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State of Gujarat Vs. Velo Alias Kasam Jusab - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1986)1GLR158
AppellantState of Gujarat
RespondentVelo Alias Kasam Jusab
Cases ReferredBabu Ali v. State
Excerpt:
- - the accused were produced before him and that they have not complained that they were harassed or illegally detained. under section 167(1), whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within a period of twenty-four hours fixed by section 57 and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation is required to produce before the nearest judicial magistrate, a copy of the entries in the diary relating to the case and also to produce the accused before the magistrate. provided that- (a) the magistrate may authorise the detention of the accused person, otherwise than in the custody of the.....m.b. shah, j.1. being aggrieved and dissatisfied by the judgment and order dated 11th september, 1984 passed by the sessions judge, rajkot in criminal revision application no. 321 of 1984 releasing the respondent on bail under section 167(2) of the criminal procedure code on the ground that the chief judicial magistrate has not passed any orders keeping the respondent-accused in jail custody, the state has filed this revision application.2. against the respondent-accused the f.i.r. was lodged for the offence punishable under section 307 read with sections 147,148 and 114 of the indian penal code before pradyumannagar police station, rajkot city. the respondent was arrested and thereafter produced before the chief judicial magistrate on 3rd july, 1984. the learned magistrate issued warrant.....
Judgment:

M.B. Shah, J.

1. Being aggrieved and dissatisfied by the judgment and order dated 11th September, 1984 passed by the Sessions Judge, Rajkot in Criminal Revision Application No. 321 of 1984 releasing the respondent on bail under Section 167(2) of the Criminal Procedure Code on the ground that the Chief Judicial Magistrate has not passed any orders keeping the respondent-accused in Jail custody, the State has filed this Revision Application.

2. Against the respondent-accused the F.I.R. was lodged for the offence punishable under Section 307 read with Sections 147,148 and 114 of the Indian Penal Code before Pradyumannagar Police Station, Rajkot city. The respondent was arrested and thereafter produced before the Chief Judicial Magistrate on 3rd July, 1984. The learned Magistrate issued warrant sending the accused to the judicial custody and he was ordered to be produced before the Court on 12th July 1984. On 12th July, 1984 the matter was adjourned and the learned Magistrate ordered that the accused should be produced on 24th July, 1984. On 24th July, 1984 again the matter was adjourned and the learned Magistrate directed the Jail authorities to produce him on 6th August, 1984. Again the matter was adjourned to 16th August, 1984 and the accused was directed to be produced on 29th August, 1984. On 29th August, 1984 the matter was adjourned to 10th September, 1984 and the warrant was issued to produce the accused on 21st September, 1984.

3. As per the affidavit filed by Shri O.R. Sharma, Police Sub-Inspector, Pradyumannagar Police Station, Rajkot city who investigated the case against the respondent-accused on 13th September 1984 the charge-sheet was sumitted against the accused for the offences punishable under Section 307 read with Sections 147, 148, 149 of the I.P.C. It has been further pointed out that against the accused another case was registered for the offences punishable under Sections 302 147, 148, 149, 324, 326 read with Section 34 of the I.P.C. and also under Sections 37(1) and 135 of the Bombay Police Act and for the offence punishable under Section 25(c) of the Indian Arms Act. In that case the accused was released on bail by the Court on 29th or 30th June, 1984. Thereafter on the next day that is on July, 1984 it is alleged that the accused committed the aforesaid offence by causing serious injuries on the victim. It has been further pointed out that the accused had filed Criminal Miscellaneous Application No. 250 of 1984 before the Sessions Court for bail which was rejected on 26th July, 1984. Again he had moved the learned Chief Judicial Magistrate. Rajkot to release him on bail by an application dated 27th August, 1984 which was also rejected on 1st September, 1984.

