KOTESWARA RAO Vs. STATE OF KERALA

JUDGEMENT

(1.) There is a common question raised in all these petitions and that is the reason why they are beard and disposed of together. These are applications for bail and apart from the contention on the merits of the respective cases there is a common question raisee by all the petitioners herein. The petitioners are in custody for more than 60 days. Investigation has not been completed in any of the cases. Under these circumstances the petitioners claim that they have to be released on bail. For this they rely on S.167 of the Code of Criminal Procedure, 1973. In this new Code there is a provision, for which there is no corresponding provision in the Code which has been repealed. It may be necessary to extract sub-s.(1) and (2) with the proviso thereto, of S.167 of the new Code in this context.

(2.) Sub-s.(1) evidently specifies the duty of the Police Officer making the investigation or the officer in charge of the Police Station to forward the accused to the nearest Judicial Magistrate within 24 hours of the arrest. The Magistrate to whom the accused person is so forwarded may be a Magistrate who has no jurisdiction to try the case, but the accused has been forwarded to him only because he is the nearest Magistrate or it may be that he is the Magistrate who has also jurisdiction to try the case. In either case he can authorise the detention of the accused in such custody as he thinks fit. But that shall not be for a period of exceeding 15 days. It may so happen that the 15 days may expire and further orders may have to be passed with regard to the release or further detention of the accused. If the Magistrate has no jurisdiction to try the case or commit the case for trial there is a proviso to sub-s.(2) in the new Code. The proviso is different from the proviso to S.167(2) of the repealed Code. The proviso as it stood in the section of the repealed Code read:

(3.) It is the case of the petitioners that under the proviso to sub-s.(2) of S.167 of the Code of 1973 the Magistrate is not empowered to authorise the detention of the person in custody under S.167 beyond the period of 60 days. On the expiry of that period he has to be released on bail if he is prepared to furnish such bail. Therefore petitioners contend that unless investigation is completed within 60 days of the date of arrest the accused can, as of right, claim bail and there is no discretion in the Magistrate to refuse such bail.