Point of Law: Offence under Section 330, or for that matter Section 331, is not one falling under Section 195(1)(b), Cr.P.C, wherefore, Section 340, Cr.P.C, has no application. whatsoever.

JUDGMENT :

Jayachandran, J.

1. Under challenge in the instant appeal is an order dated 17.01.2022 in Crl.M.P. No.242/2021 in R.C. No.1/2021/NIA/KOC of the Special Court for Trial of NIA cases, Ernakulam. An application forwarded to the Special Judge under the National Investigation Agency Act by the Superintendent of High Security Prison, Viyyur -alleging custodial torture to extract a confession of the appellant (sixth accused in the crime) -was forwarded to the Chief Judicial Magistrate for inquiry under Section 200, Cr.P.C. The challenge against the said order is premised on the contention that the complaint ought to have been proceeded under Section 340, Cr.P.C., which according to the appellant/A6 was the only course open before the Special Judge.

2. Before considering the merits of this appeal, we may indicate that, simultaneous with this appeal, we are disposing Crl.A. No.213/2022 preferred by the same appellant, which was directed against the order of the Special Court, as per which, it rejected the appellant's objection regarding the stage at which and powers under which the Special Court was to consider an application for tender of pardon preferred by the N.I.A.

3. Heard Smt.Sangeetha Lakshmana on behalf of the appellant and Sri. S.Manu, learned Assistant Solicitor General of India representing the respondent/N.I.A.

4. Learned counsel for the appellant argued that the custodial torture undergone by the appellant/A6 would attract the offence under section 195-A of the Penal Code and hence the Special Court should have proceeded under Section 340, Cr.P.C., the offence being one specifically referred to in Section 195(1)(b) of the Code. Learned counsel submitted that, custodial torture took place while the appellant/A6 was in judicial custody, wherefore, the appellant's grievance is not merely and purely personal, but a matter in which the Special Court should have assumed an active role by invoking the powers under Section 340, Cr.P.C. The offence in question is committed in relation to a proceeding before the Special Court, as per which the appellant/A6 was given judicial custody to the N.I.A and therefore, interests of justice demands an inquiry under Section 340 Cr.P.C. Forwarding such a complaint to the Chief Judicial Magistrate for inquiry under Section 200, Cr.P.C, is neither appropriate; nor satisfy the requirements of justice, custodial torture being one of the most barbaric acts resorted to by the investigating agency even during the present times.

5. Per contra, this application was opposed by the learned ASGI on the following grounds. Primarily, on facts, learned ASGI pointed out that, the appellant/A6 had withdrawn his complaint alleging custodial torture for reasons set out in the application for withdrawal, that too after receiving adequate legal advice in this regard. Therefore, the appellant/A6 cannot be heard to have any grievance, whatsoever, in respect of the impugned order. Secondly, learned ASGI pointed out that, dehors such withdrawal of the complaint, the Special Judge felt it necessary and appropriate to forward the complaint to the Chief Judicial Magistrate for inquiry under Section 200, Cr.P.C., which, in the given facts, is something more than the appellant could have aspired for. Thirdly, learned ASGI pointed out that, the offence under Section 195-A of the Penal Code is not attracted at all in the given facts, even if the contents of the appellant's complaint is taken in its face value.

Instead, the offence attracted is the one under Section 330 of the IPC. If that be so, the question of invocation of Section 340, Cr.P.C, does not arise at all, offence under section 330 being not one referred in Section 195(1)(b) of the Code, contends the learned ASGI. Learned ASGI then pointed out that the alleged instance of custodial torture, if any, would not answer the requirements of invoking Section 340 Cr.P.C., having regard to the pre-requisites made mention of in that section. The offence alleged to have