TMI Blog1970 (2) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... en put in the Court. The question has arisen in the following circumstances:-4 The dead body of Sarjeevan Prakash alias kaka was found in the fields in the jurisdiction of Timarpur police post on the morning of September 5, 1960. Ajit Singh and Shankar petitioners were arrested by the police on September 17, 1969 under Section 302, read with S. (34-Ed.) of the Indian Penal Code in connection with the murder of Sarjeevan Prakash. The two petitioners were produced before the Magistrate on September 18 1969 when they were remanded to police custody till September 25, 1969. Further orders remanding the accused to judicial custody were made from time to time till November 15, 1969, when another order for remand was made. An application for releasing the two petitioners on bail was rejected by the learned Magistrate on October 14, 1969. An application for the release of the petitioners was then made to the learned Sessions Judge who rejected the application by his order dated November 1, 1969. The petitioners then approached this Court. One of the contentions advanced on behalf of the petitioners was that after the expiry of the period of remand, for which the limit prescribed by S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o whom he is immediately subordinate. 173. (1) 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 (b) communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. (2) Where a superior officer of police has been appointed under Section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer and he may, pending the orders of the Magistrate, direct the officer-i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused is arrested, cannot be completed within twenty-four hours by the police fixed by Section 61 and there are grounds for believing that the accusation or information against the accused is well founded the police are bound under Section 167 of the Code to forward the accused along with the copies of the entries in the dairy to the nearest Magistrate. Such a Magistrate can authorise the detention of the accused in the police custody from time to time for a term not exceeding 15 days in the whole. An order for this purpose cannot be made by a Magistrate of third class or by a Magistrate of second class not specially empowered in this behalf by the State Government. It is, however, not essential that the Magistrate passing the order should have jurisdiction to try the case. While authorising detention in the custody of police under Section 167 the magistrate has to record his reasons for so doing and this fact would show that the remand is to be granted not as a matter of course but for reasons which have to be put in writing. It may be noticed that the word remand as such is not used in Section 167 and what is authorised by the Magistrate for making an order under that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an offence shall be completed without unnecessary delay. The provision in this respect underlines the importance of promptitude and diligence in the investigation of cases. It hardly needs to be emphasised that slackness on the part of investigating agency can result in the disappearance of material evidence which might otherwise be available and thus prevent the effective detection of the crime. A duty is Therefore cast upon the police by Section 173 of the Code to complete investigation without unnecessary delay. In order to provide a safeguard against any slackness on the part of the police, it has been provided that the accused cannot remain in custody beyond a specified period without the order of the Magistrate. The police have Therefore to give reasons and make out a case for the remand of the accused to custody. A Magistrate granting a remand under Section 344 has to bear this in mind and has to be satisfied that there exist good grounds for making an order of remand of the accused to custody. The Magistrate has to keep a balance and should not be oblivious of the fact that an order of remand to custody affects the liberty of an individual who has yet to be found guilty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Affairs, Govt. Of West Bengal v. Bidhindra Kumar Roy Air 1949 Cal 143, Roxburgh and Blank, JJ., observed: Section 167 which limits the period of detention to 15 days is applicable both to a Magistrate having jurisdiction to try the case and also to other Magistrate and limits the total period of detention to 15 days. In the case of a Magistrate who has no jurisdiction to try the case he must within the period forward the accused to a Magistrate having jurisdiction. The section then applicable for further detention is Section 344 of the Code and the Explanation to that section indicates, in our opinion, that further remand may be granted before submission of the charge-sheet. Under Section 173 of the Code, the charge-sheet is to be submitted when the investigation is complete. The Explanation to Section 344 of the Code clearly contemplates a stage prior to submission of the charge-sheet and that time is wanted for further investigation; under it the Court having jurisdiction may grant remands in custody if sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence and it appears likely that further evidence may be obtained by a rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Tripura also took the same view in Rab Noaz v. State Air 1965 Tri 6. 11. On behalf of the petitioners reference has been made to AIR1955All462 . As stated above, the view expressed in this case by the learned Single Judge was overruled in the latter Division Bench case of Dukhi AIR1955All521 . Perusal of the facts of this case goes to show that Kali Charan applicant was remanded to custody of City Magistrate, Farrukhabad. According to the police report, Kali Charan was also involved in cases under Section 420 and other sections of the Indian Penal Code in Uttar Pradesh, Madhya Pradesh, Bombay, Madras and other States. It was held that the City Magistrate, Farrukhabad, who had no jurisdiction to try cases relating to the offences committed in Madras and other places, had no power to remand the accused to custody for a period exceeding 15 days in the whole. Although there were some general observations in that case, the above facts would go to show that they were in the context of the peculiar facts of that case. Be that as it may, a latter Division Bench expressed its disagreement with the view taken in the above case. 12. Another case referred to on behalf of the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not be permissible to read in Section 344 a limitation on the power of Magistrate to grant remand only in case a charge-sheet under Section 173 has been put in Court. Likewise, we cannot subscribe to the proposition that the taking of cognizance of an offence is a condition precedent to the passing of an order of remand of the accused to custody under Section 344 of the Code. 14. Reference has been made on behalf of the petitioners to section 170 of the Code and it is submitted that a report in the nature of an incomplete charge-sheet should be forwarded under that section by the police before an order of remand under Section 344 is made. There is nothing in the language of Section 170 which warrants such a conclusion. Indeed, the said section contains no reference to the submission of a report in the nature of an incomplete charge-sheet. Apart from that, we find that according to the dictum laid down in the case of Artatran Mahasuara, on which case reliance has been placed by the petitioners, Section 170 and 173 are to be read together and contemplate a simultaneous action. 15. Another case to which reference has been made on behalf of the petitioners is Tara Singh v. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Xxiv of the Code are not those at the stage of inquiry and trial but can also be at the stage of investigation. 17. Reference has also been made on behalf of the petitioners to Rules and Orders of the Punjab High Court, Volume Iii, Chapter II-B, Paragraph 10, according to which if a remand is granted under Section 344, Criminal Procedure Code, the case is brought on to the Magistrate's file and the accused, if detention is necessary, will remain in magisterial custody. The above provision can be no assistance to the petitioners because it does not follow from it that a charge-sheet must be submitted or the cognizance of an offence must be taken by a Magistrate before he can remand an accused to custody under Section 344 of the Code. The fact that the case is brought on to the Magistrate's file only indicates that the papers, on which the order for the remand of the accused is made, would become a part of the Court file so that they can be put up for hearing on the next date. Our attention has also been invited to Paragraph 25.56 of the Punjab Police Rules, Volume Iii, Reprint Edition, according to which an incomplete charge-sheet can be put in Court. The above paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X
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