V. Bhaskaran Nambiar, J.
1. The Court is no clog on investigation and prosecution is no lever for humiliation. Freedom of the individual is no licence to commit crime; personal liberty this cam have no conflict with public interest. The Court protects both interests and strikes a balance when there is clash. I repeat these - I stated the same in earlier proceedings - for, these statements have greater significance in the present controversy.
2. In the early hours on the 9th October, 1981. in the heart of this city, a shot rang in Majeendran's house. The bullet pierced his body. He was fatally injured. On the way to the hospital he died. About three years have elapsed: the investigation is still not over! The police, cannot be blamed, so says the Prosecutor. The influence and the ingenuity of the accused have protracted the investigation. and the alleged main culprit, the 1st accused was absconding all these years. His whereabouts were not known and the police did not have any clue either. On 4.7.1984, he suddenly appears and surrenders before the Chief Judicial Magistrate. This event, of considerable significance for the investigation and possibly giving a twist to the further process of interrogation has given rise to this petition.
3. The second accused, Sadanandan, who is alleged to be influential and instrumental in this murder was arrested on 26.10.1981. He was produced before a Magistrate and remanded to police custody from 28.10.1981 till 7.11.1981 in the first instance and thereafter till 16.11.1981. Later he was in judicial custody till 21.12.1981 when he was released on bail on certain conditions. He is thus in the custody of the Court. It is sufficient if it is noted that he has not violated any conditions of his bail to warrant the cancellation of the bail.
4. The dramatic appearance of the first accused on 4.7.1984 has. it is said, taken the prosecution to fresh avenues of investigation, and the present application is to hand over the second accused, Sadanandan, to police custody for further investigation. The application, noted for its brevity as the occasion demands, sufficiently clear for the purpose on hand, reads thus:
The respondent herein was released on bail by the Court of Session, Emakulam. In Crl. M.C. 801/81 the order of Bail was affirmed by this Hon'ble Court subject to certain conditions. The respondent has not been adhering to the conditions.
The co-accused of the respondent surrendered before the Chief Judicial Magistrate, Emakulam on 4.7.1984 and the Police have been given custody of the said accused Rajan since 7.7.1984. Incidentally on the morning of 4.7.1984, the counsel for the respondent in Crl. M.P. 335/K4 Sessions Court. Alleppey, submitted that Rajan would be surrendering before a Magistrate at Ernakulam on that day.
Since the surrender of Rajan, certain very important items of information have come to the notice of the investigating Team. Such information has far reaching effects, as far as the crime under investigation is concerned. A fuller disclosure of such information is not made at this stage, lest it may defeat an effective investigation. The weapon used also remains hidden. In the interests of justice, it is highly essential that the respondent is given in Police custody, without interrogating him and without having him in Police custody, a proper investigation and a fair trial will be impossible. It is therefore prayed that this Hon'ble Court may be pleased to direct, that the custody of the respondent herein may be made over to the Police for future investigation for a reasonable time, as otherwise the petitioner will be put to irreparable loss and injury.
5. Naturally, the counsel for the second accused, vehemently opposes and contends that there is no jurisdiction for this Court to hand over this accused to police custody and assuming there is jurisdiction, the discretion cannot be exercised in favour of the prosecution. He submits that he is prepared to co-operate with the prosecution, he is willing to be interrogated; but he cannot be handed over to police custody, for the purpose.
6. The first question that arises for consideration is the scope and extent of the power to order police custody. It is not necessary to sketch in detail the decisions of the various High Courts both before and after the amendment of the Criminal P.C. in 1978, for, the matter, according to me, is well covered by Supreme Court decisions and sufficiently clear under the relevant statutory provisions.
7. Article 22(2) of the Constitution provides:
Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
8. This is a constitutional mandate. The source of power to detain an accused in custody is contained in the Constitution itself. The mode of exercise of that power is prescribed by the Criminal P.C. generally. When investigation cannot be completed in twenty-four hours, Section 167 of the Cr.P.C. as it now stands, directs (a) that the accused shall be forwarded to a Magistrate and (b) that the magistrate having jurisdiction shall authorise the detention of the accused for a term not exceeding fifteen days in the whole. Police custody is not renewable when once the 15 days1 period has elapsed.
9. This initial detention of the accused by the magistrate can thus be (1) only for fifteen days in the whole and (2) it may be either police custody or judicial custody. During this fifteen days1 period, the magistrate has jurisdiction to convert judicial custody to police custody or vice versa, for the Act does not impinge on the jurisdiction or discretion to be exercised by the magistrate at that stage. The maximum period under which the accused can be so detained is only fifteen days. After the expiry of the fifteen days, proviso (a) to Section 167 inserted by Act 45 of 1978 prescribes that:
the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with death,....
