TMI Blog1972 (1) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... moved to Darbhanga jail where he was threatened that he would be falsely involved in several cases of dacoity unless he made certain incriminating statements which the police wanted him to make. He made two applications from jail one on February 25, 1968, and the other on February 28, 1968 to the Sub-Divisional Magistrate. The first was not received at all by the Magistrate, while the second was received but after 'a long time, and was rejected. He also alleged that thereafter he made two further applications, one dated March 22. 1968 and the other dated March 27, 196,8 wherein he applied for directions to the police to 'furnish him with particulars of offences charged against him and for bail, but that he received no order on either of them. On these allegations, he claimed release forthwith from detention and the quashing of the criminal proceedings against him. In the counter-affidavit filed by the State before the High Court, it was stated that one Bilat Sahni and one Baleshwar Paswan made confessions before the Magistrate at Samastipur on 23rd and 24th January, 1968 confessing their own guilt and implicating the appellant and certain other persons, in about eight da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter, (2) that the appellant was never informed of the ,,rounds for his arrest, and detention thereafter, (3) that no custody warrant was ever issued warranting the jail authorities to keep the appellant in jail custody, and (4) that assuming that the said remand orders were passed, the appellant could not be kept in jail custody for more than 15 days in the whole. On the basis of these four points he urged that the appellant's arrest .and detention were illegal and that therefore he was entitled to be released forthwith and the criminal proceedings instituted against him by the police quashed. Mr. Ghose also made a point that the jail Superintendent did not produce before the High Court the jail records which would show his having been taken out of the jail for being produced before the Magistrate when the magistrate decided the applications for remand by the police and passed the remand orders said to have been passed by him and that instead the jail Superintendent produced his report, thus disabling the appellant from establishing his case as laid in his writ petition. We may at this stage dispose of Mr. Ghose's last point in regard to the non-production of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not have proved anything more than what the jail Superintendent's report proved. The report, which was before the High Court, clearly pointed out that the appellant was remanded to jail custody on February 21, 1968 by the Sub-Divisional Magistrate, Sadar in the case under s. 395 of the Penal Code. The next date for his appearance was fixed on March 5, 1968, but the appellant refused to go to the Magistrate's Court on that day as also on March 20, 1968 and April 4, 1968, on the ground that the identification parade for him had not yet been held and his going to and appearing in the Court would expose him to possible witnesses. 'Me Magistrate, therefore, had to postpone his production before him to April 18, 1968 when the appellant was produced and once again remanded to jail custody till the, next date, that is, May 2, 1968. The report of the jail Superintendent, thus, frankly conceded that the appellant could not be produced on the dates above- stated and that the Magistrate, therefore, had to pass remand orders in his absence. It is clear from the report that the appellant himself had refused to appear and be present before the Magistrate when he heard the rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as without a valid basis. In the High Court no such contention, viz., that remand orders were not passed on those three dates appears to have been raised. Indeed, the allegation that the appellant was never produced before the Magistrate is belied by an elaborate order made by the Magistrate on March 28, 1968 when the appellant was represented by counsel. At that stage his counsel did not argue that the appellant was never produced before the Court or that no remand orders were ever, passed. The argument urged at that time was that the proceedings at that stage attracted s. 167 of the Code, that the stage had not yet reached when s. 344 would operate and that therefore the Magistrate bad no power to remand the appellant to jail custody for more than 15 days in the whole. That contention was rejected by the Magistrate holding that there was an inquiry before him, and that therefore, s. 344 applied and he was competent, therefore, to pass remand orders from time to time so long as each of those orders was not for a period in excess of 15 days. By that very order, the Magistrate rejected the bail application made by the appellant's advocate holding that the investigation in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken into jail custody, a fresh custody warrant had not been issued by him. The Magistrate, while passing that order, must have known that the jail authorities would not accept the appellant in jail unless the police taking him there produced a custody warrant. There is no reason to think first that the Magistrate had not issued such, a warrant, and secondly, that the jail Superintendent inducted the appellant in the jail without such a warrant. The contention, in our view is wholly without any basis. The last contention of Mr. Ghose was, firstly, that the remand orders passed by the Magistrate were under s. 167 and not s. 344, as the latter section did not apply at that stage, and secondly, that even if s. 344 applied, the Magistrate could not order detention for more than 15 days in the whole. Sec. 167 appears in Ch. XIV which deals with information and investigation. As its language shows, it deals with the stage when a person is arrested by the police on information that an offence has been committed. In providing that such a person must, in terms of s. 61, be produced before a magistrate within 24 hours after his arrest, the section reveals the policy of the legislature tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rissa(A.I.R. 1956 Orissa 129.), to the effect that s. 344 does not apply at the stage of investigation and can apply only after the Magistrate has taken cognizance of and issued processes or warrant for the production of the accused if he is not produced before him cannot, in view of A. Lakshamanrao's case(A.I.R. 1971 S.C. 186.) be regarded as correct. The power under s. 344 can be exercised even before the submission of the charge-sheet, (cf. Chandradip v. State((1955)Bihar Law Journal Reports, 323.) and Ajit Singh v. State((1970) 76 Cr. L.J. 1075.), that is, at the stage when the investigation is still not over. If the view we hold is correct that s. 344 operated, the Magistrate, provided he complied with the condition in the Explanation, was competent to pass remand orders from time to time subject to each order being not for a period exceeding 15 days. There can be no doubt that the Magistrate had satisfied that condition. The judgment of the High Court in para 11 points out that the prosecution case was that the appellant had himself made a confession before the police. That was in addition to a confession by two others which implicated the appellant in the commission of o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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