Order for remand under Police Custody is a part of investigation.

The prayer in this petition is to call for the records and quash the Order dated 19.11.2004 passed in Crl.M.P.No.5857 of 2004 in Crime No.914 of 2004 by the learned Judicial Magistrate-I, Kancheepuram.

2. The brief facts of this case are as folows:

On 3.9.2004 one Sankararaman, working in 'Arulmigu Devaraja Swamy Thiru Koil', Kancheepuram was murdered at 6.30 p.m. in the temple-office; two persons came with 'Arruval' and hacked the deceased; they ran away with three others, who were standing nearby; all the five fled in two Yamaha Motor Cycles parked outside the temple; so far thirteen persons have been arrested. The petitioner was arrested on 10.11.2004, produced before the Magistrate on 11.11.2004, and was remanded to judicial custody for fifteen days. Subsequent to that, the Magistrate by Order dated 19.11.2004 granted 'police custody' for three days on the application filed by the Investigating Officer. Since it is an interlocutory order, no revision/appeal could be filed. Therefore, the present petition is filed under Section 482 Cr.P.C.

3. Though in the petition a number of grounds have been raised, Mr. I.Subramanian, learned Senior Counsel appearing for the petitioner, has confined his arguments only to the following two legal aspects:

(1) After remanding a person to judicial custody, before the expiry of that period of remand, the Magistrate cannot pass another order contrary to the earlier Order and grant police custody.

(2) When the accused seeks the presence of his lawyer during interrogation in police custody, that request cannot be rejected.

I. Whether the Magistrate cannot order police custody before the expiry of the judicial custody?

(i) The learned Senior Counsel for the petitioner submitted that when the petitioner was enquired by the Magistrate as to his consent to go under police custody, the petitioner has stated that he had no information to furnish. The police custody is granted for the purpose of eliciting information for recovery of any of the Material Objects connected with the crime; that is, only when the accused could impart some information, the police custody could be granted. But, when the petitioner had specifically stated that he had no information to furnish, police custody cannot be ordered. The learned Senior Counsel further contended that only when the initial remand is for any lesser period than the 15 days, police custody could be granted after the initial period of remand was over. If the initial judicial remand was for 15 days, before the completion of that period of remand, the Magistrate has no power to grant police custody; that would amount to revising or changing his own order of granting judicial custody. Therefore, the impugned Order is not legal. In this case, the Magistrate has examined the materials placed before him at the time of remand, applied his mind and only then remanded the petitioner for judicial custody for the maximum period of 15 days. Therefore, before the expiry of that 15 days, the judicial custody cannot be converted as police custody.

(ii) The learned Senior Counsel submitted that in GIAN SINGH v.. STATE (DELHI ADMINISTRATION) [1981 Cri LJ 100] a learned single Judge of the Delhi High Court held that once the accused was remanded to judicial custody he could not be sent back again to police custody in connection with or in continuation of the same investigation even though the first period of fifteen days had not exhausted. The Supreme Court in C.B.I. v.. ANUPAM J. KULKARNI [1992 SCC (Cri) 554] had not rejected that view. The ratio decidendi in this case is that after the expiry of 15 days of remand, police custody cannot be granted. Therefore, this decision of the learned single Judge of the Delhi High Court that the accused once remand to judicial custody cannot be sent back to police custody, has not been over ruled by the Supreme Court.

Section 167 Cr.P.C. authorises detention of accused in such custody "from time to time"; that means only after the