1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 29.07.2011 Coram THE HON'BLE MS.JUSTICE R.MALA Crl.O.P.(MD)No.9215 of 2011 The Inspector of Police, Central Crime Branch, Madurai. ... Petitioner/Investigating Officer Vs. 1.Maari @ Marimuthu 2.Thiruselvam 3.A.Melathoppu 4.Pandi @ Attack Pandi ... Respondents/Accused Prayer: Petition filed under Section 482 of Cr.P.C, to call for the records in Cr.M.P.No.6501 of 2011 on the file of the Judicial Magistrate No.I, Madurai and to set aside the order in Cr.M.P.No.6501 of 2011 dated 19.07.2011 and permit the petitioner/Investigating Officer to take the custody of the accused persons for 7 days for custodial interrogation. For Petitioner : Mr.I.Subramanian Senior Counsel Public Prosecutor For respondents : Mr.K.Jegannathan ORDER This petition has been filed under Section 482 of Cr.P.C challenging the order passed by the Judicial Magistrate No.I, Madurai in Cr.M.P.No.6501 of 2001 dated 19.07.2011 by negativating the police custody of the respondents herein who were arrayed as A-2, A-3 and A-5. 2.The learned Public Prosecutor would submit that the properties are originally belonged to the de facto complainant's husband Mr.Eswarlal. He executed an usufructory mortgage in favour of the first accused viz., R.K.Balan for a sum of Rs.2,75,000/-. The adjacent property has been also mortgaged in favour of one Nageswaran and his son Vickram for a sum of Rs.2,75,000/-. That Eswarlal died in the year 2005. During 2011, the defacto complainant and his son discharged the usufructory mortgages executed by her husband in favour of the first accused as well as Nageswaran and his son Vickram. After discharge, Nageswaran and his son Vickram handed over the possession of the property to the de facto complainant. She has https://hcservices.ecourts.gov.in/hcservices/ 2 taken the possession and put the lock and key. In respect of the property mortgaged in favour of the first accused viz., R.K.Balan, even though the mortgage has been discharged, he did not hand over the possession. The first accused fabricated the documents as if the said Eswarlal has executed a registered lease deed in favour of him. But the first accused has trespassed upon the property, which was mortgaged in favour of Nageswaran and his son Vickram, to put up a common toilet and leased out the same to one Mari @ Marimuthu, 1st petitioner/A-2 and he also constructed a shop and put up a shutter and that has been leased out to A-3, who is running 'Daya Musicals' and in between them, one Chinnasamy-A-4 has been running one xerox shop. Now, they are threatening the defacto complainant to take possession of the property. Hence she came forward with the filing of a complaint. That complaint has been registered on 15.07.2011 under Sections 406, 420, 427, 448, 468, 471 and 506(i) of I.P.C. The accused were arrested on 15.07.2011 and remanded to judicial custody on the same day. The case has been registered against four accused persons. After the arrest of A-2, on the basis of the confession given by A-2, A-5 was impleaded. A-5 was arrested on 15.07.2011 at 16.30 hours and remanded to judicial custody from next day at 13.00 hours. 3.In Cr.M.P.No.6501 of 2011, for getting some vital documents and materials, the petitioner therein sought for a police custody of the accused persons. But, however the trial court, after considering the arguments of both sides and recording the statements of Investigating Officer, dismissed that application. Now, the learned Additional Public Prosecutor appearing for the petitioner would submit that there was no time for interrogation, immediately, they were arrested and remanded to judicial custody and in order to trace out some of the materials, police custody of the accused persons is needed. He also give an undertaking that the Police would not cause any harm to the respondents herein. Hence he prays for police custody. 4.Refuting the same, the learned counsel for the respondents would submit that the case is purely of civil nature. Already the defacto complainant and her son have filed a Rent Control Original Petition in R.C.O.P.No.144 of 2008 and it is pending and also Mari alias Marimuthu A-2 has filed O.S.No.575 of 2011 and it is pending. It is for bare injunction restraining the landlord from interfering with peaceful possession, except under due process of law. So, it is a civil nature. As per the confession given by the accused, all the original documents have been filed before the trial Court. Hence there is no necessity for granting the order of police custody. Hence he prays for dismissal of this petition. 5.Considering the rival submissions made by both sides, it is found that the property in question is belonging to the defacto complainant. The defacto complainant and her son have also filed a R.C.O.P.No.144 of 2008 and it is pending. Furthermore, one of the accused A-2 filed a suit for bare injunction i.e O.S.No.575 of 2011. Since R.C.O.P.No.144 of 2008 is pending even from the year 2008, even https://hcservices.ecourts.gov.in/hcservices/ 3 though the defacto complainant herein has stated that she has discharged usufructory mortgage executed in favour of the first accused in the year 2007, A-1 has not handed over the possession. A- 1 has relied upon a lease deed alleged to have been executed by the husband of the defacto complainant. Then only she filed R.C.O.P.No.144 of 2008, which is pending, so it is sub judice. So, in respect of the adjacent property which is also belonged to the husband of the defacto complainant, who was executed a usufructory mortgage in favour of Nageswaran and his son, that has also been discharged by the defacto complainant in the year 2007, the property has been handed over to the de facto complainant. She took possession of that property, and put lock and key. As per the statement given by the defacto complainant, the property which was mortgaged in favour of Nageswaran and Vickram has been trespassed upon by A-1 and there were some constructions made and A-2 and A-4 are in possession as tenants under A-1. Considering the same, title to the property in question is not disputed. The possession is with the first accused. The civil suits are pending. All the documents are filed before the trial court. Here confession statements has been recorded from A-2 and A-5. On the basis of confession given by A-2 alone, A-5 has been implicated. A-5 was arrested on 15.07.2011. On perusal of case diary, confession of A-2 and A-5 were found place. Considering the same, since the accused were already arrested, interrogation has been made, a voluntary confession statement has been recorded, in such circumstances, I am of the view that there is no necessity for ordering for police custody since the civil suit is pending for recovery of possession of the properties in dispute. In such circumstances, the trial court has considered the matter in proper perspective manner and came to the correct conclusion. I do not find any irregularity and infirmity in the order passed by the trial court. Hence this petition deserves to be dismissed. 6.Accordingly, this petition is hereby dismissed. Sd/- Deputy Registrar (Writs) /True Copy/ Assistant Registrar To 1.The Judicial Magistrate No.I, Madurai. 2.The Inspector of Police, Central Crime Branch,Madurai. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1 CC to Mr.R.Jeganathan, Advocate (SR.No.25526) Order made in CRL.O.P.(MD).No.9215 of 2011 vs Dated:- 29.07.2011 NSV/9.8.11/3P/5C https://hcservices.ecourts.gov.in/hcservices/