4. Thereafter the respondent-accused filed the aforesaid Criminal Revision Application No. 321 of 1984 before the learned Sessions Judge on 5th September, 1984 which is granted by him on 11th September, 1984. The learned Sessions Judge who heard the application considered that after the accused was produced before the learned Magistrate the matter was adjourned from time to time and he was sent to Jail custody. No report was submitted by the public prosecutor requesting that the accused should be kept in judicial custody nor any such order was passed by the learned Chief Judicial Magistrate. Therefore, it cannot be said that there were sufficient reasonable grounds to keep the accused in jail custody. He held that the Chief Judicial Magistrate committed an error of law in not following the procedure prescribed under Section 167(2) of the Criminal Procedure Code and, therefore, the learned Sessions Judge released the accused on bail.

5. The learned Public Prosecutor appearing on behalf of the State vehemently submitted that when F.I.R. was submitted to the learned Magistrate alleging that the accused has committed an offence punishable under Section 307 read with Sections 147, 148 and 149 of the Indian Penal Code, it was not necessary for the learned Magistrate to pass a speaking order every now and then that the accused should be kept in judicial custody. He further pointed out that it was an admitted fact that the application filed by the respondent-accused for releasing him on bail were rejected by the Chief Judicial Magistrate and the Sessions Judge. In this set of circumstances it was not necessary for the learned Magistrate to pass an order that the accused should be kept in judicial custody. He pointed out that on 3rd July, 1984 the Investigating Officer produced the accused with a report that the accused should be kept in the judicial custody. It was stated that on 2nd July, 1984 at about 5-00 P.M. the accused were arrested and as the arrest period was likely to over the accused may be taken in the judicial custody. On that report the learned Magistrate has passed an order that at 4-15 P.M. the accused were produced before him and that they have not complained that they were harassed or illegally detained. They were accepted in the judicial custody. It is true that this order is rubber-stamped order and blanks are filled in. After the accused were produced before him, as stated above, & warrant was sent to the Jailor, District Jail, Rajkot stating that the respondent against whom there were allegations for the offence punishable, order Sections 307, 147 and other offences be kept in jail and for the verification of the offences the matter was adjourned to 12th July 1984. He ordered that the accused should be produced before the Court on that day at 11-00 A.M. This warrant is also in the prescribed form. The New Criminal Procedure Code came into force in the year 1974 and yet the lower courts are using the forms prescribed under the Old Criminal Code to which the learned advocate for the respondent took serious objection submitting that this was clear non-application of mind on the part of the learned Magistrate because the form was under Section 344 of the Criminal Procedure Code.

6. Thereafter the accused was produced before the Court and on the warrant the learned Magistrate merely signed it stating that the matter was adjourned on a particular date.

7. Now the questions which arise for consideration are (i) whether the learned Magistrate was required to pass any speaking order, and (ii) whether the concerned Investigating Officer or the Public Prosecutor was require to file repeated applications whenever accused was produced before the Magistrate praying that the accused should be kept in the judicial custody under the provisions of Section 167(2) of the Criminal Procedure Code.

8. Under the Criminal Procedure Code, power is given to the Police Officer to arrest without warrant any person if that person has committed any cognizable offence as provided in Section 41 of the Criminal Procedure Code. Section 41(1)(a) to (i) empowers the police officer to arrest without warrant any person who has been concerned in any cognizable offence. Sub-section (2) of Section 41 empowers an officer in charge of a police station to arrest any person belonging to one or more of the categories of persons specified in Section 109 or Section 110 of the Code. Under Section 57 of the Code such arrested person cannot be detained in police custody for a longer period than under all the circumstances of the case is reasonable and in no case such period shall exceed twenty-four hours exclusive of the time necessary for journey from the place of arrest to the Magistrate's Court. During that time the arrested person is required to be produced before the Magistrate. Under Section 167(1), whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within a period of twenty-four hours fixed by Section 57 and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation is required to produce before the nearest Judicial Magistrate, a copy of the entries in the diary relating to the case and also to produce the accused before the Magistrate. As Sub-section (2) of Section 167 is material for deciding the matter, it is reproduced as under:

167(2). The Magistrate to whom an accused person is forwarded under this section may whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit for a term not exceeding fifteen days in the whole, and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that-

(a) The Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-

(i) Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) Sixty days, where the investigation relates to any other offence, and on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;

(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police, Explanation I : -x-x-x-x-.

