U. Lakshminarayana Bhat, J.
1. The four counter-petitioners in Miscellaneous Petition No. 1778 of 1979 on the file of the Judicial Magistrate of the 2nd Class, Trinjalakuda (arising from Crime No. 47 of 1979 of Vellikulangara Police Station) challenge before me the order passed by the learned Magistrate directing them to appear before the investigating Circle Inspector of Police, Crime Detachment, Trichur between 10 A.M. and 5 P.M. for 4 days from 5-6-1979.
2. The facts are in a short compass and are not disputed. The revision petitioners, who are alleged culprits in Crime No. 47 of 1979 registered under Sections 302, 341' and 34 of the Indian Penal Code of Vellikulangara Police Station, obtained an order for anticipatory bail under Section 438(2) of the Cr. P.C. from this Court. However, subsequently they surrendered before the Court and obtained bails.
3. Thereafter, the investigator filed M. P. No. 1778 of 1979 seeking custody of these persons. In the application filed by the Circle Inspector he stated:
I request that sanction may kindly be accorded for the interrogation of the accused and recovery of one torchlight and a thorthu mundu used by the accused for the commission of the offence as there is information that the accused are keeping these M. Os. They may be directed to produce the M. Os. and made available for interrogation in the Crime Branch Office, Trichur between 10 a.m. and 5 p.m. for 4 days from 28-5-79 onwards.
4. In reply the revision petitioners filed a counter-affidavit before the learned Magistrate alleging that they have nothing to do with the alleged crime or with the torchlight and thorthu mundu referred to in the petition, that they do not know the whereabouts of these articles and they have no information to give regarding the alleged offences.
5. The learned Magistrate, though he felt that the investigator has other powers to secure the presence of the revision petitioners for interrogation, nevertheless proceeded to pass the impugned order.
6. The learned Counsel for the revision petitioners submitted before me that in the light of the decision of the Supreme Court in Nandini Satpathy v. P.L. Dani : 1978CriLJ968 and the decision of this Court in Devidas v. State of Kerala 1979 Ker LT 642 : 1980 Cri LJ 906 the order passed by the learned Magistrate has to be struck down as illegal.
7. In reply, the learned Government pleader submitted that the decision of the Supreme Court does not actually support the decision of this Court in Devidas v. State of Kerala 1979 Ker LT 642 : 1980 Cri LJ 906 and the latter decision requires reconsideration, and suggested that the matter should be referred to a Division Bench. In the light of the view that I take on facts, though I have respectful reservations regarding the correctness of certain observations in Devidas v. State of Kerala 1979 Ker LT 642 : 1980 Cri LJ 906, I do not propose to make any reference.
8. An investigating officer has power under Section 160 of the Code of Criminal Procedure, to require the attendance before himself of any person who appears to be acquainted with the facts and circumstances of the case, and where such order is passed by the investigating officer, the person on whom the order is served is bound to attend. For the purpose of this case, it is unnecessary to refer to the protection afforded to certain offenders under the proviso. Section 161(1) of the Code of Criminal Procedure, authorises an investigating police officer to examine orally any person supposed to be acquainted with the facts and circumstances of the case. Clause (2) of Section 161 requires that such person shall be bound to answer truly all questions relating to such case put to him, other than questions the answers to which would be self-incriminating. A reading of Sections 160 and 161 of the Code of Criminal Procedure, is sufficient to show that the investigator in this case, does have a right to pass an order in writing as contemplated in Section 160(1) of the Code of Criminal Procedure, requiring the attendance of the revision petitioners for examination as contemplated in Section 160(1) of the Code; in such a contingency it is the duty of the revision petitioners to appear before him and they are bound to answer truly all questions except those which are self-incriminating. If the purpose of such attendance is only to interrogate them regarding the facts and circumstances of the case, I am of opinion that the investigator could very well exercise the power conferred on him under Section160(1) of the Code. It was wholly unnecessary on the part of the learned Magistrate to have passed the impugned order for the purpose of enabling the police officer to interrogate the revision petitioners. If the revision petitioners fail to appear before the investigator, or having appeared before him if they fail to answer any questions which are not regarded as self-incriminating, I am sure the investigator will not be helpless as the law provides sufficient safeguards for him to resort to.
9. The next question relates to the requisition of the investigator for custody so as to enable him to recover the torchlight and thorthu mundu said to have been used by the revision petitioners. It is submitted before me that they filed a counter-affidavit before the learned magistrate stating that they had nothing to do with the alleged occurrence or with the torchlight and thorthu mundu and that they do not have any knowledge or information regarding the existence or whereabouts of these articles. In the face of such a categorie assertion on their part of lack of the knowledge or information regarding existence or whereabouts of the material objects sought to be recovered' from them, there was no purpose in directing police custody for the alleged purpose of recovery. Having told the court in clear and unambiguous manner that they have no such knowledge about the material objects, it is unlikely that they would tell the police investigator about the whereabouts, of these articles except by adopting means of interrogation which are not approved of by law. Courts cannot allow themselves to be used for the purpose of enabling an investigator to use means of interrogation not approved by law.
10. The learned Magistrate did not consider any of these aspects before he passed the order of custody. He ignored the facts on record and the facts on record clearly indicate that this was not a case where police custody should have been ordered.
11. In the light of this conclusion, it is unnecessary for me to consider the arguments addressed regarding the correctness of observation in Devidas v. State of Kerala 1979 Ker LT 642 : 1980 Cri LJ 906 or on the question whether the learned Magistrate had jurisdiction to pass such an order at all.
In the result the criminal revision petition is allowed and the order passed by the learned Magistrate is set aside.