IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22/11/2004 CORAM THE HONOURABLE MR. JUSTICE A.K. RAJAN Criminal O.P. No.36051 of 2004 His Holiness Sri Jeyendra Saraswathi Swamigal Kanchi Mutt Kancheepuram .. Petitioner -vs- State by: Sub-Inspector of Police Vishnu Kanchi Police Station Kancheepuram. .. Respondent Petition filed under Section 482 Cr.P.C. !For Petitioner .. Mr. I.Subramanian, Sr.Counsel for Mr. Ravi Anantha Padmanabhan ^For Respondent .. Mr. Tulsi, Sr. Counsel for Mr.Muthumani Duraisami, Public Prosecutor :O R D E R The prayer in this petition is to call for the records and quash the Order dated 19.11.2004 passed in Crl.M.P.No.5857 of 2004 in Crime No.914 of 2004 by the learned Judicial Magistrate-I, Kancheepuram. 2. The brief facts of this case are as folows: On 3.9.2004 one Sankararaman, working in 'Arulmigu Devaraja Swamy Thiru Koil', Kancheepuram was murdered at 6.30 p.m. in the templeoffice; two persons came with 'Arruval' and hacked the deceased; they ran away with three others, who were standing nearby; all the five fled in two Yamaha Motor Cycles parked outside the temple; so far thirteen persons have been arrested. The petitioner was arrested on 10.11.2004, produced before the Magistrate on 11.11.2004, and was remanded to judicial custody for fifteen days. Subsequent to that, the Magistrate by Order dated 19.11.2004 granted 'police custody' for three days on the application filed by the Investigating Officer. Since it is an interlocutory order, no revision/appeal could be filed. Therefore, the present petition is filed under Section 482 Cr.P.C. 3. Though in the petition a number of grounds have been raised, Mr. I.Subramanian, learned Senior Counsel appearing for the petitioner, has confined his arguments only to the following two legal aspects: (1) After remanding a person to judicial custody, before the expiry of that period of remand, the Magistrate cannot pass another order contrary to the earlier Order and grant police custody. (2) When the accused seeks the presence of his lawyer during interrogation in police custody, that request cannot be rejected. I. Whether the Magistrate cannot order police custody before the expiry of the judicial custody? (i) The learned Senior Counsel for the petitioner submitted that when the petitioner was enquired by the Magistrate as to his consent to go under police custody, the petitioner has stated that he had no information to furnish. The police custody is granted for the purpose of eliciting information for recovery of any of the Material Objects connected with the crime; that is, only when the accused could impart some information, the police custody could be granted. But, when the petitioner had specifically stated that he had no information to furnish, police custody cannot be ordered. The learned Senior Counsel further contended that only when the initial remand is for any lesser period than the 15 days, police custody could be granted after the initial period of remand was over. If the initial judicial remand was for 15 days, before the completion of that period of remand, the Magistrate has no power to grant police custody; that would amount to revising or changing his own order of granting judicial custody. Therefore, the impugned Order is not legal. In this case, the Magistrate has examined the materials placed before him at the time of remand, applied his mind and only then remanded the petitioner for judicial custody for the maximum period of 15 days. Therefore, before the expiry of that 15 days, the judicial custody cannot be converted as police custody. (ii) The learned Senior Counsel submitted that in GIAN SINGH v.. STATE (DELHI ADMINISTRATION) [1981 Cri LJ 100] a learned single Judge of the Delhi High Court held that once the accused was remanded to judicial custody he could not be sent back again to police custody in connection with or in continuation of the same investigation even though the first period of fifteen days had not exhausted. The Supreme Court in C.B.I. v.. ANUPAM J. KULKARNI [1992 SCC (Cri) 554] had not rejected that view. The ratio decidendi in this case is that after the expiry of 15 days of remand, police custody cannot be granted. Therefore, this decision of the learned single Judge of the Delhi High Court that the accused once remand to judicial custody cannot be sent back to police custody, has not been over ruled by the Supreme Court. Section 167 Cr.P.C. authorises detention of accused in such custody "from time to time"; that means only after the expiry of the period of remand, another order can be passed for custody. Before the expiry of an order, another order granting a different custody cannot be granted. (iii) Mr. Tulsi, learned Senior Counsel, on behalf of the Public Prosecutor, submitted that the Supreme Court has decided the question of law categorically in ANUPAM J. KULKARNI's case (supra). In that case, dispute with respect to grant of police custody after the accused was remanded to judicial custody has been resolved. A learned single Judge of the Delhi High Court has held in GIAN SINGH's case ( supra) that before the expiry of the initial remand of judicial custody for 15 days police custody cannot be granted. But, a Division Bench of the same High Court in STATE v.. DHARAM PAL [1982 Cri LJ 1103] over ruled the learned single Judge's judgment and held that the words "from time to time" occurring in the section showed