Sub-section (2), therefore, provides that when the accused is produced before the Magistrate under Sub-section (1) then he is entitled to authorise the detention of the accused in such custody as the Magistrate thinks fit, for a term not exceeding fifteen days in the whole. Such custody would mean either judicial Custody or police custody. At that stage the Magistrate may have jurisdiction to try the case or may not have jurisdiction to try the case. If the lias no jurisdiction to try the case or commit it for trial and considers further detention of the accused unnecessary he may order the accused to be forwarded to a Court having jurisdiction to try the case or commit it for trial.

9. Proviso to the aforesaid Sub-section (2) of Section 167 of the Code carves out an exception. It empowers the Magistrate to authorise the detention of the accused- person, otherwise than in the custody of the police beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so. It also prescribes maximum period of such detention. It states that where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, then the Magistrate is empowered to authorise to detain the accused-person in the judicial custody for a total period not exceeding ninety days and where the investigation relates to any other offence, the total period for which the accused can be detained is sixty days. After the aforesaid period of ninety days or sixty days as the case may be is over, the accused- person is entitled to be released on bail if he is prepared to and does furnish the bail. Explanation I clarifies that the accused-person shall be detained in the custody so long as he does not furnish bail. This would indicate that his further detention would not be illegal and he can be detained in judicial custody, till he furnishes bail.

10. This Sub-section (2) of Section 167 how here provides that the investigating officer is required to file an application or that the Magistrate is required to pass any speaking order stating that such accused should be detained in the judicial custody. It only provides that when the accused is produced before the Magistrate, the Magistrate may authorise the detention of the accused if he is satisfied that adequate grounds exist for detaining him in the judicial custody. He is not required to pass any speaking order that from the material which was produced before him or from the F.I.R. which was sent to him he was satisfied that the adequate grounds exist. This becomes clear by referring to Sub-section (2A) of Section 167 of the Code. It provides that where a Judicial Magistrate is not available the accused can be produced before the nearest Executive Magistrate on whom the powers of Judicial Magistrate or a Metropolitan Magistrate have been conferred and thereupon such Executive Magistrate for the reasons to be recorded in writing may authorise the detention of the accused-person in such custody as he may think fit for a term not exceeding seven days in the aggregate. This Sub-section (2A) in terms provides that such Executive Magistrate is bound to record reasons in writing that the accused is required to be detained in such custody. So far as the Executive Magistrate is concerned there is specific provision that he is required to pass speaking order. Further Sub-section (3) of Section 167 of the Code provides that a Magistrate authorising under this section the detention in the custody of the police shall record his reasons for so doing. From Sub-section (2A) and Sub-section (3) the legislative intent is abundantly clear that whenever it wanted to provide for the reasoned order it had in express terms provided for it. Hence when Magistrate is authorising the detention of the accused in the judicial custody under Section 167(2) he is not required to pass any speaking order.

11. Further Sub-section (2) of Section 167 of the Code does not provide that the concerned Investigating Officer or Public Prosecutor should file an application submitting that the accused should be detained in the judicial custody. The Magistrate is required to see whether adequate grounds exist for detaining the accused or not. That he can consider from the F.I.R., that is copy of the entries in the diary of the case or any such other material which might have been forwarded by the Investigating Officer. At this stage that Magistrate is concerned with the existence of the materials against the accused and not as to whether these materials are credible or not. He may either release the accused-person on bail or grant police custody if prayed for. If neither of these orders are passed of necessity accused would be required to be sent to judicial custody.

12. It is to be noted that as soon as the accused is arrested and detained, the provisions of Chapter XXXIII regarding bail and bonds would come into operation. Section 436 of the Code makes an invariable rule for bail in case of bailable offences subject lo the exceptions provided therein. It provides that in a case of bailable offences an officer in charge of a police station, or when such person appears or is brought before the Court and is prepared at any time while in the custody of such officer or at any stage of the proceedings such court to give bail, such person shall be released on bail. Section 437(1) provides for bail in a case of a non-bailable offence. It provides that when, any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in-charge of a police station or appears or is brought before a Court other than the High Court or Court of Sessions, he may be released on bail. But a ban is imposed on releasing such person on bail:

(a) If there appears a reasonable ground for believing that the accused has been guilty of an offence punishable with death or imprisonment for life; of

(b) In other cases if such offence is cognizable offence and the accused had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years; or

(c) He has been previously convicted on two or more occasions of a non-bailable and cognizable offence.

