IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 Crl.MC.No. 4520 of 2008 --------------------------------------- CRMP.9989/2008 of CHIEF JUDL.MAGISTRATE, ERNAKULAM CRIME NO.RC8(S)/93/SPE/KER/CBI .................... PETITIONER/ACCUSED: -------------------------------------- FR.JOSE POOTHRIKKAYIL, AGED 55, S/O.LATE KORAH, S.H.MOUNT MONASTRY, S.H.MOUNT.P.O., KOTTAYAM-6 BY ADV. SRI.C.P.UDAYABHANU RESPONDENT/COMPLAINANT: ------------------------------------------------- UNION OF INDIA REPRESENTED BY THE PUBLIC PROSECUTOR, CBI, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/11/2008 ALONG WITH CRMC NO.4530 OF 2008 CRMC NO. 4535 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.Nos. 4520, 4530 & 4535 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of November, 2008 O R D E R The cursade for justice to deceased Sr. Abhaya still remains only a cry in the wilderness. No organised prayers, fasting or agitation have been devoted to the cause of identifying her detractors. But it is a tribute to the civil society of Kerala that even after 16 long years, despite all the odds, the fight for justice to her is not given up yet. Whether written in Deva Nagari script at the appropriate spot or not, the Indian Constitutional Republic believes and has faith in the eternal principle or axiom ( or is it only a fiction to motivate the righteous) that truth shall ultimately triumph - Satyameva Jayathe. Invoking that sublime axiom, let me address myself to the issues. 2. A synoptic resume of the events may be relevant. The dead body of Sr.Abhaya, a young lass in her late teens,a nun was found in a well in the compound of the Convent where she was Crl.M.C.Nos. 4520, 4530 & 4535 of 2008 2 an inmate. This was on 27.3.1992. Hurriedly initial investigation appears to have been done by the local police. Investigation was handed over to the CBCID. Later it was handed over to the C.B.I. All three initially came to the conclusion that it was a case of suicide. The Chief Judicial Magistrates before whom such reports were filed, with fortitude refused to accept such reports. Further investigation was directed. The C.B.I. continued the investigation. They appear to have come to the conclusion that it was undoubtedly a case of homicide. Report to that effect was filed. It was received by the Magistrate. Still, surprisingly, the caption of the crime registered continued to be one of 'unnatural death'. The section of offence was not altered to Section 302 I.P.C. Investigation by the C.B.I. continued. Repeatedly reports were filed that though a case of homicide, the offenders in this case were not traceable. The Magistrates refused to relent. The matter came up before this Court. 3. To cut a long story short, ultimately as per directions of this Court on 1.11.2008 the Kochi Unit of C.B.I. started investigation. The present Investigators, one who the C.B.I. claimed has impeccable Crl.M.C.Nos. 4520, 4530 & 4535 of 2008 3 history as a professionally competent investigator took over the investigation on 1.11.2008. Immediate results appear to have been struck. On 19.11.2008 the three accused persons (accused 1 to 3), the petitioners herein, were produced before the learned C.J.M. Accused 1 and 2 were arrested on 18.11.2008 and accused 3 was arrested on 19.11.2008. They were produced before the learned C.J.M. Along with four important documents. They are: 1) The inclusion report to include the offence under Section 302 I.P.C., which as I indicated earlier, surprisingly was not filed at any earlier point of time. The said inclusion report further shows that the Investigator has identified accused 1 to 3 to be involved in the offence of murder of Sr.Abhaya. 2) A remand report, which is expected to be filed under Section 167(1) Cr.P.C. 3) A petition seeking police custody and 4) An affidavit seeking police custody for a period of 14 days to facilitate continuance of interrogation. This was filed to comply with the mandate of Rule 20 of the Kerala Criminal Rules of Practice. Crl.M.C.Nos. 4520, 4530 & 4535 of 2008 4 4. The learned C.J.M. appears to have perused those documents. The learned Magistrate by the impugned common order directed that all the three accused be handed over to the custody of the C.B.I. for the purpose of further investigation for a period of 14 days. It is that order which is assailed before me primarily. 5. I have heard the counsel for all the three accused and the learned Standing Counsel for the C.B.I. The father of the deceased Sr.Abhaya wanted to be heard and I have allowed his counsel to assist the court by making his submissions. 6. Four grounds have been taken by the petitioners/accused to assail the impugned order. They are: 1) The Investigating Officer had no reasonable or justifiable ground to arrest the accused. 2) There has been gross inadequacy in the report under Section 167(1) Cr.P.C. in that the mandate of the section that the extracts of the case diary must be produced has not been complied with. 3) There is gross violation of Rule 20 of the Rules of Practice in as much as the affidavit filed is wide, sweeping, general and non- specific. Crl.M.C.Nos. 4520, 4530 & 4535 of 2008 5 4) The order passed by the learned C.J.M. does not satisfy the requirements of Section 167(3) Cr.P.C. in that it does not speak adequately. 7. It will be apposite in this context to straight away refer to the relevant provisions of the Constitution of India, Code of Criminal Procedure and the Kerala Criminal Rules of Practice. 