that several orders could be passed under Section 167(2) Cr.P.C. and that the nature of the custody could be altered from 'judicial custody' to 'police custody' and vice-versa during the first period of fifteen days; this was settled by the Supreme Court; the Senior Counsel referred to para-13 of the judgment, which is as follows: "The Judicial Magistrate can in the first instance authorise the detention of the accused in such custody i.e. either police or judicial from time to time but the total period of detention cannot exceed fifteen days in the whole. Within this period of fifteen days there can be more than one order changing the nature of such custody either from police to judicial or vice-versa......... After the expiry of the first period of fifteen 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." Referring to this, he submitted that the Supreme Court has clearly held that within first 15 days there could be more than one order changing the nature of the custody from police to judicial or viceversa. Granting police custody before the expiry of judicial remand for 15 days is not violative of the procedure prescribed under the Code of Criminal Procedure. Therefore, grant of police custody by the Magistrate in this case is not illegal. (iv) The learned Senior Counsel Mr.I.Subramanian questioned only the power of the Magistrate to grant police custody after initially remanding a person to judicial custody for 15 days. The learned Senior Counsel does not question the power of the Magistrate to grant judicial custody. The only contention is that such a police custody can be given only when there is no judicial custody during the same period, i.e., if the Magistrate had remanded the accused to produced before him for a shorter period than 15 days viz., 5 or 6 days and when such person is produced before the Magistrate for extension of remand, he can order police custody. The main contention is, if that is not done so, an accused who had already been remanded for judicial custody for 15 days, subsequently, before expiry of that initial remand period cannot be ordered for police custody. If such police custody is granted and during the same period when the accused is already in judicial custody is also given police custody. Therefore, there is contrary or conflicting orders relating to the nature of the custody. The person cannot be both in judicial custody as well as in police custody during the same period. Therefore, the impugned order granting police custody is contrary to law and hence illegal and hence liable to be quashed. As stated already, in Anupam Kulkarni'S case, the Supreme Court has laid down that the nature of custody can be modified from judicial to police or vice versa. Therefore, the contention of Mr.I. Subramaniam, learned Senior Counsel is not acceptable. Further, the granting of police custody is an interlocutory order as held by the Supreme Court in Joy Immaculate Case. The learned Senior Counsel also admit that remanding a person to judicial custody is also an interlocutary order. Inasmuch as remanding a person in an interelocutory order that can be modified at any point of time before it expires by the same Magistrate or by any other jurisdictional Magistrate. Therefore, grant of police custody when the accused has already be remanded to judicial custody for 15 days is not violative of any provisions of the Code of Criminal Procedure. Therefore, the order granting police custody in the present case is not violative of the procedures contemplated under Cr.P.C and hence it is not illegal. II. Whether the accused is entitled to have his lawyer during interrogation in police custody? (i) The learned Senior Counsel for the petitioner next contended when that the accused seeks the presence of his lawyer during interrogation in police custody, it cannot be rejected. In support of his argument he placed reliance on the judgment of the Supreme Court in NANDINI SATPATHY v.. DANI [AIR 1978 SC 1025]. He referred to various paragraphs in the judgment. The Supreme Court in this case in para 54 has held - " A police officer is clearly a person in authority. Insistence on answering is a form of pressure especially in the atmosphere of the police station unless certain safeguards erasing duress are adhered to." In para 55, the Supreme Court held - " He/accused is entitled to keep his mouth shut if the answer sought has a reasonable prospect of exposing him to guilt in some other accusation actual or imminent, eventhough the investigation underway is not with reference to that." In para 59 it is held - " Lawyer's presence is a constitutional claim in some circumstances in our country also, and, in the context of Art.20(3), is an assurance of awareness and observance of the right to silence. The Miranda decision (1966) 384 US 436) has insisted that if an accused person asks for lawyer's assistance, at the stage of interrogation, it shall be granted before commencing or continuing with the questioning. We think that Art.20(3) and Art.22(1) may, in a way, be telescoped by making it prudent for the Police to permit the advocate of the accused, if there be one, to be present at the time he is examined. Overreaching Art.20(3) and section 161(2) will be obviated by this requirement. We do not lay down that the Police must secure the services of a lawyer. That will lead to 'police-station-lawyer' system, an abuse which breeds