1. The petitioner was declared a proclaimed offender on April 21, 1981 in FIR 395 of April 25, 1980 registered in the P.S. Kingsway Camp under Section 302/34/120B, I.P.C. and Section 27 of the Arms Act, for murder of Nirankari Chief Baba Gurbachan Singh in Delhi, which is under investigation by the C.B.I. He was liable to arrest under Section 41(1)(c), Cr.P.C. by any police officer.
2. It so happened that in order to deal with the anti-smoking agitation, a notification was issued on January 6, 1981 by the District Magistrate, Amritsar for surrender of arms. The petitioner was one of those who did not comply. He was arrested on June 17, 1981 when it was discovered that he was a man wanted by the police of Delhi as aforesaid. He was produced before the Chief Judicial Magistrate, Amritsar on June 18, 1981, who transferred him to the Chief Metropolitan Magistrate, Delhi as required by R. 26.20 of the Punjab Police Rules, 1934. He was then produced before him on June 19, 1981. On the same day, the Investigating Officer applied to the said Magistrate that the petitioner be remanded to judicial custody for 14 days till July 2, 1981 for purpose of holding a test identification in jail. The Chief Magistrate agreed and remanded him to judicial custody. He further directed a Metropolitan Magistrate to hold the test identification parade on June 27, 1981. But the accused refused to participate in the identification parade. June 28, 1981 was a Sunday. On June 29, 1981 the police applied for custody of the petitioner for ten days in order to enable them to recover the car and the arms involved in the murder. They contended that the petitioner has not been in the custody of the CBI for a single day and they were even entitled to 15 days remand in their custody.
3. The accused protested and on the basis of my judgment reported in Gian Singh v. State, (1981) 19 DLT 168 : 1981 Cri LJ 7, contended that once the accused is remanded to judicial custody, he cannot be sent back again to police custody in connection with, or in continuation of, the same investigation. What was permissible after his remand to judicial custody was that the accused could, subject to his right to silence, be questioned by the police with the permission of the Magistrate in any place and manner which do not amount to custody in the police. Referring to Gurbaksh Singh Sibbia v. State of Punjab, : 1980CriLJ1125 , I had further made it clear that police custody commences when a police officer arrests a person by actually touching or confining his body or when the accused submits to the custody by word or action or offers to give information leading to discovery. The learned Magistrate distinguished my decision by stating that the precise question before me in Gian Singh (supra) was whether the accused could be interrogated by the police while in judicial custody. And the aforesaid observations did not apply to the question before him. I do not consider that any such distinction could be made. He was further of the view that the accused has not so far been remanded to police custody even once and thereforee it is not a case of sending him back of police custody after a stint in judicial custody. Earlier, the accused was remanded to judicial custody for a limited purpose; at that time neither the diaries were scrutinised, nor was the culpability of the accused deeply examined with a view to consider whether any remand to police custody was called for or not or any recovery could be made at the instance of the accused or not. The question of police remand on merits has arisen for the first time, He rejected the contention of the accused.
4. It was also urged by the accused before him that 15 days from the date of his arrest having expired, the accused cannot be remanded to police custody. The learned Magistrate rejected this contention as well.
5. He then directed that the accused be remanded to the police custody for a period of five days, but he shall be handed over to the police on July 4, 1981 and the period of remand shall be reckoned from that date. The order of the learned Chief Metropolitan Magistrate is dated July 2, 1981, against which the present petition has been filed under Section 482, Cr.P.C. praying that it be quashed.
6. The learned public prosecutor for the CBI contended that the police custody of the petitioner cannot being from the day he was arrested on June 17, 1981, by the police and there has been no custody of the petitioner with the CBI police when the petitioner was transferred from Amritsar to Delhi because soon after his arrival here, he was remanded to judicial custody for purposes of test identification, and they have had no time to interrogate him. I asked the learned public prosecutor under what other provision of law if not under Section 167, Cr.P.C. the petitioner was remanded to judicial custody even for the so-called limited purpose. He was unable to find any support for the procedure adopted by the learned Magistrate. Subject to certain safeguards, test identification can be held anywhere, even in the Jail, while the accused is in the police custody. Parade in the jail is preferred because there are few chances for an allegation that the witnesses had seen the accused beforehand and because an appropriate number of people can be made available to join the parade. But for that purpose alone, there is no need to remand him to judicial custody. Indeed there is no provision in the Code which lays down that for the purpose of investigation the detention of the accused in police custody is even essential, vide State v. Santokh Singh, AIR 1956 MB 130 : .
