Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8
CASE NO.:
Appeal (crl.) 575-576 of 2004
PETITIONER:
State Rep. by Inspector of Police & Ors.
RESPONDENT:
N.M.T. Joy Immaculate
DATE OF JUDGMENT: 05/05/2004
BENCH:
CJI & G.P. Mathur.
JUDGMENT:
JUDGMENT
(Arising out of Special Leave Petition (Crl.) Nos.3143-3144 of 2002)
G.P. MATHUR,J.
1. Leave granted.
2. These appeals have been preferred by the State of Tamil Nadu against
the judgment and order dated 11.4.2002 of a learned Single Judge of the
High Court of Madras by which the criminal revision petition preferred by
the respondent N.M.T. Joy Immaculate was allowed and the revision was
disposed of with certain directions.
3. A written FIR was lodged at P.S. P1-Puliyanthope on 9.10.2001 by
one Jaffar Sait alleging that his brother Rizwan Sait was missing since
around 9.00 a.m. on 7.10.2001 and on the basis of same a case was
registered. On 15.10.2001 Haroon Sait (brother of Rizwan Sait) filed a
Habeas Corpus Petition in the High Court of Madras being H.C.P. No.1458
of 2001, wherein besides the State and Inspector of Police, P.S. P1-
Puliyanthope, R. Sathish, Miss Joy Immaculate and Miss Nithya were
arrayed as respondents no.3 to 5 and a prayer was made that a writ of habeas
corpus be issued directing the respondents to produce his brother Rizwan
Sait, who is illegally detained by respondents no.3 to 5 and to set him at
liberty. It was averred in the writ petition that Rizwan Sait lends money on
interest to various businessmen including the shopping business complex of
Spencers Plaza, Chennai. Respondents no.3 to 5 and their friends, namely,
Vijay and Ranjit had taken money from Rizwan Sait. Miss Joy Immaculate
had conducted a fashion show at Music Academy and in that connection she
had borrowed more than Rs.50,000/- and her sister Miss Nithya, who was
running a business in the name and style of Fashion World at Spencers
Plaza, had also borrowed a sum of Rs.65,000/. Joy Immaculate and her
sister Nithya did not repay the interest and when Rizwan Sait went to the
latter’s shop, R. Sathish undertook to clear off their dues. At about 9.00
a.m. on 7.10.2001 R. Sathish came to the writ petitioner’s house and
thereafter his brother Rizwan Sait left along with him in a Maruti car.
While leaving, he had said that he was going to Chittur (A.P.) and would
return back in the night. However, as Rizwan Sait did not come back till
the morning of 8.10.2001, they started looking for him and went to the shop
of Nithya and asked her to give the address of R. Sathish, which she refused
to do. However, in the morning of 9.10.2001, R. Sathish himself came to
their house and said that their programme of going to Chittur was cancelled
and accordingly Rizwan Sait had returned back to his house on the morning
of 7.10.2001 itself. A photocopy of a cheque for a sum of Rs.1,50,000/-
dated 2.9.2001 issued by Miss Nithya was found in the cupboard of Rizwan
Sait. In the Habeas Corpus Petition Haroon Sait raised a suspicion that
respondents no.3 to 5 have done some foul play with his brother who had
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8
advanced money to them.
4. An unidentified dead body was found at Kanagavallipuram and on the
report of Village Administrative Officer a case was registered with the
concerned police station. After autopsy in the Government Hospital,
Tiruvellore, the dead body was buried. One Deva @ Dev Raj was arrested
by Inspector of P1-Puliyanthope Police Station. He confessed to the police
about the commission of crime and showed the place where Rizwan Sait was
murdered. It was thereafter ascertained that the unidentified dead body
found on 10.10.2001 at Tiruvellore Taluka was that of Rizwan Sait.