other vices. But all that we mean is that if an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied, without being exposed to the serious reproof that involuntary self-crimination secured in secrecy and by coercing the will, was the project." Relying upon the above passages, the learned Senior Counsel for the petitioner submitted that when the accused expresses the wish to have his lawyer by his side when his examination goes on, that facility shall not be denied. In this case, the petitioner had, in fact, wanted to have the presence of his advocate during interrogation in the police custody; but, that has been denied to the petitioner. Therefore, it amounts to the violation of the fundament right of the petitioner guaranteed under Art.20(3) r/w.22(1) of the Constitution. In not granting the prayer to have the counsel along with him during investigation violates the Constitutional mandate guaranteed under Arts.20(3) and 22(1) of the Constitution. Since the request to have the counsel during interrogation is refused, the grant of police custody (the impugned order herein) is illegal and hence the Order has to be quashed. (ii) Mr. Tulsi, learned Senior Counsel, submitted that the Nandini Satpathy's case (supra) relied upon by the counsel for the petitioner was not followed in any other case. The Supreme Court in D.K.BASU v.. STATE OF W.B., reported in [1997 SCC (Cri) 92], in para 31 has held as follows: " There is one other aspect also which needs our consideration. We are conscious of the fact that the police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of underworld and armed gangs and criminals. Many hardcore criminals like extremists, terrorists, drug peddlers, smugglers who have organised gangs, have taken strong roots in the society. It is being said in certain quarters that with more and more liberalisation and enforcement of fundamental rights, it would lead to difficulties in the detection of crimes committed by such categories of hardened criminals by soft peddling interrogation. It is felt in those quarters that if we lay too much of emphasis on protection of their fundamental rights and human rights, such criminals may go scot-free without exposing any element or iota of criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer." In para 35, the Supreme Court has issued the directions to be followed in the case of arrest and detention. In that 10th direction is as follows: " The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation." This judgment is the latest on the point and in this case the Supreme Court has referred to number of its earlier judgments and has laid down the said principles. As per this judgment, the only safeguard that is to be given to an arrested person in police custody is permission to consult the lawyer during the interrogation. Therefore it is sufficient if the Magistrate has permitted the petitioner to consult his lawyer during the interrogation. The Magistrate did follow the direction in this case. The Magistrate has permitted the petitioner to consult his lawyer between 6.00 p.m. and 7.00 p.m. everyday. Therefore there is no violation of any of the constitutional guarantees. (iii) Mr. I.Subramanian, learned Senior Counsel, contended that in D.K.BASU's case, NANDINI SATPATHY's case has not been referred at all. Therefore, NANDINI SATPATHY's case is still binding on the Courts and therefore the petitioner is entitled for the presence of the lawyer throughout the interrogation by the police, and in the denial of that right the Constitutional mandate has been violated. (iv) Mr. Tulsi, learned Senior Counsel, replied that when the Supreme Court laid down a proposition of law, referring to various earlier decisions, it cannot be contended that the Supreme Court did not know or was not aware of some other decisions not referred therein. That is, inspite of NANDINI SATPATHY decision, the Supreme Court has laid down the guide lines in D.K.BASU's case as stated above. Therefore, the right to have the lawyer throughout interrogation is not a constitutional right. He also referred to the judgment in STATE v.. ANIL SHARMA [(1997) 7 SCC 187], where in para 6, the Supreme Court has held as follows: " We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful information and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders." He next referred to JOY IMMACULATE's case, where the Supreme Court has held that while considering the Order passed by the Magistrate granting police custody of the accused, the scope of the High Court will be limited only to the question whether the Order granting police remand was legally correct or not, having regard to the material placed before the Magistrate. The Supreme Court has observed that - ".... the Court should not lose sight of the fact that the person who has been accused by the prosecution for having entered into a conspiracy to commit murder, can go to any extent in making wild allegations against the police authorities concerned". It further held that - " It is for the trial Court to weigh the evidence adduced by the prosecution and then record a finding on its basis whether the investigation has been fair or not......" Referring to this judgment, Mr. Tulsi, learned Senior Counsel, submitted that the apprehension that the petitioner could be ill-treated, and statement could be obtained by illegal means, is baseless. The Court has to presume that