The Hindu : National : Acharya's petition challenging police custody dismissed

Online edition of India's National Newspaper
Tuesday, Nov 23, 2004

National

National

Acharya's petition challenging police custody dismissed

By K.T. Sangameswaran

CHENNAI, NOV. 22. The Madras High Court today dismissed an application by the Kanchi Sankaracharya, Sri Jayendra Saraswathi, challenging an order of the Judicial Magistrate, Kancheepuram, remanding him to police custody.

In his order, Justice A.K. Rajan said that it was not illegal to order police custody when the accused was in judicial custody. (The police custody for the Acharya ended today). He also said that the accused had no statutory right to have his lawyer during interrogation in police custody.

`No violation of Cr.P.C.'

The Acharya's counsel, K. Ravi Anantha Padmanabhan, had filed a petition under Section 482 Cr.P.C. (saving of the inherent powers of the High Court) saying that the Magistrate failed to consider that the request for police custody was totally unwarranted and had been filed only to humiliate the seer.

Mr. Justice Rajan said that the Supreme Court had laid down that the nature of custody could be modified from judicial to police or vice versa within the first 15 days of the custody period. Granting of police custody was an interlocutory order as held by the apex court. Inasmuch as remanding a person was an interlocutory order, it could be modified any time before it expired. Hence, granting police custody when the accused had already been remanded to judicial custody for 15 days did not violate the Cr.P.C.

Mr. Justice Rajan said the Magistrate had permitted the petitioner to consult his lawyer between 6 p.m. and 7 p.m. everyday as per the directions of Supreme Court in the D.K. Basu case. Hence, there was no violation of the Constitutional mandate when the accused was not permitted to have a lawyer during the entire interrogation. It was not the Supreme Court's decision that when an accused was remanded to police custody and when he wanted to have a lawyer during interrogation such a request should be complied with.

`It is for Magistrate

to decide'

The Judge said it was for the Magistrate to decide whether in a given case police custody could or had to be given. If such custody was given, the higher courts, including the High Court, cannot sit in revision of the order as held by the Supreme Court. At the same time, the High Court, exercising its inherent powers, could quash the order of police custody to prevent the abuse of the process or to secure the ends of justice. But it was not the petitioner's case that the impugned order was an abuse of the process. Hence, there was no reason to quash the order. The petition was maintainable under Section 482 Cr.P.C as there was no appeal or revision against the impugned order.

Initially, Mr. Justice Rajan ordered that the petitioner was permitted to have his lawyer during interrogation. However, after the order was passed, the petitioner's senior counsel, I. Subramanian, came back to the court again and said he committed a mistake during arguments by stating that the Madras High Court had in an earlier case permitted the presence of a lawyer throughout police custody interrogation (based on which Mr. Justice Rajan had passed the order).

Modifies order

The Judge said the mistake should not have occurred, particularly in this case. He also owned responsibility for it.

Later, the Judge modified the order and said that permission to have the assistance of a lawyer throughout interrogation could not be granted as it would be contrary to the Supreme Court's decision.

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