Thereafter, the case registered on 9.10.2001 at P.S. P1-Puliyanthope was
altered to Section 363, 302 IPC. Dev Raj was remanded to judicial custody
on 23.10.2001. Joy Immaculate surrendered in the Court of Judicial
Magistrate, Alandhur, Chennai on 24.10.2001 and was remanded to judicial
custody and R. Sathish surrendered before XXIII Metropolitan Magistrate,
Saidpet, Chennai on 25.10.2001. The Investigating Officer made an
application before the concerned Magistrate on 31.10.2001 for giving
Sathish on police remand. This application was allowed and the learned
Metropolitan Magistrate vide his order dated 1.11.2001 granted police
remand of accused Sathish for 3 days i.e. from 1.11.2001 to 3.11.2001. It is
alleged that he made some sort of a confession to the police and on the basis
of the statement made by him, some incriminating articles were recovered.
Thereafter, the Investigating Officer moved an application before the
concerned Magistrate for grant of police remand of Joy Immaculate, which
was opposed by her. The learned Vth Metropolitan Magistrate, Egmore,
Chennai passed a detailed order on 6.11.2001, whereunder she was given in
police custody for one day and was to be produced in court by 4.00 p.m. on
7.11.2001. It was directed that she would be detained in All Women Police
Station and would be interrogated at the office of the Asst. Commissioner of
Police, in the presence of the women Inspector of Police. It was further
directed that during the period of police custody, the accused should not be
harassed physically or psychologically and should be produced before the
Court, in the same condition.
5. According to the prosecution, Joy Immaculate made some confessional
statements before the Investigating Officer and on her pointing out the wrist
watch and shirt of the deceased and also the nylon rope used in the
commission of murder were recovered. Thereafter, on 7.11.2001 she was
produced before the Vth Metropolitan Magistrate who remanded her to
judicial custody. Two weeks thereafter, Joy Immaculate filed a criminal
revision petition under Section 397 Cr.P.C. being Crl. R.C. No.1569 of
2001, wherein it was prayed that the order dated 6.11.2001 passed by Vth
Metropolitan Magistrate granting police custody be set aside as the same is
against the principles laid down in Section 167 Cr.P.C and that the Court
may pass such other and further orders as it may deem fit and proper. In the
revision petition, accused Joy Immaculate filed an affidavit making serious
allegations against the police personnel to the effect that she was
interrogated and detained at the police station on 18th and then from 20th to
24th October, 2001 and also referred to certain telegrams which were sent to
the Chief Justice of the High Court in this connection. Affidavits in reply
were filed by the concerned police personnel. The High Court by the
impugned order, which is the subject matter of challenge in the present
appeals disposed of the revision petition by issuing several directions and
directions no.(a), (b), (c), (d), (g) and (h) are being reproduced below :
(a) The order granting police custody in respect of the petitioner
passed by the learned Magistrate is ex facie illegal. Consequently, it
is held that the said order is non-est and has to be erased from the
records.
(b) In view of the fact that the order granting custody has become
non-est, the consequent so-called confession and alleged recovery has
no evidentiary value.
(c) The investigation conducted by P1 and P4 Police with reference
to the petitioner is not bona fide and false records have been created
to implicate the petitioner, thereby caused serious injustice to the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8
petitioner.
(d) The petitioner had been wrongfully and illegally detained in P4
Police Station for four days and she was harassed and tortured by the
Police personnel.
(g) The Commissioner of Police is also directed to take immediate
departmental action against the P1 Inspector of Police, P4 Inspector of
Police and other Police Personnel who were responsible for the illegal
detention and other obscene acts committed on the petitioner at P4
Police Station.
(h) The Home Secretary to the Government of Tamil Nadu is
directed to pay a compensation of Rs.1,00,000/- to the petitioner, the
victim for her illegal detention in the P4 Police Station by the police
personnel who committed the acts of molestation, obscene violation
and teasing on the petitioner, within one month from the date of
receipt of this order.
The prayer made by the accused for transfer of investigation to
C.B.C.I.D. or C.B.I. was declined and the Commissioner of Police was
directed to constitute a special team of investigating agency headed by an
Assistant Commissioner of Police to continue the investigation of the case.
A direction was also issued to the State Government to issue circulars to all
the police stations that woman accused/witness should not be brought to the
police station and they must be inquired only by the woman police at the
place where they reside.
