STATE Vs. MEHAR CHAND

JUDGEMENT

(1.) This reference by The Sessions Judge, Mahasu Sessions Division raises an interesting question of law and arises in the following circumstances :- Respondent Mehar Chand was arrested by the Delhi police for an offence under section 364 Indian Penal Code on the allegation that he had kidnapped or abducted one Hima Ram in order that he may be murdered, and is presently confined in judicial lock-up at Solan under the orders of the Magistrate 1st Class, Kasumpti after the statutory period of remand had run out under section 167 Criminal Procedure Code The order of detention was passed under the provisions of section 344 Criminal Procedure Code It appears that during the coul sc of investigation the police came to the conclusion that besides the offence under section 364 Indian Penal Code the accused-respondent was also involved in the offence punishable under section 302 Indian Penal Code read with section 201, Indian Penal Code for having caused the death of Hima Ram and for concealment or destruction of the evidence disclosing the commission of the offence of murder by him. The police therefore felt that the association of the accused-respondent with the police for further investigation had become necessary with a view to discover the concealment of the dead body which is 'corpus delicti in the case. The police therefore with the object of making further investigation into the additional offence of which the accused-respondent was suspected to be guilty, moved the learned Magistrate for an order of his remand to police custody. The request was however turned down by the learned Magistrate by his order dated 28th January, 1967.

(2.) An application was thereupon moved by the State through the Public Prosecutor for revision of the learned Magistrate's order with a prayer that the respondent be ordered to be remanded to police custody in the interest of justice. The prayer of the State had found favour with the learned Sessions Judge who has recommended that the order of the Magistrate dated 28th January, 1967 be set aside. The learned Sessions Judge has also directed by the same order that the Magistrate should order the accused-respondent to be brought to his Court and then to allow the police officer to formally arrest him. After the respondent is thus arrested he should be handed over to the police custody for a maximum period of 15 days as provided in section 167(2) Criminal Procedure Code The present reference is the result of the aforesaid recommendation and direction made by the learned Sessions Judge.

(3.) An examination of the order of the learned Sessions Judge shows that the police had first applied to the learned Magistrate on 7th January, 1967 for an order that the respondent be called from Judicial lock-up and remanded to the police custody for 15 days. This was followed by another application on 27th January, 1967 wherein it was stated that the accused-respondent had previously been arrested in the course of investigation of an offence under section 364 Indian Penal Code and had on the expiry of the period of remand been sent to the judicial lock-up. Thereafter a case under sections 302/201/34 Indian Penal Code had been made out against the accused-respondent and therefore it was prayed that the police be permitted to make a formal arrest of the accused in the Court room and thereafter he may be remanded to police custody for 15 days.