N.G. Shelat, J.
1. The facts giving rise to this reference, broadly stated, are that on account of some dispute in relation to a mosque in the village of Malipur in Kheralu Taluka, District Mehsana, between two sects of Muslims such as Shias and Sunnis, on the evening of 21-4-69, the applicants and several others were said to have formed an unlawful assembly the common object whereof was to cause bodily injury to the members of Sunni sect of Muslims as also to set fire to their houses, and then cause injuries to them. They were, thus, alleged to have committed various offences punishable under Sections 147, 148, 149, 323, 324, 436, 427 and 452 of the Indian Penal Code. The first information report received by the police disclosed the names of the present applicants amongst others as persons having committed the aforesaid offences. In the course of the investigation they were arrested by the police and before the investigation was over, on 24-4-69 they were sent to custody of the Judicial Magistrate, First Class at Kheralu.
2. Then on 2-6-69 the Divisional Police Inspector, Mehsana, sent a report to the learned Magistrate, for releasing applicant No. 1 under Section 169 of the Criminal Procedure Code, inter alia stating that there was no such material as to justify him to send charge-sheet against him. Then on 4-6-69 a similar report was also sent requesting the learned Magistrate to release certain other persons who are applicants in the present proceeding. Both the reports were heard together. The learned Magistrate, found that there is prima facie case against all of them, and therefore passed an order saying that they cannot be released under Section 169 of the Criminal Procedure Code. Both the reports were, thus, dismissed. Feeling dissatisfied with that order passed on 21st June 1969 by Mr. N. G. Butala, Judicial Magistrate, First Class, Kheralu, the accused preferred Criminal Revision Application No. 45 of 1969 in the Court of the Sessions Judge at Mehsana. The learned Sessions Judge found that the order passed by the learned Magistrate to dismiss the reports filed by the police officer was incorrect and that he cannot compel the police officer to send a charge-sheet against the applicants in view of a decision in the case of State of Gujarat v. Shah Lakhamshi Amarshi and Anr. reported in VII G.L.R. p. 130 (F.B.). He, therefore, made a reference to this Court with a recommendation that the order passed by the learned Judicial Magistrate, First Class, Kheralu rejecting the reports of the police officer to take action under Section 169, Criminal Procedure Code, may be set aside and the learned Judicial Magistrate, First Class, Kheralu may be directed either to take action himself under Section 190(i)(c) Criminal Procedure Code, and release the accused on taking bond, or call the applicants who are on bail and send them to the police officer conducting the investigation, to take action under Section 169, Criminal Procedure Code, or such other order as this Court may deem fit to pass. It is that way that the reference has come before this Court. No one appears for the accused in the case.
3. The learned Magistrate appears to have gone through the papers relating to the case so far as applicants were concerned, and in his view, there is prima fade case to hold enquiry against them in respect of the offences disclosed against them. In that view of the matter, he was justified in not accepting the reports of the police officer for releasing them in the case. He has, however, chosen to dismiss the reports and has given no further directions in the matter. The desire on the part of the learned Magistrate was to have an enquiry held against them in accordance with law, and by dismissing the reports, he probably thought that the police officer in charge of the case would submit the charge-sheet against them under Section 173 of the Criminal Procedure Code. Now it is clear, as has been laid down by the Full Bench of the Court in the case of State of Gujarat v. Shah Lakhamshi Amarshi and Anr. VII G.L.R. 130 that the learned Magistrate cannot direct the investigating officer to submit a charge-sheet if he disagrees with the recommendation of the police and takes the view that the facts set out in the final report constitute an offence and there is a case for placing the accused on trial, and that in such circumstances the Magistrate can certainly take cognizance of the offence under Section 190(1)(c) of the Criminal Procedure Code and proceed with the matter in accordance with law. Section 190(1)(c) contemplates such an action being taken by a Magistrate even on suspicion that such offence has been committed. The learned Sessions Judge was, therefore, right in moving this Court for setting aside the order of dismissal of the reports of the learned Magistrate and instead of requiring the police officer to submit any charge-sheet against the same persons, he should himself take cognizance of the case under Section 190(1)(c) of the Criminal Procedure Code.