responsible Officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. Therefore, the presence of lawyer through-out the interrogation need not be ordered and refusing to grant such permission is not illegal. (v) The contention of the learned Senior Counsel, Mr.I.Subramanian is that when the accused is ordered police custody, there is a likelihood of his being compelled to give statement which may incriminatory and the recording of statement. Therefore, compelling an accused to give statement amounts to testimonial compulsion. This violates the constitutional mandate under Article 20(3) and Article 22(1). Such testimonial compulsion amounts to violation of above provisions of the Constitution. Further the petitioner herein requested the Magistrate to permit him to have his lawyer during the entire interrogation when he is in police custody. But that was not granted; this amounts to violation of the Constitutional mandate under Article 20(3) and 2 2(1). In support of his contention, the learned Senior counsel relied upon the Judgment of the Supreme Court in Nandini Satpathy's case. He relied upon the passage in Paragraph-59 and contended that, if the accused person expresses the wish to have his lawyer by his side when his examination goes on, that facility "shall not be denied". The learned counsel contended that when there is a specific plea for permission to have a lawyer of his choice, the rejection of that plea amounts to violation of the constitutional mandate and therefore the order of granting police custody is illegal and hence the order shall be quashed. It is to be noted that the learned Senior Counsel relies only upon the portion of the sentence. The full sentence is as follows: "But all that we mean is that if an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied, without being exposed to the serious reproof that involuntary self-crimination secured in secrecy and by coercing the will, was the project." The sentence has to be read in full. There is no full stop after the phrase "this facility shall not be denied". The Supreme Court in this passage has said that when such a request is made, "it shall not be denied without being exposed to the serious reproof that involuntary self-crimination secured in secrecy by coercing the will, was the project." i.e., when such a request is rejected, the statement recorded by the police would be "exposed to serious reproof" that it was involuntary self-crimination. The Supreme Court has not held in this case when such a request is made, it is obligatory on the part of the Magistrate not to deny that request. It only cautions when such a request is not granted, any statement recorded would be exposed to serious reproof that such statement was not recorded under compulsion and that it was not involuntary. In the very same Judgment, it is also stated "however, fanciful claims, unreasonable apprehensions and vague possibilities cannot be the hiding ground for an accused person. He is bound to answer where there is no clear tendency to criminate." Therefore, it is not the decision of the Supreme Court that when an accused person is remanded to police custody and when he wanted to have a lawyer during interrogation by the police such a request shall be complied with. (vi) Further Article 20(3) and 22(1) does not extend to have a lawyer during the entire interrogation by the police. Nandini Satpathy' s case is the decision by three Judges Bench. It is to be noted as early as 1961 in the case of State of Bombay Vs. Kathi Kalu Oghad ( AIR 1961 SC 1808), the 11 Judges Bench of the Supreme Court has considered the scope of Article 20(3) and held as follows: "An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in Police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement. The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, it is not compulsion." The Supreme Court in Nandini satpathy's case had only followed the earlier decisions and it has only stated that when such a request is not complied with, it is open to serious reproof as stated above. Therefore, there is no violation of the constitutional mandate when the accused was not permitted to have a lawyer during the entire interrogation. On the other hand, the Supreme Court in D.K.Basu's Case has held that the accused should be permitted to consult his lawyer during the interrogation that has been provided in the impugned order. Therefore, there is no violation of any of the provisions of Cr.P.C or the constitutional mandate under Article 20(3) and 22(1). Therefore, the impugned order is not illegal; and hence not liable to be quashed. III. Whether the petition is maintainable u/s 482 Cr.P.C: The learned Senior Counsel for the petitioner Mr.I.Subramanian submitted that since the order of police custody is an interlocutory order and hence no appeal or revision could be filed; and the only remedy is to file the petition u/s.482 Cr.P.C and hence the petition is maintainable. This argument is acceptable since there is no appeal or revision against the impugned order, the petition under Section 482 Cr.P.C is maintainable. IV. Whether the proceedings under Sec.482 Cr.P.C. can be used to stifle the investigation? (i) Mr. Tulsi, learned Senior Counsel referred to the judgment of the Supreme Court in UNION OF INDIA v.. PRAKASH P.HINDUJA [2003 SCC (Cri) 1314]. In that case, the Supreme Court has restated the grounds for quashing any criminal