6. We have heard Shri Altaf Ahmad, Additional Solicitor General
appearing for the Appellant State of Tamil Nadu and also learned counsel
appearing for respondent (accused Joy Immaculate) and have examined the
record. In our opinion, the High Court seems to have been carried away by
sentiments and has displayed a complete ignorance of the relevant
provisions of law, especially that of Code of Criminal Procedure and the
Evidence Act.
7. The learned Vth Metropolitan Magistrate by his order dated 6.11.2001
had granted police remand for one day of the accused Joy Immaculate in
exercise of powers conferred by Section 167 Cr.P.C. She was given in
police custody on the same day and was produced before the learned
Metropolitan Magistrate on 7.11.2001 and thereafter she was sent to judicial
custody. The order had exhausted itself as the police custody was actually
given. However, the accused challenged the aforesaid order by filing a
criminal revision petition under Section 397 Cr.P.C. after two weeks on
21.11.2001.
8. The first question which needs examination is whether the revision
petition was maintainable. Sub-section (2) of section 397, Cr.P.C. lays
down that the power of revision conferred by sub-section (1) shall not be
exercised in relation to any interlocutory order passed in any appeal,
enquiry, trial or other proceedings. The expression "interlocutory order" has
not been defined in the Code. It will, therefore, be useful to refer to its
meaning as given in some of the dictionaries:
The New Lexicon - Pronounced and arising during legal
Webster’s Dictionary procedure, not final
Webster’s Third New - Not final or definitive; made or done
International Dictionary during the progress of an action
Wharton’s Law Lexicon - An interlocutory order or judgment is one
made or given during the progress of
action, but which does not finally
dispose of the rights of the parties e.g.,
an order appointing a receiver or
granting an injunction, and a motion
for such an order is termed an
interlocutory motion
Black’s Law Dictionary - Provisional; temporary; not final.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8
Something intervening between the
commencement and the end of a suit which
decides some point or matter, but is not a
final decision of the whole controversy.
9. Ordinarily and generally, the expression ’interlocutory order’ has been
understood and taken to mean as a converse of the term ’final order’. In
volume 26 of Halsbury’s Laws of England (Fourth Edition) it has been
stated as under in para 504:
"\005\005\005..a judgment or order may be final for one purpose and
interlocutory for another, or final as to part and interlocutory as
to part. It is impossible to lay down principles about what is
final and what is interlocutory. It is better to look at the nature
of the application and not at the nature of the order eventually
made. In general, orders in the nature of summary judgment
where there has been no trial of the issues are interlocutory."
In para 505 it is said that in general a judgment or order which
determines the principal matter in question is termed "final".
In para 506 it is stated as under:
"An order which does not deal with the final rights of the
parties, but either (1) is made before judgment, and gives no
final decision on the matters in dispute, but is merely on a
matter of procedure, or (2) is made after judgment, and merely
directs how the declarations of right already given in the final
judgment are to be worked out, is termed "interlocutory". An
interlocutory order, even though not conclusive of the main
dispute, may be conclusive as to the subordinate matter with
which it deals."
10. In S. Kuppuswami Rao v. King, AIR 1949 FC 1, the following
principle laid down in Salaman v. Warner, (1891) 1 QB 734, was quoted
with approval:
"If their decision, whichever way it is given, will, if it stands,
finally dispose of the matter in dispute, I think that for the
purposes of these rules it is final. On the other hand, if their
decision, if given in one way, will finally dispose of the matter
in dispute, but, if given in the other, will allow the action to go
on, then I think it is not final, but interlocutory."
The test laid down therein was that if the objection of the accused
succeeded, the proceeding could have ended but not vice versa. The order
can be said to be a final order only if, in either event, the action will be
determined.
11. However, in Madhu Limaye v. State of Maharashtra, AIR 1978 SC
47, such an interpretation and the universal application of the principle that
what is not a final order must be an interlocutory order was not accepted as
this will render the revisional power conferred by section 397(1) nugatory.
After taking into consideration the scheme of the Code of Criminal
Procedure and the object of conferring a power of revision on the Court of
Sessions and the High Court, it was observed as follows:
"In such a situation, it appears to us that the real intention of the
Legislature was not to equate the expression "interlocutory
order" as invariably be converse of the words ’final order’.