The proviso carves out exceptions and provides that in all such cases if such person is under the age of sixteen years or is a woman or is sick or infirm, the Court may direct release of such person. Next proviso further provides that even those persons convicted previously as stated in (b) and (c) above, they can be released if it is found just and proper to do so for other special reasons. Therefore, at this stage if from the material available there appeared reasonable ground for believing that a person has been guilty of an offence punishable with death or imprisonment for life, the Court has no other option but to commit him to the judicial custody.

13. In the case of Gurcharan Singh v. State (Delhi Admn.) reported in A.I.R.1978 Supreme Court at page 179 the Supreme Court after considering the provisions of Section 437 has held in terms as under:

There will be however, certain overriding considerations to which we shall refer hereafter. Whenever a person is arrested by the police for such an fofence, there should be materials produced before the court to come to a conclusion as to the nature of the case he is involved in or he is suspected of. If at that stage from the materials available there appear treasonable grounds for believing that the person has been guilty of an offence punishable with death or imprisonment for life, the Court has no other option than to commit him to custody. At that stage, the Court is concerned with the existence of the materials against the accused and not as to whether those materials are credible or not on the merits.

It has been further held that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1), Cr.P.C. and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. It has been clarified that this will, however, be an extraordinary occasion since there will be some materials at the stage of inital arrest, for the accusation, or for strong suspicion of commission by the person of such an offence. The Supreme Court has further observed as under.-

It is difficult to conceive how if a police officer arrests a person on a reasonable suspicion of commission of an offence punishable with death or imprisonment for life (3.41 Cr.P.C. of the new Code) and forward him to a Magistrate (Section 167(1), Cr.P.C. of the new Code) the Magistrate at that stage will have reasons to hold that there are no reasonable grounds for believing that he has not been guilty of such an offence. At that stage unless the Magistrate is able to act under the proviso to Section 437(1), Cr.P.C. bail appears to be out of the question. The only limited inquiry may then relate to the materials for the suspicion. The position will naturally change as investigation progress and more facts and circumstances come to light.

14. From the aforesaid provisions and the discussion it is clear that once the accused is produced before the Magistrate and he is sent to the judicial custody and subsequently when he is produced before him, normally it would not be necessary for the Magistrate to pass an order that the accused should be kept in judicial custody for a further period because before him there would be an order passed by him or by the Sessions Judge or by High Court rejecting the bail application filed by the accused. Once the bail application filed by the accused is rejected and once it is not shown that the investigation is over or that the investigation so far carried out by the Investigating Officer does not reveal any offence, it would not be necessary for the learned Magistrate to pass any order stating that the accused should be kept in judicial custody. It would be sufficient if he directs the jail authority that the accused should be kept in jail and that he should be produced in the Court on particular day. On the contrary Section 437(2) in terms provides that if it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into the guilt, the accused shall be released on bail or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance. So even at the stage of investigation the Court under Section 437(2) of the Code or the police officer had jurisdiction to release the accused on bail if there are not reasonable grounds for believing that the accused has committed a non-bailable offence. So at this stage if the Court arrives at conclusion to that effect, the Court is required to pass an order that there are not reasonable grounds for believing that the accused has committed non-bailable offence and, therefore, he should be released on bail. Therefore, in my view Section 167(2) of the Code which provides that if the Magistrate is satisfied that adequate grounds exist for detaining the accused in the judicial custody, that does not mean that the Magistrate is required to pass a speaking order on every date when the matter is adjourned that the accused shall be detained in the judicial custody. Order of keeping him in judicial custody is already passed and he continues under judicial custody till he is released on bail. The legislature has not provided that during this limited period of ninety days or sixty days as the case may be, the concerned Investigating Officer or the Public Prosecutor should file an application requesting the Court that the accused should be further detained during the investigation. On the contrary if the accused wants to be released on bail on the ground that the Investigating Officer has not collected sufficient material even after the lapse of a particular period he may file an application pointing out to the Magistrate and the Magistrate would pass an appropriate order under Section 437(2) and (4) of the Criminal Procedure Code. It seems that the learned Sessions Judge has read Section 167(2) in isolation. He has not considered other provisions of the Criminal Procedure Code with regard to granting of bail. He also ought to have considered that Section 167(2) does not provide for releasing the accused on bail except in those cases where the period of detention in judicial custody exceeds ninety days or sixty days as the case may be. Under Sub-section (2) of Section 437 the Investigating Officer or Court is empowered to release such person who is detained if it appears that there are not reasonable grounds for believing that the accused has committed a non-bailable offence. Sub-section (4) of Section 437 in terms provides that an officer or a Court releasing any person on bail under Sub-section (1) or Sub-section (2), shall record in writing his or its reasons or special reasons for so doing. Sub-section (6) of Section 437 provides that if, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate unless for reasons to be recorded in writing, the Magistrate otherwise directs. Section 439 empowers the High Court or the Sessions Court to release the accused-person on bail even in those cases where the Magistrate is not empowered to release the accused on bail. Now at all these stages the Court is required to exercise its judicial mind.