8. Article 21 of the Constitution, which recites the Mantra of right to life and personal liberty, reads as follows: “21. Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.” (emphasis supplied) 9. We then have Article 22, which I extract below: 22. Protection against arrest and detention in certain cases: (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (emphasis supplied) Crl.M.C.Nos. 4520, 4530 & 4535 of 2008 6 10. Then comes Section 167 Cr.P.C. of which I feel that Section 167(1), (3) and (4), which I extract below are of crucial relevance. “167. Procedure when investigation cannot be completed in twenty-four hours - (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. xx xx xx xx xx (3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing. (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.” (emphasis supplied). Crl.M.C.Nos. 4520, 4530 & 4535 of 2008 7 11. It is contended that the mandatory requirements in these provisions have not been complied with. I now take note of the relevant statements appearing in the four documents referred above. We find identical statements to the following effect “ that the investigation revealed scientifically that Fr. Thomas Kottoor, Fr. Jose Poothrikka and Sr.Sefy are involved in the murder of Sr.Abhaya. The oral evidence also corroborate the same.” “ That these three accused are highly influential and can exert undue influence on the witnesses, that there are more incriminating evidence against these three accused, the involvement of the other accused in the reconstruction of the scene of the crime and for recovery of the weapon, the custodial interrogation of the accused is required.” 12. I must consider whether in the light of the above statements, it can be said that there is compliance with the mandate of law, which I have already extracted above. 13. Power of arrest is a very important and serious power which is given to an Investigating Officer. I have adverted to these aspects earlier in the decision in Jyothish v. State of Kerala (2007 (3) KLT Crl.M.C.Nos. 4520, 4530 & 4535 of 2008 8 176). It may not be necessary for me to deal with the matter afresh. Suffice it to say that it has been observed thus in paragraphs 39 to 42 of the said decision: “39. A police officer is competent to investigate into a cognizable offence under Chapter XXII of the Cr.P.C. and S.157 of the Cr.P.C. clearly shows that the police officer shall proceed to the spot to investigate the facts and circumstances “and if necessary, to take measures for the discovery and arrest of the offender”. 40. The jurisdiction to arrest the offender is an important right/power in the hands of the police officer under S.157 Cr.P.C. It is important to note that the law does not mandate that such arrest must take place in every case. All that S.157 of the Cr.P.C. stipulates is that the police official investigating into the offence may arrest the offender, “if necessary”. A vital discretion is vested in the police official. He can arrest, but he may or may not arrest. Only if necessary the arrest has to be effected. To examine an accused person and to ascertain details from him, it is not always necessary to arrest the accused. The powers under S.160 of the Cr.P.C. extends to the power to require attendance of the accused also. Merely because the police officer has the power to arrest an accused, he need not be arrested. This is evident again from S.173(2) of the Crl.M.C.Nos. 4520, 4530 & 4535 of 2008 9 Cr.P.C. which states that the final report must show whether the accused has been arrested (S.173 (2)(i)(e)). If he has not been arrested, that fact can be reported to the learned Magistrate in the final report. 41. It is true that it is normally assumed that in every cognizable offence if the accused is available, arrest must be effected and in every non-bailable offence unless the accused is released under S.437 of the Cr.P.C. by the police officer, he must be produced before the Magistrate concerned. This prevalent impression is not strictly justified by the language of Ss. 157, 160 and 173 of the Cr.P.C. Arrest need be made only if necessary. The accused can be examined even without arrest by invoking the powers under S.160 of the Cr.P.C. available to a police officer. If the arrest has not been effected, that fact is to be reported to the Magistrate under S.173(2) of the Cr.P.C. A ritualistic arrest is not contemplated in S.157 of the Cr.P.C. 42. It follows therefore that a police officer has to alertly consider in every case whether it is necessary to effect arrest. An arrest entails traumatic consequences. The polity dreads arrest by a police officer. The prospect is frightening. There must therefore be a proportionately onerous and sublime responsibility on the police officer to consider whether such arrest is necessary. Only if necessary, such arrest ought to be effected If not necessary, Crl.M.C.Nos. 4520, 4530 & 4535 of 2008 10 an accused person should not be subjected to such trauma. While exercising such discretion, mind has to be applied to the question. All relevant inputs must go into the discerning mind before exercising that discretion. The reason for exercising that discretion in favour of arrest must certainly be adverted to. Nay, I would even insist that the reasons for exercise of such discretion must be recorded in the case diary by the police official concerned. A police officer who is a functionary invested with discretionay powers on such a vital aspect under the Code cannot lightly exercise