There may be an order passed during the course of a
proceeding which may not be final in the sense noticed in
Kuppuswami’s case, AIR 1949 FC 1 (supra), but, yet it may
not be an interlocutory order \026 pure or simple. Some kinds of
order may fall in between the two. By a rule of harmonious
construction, we think that the bar in sub-section (2) of section
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8
397 is not meant to be attracted to such kinds of intermediate
order."
12. Same question has recently been considered in K.K. Patel v. State of
Gujarat 2000 (6) SCC 195. In this case a criminal complaint was filed
against the Superintendent of Police and Deputy Superintendent of Police
alleging commission of several offences under the Indian Penal Code and
also under Section 147-G of the Bombay Police Act. The Metropolitan
Magistrate took cognizance of the offence and issued process to the accused,
who on appearance filed a petition for discharge on the ground that no
sanction as contemplated by Section 197 Cr.P.C. had been obtained. The
Metropolitan Magistrate dismissed the petition against which a revision was
filed before the Sessions Judge, who allowed the same on the objection
raised by the accused based upon Section 197 Cr.P.C. and also Section
161(1) Bombay Police Act, which creates a bar of limitation of one year.
The revision preferred by the complainant against the order of discharge was
allowed by the High Court on the ground that the order passed by the
Metropolitan Magistrate rejecting the prayer of the accused to discharge
them was an interlocutory order. In the appeal preferred by the accused,
this Court after referring to Amar Nath v. State of Haryana 1977 (4) SCC
137, Madhu Limaye v. State of Maharashtra AIR 1978 SC 47 and V.C.
Shukla v. State AIR 1980 SC 962 held that in deciding whether an order
challenged is an interlocutory or not, as for Section 397(2) of the Code, the
sole test is not whether such order was passed during the interim stage. The
feasible test is whether by upholding the objections raised by a party, it
would result in culminating the proceedings. If so, any order passed on
such objections would not be merely interlocutory in nature as envisaged in
Section 397(2) of the Code. It was further held that as in the facts of the
case, if the objections raised by accused were upheld, the entire prosecution
proceedings would have been terminated, the order was not an interlocutory
order and consequently it was revisable.
13. Section 167 Cr.P.C. empowers a Judicial Magistrate to authorise the
detention of an accused in the custody of police. Section 209 Cr.P.C. confers
power upon a Magistrate to remand an accused to custody until the case has
been committed to the Court of Sessions and also until the conclusion of the
trial. Section 309 Cr.P.C. confers power upon a Court to remand an accused
to custody after taking cognizance of an offence or during commencement of
trial when it finds it necessary to adjourn the enquiry or trial. The order of
remand has no bearing on the proceedings of the trial itself nor it can have
any effect on the ultimate decision of the case. If an order of remand is
found to be illegal, it cannot result in acquittal of the accused or in
termination of proceedings. A remand order cannot affect the progress of
the trial or its decision in any manner. Therefore, applying the test laid
down in Madhu Limaye’s case (supra), it cannot be categorised even as an
"intermediate order". The order is, therefore, a pure and simple
interlocutory order and in view of the bar created by sub-section (2) of
Section 397 Cr.P.C., a revision against the said order is not maintainable.
The High Court, therefore, erred in entertaining the revision against the
order dated 6.11.2001 of the Metropolitan Magistrate granting police
custody of the accused Joy Immaculate for one day.
14. The High Court after holding that the order granting police custody is
ex-facie illegal has further held that the so-called confession and alleged
recovery has no evidentiary value. It has also been held that the
investigation conducted by P-1 and P-4 Police with reference to the accused
is not bona fide and false records have been created to implicate the accused.