15. The learned advocate for the respondent has relied upon the decision in the case of Mohan v. Stale of Rajasthan reported in 1983 (II) Crimes at page 616 where in similiar set of circumstances Rajasthan High Court has held as under:

I have no hesitation to say that no application for further remand was submitted by the police before the learned Magistrate and as such there was no question of granting further remand and permitting the police to detain the petitioner in judicial custody. As there is no authorization, there is no written order by the learned Magistrate authorising the detention of the petitioner in judicial custody beyond 11-7-83, the detention of the petitioner thereafter is not legal detention, without authority the petitioner is being detained in jail, there was no obstruction for the police to submit the application for remand before the Magistrate and the Magistrate could have passed the order authorising the detention of the petitioner beyond 11-7-83.

With due respect it is difficult to agree with the aforesaid reasoning. In my view Section 167(2) does not contemplate any application by the police before the learned Magistrate that the accused should be further remanded to the judicial custody. Once the accused is produced before the learned Magistrate alongwith the F.I.R. and other case papers as provided under Section 167(2), the Magistrate is bound to pass appropriate order in conformity with the provisions of the Criminal Procedure Code. He may release the accused on bail, he may send him to the judicial custody or he may grant an application of the Investigating Officer for police remand. For sending him to the police custody, application is required. But at that stage before authorising the detention in the custody of police he shall pass a reasoned order because Section 167(3) itself provides that a Magistrate authorising under this section detention in the custody of the police, shall record his reasons for so doing. Therefore, once the accused is produced before the Magistrate and he is not released on bail nor his detention in the custody of police is authorised, the Magistrate would take him under judicial custody and send him to jail.

16. The learned advocate for the respondent, however, relied upon a decision of the Supreme Court in the case of Ramnarayansingh v. Slate of Delhi reported in : 1953CriLJ113 . There the Supreme Court has considered Section 344 of the Old Criminal Procedure Code and has observed as under:

The trying Magistrate was obviously proceeding at that stage under Section 344, Criminal P.C. which requires him, if he chooses to adjourn the case pending before him 'to remand by warrant the accused, if in custody' and it goes on to provide: Every order made under this section by a Court other than a High Court shall be in writing signed by the presiding Judge or Magistrate.

Thereafter the Supreme Court held that there was no such order passed by the Magistrate remanding the accused to custody and the order which was produced merely directed the adjournment of the case till 11th March and contained no direction for remanding the accused to custody till that date and therefore held that the detention of the accused was illegal. In my view this decision of the Supreme Court will in no way be helpful in deciding the point whether under Section 167(2) of the New Code the Magistrate is required to pass his speaking order every now and then directing that the accused should be kept in the judicial custody.