the power of arrest. He must satisfy himself by adverting to all necessary inputs that it is necessary to effect arrest. I would also observe that a proper exercise of such discretion in favour of arrest must be preceded by recording of the reasons for such arrest in the Case Diary also. The Case Diary in every case must show that this sublime discretion was exercised by the police official after adverting to the circumstances and only thereafter on the basis of valid reasons the power of arrest was invoked and exercised against an accused person. A system which values and cherishes the right to freedom and liberty zealously must insist on such informed exercise of discretion by the Police Officer before he effects the arrest.” (emphasis supplied). Crl.M.C.Nos. 4520, 4530 & 4535 of 2008 11 14. Has the Investigating Officer in this case complied with the above directions? I do not find any noting in detail in the case diary as to whether the question whether arrest should be effected or not has been considered in such detail. No such recording of reasons had preceded the arrest. Of course, general reasons are seen recorded. The Investigating Officer before his arrest does not appear to have zealously considered whether the option to arrest must be exercised or not by a reasoned order as insisted in Jyothish (supra). But he has definitely recorded his conclusion that arrest has to be effected and he had proceeded to arrest the three accused. 15. The next question is whether the mandate of Section 167 of the Cr.P.C. has been complied with. Under Section 167(1) Cr.P.C. it is not necessary to produce the entire case diary, including the statements of witnesses. The obligation under section 167(1) is not to produce the entire case diary file, not even the diary entries under Sec.172 Cr.P.C. but only the extracts of the diary entries. I have gone through all the four documents filed by the Investigating Officer when the accused were produced before the court. There is nothing to indicate that the extract of the diaries was produced. At least there is Crl.M.C.Nos. 4520, 4530 & 4535 of 2008 12 no specific statement in any of these four documents that such extracts have been produced. The remand report does not give the details of what materials have been collected against each of the accused persons to justify an inference or conclusion that they are involved in the commission of the offence of murder against the deceased. It appears to be very clear to me that the mandate of Sec.167(1) has not been specifically complied with. Every Investigating Officer in the remand report must furnish sufficient information to the court of the grounds on which the arrest is effected and the grounds on which further detention - whether in the police custody or judicial custody – is sought. The two passages which are extracted above do not in detail convey to the Magistrate the reasons on which the arrest is effected and remand is sought. I have no hesitation to agree with the learned counsel for the petitioners that the mandate of Section 167(1) Cr.P.C. in its soul and spirit has not been complied with. 16. We then come to Section 167(3) Cr.P.C. The learned Magistrate in the impugned common order has come to the conclusion that the accused deserve to be remanded to custody and that police Crl.M.C.Nos. 4520, 4530 & 4535 of 2008 13 custody for 14 days deserve to be granted. The crucial and relevant findings appear in paragraph 9, which I extract below: “9. On considering the arguments from both sides and the special circumstances of the case, I am of opinion that a sustained interrogation of the accused in isolation is warranted to collect the more facts from the accused. So, the request for presence of the lawyer of the accused during the time of interrogation of the accused in police custody could not be allowed. Further I find that there is sufficient justification for granting police custody of the accused for 14 days. It is a case in which different Investigating Agencies had conducted investigation for 16 years and destroyed or spoiled many materials to find out murderer of Sister Abhaya. So, police custody of 14 days is just and reasonable. If the Special Investigation Team is directed to file report once in every three days, that will be an interference into the free hand of investigation. So, the objection and demands made from the side of defence are rejected.” 17. Does this comply with the mandate of S.167(3) Cr.P.C., which obliges the Magistrate to pass an order which speaks and gives reasons? This is the next question to be considered. I note that the Crl.M.C.Nos. 4520, 4530 & 4535 of 2008 14 learned Magistrate has also not specifically adverted in the order as to how and in what manner each one of the accused person can be said to be involved in the commission of the offence of murder of Sr. Abhaya. Broad and general statements are there, but specifically the grounds of arrest of accused 1 to 3 vis-a-vis the materials against them have not been adverted to in the impugned common order passed under Sec.167 (3) Cr.P.C. 18. I have adverted to Section 167(4). It only says that when subordinate magistrates pass an order under Section 167(3), the order must be forwarded to the Chief Judicial Magistrate. Considering the higher pedestal which the Chief Judicial Magistrate occupies in the hierarchy it is not stipulated that the learned Chief Judicial Magistrate must forward the order to any superior court. The system appears to place trust