TMI Blog1981 (11) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. If the offence is a bailable one, which is a categorisation made by the Cr.P.C., the police itself can grant bail and has to give bail. If the arrested person is charged with a non-bailable offence or is unable to furnish bail, then the police has no option but to produce the person concerned before a Magistrate within the period of 24 hours exclusive of the time necessary for the journey. This is provided by S. 57 of the Cr.P.C. This provision is re-inforced as a fundamental right for every person whether a citizen or non-citizen, under Art. 22(2) of the Constn. However, the provision does not apply in the case of an enemy, alien or a person detained under any law providing for preventive detention. 2. In the present case, the respondents were accused of very serious offences under Sections 392/397/302/34 Penal Code; they were arrested on 29th August, 1981, on the basis of a First information Report recorded at police Station, Nizammuddin on 1st August 1981. It so happens that the respondents were earlier arrested on 28th August 1981, by the Special Staff of West District on the basis of a F.I.R. dated 28th August 1981, recorded at Police Station Nangloi. It was then fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the filing of the present petition. It was urged that the petition was filed by Mr. I. U. Khan who was not the Additional Public Prosecutor of Delhi and it was also urged that he had not been authorised to move the petition by the Delhi Administration. The substance of the preliminary objection was that the police had moved the present petition without reference to the Delhi Administration. It was urged that Sodhi Teja Singh, Standing Counsel of the Delhi Administration had not been asked to move the present petition. In effect, this raised a question whether the petition had been filed before this Court by an authorised person. We adjourned this matter to enable the learned counsel appearing for the State, Mr. D. C. Mathur, to establish that he was authorised by the State. Learned counsel has produced a notification dated 22nd September 1981, whereby the Administrator of the Union Territory of Delhi has appointed Shri D. C. Mathur as Special Public Prosecutor for conducting the present case. We have, therefore, not gone into the question whether the petition was moved wrongly initially because any defect or infirmity in instituting the petition that there may be has now been r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation 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. Chap. XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention in any custody under this section unless the aroused 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. For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period, specified in para (a), the accused shall be detained in custody so long as he does not furnish bail. Explanation-II. If any question arises whether an accused person was produced before the Magistrate as required under para (b), the production of the accused person may be proved by his signature on the order authorising detention. 9. We are concerned with the first part of this sub-section which authorises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erent place from where he has to be tried. For instance, if the accused has run away to another State, it is possible that the accused in Punjab, may eventually be arrested in Assam and produced before a Magistrate there. That Magistrate will be more concerned with sending the accused to the correct Magistrate and may order any type of custody that may be convenient at that time. Later, the accused may be produced before the proper Magistrate after being forwarded from the original Magistrate. The next part of the sub-section, namely, that from time to time the Magistrate may authorise such custody as he thinks fit for a term not exceeding 15 days shows that the Magistrate has to pass an order or may pass an order from time to time during the period of 15 days. There is nothing in the provision to show that he cannot change the nature of the custody by subsequent orders. If he orders police custody or custody in an asylum for say two days, then he may order judicial custody or some other type of custody for a further period of some days and then again change the nature of the custody. It must be kept in view that almost everybody recognises that police custody has to be minimised a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at P. 101 of Cri LJ) : These provisions indicate one thing clearly more than anything else that once the accused is remanded to judicial custody, he cannot be sent back to police custody in connection with or in continuation of the same investigation. The judgment then proceeds to hold that even after remand to judicial custody, the accused can be questioned by the police but only in such a manner which does not amount to custody in the police. It would be observed that the judgment does not indicate why the nature of the custody cannot be altered, but assumes that the nature of the custody cannot be changed. 12. In the unreported judgment decided by the same Judge. Trilochan Singh v. State, Criminal Misc. (Main) No. 298 of 1981 (since reported in 1981 Cri LJ 1773 at pp. 1775, 76) there is a more elaborate discussion. In this judgment it was hide as follows :- Section 167 Cr.P.C. does not confer power on a Magistrate to dispense police custody but what it does is to empower him to extend such custody beyond what is permitted under S. 57thereof. Reading these two sections together one can safely conclude that S. 167 comes into, play only when. (1) the accused is ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only applies if the accused is arrested without a warrant. If the investigation cannot be completed within 24 hours, then the police is bound to produce the accused before a Magistrate. The object of this production before a Magistrate is to ensure the liberty of the citizen. Any further custody is to be under the rule of law and not on the dictates of the police. It is a part of the fundamental liberty of the citizen and other persons in a free democratic country that he should not be detained merely because the police wants it. Thereafter the repository of the rule of law is the Judicial Magistrate concerned. He has to ensure that the proper custody is given. He may refuse to give any custody on the ground that no case is made out, or he may authorise such custody as he deems fit. The words 'from time to time' occurring in the Section show that several orders can be passed under S. 167(2). There is no question of continuation of police custody involved in S. 167(2). The Magistrate is not a wing of the police but is part of the judicial set up of the country. The order has to be passed by a Judicial Magistrate acting judicially. It is, therefore, his duty to see that the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigation in exercise of the power under Section 344, (then a list of judgments is set out). Eventually the judgment came to the conclusion that there had been a departure from this and the new Code and Section 309 of the new Code applied in a different manner. We are not directly concerned with this point, but have only noted the observations of the Supreme Court to the effect that under the old Code the Magistrate having jurisdiction to whom the accused was forwarded did have power to remand the accused to police custody or to judicial custody, which is quite the opposite result from what was held by the Sind Court in the judgment previously mentioned. 16. In any 'event', the judgment of Sind Court has no application to the facts of this case because that Court was concerned with the powers of the Magistrate to whom the accused had been forwarded and not the original Magistrate. We are at present concerned with the powers of the Magistrate under Section 167 at a stage before the accused had been forwarded to any other Magistrate and we are clearly of the view that there is no bar to the change of the nature of the custody during the period of 15 days. 17. A m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further facts which had come to light. 18. The judgment of Hardy J. then stated as follows :- I see no insuperable difficulty in the way of the police arresting the accused for the second time for the offence for which he is now wanted by them. The accused being already in magisterial custody it is open to the learned Magistrate under Section 167(2) to take the accused out of jail or judicial custody and hand him over to the police for the maximum period of 15 days provided in that section. All that he is required to do is to satisfy himself that a good case is made out for detaining the accused in police custody in connection with investigation of the case. It may be that the offences for which the accused is now wanted by the police relate to the same case but these are altogether different offences and in a way therefore it is quite legitimate to say that it ijg a different case in which the complicity of the accused has been discovered and police in order to complete their investigation of that case require that the accused should be associated with that investigation in some way. This, therefore, is a case in which po lice custody was granted over and beyond the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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