17. Section 344(2) of the Old Criminal Procedure Code in terms provided that every order made under Section 344(1A), if the said order was passed by the Court other than the High Court it should be in writing signed by the Presiding Officer or the Magistrate. As such the scheme of Section 344 and Section 167(2), of the Criminal Procedure Code is entirely different. Under Section 167 itself when the Legislature intended that the order should be in writing, it has been specifically provided for doing so under Section 167(2A) and (3). As discussed above when the order is passed by the Executive Magistrate under Section 167(2A) or when the order is passed by the Magistrate authorising the detention in custody of police, written order is required to be passed stating the reasons for doing so.

18. The learned advocate for the respondent relied upon the decision of Hariharanand v. The Jailor 1/C District Jail reported in : AIR1954All601 where the Court has considered the provisions of Section 167 of the Old Criminal Procedure Code and held that when the accused is produced before the Magistrate after his arrest without warrant, the Magistrate before whom he is produced, has to scrutinise the act of arrest and to see whether the act of arrest was legal and proper and the formalities required by law have been complied with or not after considering the copy of the entries in the police diary.

19. The learned advocate for the respondent also referred to a decision in the case of Bir Bhadra Pratap Singh v. D.M. Azamgarh reported in : AIR1959All384 . There also the Court considered the provisions of Section 167 of the Criminal Procedure Code (Old) and held that when the accused is produced before the Magistrate, he should pass proper order in the prescribed form. It was further held that Section 167 of the Code indicates that the purpose of producing an accused before the Magistrate is to ensure that the arrest and the detention of the accused-person is at any rate, prima-facie justified. The Court further held that the law apparently did not reply on the judgment of the police for purposes of accepting that the charge that was being levelled against a person was even prima facie sustainable. The Court also held that the Magistrate is required to apply his judicial mind for detention of the accused in prison.

20. The learned advocate for the respondent further relied on the decision in the case of In re: Raju Thevan reported in A.I.R. 1966 Madras at page 349. There the Court considered the provisions of Sections 167 and 344 of the Criminal Procedure Code (Old). The Court considered whether under Section 344 before taking the cognizance of the case the Magistrate has jurisdiction to pass an order of remand. The Court held in paragraph 15 as under:

(15) At every stage, when they obtain remand, the police must satisfy the Magistrate that there is sufficient evidence against the accused and that further evidence must be obtained, and then if the Magistrate is satisfied I think, he could direct remand. Thus in Ponnusami v. Queen (1883) ILR 6 Mad 69 at P. 70 Turner C.J. observed:

'It would not, we think, be necessary on the first occasion accused persons are produced to go fully into the charge. It is ordinarily sufficient to show by the evidence of an officer of the police that the police are in possession of information they believe to be reliable that an offence has been committed, and that the accused persons were concerned in its commission. When the accused are brought up after a remand, some direct evidence of the connection of the accused with the crime should be required to justify, the Magistrate in refusing bail, and with each remand the necessity for the production of implicating proof becomes more strong'. Again in Queen Empress v. Engadu (1888) ILR 11 Mad. 98 at P. 102 it is observed:

There may be cases in which no evidence may be available within 15 day from the date of an accused person's arrest, but such cases should be and probably are rare, and such evidence as may then be available should be placed before a Magistrate competent to hold an inquiry or try. The Magistrate has then power under Section 344 Cr.P.C. to postpone without limit (provided that the accused be not remanded for more than fifteen days at a time), the commencement of the inquiry or trial for the purpose of obtaining further evidence which it appears likely may be obtained if time is given, or for other reasonable cause, and if no such evidence is forth coming and if it is not shown that any is likely to be obtained, it appears only reasonable that the accused person should no longer be detained in custody, there is nothing to prevent his being re arrested, if evidence be subsequently secured.

