1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.09.2011 CORAM THE HONOURABLE MS.JUSTICE R.MALA Crl.O.P.(MD).No.12965 of 2011 The Inspector of Police, Anti Land Grabbing Special Cell, Tirunelveli City, Tirunelveli. ... Petitioner Vs V.Karuppasamy Pandian ... Respondent/Accused-1 Prayer: Petition filed under Section 482 of the Code of Criminal Procedure, to call for the records in Cr.M.P.No.5398 of 2011 on the file of the learned Judicial Magistrate No.I, Tirunelveli and to set aside the order passed in Cr.M.P.No.5398 of 2011 dated 21.09.2011 by the Judicial Magistrate No.1, Tirunelveli and to permit the petitioner/Investigation Officer to take the custody of the accused for three days for custodial interrogation. For Petitioner :Mr.A.Ramesh, Addl Public Prosecutor. For Respondent :Mr.R.Anand ORDER This petition has been filed to call for the records in Cr.M.P.No.5398 of 2011 on the file of the learned Judicial Magistrate No.I, Tirunelveli and to set aside the order passed in Cr.M.P.No.5398 of 2011 dated 21.09.2011 by the Judicial Magistrate No.1, Tirunelveli and to permit the petitioner/Investigation Officer to take the custody of the accused for three days for custodial interrogation. 2.Heard the learned Additional Public Prosecutor appearing for the petitioner and the Counsel appearing for the respondent. 3.The learned Additional Public Prosecutor would submit that the petitioner has come forward with this petition to set aside the order passed in Cr.M.P.No.5398 of 2011 on the file of the learned Judicial Magistrate No.I, Tirunelveli dated 21.09.2011 dismissing the police custody of the accused for three days for custodial interrogation stating that the formal arrest of the respondent was made on 14.09.2011 and he was remanded to judicial custody on the same day. The petitioner herein filed a petition for police custody on 15.09.2011 and that application has been dismissed on 21.09.2011 and challenging the same, this petition has been filed. https://hcservices.ecourts.gov.in/hcservices/ 2 4.The learned Additional Public Prosecutor would submit that the learned Judicial Magistrate has not considered the case in the proper perspective. He further submitted that on the basis of complaint given by the de-facto complainant/one Ashok Pandian, the case in Crime No.36 of 2011 has been registered under Sections 120(b), 420,465,467,468,471,384 and 506(i) IPC on 13.09.2011 against four named accused and other unnamed accused. The respondent herein was shown as first accused, since he was arrested in some other case and remanded to judicial custody and he was shown as formal arrest on 14.09.2011 and he was remanded to judicial custody on the same day. The petitioner/Investigating Officer herein filed a petition for police custody on 15.09.2011, which was dismissed on 21.09.2011, hence he prayed for allowing of this petition. 5.At this juncture, the learned Counsel appearing for the respondent would submit that the first period of 15 days judicial custody expired and hence this petition became infructuous and hence he is not entitled to police custody. To substantiate his arguments, he relied upon various judgments of this Court and the Honourable Apex Court. He further submitted that the averment in the F.I.R. has revealed that he made a criminal intimidation to the defacto complainant and threatening him to withdraw the second appeal pending before this Court after receipt of Rs.1 crore. Except this, no other allegations against the respondent, if at all offence under Section 506(ii) I.P.C. alone has been made out. Hence, there is no need to custodial interrogation for the offence under Section 506(ii) I.P.C. Therefore, he prayed for the dismissal of the petition. 6.The learned Additional Public Prosecutor would submit that even though the remand has been granted till 28.09.2011, after filing of this police custody application on the basis of the order passed by the learned Judicial Magistrate on 19.09.2011, the respondent was produced before the Court on 21.09.2011 and on 21.09.2011, remand was mechanically extended for further period of 15 days i.e. up to 04.10.2011. 7.Considering the rival submissions made on both sides, admittedly, on the basis of complaint given by one Ashok Pandian the case was registered in Crime No. 36 of 2011 under Sections 120(b), 420,465,467,468,471,384 and 506(i) IPC on 13.09.2011. Admittedly, this respondent is shown as A1 and since he was arrested in some other case, a formal arrest was made on 14.09.2011 and remanded to judicial custody on the same day and the police custody application filed on 15.09.2011 and he was produced on 21.09.2011 and on the day, remand extended upto 04.10.2011. 