond. In CMP 8142/2008 learned Magistrate directed that the police custody of second accused could be given and dismissed the petition as against the first accused and directed second accused to surrender before the Magistrate, holding that the period of police custody could be fixed on his surrender. Annexure III order is challenged in this petition filed under section 482 of the Code of Criminal Procedure. 3. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 4. Section 167 provides the procedure for when investigation cannot be completed within a period of twenty four hours. Section 57 of the Code of Criminal Procedure provides that no police officer Crl.M.C.231/2009 4 shall detain in custody of a person arrested without warrant than under all the circumstances of the case is reasonable and such period shall not in the absence of a special order of the Magistrate under section 167 exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court. Under sub section(2) of Section 167, Magistrate to whom an accused is forwarded, may authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding 15 days in the whole and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary the accused is to be forwarded to a Magistrate having such jurisdiction. Proviso enables the Magistrate to order detention for a period beyond 15 days, but up to 60 days or 90 as the case may be. But as is clear from sub section (2) police custody could be only for a maximum period of 15 days and that too Crl.M.C.231/2009 5 the first fifteen days. Thereafter he could be remanded only to judicial custody. It cannot be police custody. The position has been settled by the Apex Court in C.B.I. Special Investigation Cell-1, New Delhi v. Anupam J. Kulkarni (A.I.R.1992 SC 1768). 5. Petitioners were admittedly arrested long back and were released on bail during investigation. After completing the investigation final report was submitted in 2003. Further investigation was ordered by this court on 15.10.2007. CMP 8142/2008 for police custody was filed only in 2008. Learned Magistrate has refused to grant police custody of the first accused and held that police custody could be given only the second accused. But unfortunately learned Magistrate omitted to take note of the mandatory provision under sub section (2) of Section 167. As the police custody cannot be given after the expiry of the first fifteen days, Annexure III order Crl.M.C.231/2009 6 holding that second petitioner has to surrender and he is to be given to the police custody and the period of police custody could be fixed on his surrender, is illegal and can only be quashed. I find no reason to interfere with the direction to the accused to execute a fresh bond. Accused have originally executed bond when the case was being investigated for committing an offence under sections 323 and 324 read with section 34 of Indian Penal Code. When further investigation was ordered for the offences under section 306 and 307 of Indian Penal Code, learned Magistrate is competent to direct the accused to execute a fresh bond, though for that purpose it is not necessary to cancel the original bond. Petition is allowed. Annexure III order is modified to the extent of providing that accused to appear and execute fresh bond for Rs.50,000/- with two solvent sureties for the like sum to the satisfaction of Judicial First Class Magistrate’s Crl.M.C.231/2009 7 Court, Kottayam. For the purpose of executing a fresh bond, it is not necessary to cancel the original bond. Till execution of the fresh bond, the original bond would subsist. The direction to the second accused to surrender to give him to police custody is set aside. It is made clear that the police can interrogate the accused,though not under police custody. Accused shall co-operate with the investigation. Petition is disposed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006