(ii) sixty days, where the investigation relates to any other offence, x x x.
10. Section 167(2) of the Code does not make any distinction between police or judicial custody. Proviso (a) on the other hand expressly refers to police custody and enjoins that there shall be no police custody. Judicial custody alone is thus possible when power is exercised under the proviso.
11. The detention of the accused during investigation is thus contained in Section 167 of the Code. However, after taking cognizance of an offence, or commencement of trial, when, for reasons to be recorded, the trial has to be postponed or adjourned, the Magistrate may again remand the accused if in custody, but it shall only be for a term not exceeding fifteen days at a time. This is the purport of Section 309 of the Code as it now stands. The detention can naturally be only judicial custody and not police custody, for. as the Supreme Court says in Gauri Shankar v. State of Bihar : 1972CriLJ505 :
Section 344, on the other hand, appears in Chapter XXIV which deals with inquiries and trials. Further, the custody which it speaks of is not such custody as the magistrate thinks lit as in Section 167, but only jail custody, the object being that once an inquiry or a trial begins it is not proper to let the accused remain under police influence.
12. To the same effect is the observation in Natabar Parida v. State of Orissa AIR 1475 SC 1465 : 1475 Cri LJ 1212 ( At p. 1215)
It would thus be seen that under the old Code the Magistrate was given the power under Section 344 to remand an accused to jail custody as the section was also applicable to cases in which process of investigation and collection of evidence was going on. In other words, the power of remand by the Magistrate during the process of investigation and collection of evidence was an integral part of the process. The power was meant to be exercised whenever necessary, to aid the investigation and collection of further evidence.
13. In the present case the second accused has already been in police custody for 15 days. He cannot therefore be remanded to police custody either under Section 167 or Section 309 of the Code.
14. But the learned Public Prosecutor contends that Section 167 only enumerates the powers of a magistrate and does not define or limit the powers of the High Court, that tin: High Court has inherent jurisdiction to order police custody under Section 482 or at least under Section 497(2) of the Code. He also elaborates his contention by submitting that Section 309 does not speak of the nature of custody and therefore remand of the r accused under the section can also be to police custody. Of course, he goes to the length of submitting that the decision of the Supreme Court in Natabar Parida v. State of Orissa : AIR1975SC1465 is only an obiter dicta.
15. The decision of the Supreme Court is the law of the land binding on all Courts. Article 141 of the Constitution says so. The obiter dicta of the Supreme Court is also binding on the High Court. In this case, when the Supreme Court interpreted the provision of Sections 167, 309 and 484 of the Code in Natabar Parida v. State of Orissa : AIR1975SC1465 , they were in fact not obiter dicta, but ratio in the case.
16. If we just refer to the legislative history of some of the amendments introduced in the Code, it will undoubtedly show that under Section 309, judicial custody alone is available. To allow the police to exert a measure of autonomy from judicial supervision for detention and for questioning is subject to the constitutional freedoms and the legislative restraints.
17. Prior to 1978, Section 167(2) provided for a remand for a term not exceeding 15 days in the whole and added a proviso that the maximum period otherwise than in custody of the police shall be sixty days. Section 309 provided that the Court, after taking cognizance of an offence or commencement of trial, for reasons to be recorded may remand the accused for a term not exceeding fifteen days at a time. While considering the impact of these two sections and noticing that in some cases, the remand period fixed under Section 167 may not be sufficient for a proper investigation, the Supreme Court in Natabar Parida v. State of Orissa : AIR1975SC1465 observed thus (At p. 1216 of Cri LJ):
The law as engrafted in proviso (a) to Section 167(2) and Section 309 of the new Code confers the powers of remand to jail custody during the pendency of the investigation only for the former and not under the latter. Section 309(2) is attracted only after cognizance of an offence has been taken or commencement of trial has proceeded. In such a situation what is the purpose of Explanation-1 in Section 309 is not quite clear. But then the command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. In serious offences of criminal conspiracy - murders, dacoities, robberies by interstate gangs or the like, it may not be possible for the police, in the circumstances as they do exist in the various parts of our country, to complete the investigation within the period of 60 days. Yet the intention of the Legislature seems to be to grant no discretion to the Court and to make it obligatory for it to release the accused on bail. Of course, it has been provided in proviso all that the accused released on bail under Section 167 will be deemed to be so released under the provisions of Chap. XXXIII and for the purposes of that Chapter. That may empower the Court releasing him on bail if it considers necessary so to do, to direct that such person be arrested and committed to custody as provided in Sub-section (5) of Section 437 occurring in Chap. XXXIII. It is also clear that after the taking of the cognizance the power of remand is to be exercised under Section 309 of the new Code. But if it is not possible to complete the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be a 'paradise for the criminals,' but surely it would not be so, as sometimes it is supposed to be because of the Courts. It would be so under the command of the Legislature.
