Justice S S Sateeshchandran stayed the order of Chief Judicial Magistrate, Ernakulam, on an urgent petition moved by the two accused -- Karayil Rajan and Karayil Chandrasekharan.
The order of CJM court stands stayed for 3 days and the case will be heard on July 2, the judge ruled.
The petitioners contended that after taking cognisance of the chargesheet the magistrate cannot order CBI custody.
Rajan, the Kannur District CPIM Secretariat member, and Chandrasekaran, the Thiruvangad local committee member, had surrendered on June 22 and had been remanded to judicial custody till July 5.
On June 25, CBI filed a petition seeking their custody for 10 days.
The petitioners contended that an accused who is remanded under section 309(2) cannot be given police custody.
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CBI had filed chargesheet and court had taken cognisance of the case. As no further investigation was pending on the date of filing of the chargesheet, the CJM's order was illegal, the petitioners submitted.
The prosecution case was that a group of assailants had attacked Fazal, a former CPI(M) worker who switched over to the NDF, and killed him near Thalassery in Kannur District.
The conspiracy was hatched to do away with Fazal as he changed his allegiance from CPI(M) to NDF and attracted more Marxist workers to NDF, it was alleged.