7. Section 167, Cr.P.C. does not confer power on a Magistrate to dispense with police custody but what it does is to empower him to extend such custody beyond what is permitted under Section 57 thereof. Reading these two sections together one can safely conclude that Section 167 comes into play only when (1) the accused is arrested without warrant and is detained by a police officer, (2) it appears that more than twenty-four hours will be needed for investigation, (3) there are grounds for believing that the accusation or information against him is well founded, and (4) the officer in charge of the police station or the investigating officer not below the rank of a Sub-Inspector forwards the accused before the Magistrate. When this happens, the Magistrate can refuse to detain him or direct his detention either in police custody or judicial custody. When once he directs judicial custody, there is no question of police remand for the simple reason that the conditions aforesaid are no more there.
8. The learned public prosecutor maintains that Section 167 does not expressly so provide nor does it envisage any such inflexible rule that once a man is sent to the judicial custody in particular for a limited purpose, he cannot then be remanded again to police custody. He relied upon a practice where any person wanted by the police in some cognizable non-bailable offence, surrenders before the Magistrate, he is then taken into judicial custody and is later on handed over to the police when it asks for it. But such a practice is against law. Under what provision of the Cr.P.C. does he surrender before the Magistrate Suppose, the police just does not care to ask for his custody, what will the Magistrate do Or if the police delays its request by some days, how long is the Magistrate to wait Such a man usually surrenders for bail and if the bail is refused, he has got to be sent to the police if they want his custody and not to the jail. He cannot, nor can he be permitted, to avoid arrest by the police by a simple device of surrender in the Court. Any practice which permits such a course is contrary to law and cannot support a proposition that a man can be made to shuttle between judicial custody and police custody to suit the convenience of the police or the accused. The position is so clear that it needs no precedent to prop it. Yet one may usefully refer to Kedar v. State, . I am in humble and respectful agreement with that decision. Such a practice if it exists, should henceforth discontinue. I am aware that such a practice has received judicial support in the past in San Honnappa v. State of Mysore, (1966) 2 MLJ 76. In that case the accused were wanted by the police in a murder case. They surrendered before the Magistrate. The Magistrate took them into custody. After a week the police filed an application for their formal arrest. That application was granted by the Magistrate. The police then made another application for remand of the accused to their custody for the purpose of completing the investigation. Three days thereafter, the accused were remanded to the custody of the police for five days. While upholding this order, the learned Judge observed that when once the accused is taken into custody of the Magistrate and when there is no express provision in the Code for remand of such accused persons, he was unable to see why the principle underlined in Section 167 should not be extended to such cases. In a similar case reported in Velu Vishwanathan v. State, , the accused who were absconding surrendered before the Magistrate. Immediately thereafter, the police applied for custody of the accused persons. It was held that the police were entitled to such custody. Taking into custody of such persons by the Magistrate was really under Section 167. There is no other particular provision in the Code. It must then follow that the police are entitled to request the Magistrate under the same section to give custody to them for questioning. To my humble mind, these decisions have no basis in Section 167 or any other provision of the Code. The Supreme Court in Natabar v. State of Orissa, : AIR1975SC1465 , observed that the court has no inherent power of remand of an accused to any custody unless the power is conferred by law. In view of these observations of the Supreme Court, the decisions in San Honnappa (supra) and Velu Viswanathan (supra) are no more good law, especially after the enforcement of the new Code. Though there is no ban in terms on police remand after judicial remand but that is the clear implication of Section 167. The matter has to be governed by its provisions which I have already considered in Gian Singh 1981 Cri LJ 7 (supra) and I see no reason to reconsider or to depart from the conclusions which I had then arrived at.
9. It is no argument to say that the police has not been able to have the petitioner in their custody even for a day or two and thereforee, they are entitled to have his custody for fifteen days. Beyond 24 hours, there is no such entitlement. It is then in the discretion of the Magistrate. Everything is geared towards dispensation of justice.
Investigation is one of the steps in that direction and that has got to be regulated by the provisions of the Code. Section 167, Cr.P.C. insists that judicial custody can be permitted for specified period if the police custody is refused, or if allowed, the permitted days of such custody are over, only where the Magistrate is satisfied that adequate grounds exist for doing so. It is a dereliction of duty if the Magistrate did not ask for and peruse the case diary before he authorised any type of custody. He cannot be permitted to make an argument of his own lapse in the matter.
10. I must also repel the submission that the custody of police does not in this case begin from June 17, 1981 and begins only from June 19, 1981 when he was handed over to CBI. It is extremely impossible to hold that the CBI is a police different from the police of the Punjab. This could be urged only if the man was released by the Punjab police and was re-arrested by the CBI after some gap in between.
11. I, thereforee, consider it a fit case in which if this court does not interfere, it will lead to abuse of the process of court. Consequently, I accept this petition, quash the order of the learned Magistrate and direct that the petitioner shall not be handed over to the police custody in this case. The learned Magistrate shall, however, ask for the case diary and if he is satisfied that adequate grounds exist for doing so, he may authorise further detention of the petitioner otherwise than in police custody for the period permitted by law.
12. Petition allowed.