P. Muthupetchi vs The State and Shanmuganathan

G. Rajasuria, J.—This petition has been filed to set aside the order passed by the learned Judicial Magistrate, Srivaikundam, dated

29.09.2010 in Crime No. 319 of 2010 on the file of the first Respondent, rejecting the remand of the second Respondent in Crime No. 319 of

2010.

Heard both sides.

Tersely and briefly, the facts absolutely necessary for the disposal of this petition would run thus:

The police registered a case in Cr. No. 319 of 2010 for the offence punishable u/s 306 I.P.C., on the ground that the watchman of the Sri

Kumaragurupara Higher Secondary School committed suicide because of the harassment meted out to him by the Secretary of that school.

The police arrested the Secretary of the said school namely Shanmuganathan and produced him before the learned Magistrate concerned for

getting him remanded. At that time, the learned Magistrate passed an order which is extracted hereunder:

The Accused is produced at 8.P.M on 29.9.10. I have perused the all material produced including the F.I.R and alleged suicidal note enclosed

herewith. But, on perusal of the all material produced herewith, I feel that case in hand fell short of ingredients constituting the offence u/s 306 of

I.P.C. Moreover, it well getting law that Magistrate should peruse the records and prima facie convinced before passing an order of remand. But

in the context of evidence available on record and the in view of the ingredients and yardstick laid down in the judgment of Hon''ble Supreme

Court of India in C.A. No. 1291/08 posted in the Website on August 2010 on 20th day, I feel that there is no prima facie case made out at

present to remand the accused to Judicial Custody. Hence at present the remand is rejected and accused is set liberty at present on execution of

personal bond for a sum of Rs. 5,000/- on condition that accused should appear before the police for further investigation if required. However

liberty is given investigation Officer to proceed with this case as per law in case he gets any material after complete investigation constituting the

offence under the law order is accordingly.

Being aggrieved by and dissatisfied with the said order, the defacto complainant has preferred this petition on the main ground that the learned

Magistrate had no jurisdiction to pass such an order; he ought to have remanded the accused to judicial custody and the said order is bereft and

niggard of factual details.

The learned Counsel for the Petitioner inviting the attention of this Court to the order passed by the learned Magistrate, would argue that the

learned Magistrate was not justified in assuming to himself enormous powers which he was not vested with as per law and he ought to have

remanded the accused to judicial custody so as to enable the Investigating Officer to proceed with the investigation, but on the other hand, he

exceeded his jurisdiction by simply passing the order virtually giving clean chit to the accused and in releasing him on his own bond.

Whereas the learned Counsel for the second Respondent would put forth and set forth his arguments which could be set out thus: The learned

Magistrate appropriately and appositely, correctly and legally exercised his powers warranting no interference by this Court u/s 482 Code of

Criminal Procedure A person''s liberty is precious and before the learned Magistrate, the second Respondent herein got bail so to say, he was

ordered to be released on his own bond and accordingly, he got his release. Normally, once the discretionary power has been exercised by the

Court concerned in granting bail, the higher Courts would not interfere with such discretion. Here, it is the case where no prima facie evidence to

mulct the second Respondent with criminal liability and more specifically, u/s 306 I.P.C. In such a case, the learned Magistrate as per his

conscience correctly passed the said order warranting no interference by this Court.

The crucial point for consideration is as to whether the learned Magistrate has correctly exercised his discretionary power or not?

It is the bedrock of criminal jurisprudence that whenever any judicial order is passed or any order is passed by a Court, necessarily it should be

supported by reasons. Here, a plain reading of the said order would show that he simply expressed his subjective satisfaction that there was no

prima facie case made out as against the second Respondent, but that should have been backed by proper factual analysis of the matter which was

available before him, but there is nothing to indicate and exemplify that he referred to anyone of the factual aspects of the matter. The learned

Magistrate is not conferred with any power to pass any vague order by stating that he was not satisfied that there was no prima facie case made

out as against the accused and on that ground, he is having no power to release anyone on bail and that too, in a case triable by Court of Session.

At this juncture, I would like to hark back to the decision of the Honourable Apex Court in Gurcharan Singh v. State of Delhi Administration

reported in AIR 1978 S.C.179. An excerpt from it, would run thus:

At that stage, the Court is concerned with the existence of the materials against the accused and not as to whether those materials are credible or

not on the merits.... By an amendment in 1955 in Section 497, Code of Criminal Procedure of the old Code the words ''or suspected of the

commission of'' were for the first time introduced. These words were continued in that new Code in Section 437(1), Code of Criminal Procedure

It is difficult to conceive how if a police officer arrests a person on a reasonable suspicion of commission of an offence punishable with death or

imprisonment for life. (Section 41, Code of Criminal Procedure of the New Code) and forwards him to a Magistrate (Section 167(1), Code of

Criminal Procedure of the New Code) the Magistrate at that stage will have reason to hold that there are no reasonable grounds for believing that

he has not been guilty of such an offence. At that stage unless the Magistrate is able to act under the proviso to Section 437(1), Code of Criminal

Procedure bail appear to be out of the question. The only limited inquiry may then relate to the materials for the suspicion. The position will natural

change as investigation progresses and more facts and circumstances come to light.

(Emphasis applied.)

From the above excerpt and a full reading of the aforesaid decision would unambiguously and unequivocally, incontrovertibly and plainly,

pellucidly and palpably, exemplify and demonstrate that at the time of the Magistrate remanding the accused, mere suspicion about the commission

of the offence by the accused is sufficient. As such, in this case, it is not found evidenced from the impugned order passed by the learned

Magistrate that there was not even a suspicion against the accused.

So far, the power of the Magistrate is concerned, I would like to point out that undoubtedly, the learned Magistrate has got power to refrain

from remanding for reasons to be recorded that he is not satisfied with the case and he is always at liberty to record that no prima facie case is

made out based on the materials available before him. But, in this case, it is quite obvious and axiomatic that it has not been done so by the

Magistrate. As such, the said order has to be set aside. While so, I am fully aware that all along the second Respondent has been enjoying the

liberty on the strength of the personal bond executed by him. As such, that shall continue till the matter is once again decided by the Magistrate in

accordance with law.

In the result, this Criminal Original Petition is allowed and the order passed by the learned Judicial Magistrate, Srivaikundam, dated

29.09.2010 in Crime No. 319 of 2010 on the file of the first Respondent, is set aside and the matter is remitted back to the learned Judicial

Magistrate, Tiruchendur, who only passed the said order while he was in-charge of the Judicial Magistrate, Srivaikuntam. Within a period of three

weeks from the date of receipt of a copy of this order, the learned Magistrate shall consider the records and then pass an order afresh strictly in

accordance with law, after hearing the learned Assistant Public Prosecutor concerned and also keeping in mind the dictum laid down by the

Honourable Apex Court in Gurcharan Singh v. State of Delhi Administration reported in AIR 1978 S.C.179. The Investigating Officer shall

produce the materials which he gathered as on the date of remand including the suicidal note, before the learned Magistrate if not already

produced. The accused shall be summoned by the learned Magistrate while he passes order.