A.P. Ravani, J.
1. To arrest an accused person is not an ordinary function of a Magistrate. Then, why and in what manner he should exercise this power of arresting an accused person is the real question at the centre of controversy in this case.
2. It is an admitted position that a complaint dated July 8,1985 has been lodged with Nalia Police Station (District Bhuj) against the opponent-accused and other four persons. It is alleged in the complaint that the opponent-accused assisted Pakistani nationals in going back to Pakistan illegally by sea-route. Some of the accused are absconding. The offence alleged against the opponent-accused and others is under the provisions of Passport (Entry into India) Rules, 1980 and under the provisions of Foreigners Act and Foreigners (Restriction of Pakistani Nationals) Order, 1971 and also under the Criminal Law Amendment Act. The Police was in search of the opponent-accused. The opponent knew about this fact. The opponent-accused and two other persons filed an application in this High Court for grant of anticipatory bail under the provisions of Section 438 of the Criminal Procedure Code ('the Code', for short). That application was withdrawn by the opponent-accused and others (It is the contention of the learned Public Prosecutor that the application was withdrawn as it was about to be rejected by the Court. Be that as it may. The fact remains that an application for anticipatory bail was filed and the same was withdrawn). Thereafter the opponent-accused submitted an application dated September 2, 1985 before the learned J.M.F.C., Nalia at Lakhpat, praying that he was surrendering himself before him and that he be taken into judicial custody and be released on bail. It is also an admitted position that without affording an opportunity of being heard or without even ascertaining as to what was the position of investigation in the case against the opponent-accused, the learned Magistrate as per his order dated September 2, 1985, directed that the opponent-accused be taken into judicial custody. The State of Gujarat felt aggrieved by the aforesaid order passed 'by the learned Magistrate and therefore, preferred Criminal Revision Application No. 45 of 1985 in the Court of Sessions Judge at Bhuj. The learned Additional Sessions Judge, who heard the revision application, rejected the same by his order dated September 6, 1985. Against there orders the State of Gujarat has filed the present application by invoking the provisions of Section 482 of the Code and has challenged the legality and validity of the orders passed by the lower courts.
3. Relying upon the principles laid down by the Supreme Court in the case of Niranjcm Singh v. Prabhakar : 1980CriLJ426 , the learned Counsel appearing on behalf of the opponent-accused has submitted that whenever an accused 'appears' before the court and submits himself to the directions of the court, he should be deemed to have been under the custody of the court. In his submission, when a person 'surrenders' himself before the court, the Magistrate gets jurisdiction to pass an order releasing the accused on bail. This submission is sought to be negatived by the learned Public Prosecutor. According to him, the provisions of Section 167 of the Code would be applicable to the facts and circumstances of the case and there cannot be any 'appearance' by the accused before the court unless he is arrested by the police and produce before the court under the provisions of Section 167 of the Code.
4. Both the sides have submitted elaborate arguments and have cited several authorities which deal with the correct meaning of the words 'arrested', 'detained' and 'appears' occurring in Section 167 and 437 of the Code. On behalf of the opponent-accused it is submitted that the learned Magistrate has power to take an accused into custody even when the accused is sought to be detained or even when suspected of being arrested or detained by the police. However, to my mind, both the sides have not addressed themselves to the real question in controversy in this case. The question which has arisen and which is required to be decided by the Court in this case is not with regard to the power of the Magistrate to take an accused into judicial custody when the accused surrenders himself before the Court, but the question is has the learned Magistrate exercised his power properly and in accordance with law when he directed the opponent-accused to take into judicial custody.
5. As far as the question of power of the Magistrate to take an accused into custody is concerned, the existence of this power cannot be denied. Section 44(2) of the Code reads as follows:
44(2). Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.
It would be clear that the only limitation on the power conferred upon the Magistrate is that he should be competent at the time to issue a warrant for arrest and the accused should be in his local jurisdiction. In view of this provision of the Code and in view of the principles laid down by the Supreme Court in Niranjcm Singh's case (supra), it cannot be said that the Magistrate would not have power to take an accused person into his custody whenever the accused appears and surrenders before him and submits himself to the directions of the court. As laid down by the Supreme Court, an accused person can be in custody not merely when the police arrests him, produces him before a Magistrate and remands him to judicial or other custody. But an accused person can be said to be in judicial custody even when he surrenders before the court and submits himself to the directions of the court. This can be done by an accused person by voluntarily appearing before the court and stating that he would like to surrender himself to the judicial custody and pray for bail.