4. In this view of the matter it becomes unnecessary to go into the other question raised by the learned Sessions Judge about the police invoking an order from the learned Magistrate under Section 169 of the Criminal Procedure Code on the ground that that section would have no application to persons who have been already in the custody of the Judicial Magistrate and released on bail in respect therefore. That question would have arisen if the learned Magistrate had agreed with the reports of the police officer requesting him to release the accused as sufficient evidence was not found against them to send the charge-sheet. Since the learned Sessions Judge thought this to be a question of som importance requiring to be dealt with by this Court, we do so in brief. Now the learned Sessions Judge was no doubt right in thinking that Section 169 would have no application in a case of this type when the accused are in the custody of the Judicial Magistrate. The relevant sections may well be set out. Section 169 of the Criminal Procedure Code runs thus:
If, upon an investigation under this Chapter, it appears to the officer in charge of the police-station or to the police officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police-report and to try the accused or commit him for trial.
The comes Section 170(i) which says thus:
If, upon an investigation under this Chapter, it appears to the officer in charge of the police-station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police-report and to try the accused or commit him for trial or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate, until otherwise directed.
Then Section 73(i) reads as under:
(i) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer in charge of the police station shall-
(a) forward to a Magistrate empowered to take cognizance of the offence on a police-report, a report in the form prescribed by the State Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and
5. On a perusal of these provisions it appears clear in the first place that when the police officer finds that there is no sufficient evidence or reasonable ground of suspicion to justify forwarding of the accused to a Magistrate, he would be entitled, if such person is in custody, to release him as provided therein. The custody referred to is the custody of the police and not of the Magistrate. It is further made clear by using words 'that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate,' This provision contained in Section 169 cannot, therefore, help in a case where the accused is already forwarded to the Magistrate, which can only be done much though the investigation is in progress and not finished, provided there is reasonable ground of suspicion to justify the same. It is, therefore, clear that the police officer was wrong in invoking the aid of Section 169 for having the accused released from the custody of the Magistrate on the ground that there was no sufficient evidence against them. So far the learned Sessions Judge appears to be quite in the right.
6. Then he says that there is no other provision under which the Magistrate can pass any order of discharging the accused even in the event of the police not finding sufficient evidence against them who are in the custody of the Magistrate. He, thus, felt that in absence of any provision touching such persons, there would arise difficulty in passing the orders in respect of them. He has then made a reference to some observations made in the case of Rahu and Ors. v. Emperor A.I.R. 1921 Allahabad 278. In that case certain persons were arrested under Section 54 of the Criminal Procedure Code in connection with a dacoity. Action was then taken under Section 167 and they were lodged in the local jail under the warrant of a Magistrate. Before the investigation was completed and before any final report had been sent under Section 173, the investigating police officer came to the conclusion that there was no sufficient evidence against the accused so far as the dacoity was concerned, but he desired to institute proceedings against them under Section 110 of the Criminal Procedure Code. A report substantially to that effect was submitted to the Magistrate by whose warrant the accused had been committed to the jail. The Magistrate directed them to be retained in jail until the conclusion of another police enquiry with reference to their being proceeded against under Section 110, Criminal Procedure Code. Subsequently, information was laid before a Magistrate having jurisdiction under Section 110 and an order was duly framed under Section 112 and communicated to the persons concerned. On those facts it was held that the detention of the persons after the police had reported that there was not sufficient evidence against them as regards the arrest was illegal and that the Magistrate should have allowed the police to rearrest the man under Section 55, Criminal Procedure Code, but the irregularity was cured when the accused persons came before the Magistrate subsequently and the Magistrate having jurisdiction to do so, proceeded upon proper materials to pass the formal order under Section 112, Criminal Procedure Code. In the course of the judgment, it is observed as under:
It does not seem to me that the Code of Criminal Procedure makes any express provision for a case like this, in which an accused person after having been arrested, forwarded, to a Magistrate and confined under a Magistrate's warrant, is found by the investigating police officer to have been arrested upon insufficient evidence.
