Rep. by Inspector of Police & Ors Vs. N.M.T. Joy Immaculate  Insc 380
(5 May 2004)
& G.P. Mathur.
out of Special Leave Petition (Crl.) Nos.3143-3144 of 2002) G.P. MATHUR,J.
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
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.
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 advanced money to them.
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.
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.
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.
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 :
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.
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.
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 petitioner.
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.
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.
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.
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.
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
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.
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.
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:
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.
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.
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:
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".
506 it is stated as under:
order which does not deal with the final rights of the parties, but either
made before judgment, and gives no final decision on the matters in dispute,
but is merely on a matter of procedure, or
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".
interlocutory order, even though not conclusive of the main dispute, may be
conclusive as to the subordinate matter with which it deals."
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:
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.
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.
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:
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'.
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 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 397 is not meant to be attracted to such kinds of
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
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.
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.
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.
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.
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 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 :
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."
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 :
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
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 :
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
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." 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.
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
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
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 deciding the case it will have a right of appeal before
the High Court.
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.
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.
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.
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