6. However, the real question is the nature of the power of the Magistrate in matters of arrest of the accused. What is the scope of this power and what is the manner and method of exercise of this power? These are the questions which require to be examined and answered.
7. It must be borne in mind that the arrest of an accused is essentially a function which forms part of the investigation, of a case, This is not an ordinary function of a Magistrate. As per the Scheme of the Criminal Procedure Code, the primary responsibility of prosecuting the persons accused of serious offences (which are classified as cognizable offences) is on the executive authorities. Once information of the commission of any such offence reaches the concerned authority, the Investigation, including the collection of requisite evidence and the prosecution for the offence, are the functions of the executive. There are several steps in the process of investigation. During the process of investigation, a person arrested is required to be produced before a Magistrate within 24 hours of his arrest. His continued detention for the purpose of investigation beyond 24 hours is required to be authorised by the Magistrate. The Magistrate is empowered to issue search warrant in appropriate cases. The Magistrate is empowered to record confessions also. As observed by the Supreme Court in the case of State of Bihar v. Ram Naresh : 1957CriLJ567 , 'in all these matters he (the Magistrate) exercises discretionary function in respect of which the initiative is that of executive but the responsibility is his.' The Magistrate has necessarily to exercise his discretion with reference to such material as it may be then available and the exercise of this discretion at that stage would not be prima facie judicial determination of any specific issue(s). The Magistrate's functions in these matters are not only supplemental at a higher level to those of executive, but are also intended to prevent abuse. Be it noted that the phrase 'prevention of abuse' by necessary implication would take within its sweep the prevention of abuse by both sides, that is to say, prevention of abuse by the police and also by the accused.
8. In the case of H.N. Rishbud v. State of Delhi M.R. 1955 S.C. 196 in para 5 of the judgment, the Supreme Court has elaborately discussed the entire scheme of the Criminal Procedure Code. (It may be noted that even after the amendment of the Code in the year 1973, the basic scheme of the Code remains the same.) It is not necessary to reproduce the entire scheme as discussed in the aforesaid judgment. Only reference may be made to the provisions of Section 4 of the Code which provides that all offences shall be investigated, inquired into, tried and otherwise dealt with in accordance with the Code except in so far as any special enactment may provide otherwise. After discussing the entire scheme, the Supreme Court has observed:
Thus, under the Code investigation consists generally of the following steps
(1) Proceeding to the spot,
(2) Ascertainment of the facts and circumstances of the case,
(3) Discovery and arrest of the suspected offender,
(4) Collection of evidence relating to the-commission of the offence which may consist of
(a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit,
(b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and
(5) Formation, of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking necessary steps for the same by the filing of a charge-sheet under Section 173;
9. Looking at the Scheme of the Code and the various steps required to be taken in the investigation, it becomes clear that it not an ordinary function of the Magistrate to arrest an accused Ordinarily, this duty is to be performed by the investigating agency However, at the same time, as stated hereinabove, the power to take a person into custody has been specifically conferred upon the Magistrate. Therefore, this power cannot be denied to him. But when the Magistrate is called upon to exercise this power, he is required to guard himself by posing the questions:
(1) What is the purpose of conferment of this power?
(2) Why should he exercise this power at that particular juncture of time?
(3) Will the exercise of power be supplemental to the executive functions of the investigating agency? Of, would it become an obstacle or obstruction to the process of investigation?
It must be kept in mind that the purpose of conferment of power upon the Magistrate is merely supplementary to the powers of the executive at higher level and the same is intended to prevent abuse;. Therefore, it is clear that this power should be exercised in aid of the investigation. At least it cannot be exercised to thwart or obstruct the investigation. Hence, while taking any person into judicial custody, the Magistrate is required to pose a question:
By taking the accused in custody is he supplementing the process of investigation or is he creating an obstruction or an obstacle in the process of investigation?
If the answer is in the latter part of the question, that is to say, if the exercise of power is likely to result in creation of obstacle and/or obstruction in the process of investigation by the executive authorities, the Magistrate should not exercise the power of taking the accused into judicial custody. On the contrary, it would be his duty to say that he would not exercise the power because it was likely to frustrate the very object of conferment of power.
