1. The first of these two matters is an application in revision by Dan Bahadur Singh against an order of the Sessions Judge of Shahjahanpur declining to interfere with the order of a first class Magistrate directing that one Hazari, a confessing accused, should be kept in police custody beyond the maximum period of 15 days prescribed by Section 167, Criminal P. C. I do not propose to deal with this application because since it was made the investigation of that case has been finished and the accused have been committed for trial to the Court of Session. The accused Hazari has been tendered a pardon under the provisions of Section 337, Criminal P.C., and he is now detained in custody not under the order to which the application in Revision No. 445 of 1942 relates but under an order of the Magistrate made under the provisions of Sub-section (3) of Section 387. It is conceded that, in these circumstances, the question which arose in Revision No. 445 of 1942 no longer arises and the matter becomes really of an academic nature only. I accordingly dismiss this application.
2. I come now to the connected matter criminal reference NO. 580 of 1942. On 15th June 1942 a pardon was tendered to the confessing accused, Hazari, under the provisions of Section 337, Criminal P. C. On the same day the Magistrate considered the question of the detention of Hazari with reference to the provisions of Sub-section (3) of Section 337. That sub-section provides: 'Such person, unless he is already on bail, shall be detained in custody until the termination of the trial.' The Magistrate heard arguments on the question whether the custody in which Hazari should be ordered to be detained under this sub-section could or could not be police custody. He made inquiries from the Superintendent of the Shajahanpur jail as also from the Superintendent of Police as to whether they could guarantee the safety of Hazari and he also made inquiries as to the wishes of Hazari himself. He also considered an application made on behalf of the accused in the case (a very serious case under Sections 396, 302 and 120B, Penal Code) asking that the approver should be sent to jail and not allowed to remain in police custody. He considered two cases of the Lahore High Court to which I shall make reference later and also the peculiar circumstances of the present case and he decided that it was not advisable to disturb the present custody of Hazari as he expected the matter to be decided shortly on the revision application to this Court to which I have referred earlier. Against this order, an application was made in revision to the Sessions Judge of Shahjahanpur on 4th July 1942 upon which the learned Sessions Judge has on 20th July made the present reference to this Court recommending that the order of the learned Magistrate be set aside as in his opinion it was illegal at the time it was passed. He said that he was not prepared to make any recommendation as to what order should be passed in its place, because this would depend entirely on whether this Court, after hearing the full circumstances of this present ease, considers that they justify a departure from the principle laid down by the Lahore High Court.
3. I have listened to a very full argument by learned Counsel on behalf of Dan Bahadur Singh (the applicant in revision in the Court of the Sessions Judge). He has relied strongly on the two cases of the Lahore High Court referred to by the learned Sessions Judge and to some other cases in which it has been held that the custody referred to in Section 344, Criminal P. C, is always jail or judicial custody and can never be police custody. On the other hand, the learned Deputy Government Advocate contends that even if it be the case, as he concedes it is, that the custody provided for by Section 344 must be jail custody, it does not follow that the custody referred to in Sub-section (3) of Section 337 is necessarily jail custody. He points out that the wording of this sub-section differs markedly from the wording of Section 344. Sub-section (3) of Section 337 provides merely that such person shall be detained in custody until the termination of the trial, whereas Section 344 provides for the remanding of an accused to custody by a warrant. It is, of course, evident that there is a considerable difference in the language of the two sections and it is also necessary to note that Sub-section (3) of Section 337 does not require that an approver should invariably be detained in custody since the sub-section itself visualises cases where the approver is already on bail, in which case the law does not require his detention in custody. The learned Deputy Government Advocate relies on the view taken in one of the Lahore cases that an approver is not to be regarded any longer as an accused but is to be regarded as a witness and he contends, in these circumstances, that it cannot be regarded as a binding rule that the detention must be detention in jail or judicial custody.