21. It is no doubt true that even under Section 167(1) of the New Criminal Procedure Code when the accused is produced before the Magistrate, the Investigating Officer is required to forward forthwith a copy of the entries in the diary in the prescribed form relating to the case. Under Sub-section (2) the Magistrate is required to take into consideration the said entries before authorising the detention of the accused in the police custody or judicial custody as the case may be. But scheme of Section 167(2) and Section 344 Old Criminal Procedure Code is entirely different.

22. Section 167(2) is added to avoid all controversies whether after lapse of fifteen days of the arrest the accused can be further remanded to judicial custody even before taking cognizance of the offence. It would be worthwhile to quote the objects and reasons for amending Section 167:

At present, Section 167 enables the Magistrate to authorise detention of an accused in custody for a term not exceeding IS days on the whole. There is a complaint that this provision is honoured more in the breach than in the observance and that the police investigation takes a much longer period in practice. A practice of doubtful legality has grown whereby the police file a 'preliminary' or incomplete charge-sheet and move the court for remand under Section 344 which is not intended to apply to the stage of investigation. While in some cases the delay in investigation may be due to the fault of the police, it cannot be denied that there may be genuine cases where it may not be practicable to complete the investigation in 15 days. The Commission recommended that the period should be extended to 60 days, but if it is done 60 days would become the rule and there is no guarantee that the illegal practice referred to above would not continue. It is considered that the most satisfactory solution of the problem would fee to confer on the Magistrate the power to extend the period of detention beyond 15 days, whenever he is satisfied that adequate grounds exist for granting such extension.

In the year 1978 Section 167(2) was amended and it provided detention for a period of ninety days in serious cases mentioned therein.

23. Section 167(2) confers the powers of remand to custody during the pendency of the investigation, Section 309 (2) is attracted only after congnizance of an offence has been taken or commencement of trial has proceeded. Further it is the command of the Legislature that even if the investigation may still be proceeding in serious offences of murders, dacoities, robberies by mater-State gangs or the like the accused would have right to be released on bail after a period of ninety days or sixty days as the case may be if he is pre-pared to furnish bail. Beyond the period of ninety days or sixty days as the case may be, the court has no discretion but to release the accused on bail if he is prepared to furnish bail.

24. The Magistrate before whom the accused is produced, can authorise the detention of the accused in custody as he thinks fit for a term not exceeding fifteen days in the whole under Sub-section (2) of Section 167 even if he has jurisdiction or has not jurisdiction to try the case. Proviso to said sub-section empowers the Magistrate to authorise the detention of the accused-person otherwise in custody of the police beyond the period of fifteen days, but in no case he can authorise the detention of the accused-person in custody for a total period of ninety days or sixty days as the case may be. The Magistrate is to be satisfied that adequate grounds exist for passing such order. But this does not mean that the Magistrate is bound to pass a speaking reasoned order. The learned advocate for the respondent, however, submitted that this would authorise the Magistrate to detain the accused-person in custody for a maximum period of ninety days or sixty days as the case may be without applying his mind. In my view his submission is totally misconceived for the following reasons:

(1) The Magistrate has to consider the case diary submitted by the police and arrive at a conclusion whether adequate grounds exist for detention;

(2) Under Section 437(1) and under Section 439, the accused is entitled to file an application for releasing him on bail;

(3) Under Section 437(2) the Magistrate is entitled to release the accused at any stage of the investigation if there are not reasonable grounds for believing that the accused have committed a non-bailable offence;

(4) If bail application is rejected of necessity the accused would be required to be sent to judicial custody.

Therefore, it cannot be said that the accused would be detained in jail under Section 167(2) for a maximum period of ninety days or sixty days as the case may be without any application of mind by the Magistrate. At that stage the Court has to merely consider the case diary and its progress and is concerned with the existence of the materials against the accused and not as to whether those materials are credible or not on merits. But this does not mean that the Magistrate should not apply his mind to the progress of the investigation because Section 437(2) provides that the accused can be released on bail if there are not reasonable grounds for believing that the accused have committed a non-bailable offence. But this also does not mean that at every stage when the accused is produced before a Magistrate he should go on passing an order to the effect that he should be kept in judicial custody for a further period because that would be implied.