10. Similar question arose before the Saurashtra High Court in the case of Kanbi Bhagwan Purshottam v. The United State of Saurashtra (1949) 2 Saurashtra Law Reporter 183. In that case, the court took the view that after an accused is taken into judicial custody, he cannot be handed over to the police by way of remand to police custody. Therefore difficulty was pointed out by the Public Prosecutor indicating that this would make it possible for an accused to circumvent the remand to police custody by evading arrest by the police and surrendering himself before the Magistrate. The learned Judge of the High Court observed that 'the Magistrate is not at all bound to take the accused in the custody straightaway.' There is no provision in the Code which provided that the Magistrate was bound to take any person accused of an offence into his custody or that he be arrested by him. The Saurashtra High Court has further observed:
The Magistrate before whom such person appears, in order to circumvent the remand to police custody, must be very careful in accepting surrender as a bona fide surrender and in the first instance, the Magistrate should inform the police concerned regarding the intention of such person to surrender.
Thus the Saurashtra High Court has made an attempt to strike the balance between the possible misuse by the accused by surrendering himself before the Magistrate and the requirements of the investigating agency to ask for remand of the accused for the purposes of taking further steps, in the investigation.
11. Here reference may be made to an unreported decision of this High Court in Criminal Misc. Application No. 307 of 1981 decided on March 13, 1981 by V. V. Bedarkar, J. (as he then was). In that case it is held that once an accused is taken into judicial custody, he cannot be handed over or remanded, to police custody. Thus, if an accused surrenders himself before the Magistrate and if the Magistrate takes him into custody straightaway without referring or informing the police concerned and without affording an opportunity of being heard to the police or the investigating officer, it would seriously-affect the process of investigation. Therefore, the learned Public Prosecutor submits that the view taken by Bedarkar, J, (as he then was) in the aforesaid case is not correct. However, the question does not directly arise before me and hence I do not wish to express any opinion on the correctness or otherwise of the aforesaid view. In the instant case, the question that arises is not with regard to the power of the learned Magistrate to take an accused into judicial custody. As stated hereinabove, the question is with regard to the nature and width of power and the manner and method of exercise of that power.
12. From the aforesaid discussion regarding the scheme of the Criminal Procedure Code and the principles laid down by the Supreme Court, the legal position that emerges and the proposition which can be formulated may now be summed up.
(1) That there are several steps in the investigation of a case. Investigation of a case which ultimately culminates in filing of chargesheet under Section 173 of the Code is essentially within the domain of the executive. The Magistrate has certain functions to be performed even during the course of investigation, but these are discretionary functions in respect of which the initiative is that of the executive. Whenever the Magistrate exercises his function in this sphere, it is his responsibility. His functions are not only supplementary at a higher level to those of the executive but are intended to prevent abuse also. The prevention of abuse would by necessary implication take within its sweep abuse, both by police as well as by the accused. It is the duty of the Magistrate to see that either side does not abuse the process of court.
(2) Ordinarily, the arrest of an accused is not the function to be performed by the Magistrate. This is the duty cast upon the investigating agency and the police. True, the Magistrate has been expressly empowered to arrest an accused when the offence is committed in his presence and within his local jurisdiction (see Section 44(1)). He is also empowered to direct the arrest of an accused within, his local jurisdiction and issue warrant for the same if he is otherwise competent at the time and in the circumstances of the case (Section 44(2)). But this is not his ordinary function. This power of arrest conferred upon the Magistrate is, as stated by the Supreme Court, supplementary of the executive. Therefore, it is not to be exercised so as to become an obstruction in the process of investigation.
(3) Similarly, it must also be borne in mind that the police can collect evidence by discovery of certain facts as per the provisions of Section 27 of the Evidence Act. The provisions of this section can be invoked only if an accused volunteers himself to make discovery before the police when he is in police custody. If he is not in police custody and makes such statement, provisions of Section 27 of the Evidence Act cannot be invoked.
(4) As per the provisions of Section 57 of the Code, a police officer can detain in custody a person arrested without warrant for a reasonable period which should not, exceed 24 hours, in the absence of special order of a Magistrate under Section 167 of the Code. Thus, Section 57 of the Code empowers police to keep an arrested person in custody for a reasonable period, in any case not exceeding 24 hours. During this period police interrogate the accused can also collect necessary evidence.
(5) It may also be noted that under Section 151 of the Code, the Investigating Officer has a right to question the accused also. In some cases it is the duty of the Investigating Officer to interrogate the accused before arresting him. If an accused person surrenders himself straightaway before the Magistrate and the Magistrate orders that he be taken into custody, the right of the police to interrogate him would be severely affected.
