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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

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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

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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.  

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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

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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

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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."  

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       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

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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.