The question then arises whether the High Court was right in making the
aforesaid observations, even if it is assumed that the order dated 6.11.2001
granting police custody was illegal (though we have held above that the
aforesaid order being a purely interlocutory order, no revision lay against the
same and the High Court committed manifest error of law in entertaining the
revision and setting aside the said order). The admissibility or otherwise of
a piece of evidence has to be judged having regard to the provisions of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8
Evidence Act. The Evidence Act or the Code of Criminal Procedure or for
that matter any other law in India does not exclude relevant evidence on the
ground that it was obtained under an illegal search and seizure. Challenge
to a search and seizure made under the Criminal Procedure Code on the
ground of violation of fundamental rights under Article 20(3) of the
Constitution was examined in M.P. Sharma v. Satish Chander AIR 1954 SC
300 by a Bench of 8 Judges of this Court. The challenge was repelled and it
was held as under :
"A power of search and seizure is in any system of
jurisprudence an over-riding power of the State for the
protection of social security and that power is necessarily
regulated by law. When the Constitution makers have thought
fit not to subject such regulation to constitutional limitations by
recognition of a fundamental right to privacy, analogous to the
American Fourth Amendment, we have no justification to
import it, into a totally different fundamental right, by some
process of strained construction. Nor is it legitimate to assume
that the constitutional protection under Article 20(3) would be
defeated by the statutory provisions for searches."
15. The law of evidence in our country is modeled on the rules of
evidence which prevailed in English Law. In Kuruma v. The Queen 1955
AC 197 an accused was found in unlawful possession of some ammunition
in a search conducted by two police officers who were not authorised under
the law to carry out the search. The question was whether the evidence with
regard to the unlawful possession of ammunition could be excluded on the
ground that the evidence had been obtained on an unlawful search. The
Privy Council stated the principle as under :
"The test to be applied, both in civil and in criminal cases, in
considering whether evidence is admissible is whether it is
relevant to the matters in issue. If it is, it is admissible and the
Court is not concerned with how it was obtained".
This question has been examined threadbare by a Constitution Bench
in Pooran Mal v. Director of Inspection 1974(1) SCC 345 and the principle
enunciated therein is as under :
"If the Evidence Act, 1872 permits relevancy as the only test of
admissibility of evidence, and, secondly, that Act or any other
similar law in force does not exclude relevant evidence on the
ground that it was obtained under an illegal search or seizure, it
will be wrong to invoke the supposed spirit of our Constitution
for excluding such evidence. Nor is it open to us to strain the
language of the Constitution, because some American Judges of
the American Supreme Court have spelt out certain
constitutional protections from the provisions of the American
Constitution. So, neither by invoking the spirit of our
Constitution nor by a strained construction of any of the
fundamental rights cane we spell out the exclusion of evidence
obtained on an illegal search.
So far as India is concerned its law of evidence is
modeled on the rules of evidence which prevailed in English
Law, and Courts in India and in England have consistently
refused to exclude relevant evidence merely on the ground that
it is obtained by illegal search or seizure. Where the test of
admissibility of evidence lies in relevancy, unless there is an
express or necessarily implied prohibition in the Constitution or
other law evidence obtained as a result of illegal search or
seizure is not liable to be shut out."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8
This being the law, the direction (b) given by the High Court that the
confession and alleged recovery has no evidentiary value is clearly illegal
and has to be set aside. The effect of the confession and also the recovery
of the incriminating article at the pointing out of the accused has to be
examined strictly in accordance with the provisions of the Evidence Act.
16. The High Court has also recorded a finding that the investigation
conducted by P-1 and P-4 Police with regard to accused Joy Immaculate is
not bona fide and false records have been created to implicate her causing
her serious injustice and further that she was detained in the police station
for four days and was harassed and tortured by the police personnel. It is
needless to mention that the High Court was hearing a criminal revision
petition filed under Section 397 Cr.P.C. against an order passed by a
Metropolitan Magistrate granting police custody of the accused. The scope
of the revision, even if it is assumed to be maintainable, was a limited one,
viz., whether the order granting police remand was legally correct or not
having regard to the material placed before the learned Magistrate. The
High Court at that stage could not have gone into the merits of the
prosecution case as if hearing an appeal against an order of conviction or
acquittal as the trial of the accused is yet to begin. The only material
available before the High Court was the affidavit filed by the accused, copies
of telegrams and the reply affidavits filed by the concerned police officials.