(6) It may be that an interrogation and even after seeing the face of the accused, the Investigating Officer may say that the police never wanted to arrest that person or that the police did act wish to arrest him at that point of time or in the near future. Thus, it may also be dangerous to accept the word of an accused, who produces himself before the Magistrate and surrenders to his custody. His apprehensions may not have any factual foundation and simply because he apprehends his arrest, he might have produced himself before the police, but the police may not have any material whatsoever before it to detain him and after interrogating him the police itself may decide not to arrest him.
(7) As observed by the Saurashtra High Court in Kanbi Bhagwan's case (supra), the accused may surrender himself before the Magistrate with a view to circumvent the provisions regarding remand to police custody and he may successfully avoid remand. This is a vital consideration which should be borne in mind by the Magistrate.
(8) It may also be noted that when an accused person surrenders before the Magistrate, the Magistrate does not make Panchnama of the body of the accused. In the very nature of things, it would not be possible for him. If he makes panchnama of arrest and takes a search of his body and other belongings on his person then it may be that he may be required to give evidence in the case as it becomes necessary many a times for the Investigating Officer arresting the person to give evidence on such point.
(9) That a clever accused may even make an attempt to see that the evidence on his body in the shape of injuries or some other marks may not be detected by police and he may prefer to go to judicial custody solely with a view to conceal such evidence on his persons.
(10) It must also be borne in mind that in a given case the surrender may not be bona fide one. The accused might be trying to create an alibi or it may be that instead of 'X', 'Y' might have presented himself before the Magistrate. The Magistrate at that time would have no means to identify the accused except with the assistance of an advocate who also ordinarily will not be in a position to identity the accused correctly. Further, to mistaken identification by an advocate is not unknown and very probably such mistaken identification is not even considered to be a professional misconduct or an offence.
13. In view of the aforesaid considerations, though it is to be conceded that the Magistrate has power to take an accused into his custody, this power ordinarily should not be exercised by him. Even when he is required to exercise this power, he must grant an opportunity of being heard to the police before directing the accused to be taken into judicial custody. If there be an extraordinary situation which may call for the protection of the accused and in the situation if the Magistrate feels that the accused cannot be protected unless he is taken into his custody, he may do so subject to the right of the police to pray for remand to the police custody and also to pray for interrogation of the accused. This would be in consonance with the underlying scheme of the Code.
14. As stated hereinabove and as laid down by the Supreme Court in Ram Naresh's case (supra), the functions of the Magistrate in the sphere of investigation of a cognizable case are supplemental to the executive. These functions may be exercised by him in extraordinary circumstances such as, when the safety of the accused calls for the exercise of such power or when he feels that it is necessary to exercise power to prevent the abuse by the investigating agency. But, in any case, he must see that this is not misused by the accused and the right of the Investigating agency to interrogate the accused and to pray for his remand is not in any way affected. Therefore, initially he may take any person into custody but that should be subject to the right of the investigating agency to pray or remand and to avail of any other right which may be available to Investigating Officer under the Code. If this is not done it would amount to unnecessary interference in the Investigation and it would be taking away the right of investigation without affording an opportunity of being heard to the Investigating Officer. In the instant case, it is clear that the learned Magistrate has ordered to take the accused into judicial custody without affording an opportunity of being heard to the Police. Moreover, the order passed by him is likely to create obstruction in the way of investigation. Hence the impugned order is required to be quashed and set aside.
15. In the result, the application is allowed. The order dated 2-9-85 passed by the learned JMFC, Nalia at Lakhpat, and the judgment and order dated 6-9-85 passed in Criminal Revision Application No. 45 of 1985 by the learned Sessions Judge, Kutch, confirming the order pasted by the learned Magistrate, are quashed and set aside. In the facts, and circumstances of the case, by consent of the parties, the following directions are given.
15.1. The opponent-accused shall be produced before the learned Magistrate latest before October 10, 1985 during working hours and at that time it will be open to the accused to press his application for taking him into judicial custody and pray that he be released on bail. Further if the opponent-accused submits further application for keeping his advocate present, when he is being interrogated, it will be considered by the learned Magistrate on merits and in accordance with law. Before accepting the accused into judicial custody, the learned Magistrate shall afford an opportunity of being heard to the Investigating Officer, who may even pray for remand of the accused. After hearing the parties, which will take place on the same day, the learned Magistrate shall pass, appropriate order in accordance with law.
Rule made absolute accordingly.