IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 23RD MARCH 2007 / 2ND CHAITHRA 1929 Crl.MC.No. 872 of 2007() ------------------------ CRMPs.172/07 AND 174/2007 of SPL.JUDGE SPE/CBI-II, ERNAKULAM .................... PETITIONER: PETITIONER ------------ CENTRAL BUREAU OF INVESTIGATION, COCHIN . BY ADV. SRI.S.SREEKUMAR, SC FOR CBI RESPONDENTS: RESPONDENT ------------- P.V.SURYA RAO, FORMERLY PROTECTOR OF EMIGRANTS, TRIVANDRUM. BY ADV. SRI.S.RAJEEV THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/03/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C.No.872 of 2007 ------------------------------------- Dated this the 23rd day of March, 2007 ORDER The petitioner is an Inspector of the Central Bureau of Investigation and he is aggrieved by the course adopted by the learned Special Judge-II, Ernakulam in not favourably considering his application for police custody of an accused/respondent arrested in a case, which is being investigated by him. 2. Adovcate Sri.S.Rajeev, who appears for the respondent/accused has been given notice and has appeared before this Court and made his submissions. He shall file an appropriate memo of appearance before the Registry today itself. 3. A brief reference to relevant facts may be necessary. R.C. 13(A)/06 was registered on 03.06.2007, inter alia, under Section 420 I.P.C and Section 13(1)(d) of the P.C Act against the respondent and others. That crime was registered as early as on 03.06.06. That crime is being investigated by some other Inspector of the C.B.I. 4. R.C. 17(A)/06 was registered against the petitioner herein on 25.07.06. In the course of investigation of R.C.13(A)/ Crl.M.C.No.872 of 2007 2 06, a crucial information relating to acquisition of assets disproportionate to his known sources of income by the respondent herein was allegedly revealed. It was accordingly that the said crime was registered on 25.07.2006. 5. The petitioner was not available to be arrested in the former crime and long later, on 24.02.2007, the petitioner was arrested at Visakhapattanam. He was produced before the Special Judge-I, Ernakulam. R.C. 13(A)/06 is pending before the Special Judge-I, Ernakulam, whereas, R.C. 17(A)/06 is pending before Special Judge-II, Ernakulam. 6. When the respondent was produced before Special Judge-I, Ernakulam on 26.02.2007, police custody was sought in R.C 13(A)/06. Accordingly, the respondent was handed over to the custody of the Investigating Officer in that case. The respondent was continuing in judicial custody thereafter. 7. The C.B.I Inspector (ie. the petitioner herein) who is conducting the investigation in R.C 17(A)/06 realised the need to arrest the respondent on 13.03.2007. He accordingly filed a report before the Special Judge-I, Ernakulam, on whose orders, the respondent was continuing in custody. Simultaneously, the C.B.I Inspector filed a request before the learned Special Judge- II, Ernakulam for release of the respondent in police custody in Crl.M.C.No.872 of 2007 3 R.C 17(A)/06. That application was dismissed by the learned Special Judge-II, Ernakulam by the impugned order. 8. On the questions of law, there appears to be no dispute before me. The Special Judge-I, Ernakulam was not seized of R.C 17(A)/06. The Investigating Officer in R.C 17(A)/06 realised the need to arrest the respondent only on 13.03.2007. Arrest is not to be effected as a matter of course. Only when the Investigating Officer, after sufficient investigation and verification of facts, is satisfied that the arrest deserves to be effected, can and need the Investigating Officer effect such arrest. Merely because the respondent was arrested in R.C 13(A)/06, there is no obligation on the part of the Investigating Officer in R.C 17(A)/06 to request for the respondent's arrest or recording of notional arrest. Only when the Investigating Officer in R.C 17(A)/06 is satisfied on the basis of the materials collected that arrest need be effected in that crime, can and need the officer effect arrest in R.C 17(A)/06. In the facts and circumstances of this case, of course, such arrest could have been sought prior to 13.03.2007. There is nothing before the Court t o conclude that the Investigating Officer must have demanded arrest in R.C 17(A)/06 on any date prior to Crl.M.C.No.872 of 2007 4 13.03.2007. That being so, the fact that the recording of notional arrest took place on 13.03.2007 cannot by itself lead the Court to any inference of mala fides or impropriety on the part of the Investigating Officer in R.C 17(A)/06. 9. The learned Standing Counsel for C.B.I submits that on the basis of certain information which had been revealed to the Investigating Officer after arrest of the respondent in R.C 13 (A)/06, detailed verifications had to be conducted and the Investigating Officer has been successful in unearthing large volume of currency deposited in various banks by the respondent. It is the case of the petitioner that the respondent has to be specifically interrogated in police custody with reference to such facts revealed in the course of investigation in R.C 17(A)/06. 10. I have no hesitation to agree that in R.C 17(A)/06, the request made by the Investigating Officer for custodial interrogation of the respondent is justified. The fact that the request was not made earlier, is of no consequence. In fact, the request was made on the same day when the prayer for recording notional arrest was made, ie. on 13.03.2007. The fact that the application was made before the Special Judge, who is seized of R.C 17(A) and not before Special Judge who is seized of Crl.M.C.No.872 of 2007 5 R.C 13(A), cannot also justify abdication of jurisdiction by the learned Special Judge, who is seized of R.C 17(A)/06. 11. I am, in these circumstances, satisfied that the Investigating Officer in R.C 17(A)/06 is entitled to request for police custody of the respondent and the learned Special Judge- II, Ernakulam must have granted such custody. 12. This Crl.M.C is, in these circumstances, allowed. The impugned order is set aside. The learned Special Judge-II, Ernakulam shall forthwith ensure that the respondent is given over to police custody to the Investigating Officer in R.C 17(A)/ 06 for three days to facilitate further investigation after complying with all the provisions of law. 13. Hand over a copy of this order to the learned Standing Counsel for the C.B.I today itself. (R.BASANT, JUDGE) rtr/-