State of Kerala v. Maju, Jayesh, Sumesh and Ajeesh

_**“C.R.”**_ ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON TUESDAY, THE 27[TH] DAY OF JULY 2021 / 5TH SRAVANA, 1943 CRL.MC NO. 2815 OF 2021** **CRIME NO.164/2021 OF NEDUMUDI POLICE STATION, ALAPPUZHA AGAINST THE ORDER/JUDGMENT IN CRMP 913/2021 OF DISTRICT & SESSIONS COURT, ALAPPUZHA** ## **PETITIONER/S:** STATE OF KERALA REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE, AMBALAPPUZHA SUB DIVISION, ALAPPUZHA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADVS. SRI.T.A.SHAJI (SR), DIRECTOR-GENERAL OF PROSECUTION SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR ## **RESPONDENT/S:** 1 MAJU AGED 29 YEARS S/O. MANOHARAN, MAZHUVAN CHERICHIRA, KAINAKARY PANCHAYATH, WARD - 8, KAINAKARY P. O., KAINAKARY SOUTH VILLAGE, PIN - 688 501. 2 JAYESH AGED 34 YEARS S/O. MATHAI, ATHITHARA, KAINAKARY P. O., KAINAKARY SOUTH VILLAGE, PIN - 688 501. 3 SUMESH AGED 25 YEARS S/O.BABU, ATHITHARA, KAINAKARY P. O., KAINAKARY SOUTH VILLAGE, PIN - 688 501. _Crl.M.C.No. 2815 of 2021_ 2 4 AJEESH AGED 34 YEARS S/O. MATHAI, ATHITHARA, KAINAKARY P. O., KAINAKARY SOUTH VILLAGE, PIN - 688 501. BY ADV G.PRIYADARSAN THAMPI ## **OTHER PRESENT:** THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.07.2021, THE COURT ON 27.07.2021 DELIVERED THE FOLLOWING: _Crl.M.C.No. 2815 of 2021_ 3 **==> picture [55 x 10] intentionally omitted <==** ## **O R D E R Dated this the 27[th] day of July 2021** The only question that arises for consideration in this petition filed by the State of Kerala, represented by the investigating officer in Crime No.164/2021 of Nedumudi Police Station, is whether the petitioner herein is entitled to police custody of the accused in the aforesaid Crime after the expiry of the first 15 days of remand on the ground that the application for police custody though filed in time, was not allowed because of the quarantine of the accused following their getting infected with COVID-19 virus during judicial custody. The crime is registered for offences punishable under Sections 324 and 302 read with Section 34 of the I.P.C. and under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act, 1989. The investigation was transferred to the Deputy Superintendent of Police, Ambalappuzha. _Crl.M.C.No. 2815 of 2021_ 4 2. The brief facts that led to the filing of the petition is thus: Accused 1 to 4 in the aforesaid Crime were arrested on 13.04.2021 and remanded to judicial custody on the same day by the jurisdictional court. The next day was a holiday for _Vishu_ and on 15.04.2021, the investigating officer had to appear before the District & Sessions Court, Kozhikode in connection with giving evidence in S.C.No.121/2020. On 16.04.2021, the investigating officer submitted Annexure B application (Crl.M.P.No.913/2021) before the jurisdictional court for custody of the accused. The court issued a production warrant to the Superintendent of the Jail to produce the accused on 20.04.2021. However, on that day the jail authorities reported, through video conferencing, that accused 1 and 4 were infected with the COVID-19 virus and the rest of the accused being primary contacts were all quarantined. Based on the submission, the custody application was adjourned to 27.04.2021. On the said day, the jail authorities filed Annexure C explanation to the Sessions Court _Crl.M.C.No. 2815 of 2021_ 5 stating that the accused continue to remain in quarantine at Alappuzha CFLTC and hence could not be produced. The custody application was thus adjourned to 03.05.2021, on which date accused 1 and 4 were produced through video conferencing. Accused 2 and 3 were not produced since they were still in quarantine. The custody application thereafter came up for consideration before the Vacation Court and got adjourned to 10.05.2021, on which date there was a State-wide lockdown due to the pandemic, resulting in the application getting adjourned again to 10.06.2021. The investigating officer filed an Annexure D petition to advance the application for custody to 28.05.2021. On 25.05.2021 the investigating officer also filed another petition as Annexure E stating that he is ready to interrogate the accused in custody for three days by complying with COVID-19 protocol and by using the PPE kit. The Sessions Court advanced the case to 03.06.2021 and after the hearing, passed a common order at Annexure F dated 03.06.2021 dismissing the prayer seeking custody for interrogating the accused. _Crl.M.C.No. 2815 of 2021_ 6 3. It is submitted that considering the peculiar circumstances