KRISHNASWAMI NAIDU Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THESE two petitions are connected and raise the interesting question whether a Sessions Judge, acting as a Special Judge under the Criminal Law Amendment Act 1952, can exercise the power conferred on a Magistrate under Section 167 of the Crl. P. C. , to authorise detention of an accused in the custody of the police. The petitions have come to be filed under the following circumstances.

(2.) THE first petitioner who is the son of the second petitioner was the Gazetted Personal Assistant to the former Minister for Health, State of Tamil Nadu. He as well as the second petitioner were arrested by the Vigilance and Anti-corruption Unit of the Tamil Nadu Police on April, 2, 1976 for alleged offences under the Prevention of Corruption Act. They were produced before the Principal Sessions Judge, Madras who is the Special Judge to try offences under the said Act within the city of Madras, on the next day, i. e. April 3, 1976. The petitioners unsuccessfully moved the Special Judge for enlargement on bail. It appears the Inspector of Police, Vigilance and Anti-corruption, Madras moved the Special Judge for the petitioner being placed in police custody for a period of fifteen days and the application was rejected. Notwithstanding the rejection of that application, the complainant, who is the respondent in these petitions has filed a fresh application in Crl. M. P. No. 616 of 1976 before the Special Judge for placing the petitioners in police custody for a period of fifteen days. It is in this state of affairs, the petitioners have come forward with these two petitions. Cr. M. P. No. 1582/76 has been filed for a direction that the petitioners should be kept in judicial custody pending investigation in Crime No. 2/ac/76-M:c-2, Vigilance and Anti-Corruption, Madras. Crl. M. P. No. 1605/1976 has been filed for quashing the application in Crl M. P. No. 616/1976 on the ground that the Special Judge is not a Magistrate as defined in the Cr. P. C. , and as such, he cannot exercise the power conferred on a Magistrate under Section 167 of the Code, to place an accused in the custody of the police.

(3.) TO appreciate the contentions of Mr. K. Ramaswami, learned Counsel for the petitioners, it is necessary to make a comparative study of Sections 167 and 344 of the Crl. P. C. 1898 (hereinafter referred to as the old Code) and Sections 167 and 309 of the Crl. P. C. 1973 (hereinafter referred to as the new Code ). The difference made in the new Code by Parliament have been considered by the Supreme Court in Natabar Parida v. State of Orissa. It was pointed out therein that under Section 167 of the old Code as well as the new Code, a person arrested without a warrant could not be detained by a police officer for a period exceeding 24 hours and t}ie police officer had to forward the accused to the nearest Magistrate if the investigation could not be completed within a period of 24 hours and there were grounds for believing that the accusation or information against the accused was well founded. The Magistrate, to whom an accused person is forwarded under Section 167 may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding fifteen days on the whole and, if he has no jurisdiction to try the case or commit it for trial and considers further detention unnecessary he may order the accused to be forwarded to a Magistrate having such jurisdiction. While Section 167 under the old Code did not confer a power of remand on a Magistrate for a period longer than fifteen days, Section 167 of the new Code provides that a Magistrate, having jurisdiction to try the case, may authorise the detention of the accused person, otherwise than in the custody of the police, beyond a period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise detention of the accused person in custody under this Section for a total period exceeding sixty days and, on the expiry of the said period of sixty days, the accused person shall be released on bail if he is prepared to furnish bail.