The affidavit of the accused has been accepted as a gospel truth and very
disparaging and strong remarks have been made against the investigating
officers and the investigation done by them. Though we do not want to
express any opinion, one way or the other, but at the same time one should
not lose sight of the fact that a person who has been accused by the
prosecution for having entered into a conspiracy to commit murder, can go
to any extent in making wild allegations against the concerned police
authorities. The High Court lost sight of the fact that much before the
accused Joy Immaculate claims to have been interrogated in the police
station (20th October, 2001 and subsequently) and the police came into
picture, the brother of the deceased had filed a Habeas Corpus Petition in the
High Court on 15.10.2001, wherein she and her sister Miss Nithya had been
arrayed as respondents and serious allegations had been made against them
and in para 12 it was specifically alleged that these two sisters along with
Sathish had illegally detained Rizwan Sait (deceased). The alleged ill
treatment meted out to her subsequently by the police cannot have the effect
of wiping out the crime committed earlier viz. entering into a conspiracy and
thereafter murder of Rizwan Sait on 9th October. The High Court seems to
have been very much swayed by the fact that she was a student and was
studying in M.A. and like all normal students must be totally devoted to
studies. But the statements of witnesses under section 161 Cr.P.C. show that
the mother and sister Nithya of accused Joy Immaculate were also carrying
on business, that both the sisters borrowed money from Rizwan Sait and that
the interest amount had not been timely paid due to which some altercation
took place on 4th October when Rizwan Sait used some filthy language
against her that if by a particular date the amount was not paid she should
come and sleep with him. However, these are all factual aspects of the case
which have to be examined by the trial court at the appropriate stage after
parties have adduced evidence.
17. Chapter XVIII of the Code of Criminal Procedure contains detailed
and exhaustive provisions for the trial of an accused before the Court of
Sessions. It provides for framing of charge (Section 228), taking of
evidence as may be produced in support of the prosecution (Section 231)
and an opportunity to the accused to enter upon his defence and to adduce
evidence in support thereof (Section 233). Section 313 Cr.P.C. enjoins that
circumstances appearing in evidence against the accused be put to him to
enable him to explain the same. The accused Joy Immaculate would get full
and complete opportunity to defend herself in the trial. It is for the trial
Court to weigh the evidence adduced by the prosecution and then record a
finding on its basis whether the investigation has been fair or not or whether
any records have been fabricated. If any party feels aggrieved by the
findings recorded and ultimate order passed by the learned Sessions Judge
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8
deciding the case it will have a right of appeal before the High Court.
There is absolutely no occasion for the High Court to record any finding
regarding the conduct of the investigation or the records on which the
prosecution places reliance, in a revision petition preferred against an order
granting police remand and that too solely on the basis of the affidavits filed
by the rival parties. The High Court has virtually scuttled the trial even
before it has commenced and that too by a process wholly unknown to law.
18. The High Court has also awarded Rs.1 lakh as compensation to the
accused on the ground that she was illegally detained in the police station
and the police personnel committed acts of molestation, obscene violation
etc. It is noteworthy that after investigation, police has submitted charge
sheet against accused Joy Immaculate. Her application for bail was rejected
by the learned Sessions Judge and thereafter by the High Court on 18.1.2002
prior to the decision of the revision. There is absolutely no justification for
awarding compensation to a person who is facing prosecution for a serious
offence like murder even before the trial has commenced. This direction,
therefore, deserves to be set aside.
19. In view of the discussion made, the appeals are allowed and the
impugned judgment and order of the High Court dated 11.4.2002 is set
aside. If the amount of compensation of Rs.1 lakh has already been paid to
the accused Joy Immaculate, she is directed to refund the same within two
months, failing which it may be recovered from her as arrears of land
revenue.
20. It is made clear that any observation made in this order is only for the
limited purpose of deciding the present appeals and shall not be construed
as an expression of opinion on the merits of the case. The learned Sessions
Judge trying the case shall decide the same strictly on the basis of the
evidence adduced by the parties and in accordance with law without being
influenced in any manner with any observation made in this order or in that
of the High Court.