caused by the pandemic, the Sessions Court ought to have granted custody of the accused to the investigating officer. Because of the dismissal of that application, the accused could not be subjected to custodial interrogation in a very heinous and grave crime. The weapons used for committing the murder are yet to be recovered. The investigating officer has complied with all the legal formalities to obtain custody and filed an application on time. The application was rejected solely on the ground that the Court is not empowered to grant police custody beyond the initial period of 15 days. Hence, the petitioner is before this Court seeking interference and prays that the custody of the accused may be granted to the investigating officer. 4. Heard the Director-General of Prosecution Senior Counsel Sri.T.A.Shaji appearing for the State and Sri.Priyadarshan Thambi, the learned Counsel for the accused. _Crl.M.C.No. 2815 of 2021_ 7 5. It is submitted that Section 167(2)(a) of the Cr.P.C. does not stipulate that the detention of the accused in police custody shall be only for the first 15 days. Considering the impact of the Noval COVID pandemic and the procedure formulated for quarantine by the Government, the learned Sessions Judge ought to have considered that a strict interpretation cannot be given in the matter concerning granting of police custody, restricting the same to the first 15 days alone. 6. It is to be considered whether the pandemic restrictions and the quarantine of the accused during the first 15 days of their arrest which created an unforeseen embargo in exercising the right of the investigating officer to get police custody could be taken into account for relaxing the 15 days period prescribed in Section 167(2)(a) of the Cr.P.C., the relevant portion of which reads thus: “ _**S.167** xxxx xxxx xxxx_ - _(2) The Magistrate to whom an accused person_ - _is forwarded under this Section may, whether he_ _Crl.M.C.No. 2815 of 2021_ 8 _has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:_ _Provided that - (a) 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, imprisonment for life or imprisonment for a term of not less than ten days._ _(ii) sixty days, where the investigation relates to any other offence.”_ 7. After noticing the difficulties created by the pandemic restrictions and being concerned about the period of limitation fixed for various purposes, the Hon’ble Supreme Court had on 23.03.2020 in _suo motu_ W.P.(C) No.3 of 2020 ( _**IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION**_ ) passed an Order observing thus: _Crl.M.C.No. 2815 of 2021_ 9 “ _This Court has taken suo motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/ suits/ appeals/ all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State). To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts / Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or special laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings. We are exercising this power under Art.142 read with Art.141 of the Constitution of India and declare that this order is a binding order within the meaning of Art.141 on all Courts / Tribunals and authorities. This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts / Tribunals within their respective jurisdiction. Issue notice to all the Registrars General of the High Courts, returnable in four weeks.”_ _Crl.M.C.No. 2815 of 2021_ 10 8. The specific reason for passing the aforesaid order by the Apex Court was for extending the period of limitation with effect from 15.03.2020 for filing petitions/ applications/ suits/ appeals/ all other proceedings indicated in the order itself. Such an order was passed by the Apex Court to face the situation that had arisen out of the challenge faced by the Country on account of the COVID-19 virus and the resultant difficulties that were faced by the litigants across the Country in filing petitions/ applications/ suits/ appeals/ all other proceedings within the period of limitation prescribed. This was to obviate such difficulties and to ensure that the litigants and the lawyers do not have to come physically to file the proceedings in respect of the courts/tribunals across the Country. 9. In view of the aforesaid Supreme Court order, a Single Bench of the Madras High Court had permitted the prosecution to file a charge sheet after the expiry of 60 days/90 days considering the fact that they were not in a _Crl.M.C.No. 2815 of 2021_ 11 position to complete the investigation and to file the charge sheet on time, observing thus: _"...The Supreme Court order eclipses all provisions prescribing period of limitation until further orders. Undoubtedly, it eclipses the time prescribed under S.167(2) of the Code of Criminal Procedure also..."