1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 29.09.2011 CORAM: THE HONOURABLE MR.JUSTICE M.M.SUNDRESH Crl.O.P.(MD).No. 12758 of 2011 R.Venugopal ... Petitioner Vs. P.Thirumagan ... Respondent PRAYER: Petition filed under Section 482 of the Code of Criminal Procedure, to call for records in Cr.M.P. No. 4641 of 2011 on the file of the Judicial Magistrate, Thirumangalam and to set aside the order in CR.M.P. No. 4641 of 2011 dated 20.9.2011 and permit the petitioner/Investigation Officer to take the custody of the accused for 5 days for custodial interrogation and pass such further or other orders as this Court may deem fit and proper in the circumstances of the case. For Petitioner : Mr.R.Ramachandran Additional Public Prosecutor For Respondent : Mr.K.Veluchamy O R D E R This petition has been filed by the petitioner, who is Investigation Officer challenging the order passed in Crl.M.P.No. 4641 of 2011 dated 20.9.2011 on the file of the learned Judicial Magistrate, Thirumangalam whereby, the application filed under Section 167(3) of Cr.P.C. seeking police custody of the accused namely, the respondent herein for a period of five days was rejected. 2. An affidavit has been filed under Section 167(2) along with an application under Section 167(3) of Cr.P.C. by the petitioner who is the Investigation Officer stating that the respondent will have to be enquired by further taking into consideration of the confession statement given by the three co-accused and in pursuant to the investigation done the same is required. Therefore, it has been stated that in order to get further information and to investigate the matter thoroughly the custody of the accused is required. The said application was rejected by the court below on the ground that it is bereft of any particulars and in the absence of any sufficient and substantial reasons for requiring police custody, the application is liable to be rejected and accordingly, the same has been rejected. Challenging the same, the present petition has been filed. https://hcservices.ecourts.gov.in/hcservices/ 2 3. The learned counsel for the petitioner submitted that the case has been registered showing unnamed accused and the investigation reveals that the respondent who is A1 and at his instance the other accused committed the offence. In pursuant to the investigation done and taking note of the confession statement given by the other accused, the respondent has to be enquired further. Therefore, the learned counsel for the petitioner submitted that at least one day will have to be granted. 4. Per contra, the learned counsel for the respondent submitted that the power under Section 167(3) cannot be exercised for mere asking. The petitioner will have to make out the case to the satisfaction of the learned Judicial Magistrate. The learned Judicial Magistrate has correctly come to the conclusion that the custody is not required as no sufficient reasons has been assigned. The learned counsel also submitted that the recovery made from the respondent over the vehicle which was alleged to have been involved in the occurrence has not been mentioned in the petition filed. The learned counsel has also submitted that considering the fact that the power has already been exercised under Section 167(2) by the Judicial Magistrate, the application deserved to be dismissed. 5. A further submission has been made on the ground that in as much as the Rule 76 of the Criminal Rules of Practise and Circular 1956 having been followed, the application as dismissed by the court below will have to be confirmed. In support of his contention, the learned counsel has made reliance upon the judgment of the Division Bench of this Court reported in 2007-2-L.W.(Crl.) 1010 in State by Deputy Superintendent of Police, 'Q' Branch CID, Dharmapuri Vs. Sundaramoorthy. 6. The facts of the case would reveal that the complaint has been registered in Crime No. 95 of 2011 for the alleged offence under Section 302 of IPC against unnamed accused. In the petition filed it has been stated that further custody of the respondent is required in view of the confession statement made by the other accused also in pursuant to the investigation made. 7. Investigation made would reveal that at the instance of the respondent, the alleged occurrence has been committed by other three accused. Therefore, in order to get some more information from the respondent, the custody is required. 8. The above said facts would indicate that sufficient materials have been placed for seeking custody. It is no doubt true that for seeking custody, the court will have to look into the statement made and satisfy itself. The custody cannot be granted for the mere asking. The court concerned will have to look into the attending circumstances in which the application has been filed. Admittedly, in the present case on hand, the respondent has been arrayed as an accused. In the judgment of the Hon'ble Division Bench, it is seen that an vague averments have been made. The said averments have been made based on the apprehension of the investigation agency https://hcservices.ecourts.gov.in/hcservices/ 3 that the respondent is knowing the three absconding accused. The reason assigned therein was that the respondent might have known the hidden places of the accused. Therefore, considering the said averments, the Hon'ble Division Bench was of the view that the said averments did not constitute sufficient materials to sustain a petition for police custody. The facts on hand would clearly demonstrate that the petitioner herein has made out a case for the police custody. The learned counsel's placing reliance on Section 167 (1)(2) also cannot be countenanced. The power under Section 167(3) is independent from the power under Sections 167(1) and 167(2). It is one thing to say that while exercising the power, the learned Judicial Magistrate concerned will have to consider the relevant materials and satisfy himself but it cannot said merely because the power under Section 167(1) and (2) has been exercised and therefore, the application under Section 167(3) is not maintainable. 9. In the light of the above, this Court is of the view that the petitioner will have to be in the custody of the respondent for one day. Accordingly, this petition is allowed granting custody of the respondent for one day. It is made clear that the petitioner will have to comply with the instructions given in the petition while the respondent is under his custody. 10. The learned counsel for the respondent would submit that a specific day will have to be given for the custody of the respondent. Considering the said request, the petitioner is directed to take custody of the respondent on 3.10.2011 between 1030 am to 5.30 p.m. Sd/- Assistant Registrar (A.E) /True Copy/ Sub Assistant Registrar To 1. The Judicial Magistrate, Thirumangalam. 2. The Additional Public Prosecutor, Madurai Bench of Madras High Court,Madurai. +1 CC to Mr.K.Veluchamy, Advocate (SR.No.34143) Crl.O.P.(MD).No.12758 of 2011 29.09.2011 ses NSV/29.9.11/3P/4C https://hcservices.ecourts.gov.in/hcservices/