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MADRAS HIGH COURT
S.M Ali Mohamed, J
State - Petitioner
versus
Mathivanan & Ors. - Respondents
Crl. O.P. No. 3928-94
Decided on 24-5-1994
Counsel for the parties:
For the Petitioner: I. Subramaniam, Addl. P.P.
For the Respondents: N. Natarajan and R. Shanmugha SundarAnr.
Held, that any formal written application or a request for further remand is not necessary, but it will be better if it is filed by the prosecution. In any event, whether a request for further remand is filed by the prosecution or not, it is the duty of the Magistrate to satisfy himself that adequate grounds exist to extend the remand. The existence of adequate grounds, will depend upon the peculiar facts in circumstances of the case, the gravity of the offence and the documents in the form of F.I.R., 161, Cr. P.C. Statement and other documents available before the Magistrate connecting the accused to the crime. At this point of time, the Magistrate is not concerned with the truth or otherwise of the allegations contained in the said documents but he has satisfy himself that adequate grounds exists to connect the accused in the commission of the crime alleged. No doubt, personal liberty of the individual is involved on the one hand and on the other the right of the State to prosecute and punish a crime against the society is also involved and a fine balance and safeguard is in built in Sec. 167 of the Criminal Procedure Code. (Para 9)
Further Held: The learned Magistrate has not complied with provisions of Section 167 (2) proviso (a) of Code of Criminal Procedure and has not satisfied himself with regard to the existence of adequate grounds on the basis of the materials available before him and the release of the respondents 1 to 4 on the sole ground that "remand extension report not received" is not sustainable in law. It is well settled that a formal written application of extension of remand is not necessary. Further in the instant case, the accused were arrested on 19-4-1994 and remanded to judicial custody for a total period of 29 days and the statutory period of 90 days to complete investigation was not yet over and investigation is pot yet completed. The impugned order of the Magistrate is vitiated as the sole ground for releasing the respondents 1 to 4 on their own bond is based upon the fact that no "remand extension report was filed at that point of time on 17-5-1994 at 10.55 a.m. It is clear that the Magistrate has not applied his mind and satisfied whether adequate ground existed for extending the remand for a further period of 15 days. (Para 10)
As already pointed out even though the personal liberty of an individual is involved at that point of time, at the time there has to be fair balance with the right of the state to prosecute and punish the crimes against the society and in the instant case when investigation is still pending and not yet completed and the statutory period of 90 days were not over on 17-5-1994, it was the duty of the Magistrate to apply his mind and satisfy himself whether adequate grounds existed for detention of the accused person i.e., materials available in the form of F.I.R. 161 Statement and other documents and the gravity of offence and the involvement of the accused persons. At this point of time, as pointed out by the Supreme Court "at that stage, the Court is concerned with existence of materials against the accused and not as to whether these materials are credible or not on the merits". (Para 1 0)
Result: Petition Allowed. Respondents must surrender.
ORDER
S.M. Ali Mohamed, J. - This petition is filed under Section 482 Criminal Procedure Code to set aside the order dated 17-5-1994 hearing Ref. No. A F.I.R. No. 307/94 in N. 1 Cr. No. 745 of 994 on the file of the learned VII Metropolitan Magistrate, George Town, Madras- 1. The petition is filed by the State. It is averred in the petition as follows:
1. “The petitioner states that in respect of a murder which took place on 18-4-1994 a case in N 1 Royapuram Police Station, Crime No. 745/94 for offences under Sections 147, 148, 149, 341, 302 read with 109 I.P.C. had been registered and the investigation is in progress.
2. The investigation in the case conducted so for discloses the involvement of the 12 accused besides the respondents 1 to 4 in this petition. In the First Information Report lodged with the petitioner in respect of the above said occurrence, the respondents 1 to 4 herein are alleged to have attacked the deceased with lethal weapons causing multiple injuries on the body of the deceased. Further investigation done in the case had so far revealed the involvement of 12 more persons.
3. The petitioner respectfully states that respondents 1 to 4 were arrested on 19-4-1994 and were produced for remand before the VII Metropolitan Magistrate, George Town, Madras on 19-4-94. The learned Magistrate was initially pleased to remand the respondents till 3-5-1994 and this remand was subsequently ex- tended till 17-5-1994. In this connection, it is respectfully submitted that besides the four persons in this petition, 12 other persons who figured as accused in the case have also remanded till 17-5-1994.
4. The petitioner respectfully states that all the 16 accused so far disclosed in the investigation as alleged to have been concerned in the above offences are lodged in the Central Prison, Madras. In the usual course, prisoners concerned in a case are transported in one lot from the Central Prison for production before the Magistrate and for obtaining of further orders of remand in case where the investigation is not yet completed.
5. The petitioner respectfully states that on 17-5-1994 he had to attend the learned Principal Sessions Court, Madras in connection with CMP No. 2911/94 which is an application for bail moved on behalf of the respondents 1 to 4 herein above.
6. The petitioner respectfully states that in the mean while the respondents l to 4 alone were taken from the Central Prison by the concerned jail authorities and were produced for remand before the GT Court at about 10.45 a.m. The Court orderly, viz., Gr. 1 PC 3460 Thiru Abdul Rahman, in charge of GT Court was present at the time when these four respondents were produced for remand. At the time of production of these respondents before the learned Magistrate, the aforesaid Gr. 1 PC informed the learned VII Metropolitan Magistrate that the petitioner herein was attending the Sessions Court and that the remand requisition in respect of the 16 accused will be filed in Court before the Forenoon and that 12 more accused concerned in this case have also been produced and extension of remand was to be obtained for all of them.
7. The petitioner states that although by order dated 3-5-1994 the learned Magistrate had extended the period of remand for these four respondents as well as the other 12 accused in the case till 17-5-94, strangely enough at 10.55 A.M., in the midst of other calling work, these four accused alone were directed to be produced and orders were passed releasing them on bail on execution of their own bond on the premise that no request for extension of remand for these respondents was sought for by the prosecution.
8. The petitioner respectfully states that the order of the learned Magistrate in taking of the case at 10.55 a.m. and releasing the respondents herein on execution of their own bond is contrary to law and the same is liable to be set aside”.
2. The affidavit of Abdul Rehman, who is attached to the Crime Branch has also bee
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