_ 10. This order was challenged before the Apex Court in ## _**Kasi v. State through the Inspector of Police Samayanallur Police Station, Madurai District, 2020 (3) KHC 600**_ , wherein a three-Judge Bench of the Apex Court observed thus: “ _19. Learned Single Judge in paragraph 13 of the impugned judgment has also observed that the lockdown announced by the Government is akin to proclamation of Emergency. Learned Single Judge has also referred to Financial Emergency under Art.360 of the Constitution. Learned Single Judge also noticed that presently though the State is not passing through Emergency duly proclaimed, but the whole nation has accepted the restrictions for the well-being of the mankind. Let us also examine as to whether in event of proclamation of Emergency under Art.352 of the Constitution, whether right to liberty as enshrined under Art.21 stands suspended ?_ _Crl.M.C.No. 2815 of 2021_ 12 _20. We may recall the Constitution Bench Judgment of this Court in Additional District Magistrate, Jabalpur v. Shivakant Shukla (1976 KHC 753 : 1976 (2) SCC 521 : AIR 1976 SC 1207 : 1976 CriLJ 945.), where majority of the Judges (Justice H.R.Khanna dissenting) had taken the view that after proclamation of Emergency under Art.352, no proceedings can be initiated for enforcement of right under Art.21. Justice A.N.Ray, C.J., with whom three other Hon'ble Judges have concurred in paragraph 136 and paragraph 137 laid down the following:_ _"136. First, In view of the Presidential Order dated June 27, 1975, under clause (1) of Art.359 of our Constitution no person has locus standi to move any writ petition under Art.226 before a High Court for Habeas Corpus or any other writ or order or direction to enforce any right to personal liberty of a person detained under the Act on the grounds that the order of detention or the continued detention is for any reason not under or in compliance with the Act or is illegal or mala fide._ _137. Second, Art.21 is the sole repository of rights to life and personal liberty against the State. Any claim to a writ of habeas corpus is enforcement of Art.21 and, is, therefore, barred by the Presidential Order. xxxxxxxxxxxxxxxxxxx”_ _25. We, thus, are of the clear opinion that the learned Single Judge in the impugned judgment_ _Crl.M.C.No. 2815 of 2021_ 13 _erred in holding that the lockdown announced by the Government of India is akin to the proclamation of Emergency. The view of the learned Single Judge that the restrictions, which have been imposed during period of lockdown by the Government of India should not give right to an accused to pray for grant of default bail even though charge sheet has not been filed within the time prescribed under S.167(2) of the Code of Criminal Procedure, is clearly erroneous and not in accordance with law."_ 11. Section 57 of the Cr.P.C. prescribes only 24 hours for an accused consequent to his arrest to be produced before the nearest Magistrate. Under S.167 Cr.P.C., the Magistrate before whom the accused is produced is entitled to remand the accused to either police custody or judicial custody for a period of 15 days and thereafter, the investigation is still not complete, further custody other than police custody can be ordered for a period of 60 days or 90 days depending on the gravity of the offence. 12. The Hon’ble Supreme Court in _**Achpal @ Ramswaroop v.**_ ## _**State of Rajasthan, 2018 KHC 6714: 2019 (14) SCC 599**_ after referring several earlier judgments of the Supreme Court, _Crl.M.C.No. 2815 of 2021_ 14 including _**Uday Mohanlal Acharya v. State of Maharashtra, 2001 KHC 902 : 2001 (5) SCC 453**_ and _**Rakesh Kumar Paul v. State of Assam**_ , _**2017 (4) KHC 470 : 2017 (15) SCC 67**_ laid down that the provisions of the Code do not empower anyone to extend the period within which the investigation must be completed. The Hon’ble Supreme Court specifically stated that the period fixed under Section 167 for completing the investigation cannot be extended at all. 13. The question of whether custodial interrogation can be given to the police after the expiry of 15 days has come up for consideration before the Apex Court as early as in 1992 in _**CBI v. Anupam J.Kulkarni, 1992 KHC 863 : 1992 (3) SCC 141**_ , wherein it has been clearly stated that under Section 167(2)(a) of the Cr.P.C., remand of the accused to police custody can only be during the first 15 days alone and thereafter further remand for 60 days or 90 days can only be in judicial custody. 