8.At this juncture, it is appropriate to consider the decisions of the Honourable Apex Court reported in 1992(3) SCC 141 (Central Bureau of Investigation, New Delhi Vs. Anupam J.Kulkarni) and 2010(3) SCC (Cri.)223 (Devender Kumar and another Vs. State of Haryana and others), wherein the Supreme Court has held as follows: "13. ...After the expiry of the first period of 15 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 https://hcservices.ecourts.gov.in/hcservices/ 3 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. But this bar does not apply if the same arrested accused is involved in a different case arising out of a different transaction. Even if he is in judicial custody in connected with the investigation of the earlier case he can formally be arrested regarding his involvement in the different case and associate him with the investigation of that other case and the Magistrate can act as provided under Section 167(2) and the proviso and can remand him to such custody as mentioned therein during the first period of fifteen days and thereafter in accordance with the proviso as discussed above. If the investigation is not completed within the period of ninety days or sixty days then the accused has to be released on bail as provided under the proviso to Section 167(2). The period of ninety days or sixty days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the Police. Consequently the first period of fifteen days mentioned in Section 167 (2) has to be computed from the date of such detention and after the expiry of the period of fifteen days it should be only judicial custody." 9.In that, it was specifically mentioned that after expiry of the first period of 15 days, during the period of investigation, he was remanded to judicial custody as there may not be any detention in the police custody after the expiry of first 15 days. Even in the case where some more offences either serious or otherwise committed by him, for the same transaction came to the light at the later stage. Considering the same and the facts of the present case, the first remand is only 15 days which expires today. Since the police custody application was filed, he was directed to produce before the Court on 21.09.2011. On that day, he was produced and remand extended upto 04.10.2011. Now he is in judicial custody and the first 15 days judicial custody period expired today. As per the dictum of the Court in 1992(3) SCC 141 (Central Bureau of Investigation, New Delhi Vs. Anupam J.Kulkarni) and 2010(3) SCC (Cri.)223 (Devender Kumar and another Vs. State of Haryana and others), I am of the view that the first spell of judicial custody period has been over on 28.09.2011 (i.e.) today. 10.At this juncture, the learned Additional Public Prosecutor would submit that the learned Magistrate has not considered the necessity for police custody. He would further submit that the value of the property is Rupees Nine Crore and he threatened the de-facto complainant to receive one Crore and withdrew the second appeal and admittedly the second appeal is pending. During the pendency of the second appeal, the owner executed the sale deed in favour of the third party and they are also arrayed as accused. But, admittedly, this respondent is neither executant nor the purchaser of the property and only the allegations in the FIR that he threatened the de-facto complainant to withdraw the case after receipt of one Crore. https://hcservices.ecourts.gov.in/hcservices/ 4 In such circumstances the argument advanced by the learned Additional Public Prosecutor as to whether the property has been disposed of, or how much amount has been involved and whether the amount has been paid and who are the beneficiaries, are immaterial. In respect of this respondent is concerned, as per the FIR, he is the person who threatened the de-facto complainant and made a criminal intimidation against the de-facto complainant. 11.In such circumstances in paragraph '7' of the trial Court order, the learned Magistrate has discussed about the pendency of the civil suit. It is pertinent to note that the original owner sold the property in favour of one Matheechapandian and Duraipandian and the documents are pending before the Registration Department because of non production of Income Tax Clearance Certificate. The said Matheechapandian and Duraipandian filed a suit against the original owner and the suits are ended against A2, against which, A2 has preferred an appeal and the same is allowed. The said Matheechapandian and Duraipandian filed a second appeal and during the pendency of the second appeal, Matheechapandian withdrew the second appeal. Since the defacto complainant/Ashok Pandian purchased the property from Matheechapandian, he filed an application to implead himself as a party in the second appeal, which was allowed. At the time only, it is alleged that the respondent herein has intervened and threatened the de-facto complainant to withdraw the same after receipt of Rupees One Crore and that has happened in the year 2007 complaint given 13.09.2011. 12.Considering all the aspects, and that even now, the second appeal filed by Duraipandian and the de-facto complainant Ashok Pandian who are the brothers, is still pending. So, the learned Magistrate considered all these aspects in proper perspective in paragraph '7' of the order and dismissed the application and hence I do not find any irregularity and illegality in the order passed by the learned Judicial Magistrate. As already discussed in earlier paragraph, the civil suit is pending and there is a delay in preferring the complaint against the petitioner, if at all offence under Section 506(ii) I.P.C. alone has been made out. In such circumstances, I am of the view that there is no reason for granting police custody. Hence, the present petition is dismissed as devoid of merits. Sd/- Assistant Registrar /True Copy/ Sub Assistant REgistrar To 1.The Judicial Magistrate No.I, Tirunelveli 2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Gsr ssk/31.10.2011 /3c-4p/- Crl.O.P.(MD).No.12965 of 2011 28.09.2011 https://hcservices.ecourts.gov.in/hcservices/