and faith in the high office of the Chief Judicial Magistrate to pass a proper order under Section 167(3) Cr.P.C. 19. I shall now come to the alleged non-compliance of the mandate of Rule 20, which I extract below: Crl.M.C.Nos. 4520, 4530 & 4535 of 2008 15 “20. Remand to police custody. - (1) Magistrates shall not grant remands to police custody unless they are satisfied that there is good ground for doing so and shall not accept a general statement made by the investigating or other police officer to the effect that the accused may be able to give further information. A request for remand to police custody shall be accompanied by an affidavit setting out briefly the prior history of the investigation and the likelihood of further clues which the police expect to derive by having the accused in custody, sworn to by the investigating or other police officer, not below the rank of a Sub-Inspector of Police. Magistrates shall personally see and satisfy themselves about the accused being sound in mind and body before entrusting him to police custody and also at the end of the period of custody by questioning him whether he had in any way been interfered with during the period of custody. Where the object of a remand is verification of the statement of an accused, he shall, whenever possible, be remanded to the charge of a Magistrate and the period of remand shall be as short as possible.” (emphasis supplied) 20. The petition and the affidavit perhaps suffer from the same inadequacy which has been eloquently pro-scribed in Rule 20(1) when Crl.M.C.Nos. 4520, 4530 & 4535 of 2008 16 it stated that the court “shall not accept a general statement made by the Investigating Officer or other police officer” . Specific statements have not been given. 21. So reckoned, I find no difficulty in coming to the conclusion that the directions in Jyothish and the mandates of Section 167(1), 167(3) and Rule 20 have not been specifically complied with. 22. But the controversy cannot end with that finding. The effect of non-compliance with such mandates has to be considered. The relevant statutory provisions employ the expression “shall”. But it is by now trite that the mere use of the mandatory expression “shall” cannot by itself lead the court to the conclusion that everything done in derogation of such mandate is non-est and void. The purpose of the statutory provisions, its broad scheme and destination which are to be reached and achieved, etc. will have to be considered by a court when it adverts to the question whether a particular rule is mandatory or not. Every rule is mandatory in the sense that it is expected to be complied with. But that is far from saying that every violation of such a rule would entail invalidation of the action taken. Counsel were requested to research and enlighten this court on the consequences of violation of Crl.M.C.Nos. 4520, 4530 & 4535 of 2008 17 such provisions. Precedents have been placed before me. Reliance has been placed by the counsel for the petitioners on the decisions in Bir Bhadra Pratap Singh v. D.M. Azamgarh (AIR 1959 Allahabad 384) and R.K. Nabachandra Singh v. Manipur Administration (AIR 1964 Manipur 39). The Standing counsel for the C.B.I. and the counsel for the father of the deceased have also placed reliance on certain precedents. 23. There appears to be controversy about the purpose of such mandate in section 167(1) that the copies of the entries shall be made available to the Magistrate. The counsel for the accused contend that the purpose of that provision is to enable the accused to formulate and modulate their defence. I am afraid, I cannot agree. 24. The obligation under Section 167(1) Cr.P.C. to furnish copies of entries is certainly, according to me, not to give the accused an opportunity to modulate and formulate his defence. The purpose is very clear and certain. A person is to be deprived of his liberty only in accordance with the procedure established by law as per Article 21. Even before he is found guilty, notwithstanding the presumption of innocence, the court is given the power to deprive a person of his Crl.M.C.Nos. 4520, 4530 & 4535 of 2008 18 liberty. Strong reasons must be shown. Such powers cannot be resorted to as a matter of course. It is incumbent on the Investigating Officer to satisfy himself first as stated in Jyothish (supra) that an arrest has to be made. It is incumbent on him to satisfy the judicial authority – the judicial Magistrate – that he has valid and just reason for arresting a person and depriving him of his personal liberty. He has the duty to apprise the court of the circumstances which must prompt the court to resort to the unpleasant assignment of denying a person liberty even when the allegation against him is not proved to the hilt. I reckon that the clear and unambiguous mandate of Section 167(1) Cr.P.C. is that a person shall not deprived of his personal liberty unless there be satisfactory reasons. A compromise between the high ideals of personal liberty and the compelling needs of a proper investigation to collect materials in the interests of the State and the polity at large is reflected in S.167(1) Cr.P.C. Therefore, according to me, it is idle to contend that the accused have been deprived of an opportunity to modulate their defence. 25. I must also note that every error committed by an Investigating Officer or Magistrate cannot persuade this court to Crl.M.C.Nos. 4520, 4530 & 4535 of 2008 19 invalidate the action taken. Rule of law is not