14. The above view of the Hon’ble Supreme Court was reiterated in _**Budh Singh v. State of Punjab, 2000 KHC 764 :**_ _Crl.M.C.No. 2815 of 2021_ 15 _**2000 (9) SCC 266**_ wherein it was held that police custody after the expiry of 15 days is not possible even if some more offences have been committed by the accused in the same transactions comes to the light at a later time. Several other High Courts have also upheld this view. In ## _**Amar Pal v. State of U.P., 1995 KHC 2432 : 1995 Crl.LJ 52**_ , the Allahabad High Court while considering the provisions under Section 167(2) held that after the expiry of the first 15 days, the detention of the accused in police custody cannot be authorised on any ground whatsoever. The Madras High Court in _**K.S.Palanichamy v. State rep. by the - Inspector of Police, Economic Offences Wing II (EOW) Dindigul, 2012 KHC 3369: 2012 Crl.LJ 2464**_ and _**State represented by the Inspector of Police v. R.Vaidyanathan & others, 2013 KHC 3506 : 2013 Crl.LJ 4368**_ , repeatedly held that remand of the accused to police custody is possible only within 15 days from the date of the arrest and production before the Magistrate, and after the expiry of 15 days from the date of the first remand, the Magistrate _Crl.M.C.No. 2815 of 2021_ 16 has no power to grant police custody. ## 15. In _**Union of India v. Mahaboob, 2019 KHC 2139 : 2019**_ _**Crl.LJ 138**_ , a Division Bench of the Hyderabad High Court has held that even if there is a change in the investigating agency and adding of new sections of law during the course of the investigation, police custody can only be in the first 15 days of remand and not thereafter. 16. The Hon’ble Supreme Court has again in _**Satyajit**_ _**Ballubhai Desasi & others v. State of Gujarat, 2014 KHC 2511 : 2014 (14) SCC 434**_ held that police remand should be an exception and not a rule, for that investigating agency is not required to make out a strong case and must satisfy the learned Magistrate that without the police custody it would be impossible for the police authorities to undertake further investigation. It is also reiterated that there cannot be any detention in police custody after the expiry of the first 15 days, even in a case where some more offences, either serious or otherwise, committed by him in _Crl.M.C.No. 2815 of 2021_ 17 the same transaction comes at a later stage. It is also observed by the Hon’ble Supreme Court that it is apparent from the provisions of the Cr.P.C. that the order permitting police remand cannot be treated lightly or casually and strict adherence to the statutory provision is mandatory. 17. Coming to the facts of the present case, the only ground which has been urged by the learned Senior Counsel is that the prosecution was not able to get the custody of the accused because of no fault of their own and that the accused were quarantined because of the present pandemic situation. The application for custody was filed in time, but it was only considered at a later point of time because the accused were quarantined and this led to the expiry of 15 days, and therefore, the prosecution should be given an exception to get the custody of the accused. The learned Senior Counsel submits that this Court has sufficient powers under Section 482 of the Cr.P.C. to grant police custody of the accused even if the application is filed _Crl.M.C.No. 2815 of 2021_ 18 beyond the period of 15 days in case there are compelling reasons for not getting the custody. 18. I am afraid, that in view of the overwhelming precedents of the Supreme Court as well as other High Courts, no exceptions can be made even during COVID pandemic to the statutory provisions under Section 167 of the Cr.P.C. In _**Kasi**_ ( _supra_ ), the Hon’ble Supreme Court has held that the court has no power to extend the period prescribed in Section 167 for completing the investigation on any grounds, even in the name of the COVID-19 pandemic. Under the circumstances, the police cannot get custody of the accused after the expiry of the 15 days. The learned Senior Counsel is anxious that recovery is not yet effected by the police and recovery under Section 27 of the Evidence Act can only be made under police custody. The Hon’ble Supreme Court has in _**The State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru 2005 KHC 2054 : 2005 (11) SCC 600**_ (Parliament Attack case) the Apex court had considered