4. I am not inclined to think that there is any great significance in the use of the words 'detained in custody' as contrasted with the words 'remand to custody' in the two sections. It seems to me that there is much force in the argument put forward by learned Counsel for the applicant, Dan Bahadur Singh, that in the Code of Criminal Procedure the Legislature has deliberately and very carefully placed limits upon detention either of accused persons or of witnesses in police custody. Section 167 deals with the detention of an accused person in police custody and limits it in the first instance to 24 hours which may be extended by a competent Magistrate to a term not exceeding 15 days in the whole. Thereafter the accused person has to be sent to jail or judicial custody to which a Magistrate may from time to time remand him under the provisions of Section 344 (1) of the Code. That this custody to which Section 344 relates is necessarily judicial custody (1) follows from the limitations prescribed by Section 167 and (2) has been held in a number of cases, though in most of them rather incidentally. The clearest case of those quoted to me is Queen-Empress v. Engadu ('88) 11 Mad. 98. At page 101 Brandt J. remarked:
Under an order made under Section 167, Criminal P. C. the accused person is detained in the custody of the police, or in such other custody as the Magistrate making the order thinks fit. Ordinarily, no doubt, he will be in the custody of the police. Such detention is altogether different from the custody in which an accused person is kept under remand given under Section 344, Criminal P. C, which is the custody provided by the Legislature for under-trial prisoners,
that is the custody which is to be provided under the Prisons Act. Similarly in In re Nagendra Nath : AIR1924Cal476 the learned Judges remarked:
But the custody mentioned in Section 344 is quite different (from police custody) and is intended for under-trial prisoners.
5. They went on to refer to the provisions of Sections 61, 167, 170 and 344 of the Code. In the case of witnesses the powers of the police are more circumscribed. Section 171 empowers the police only to forward a witness in custody if he refuses to attend or to execute a bond as directed in Section 170. The section further gives power to the Magistrate to detain the witness in custody until he executes such a bond or until the hearing of the case is completed. The proviso which gives this power obviously contemplates first police custody until the witness reaches the Magistrate, and then magisterial custody, that is to say detention in jail or judicial custody. Learned Counsel have not been able to show me any provision in the Code which would enable a Magistrate to detain a witness otherwise than in judicial custody.
6. In the light of the lengthy discussion of this subject in the two cases of the Lahore High Court to which I shall now come, I do not think it would serve any purpose to enter into a detailed discussion of the matter. It will be sufficient for me to say that for myself I think that the frame of the Code, that is to say the procedure contemplated in the case of accused persons by Sections 61, 167 and 344 and in the case of witnesses by the proviso to Section 171, makes it clear that speaking generally the word 'custody' in the Code always means judicial custody, save only where the context clearly indicates either that it is police custody or that the Magistrate has been given liberty to decide what the custody shall be. I am confirmed in this view by the decisions in the Lahore cases, Kundan Lal v. Crown ('31) 18 A.I.R. 1931 Lah. 353 and In the matter of the detention of the Approver Khairati Ram, ('31) 18 A.I.R. 1931 Lah 476. With great respect, I find the arguments put forward in the latter case more convincing than those in the former. The learned Judges expressed the view, with which I find it impossible to disagree, that there is nothing in the Code which justifies an order for the detention of a witness in police custody and that an approver is to be regarded as a witness. Similarly, they expressed the view that even if an approver were to be regarded as an accused person (although they expressly declined to accept that contention) the law did not contemplate the detention of an accused person in police custody after the expiry of the maximum period of 15 days from his arrest.
7. In my judgment, the detention of the approver, Hazari, in police custody in the present case is illegal and must be terminated. I am not impressed by the argument that the circumstances of the case may justify departing from the strict view taken in the Lahore cases. Either the detention in the police custody is legal or it is illegal and if it is illegal, it must be terminated. As regards the peculiar circumstances and the risks to which the detention of Hazari in the jail may give rise, it is the duty of the Superintendent of the Jail to take the necessary precautions and, indeed, there are provisions in the jail manual directed to that end. On this view of the matter, I accept the reference and direct that the approver, Hazari, be removed from police custody and detained in judicial custody in future. Let the record of Criminal Reference No. 580 of 1942 be returned.