25. In above view of the matter it is not necessary that the Magistrate before whom the accused is produced under Section 167(1) of the Code should pass any speaking order under Section 167(2) or its proviso on a written application which may be filed by the Public Prosecutor that the accused should be detained in the judicial custody. At the initial stage the Investigating Officer would submit a report when he is forwarding the accused before the Magistrate narrating the allegations against the accused and the time when the accused was arrested, submitting that the accused may be kept in judicial custody. On that report the Magistrate would pass an appropriate order. If the Investigating Officer submits an application asking the police custody of the accused, the Magistrate would be required to pass an order under Section 167(3). If an accused files an application for bail and if it is rejected then there would not be any alternative but to keeping he accused in judicial custody. Further in some cases the accused may refuse to furnish bail. Then also the accused may be required to be kept in judicial custody.

26. In the present case it is an admitted fact that the bail applications filed by the accused were rejected on merits. The accused was produced before the learned Magistrate on the adjourned dates and the learned Magistrate has issued warrant authorising detention of the accused by the Jailor. Therefore, it cannot be said that the detention of the accused in the judicial custody was illegal.

27. The learned advocate for the State further submitted that under Section 167(2), Proviso, the Magistrate is empowered to authorise the detention of the arrested person for more than fifteen days and straightway he can pass an order authorising the detention up to ninety days. As against this the learned advocate for the other side relied upon Section 167(2) and Rule 20 of Criminal Manual issued by the High Court of Gujarat which says that in no case the accused person should be remanded to custody under Section 167(2) of the Code of Criminal Procedure for a period exceeding fifteen days at a time. Rule 20 further provides that in no case the accused should be remanded to custody under Section 167(2) of the Code for a total period of more than sixty days during the investigation and if the charge-sheet is not submitted or the investigation is not completed within sixty days the Magistrate shall act according to the provisions of Section 167 of the Criminal Procedure Code. It seems that this Rule 20 is not suitably amended after the amendment of Section 167(2) in 1978 which empowers the Magistrate to authorise the detention of the accused for a period of ninety days or sixty days as the case may be.

28. The learned Additional Public Prosecutor relied upon the decision in the case of T.V. Sharma v. Smt. Durgakamala Devi and Ors. reported in I.L.R. Andhra Pradesh at page 589 and on the decision in the case of Babu Ali v. State reported in 1981 Allahabad Law Journal at page 103 in which the Court held that under Section 167(2) proviso, the Court is empowered to grant remand to the judicial custody at initial stage to one shot for a period of ninety days or sixty-one days as the case may be. The Allahabad High Court further observed as under:

18. Lastly leaving aside quibbling over words, we may consider the basics. The comparative advantages of the two interpretations are relevant consideration. When choosing between the same where the legislative mandate is not clear. There is no advantage in insisting on an initial remand period of 15 days under the proviso. The legislature has already imposed the check that the extended period of remand beyond 15 days can be granted only to non-police custody and only if Magistrate is satisfied that adequate grounds exist for doing so. If these conditions, are satisfied at the initial stage there is no reason why one shot remand for the whole period about the need for which the Magistrate, is satisfied should not be granted avoiding the needless-production of the accused and an intermediate order of remand at the end of 15 days. Any one familiar with the working of the Magistrate's courts knows that in quite a few cases investigation has to take much longer than 15 days. It is to avoid intermediate remand orders in such cases that the proviso has been added in the new Code.

29. In my view this question is not required to be decided in the present proceedings as the learned Magistrate had ordered that the accused should be produced before him on a particular date which was beyond the period of fifteen days.

30 In the result Revision Application is allowed and the Judgment and Order passed by the learned Sessions Judge on 11th September, 1984 releasing the respondent-accused on bail is quashed and set aside. The accused to surrender forthwith.

31. It appears from the warrant issued by the learned Magistrate that the learned Magistrate has used old form under the Old Criminal Procedure Code. The Registrar is therefore, directed to see that the lower judiciary uses the form prescribed under the New Criminal Procedure Code and under the Criminal Manual issued by the High Court in 1977.


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