the controversy centred around two aspects concerning S. 27 of _Crl.M.C.No. 2815 of 2021_ 19 the Evidence Act: - _(i) Whether the discovery of fact referred to in S.27 should be confined only to the discovery of a material object and the knowledge of the accused in relation thereto or the discovery could be in respect of his mental state or knowledge in relation to certain things -- concrete or nonconcrete._ - _(ii) Whether it is necessary that the discovery of fact should be by the person making the disclosure or directly at his instance. The subsequent event of discovery by the police with the aid of information furnished by the accused -- whether can be put against him under S.27._ 19. Relying on the Privy Council decision in the ## _**Kottaya**_ case ( _**Pulukuri Kottaya v. Emperor, AIR 1947 PC 67**_ the Apex court held thus: “ _142. There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of S.27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the police officer to the place where an object is concealed and points out the same to him, however, it is not essential_ _Crl.M.C.No. 2815 of 2021_ 20 _that there should be such pointing out in order to make the information admissible under S.27. It could very well be that on the basis of information furnished by the accused, the investigating officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the investigating officer will be discovering a fact viz. the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the police officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of S.27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the police officer chooses not to take the informant accused to the spot, it will have no bearing on the point of admissibility under S.27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence._ ” ## 20. Though the decision in _**Navjot Sandhu @ Afsan Guru**_ ( _supra_ ) stands overruled on certain other aspects in _**Anvar**_ ## _**P.V. v. P.K.Basheer and Ors 2014 KHC 4602: AIR 2015 SC 180,**_ the finding regarding Section 27 of the Evidence Act is not interfered with. ## 21. The Apex Court had even earlier, considered the requirement of the investigating officer regarding the need _Crl.M.C.No. 2815 of 2021_ 21 for custodial interrogation for the purpose of recovery under Section 27 of the Evidence Act while granting anticipatory bail to the accused. In _**Gurbaksh Singh Sibbia and another v. State of Punjab. Citation. 1980 KHC 665:**_ _**1980 (2) SCC 565**_ it was observed thus: “ _While granting relief under S.438 (1), appropriate conditions can be imposed under S.438 (2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under S.27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of S.27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya, 1961 (1) SCR 14 at p. 26: (AIR 1960 SC 1125) to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed to have surrendered himself to the police.”_ 22. The argument of the learned Senior Counsel DGP, that the investigation in the case cannot proceed without _Crl.M.C.No. 2815 of 2021_ 22 affording an opportunity to interrogate the accused in police custody for the purpose of recovery under Section 27 of the Evidence Act, in view of the above precedents, is not acceptable. The accused can still be subjected to interrogation in judicial custody with the permission of the court for the purpose of discovery under Section 27 of the Evidence Act, but not in police custody. The information, if any, given by the accused to the investigating officer shall be used for the purpose of recovery under Section 27 of the Evidence Act. The Crl.M.C. is therefore not sustainable and has to be dismissed. The prosecution is at liberty to question the accused, who are in judicial custody, if necessary, for the purpose of investigation, with the permission of the jurisdictional Court. ## **Sd/-** ## **ASHOK MENON** **JUDGE** _dkr_ _Crl.M.C.No. 2815 of 2021_ 23 ## **APPENDIX OF CRL.MC 2815/2021** |PETITIONER ANNEXURE|| |---|---| |Annexure A|A TRUE COPY OF THE FIR IN THE CRIME| ||NO.164/2021 OD NEDUMUDI PS.| |Annexure B|A TRUE COPY OF THE CUSTODY APPLICATION IN| ||CRIME NO.164/2021 DATED 16.04.2021.| |Annexure C|A TRUE COPY OF THE LETTER DATED 27.04.2021| ||FROM THE JAIL AUTHORITY.| |Annexure D|A TRUE COPY OF THE ADVANCE PETITION DATED| ||25.05.2021.| |Annexure E|A TRUE COPY OF THE PETITION FILED BY THE| ||INVESTIGATING OFFICER ON 25.05.2021.| |Annexure F|CERTIFIED COPY OF THE COMMON ORDER DATED| ||03.06.2021 IN CRL.M.P.NO.913/2021 BY THE| ||SESSIONS COURT, ALAPPUZHA.|