18. Thereafter. Section 309 was not amended: but Section 167 was amended giving a longer lime for judicial custody. The Objects and Reasons for this amendment read thus:
Section 167 is being amended to empower the Magistrate to authorise detention, pending investigation, for an aggregate period of 90 days in eases where the investigation relates to offences punishable with death, imprisonment for life or imprisonment for not less than ten years or more and up to 60 days in any other case. These amendments are intended to remove difficulties which have been actually experienced in relation to the investigation of offences of a serious nature.
19. The legislature thus took note of the decisions of the Supreme Court, accepted that Section 309 dealt with only judicial custody, and still did nm amend the section. The legislature recognized that there are two types of custody available under Section 167, police and judicial and maintained the same statutory poise that police custody can be only for fifteen days in the whole. The amendment only directed that judicial custody may extend to 90 days. In this state of legislative history, the contention of the Public Prosecutor that Section 309 provides for police custody cannot be accepted. Neither Section 344 of the old Code nor Section 309 of the present Code authorises police custody at that stage.
20. The other contention is that the High Court has an inherent jurisdiction to, order remand of the accused to police custody and the Public Prosecutor relies on Pampapathy v. State of Mysore : 1967CriLJ287 . In that case the Supreme Court revoked the inherent jurisdiction on a question or 'bail' and not to direct the accused to police custody.
21. Section 482 of the Code, as has been stated in innumerable decisions, does not confer any new right. It preserves existing rights, to enable the High Court 'to give effect to any order under this Code or lo prevent abuse of the process of any Court or otherwise to secure the ends of justice'. The power to remand an accused to police custody cannot be inferred, but his to be expressly conferred. It has been so conferred under the Code, to be exercised, in limited instances and under specified conditions. The inherent power cannot thus he invoked 'to invade areas set apart for specified purposes under this Code.' Raj Kapoor v. State 1980 Cri LJ 202 SC. The Power to remand an accused to police custody is thus outside the purview of Section 482 of the Code. In fact in Natabar Parida v. State of Orissa : AIR1975SC1465 the Supreme Court held thus (at pp. 1214-1215):
It may be emphasized here that the Court will have no inherent power of remand of an accused to any custody unless the power is conferred by law.
Referring to the Orissa decision, 1975 Cri LJ 1212 (Orissa), the Supreme Court proceeded to state (At 1215):
In the order under appeal the High Court without reference to Section 344 of the old Code, seems to have assumed that such a power existed Thai is not correct.
22. Under the Code when police custody is limited to 15 days in all, and the second accused was already in police custody for the maximum period of 15 days, I do not think that inherent jurisdiction, even if there is any, should be exercised in this case for that purpose.
23. However, even if the Court cannot grant relief as claimed now, this Court can limit and mould the relief as the circumstances warrant.
24. The second accused is however under the custody of the Court, for, he. is on bail on certain conditions. There is no complaint now - none was voiced at the bar - that there has been any violation of any of the conditions imposed. Thus in view of the special circumstances that the first accused has surrendered only in 1984, about three long years after the incident, the Public Prosecutor rightly submits that in the present situation shrewd and intelligent investigation has to be focused in several directions, at different angles, through fresh avenues and to new areas. Investigation has to proceed smoothly and efficiently and according to law and established procedure. The accused cannot stall investigation or hamper its progress. The accused will have the constitutional protection and the State will have its right of investigation.
25. I, therefore, direct the second accused Sadanandan, to make himself available for interrogation by the investigating officer or his team, at any office at Ernakulam, for fifteen days from 26.7.1984 between 8 a.m. and 6 p.m. every day. The accused will appear first before the Commissioner of Police at 8 a.m. on the 26th July. The interrogation will be conducted in the presence of an officer not below the rank of a Superintendent of Police. The Officer can also direct the accused to be present at any other place during these hours, even outside Ernakulam or even outside this State to facilitate investigation.
26. I am glad that when these suggestions were discussed in open Court, both Prosecutor and the counsel for the accused agreed to this course though of course, the Public Prosecutor insisted that police custody would be eminently just and the counsel for the accused went further and stated that his client would reach one hour in advance before the investigating officers, if he has to appear at any place outside Ernakulam and that he was prepared to co-operate with the police.
The Cri. M.P. is disposed of as above.