Then he observes that ordinarily a person so arrested would remain in custody until the final report under Section 173 of the Code had been submitted and would then be released under the Magistrate's order on the ground that the police report disclosed no adequate ground for further proceedings. He then refers to the practice prevailing with which we are not concerned. In this connection one has to read these provisions along with some other provisions set out in the Criminal Procedure Code. The relevant provisions are contained in Sections 60 to 63 of the Code. Section 60 says that a police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police-station. Then Section 61 says that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. Section 62 then says that officers in charge of police-station shall report to the District Magistrate, the cases of all persons arrested without warrant etc., and then comes the material Section 63 which as it stands now is an under:
No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate having jurisdiction.
7. This Section 63 has to be read with along with Section 167 of the Criminal Procedure Code which provides for a procedure when investigation cannot be completed in twenty-four hours. The idea behind these provisions is that a person arrested by a police officer cannot be detained for a period exceeding twenty-four hours as contemplated in Section 61 unless that time is extended as contemplated by Section 167 in the case. Another thing that emerges is that before forwarding the accused to a Magistrate for keeping him in his custody, a police officer must have sufficient evidence or reasonable ground of suspicion for forwarding him to the Magistrate. In a case of this character where during the course of the investigation it is found that there is no sufficient evidence against some persons and when they are sought to be released by the learned Magistrate, a proper provision which can be invoked by any such police officer would be Section 63 read with Section 167 of the Criminal Procedure Code. The learned Magistrate would be justified in passing a special order provided he has jurisdiction to try any such case. That would be on the basis of a report submitted by the police. The expression 'arrested by a police officer' has to be given wide meaning as a person arrested by a police officer and forwarded to the custody of a Magistrate. That appears clear if Section 169 is rend alongwith it. Section 169 therefore gives the police officer making the investigation a right to release the person from his custody if he finds that there is no sufficient evidence or no reasonable ground of suspicion to forward him to the Magistrate on his executing a bond as set out therein. Section 63 would then cover in addition the case of persons who have been arrested and forwarded to the magistrial custody by the investigating officer. When he is required to be released on the ground that there is no sufficient evidence against him, a special order is required to be passed by the Magistrate having jurisdiction to try it. That would require the learned Magistrate to look into the matter carefully, and exercise discretion in passing an order requested for by the police officer as prima facie he would be entilted to think that his arrest was properly made viz. on some sufficient evidence, or having reasonable suspicion against him in the case. It is that way called a special order to be passed by the Magistrate having jurisdiction to try the case. Section 63 is not referred to in the decision in the Allahabad Case referred to here above, and if that were brought to the notice of the Court, perhaps the observations made in the judgment saying that the Code of Criminal Procedure makes no express provision for a case like this in which an accused person, after having been arrested, forwarded to a Magistrate and confined under a Magistrate's warrant, is found by the investigating police officer to have been arrested upon insufficient evidence. It, therefore, follows that if the learned Magistrate had agreed with the reports of the police officer submitted to him in respect of the accused-applicants, a proper order that he could have passed would be to discharge them under Section 63 read with Section 167 of the Criminal Procedure Code. Since in the present case he does not agree with the police officer and when he finds that there is a prima facie case to be inquired against the applicants-accused, the proper order would be to direct the Magistrate himself to take cognizance of the offence under Section 190(1)(c) of the Criminal Procedure Code.
8. In the result, therefore, the order passed by the learned Magistrate dismissing the reports Exs. 17 and 19 submitted by the police officer is set aside. He shall himself take cognizance of the offence under Section 190(1)(c) of the Criminal Procedure Code against the accused as in his view there exists prima facie case to be inquired into against the accused, and after issuing the necessary process, proceed further in accordance with law.