DUKHI Vs. STATE

JUDGEMENT

(1.) THE applicants applied for a writ of habeas corpus under Section 491, Criminal P. C. and article 226 of the Constitution. They were arrested on a charge of murder and are being detained in prison under the orders of a Magistrate since 29-3-1955 in one case and 2-4-1955 in the other case. Their contention is that under Section 167, Criminal P. C. they can be detained in custody under the orders of a Magistrate only for 15 days and that their continued detention after the expiry of 15 days is unlawful and they should be released at once. Though it is not stated in the application, the applicants seem to have been arrested without a warrant by the police and the police are still investigating the matter.

(2.) THE questions that arise are, (1) Whether a person arrested by the police without a warrant must be released from custody on the expiry of the period of 15 days mentioned in Section 167 (2) of the Code unless the Magistrate having jurisdiction takes cognizance of the offence and decides to postpone the inquiry or trial under Section 344 of the Code, and (2) Whether a magistrate can avail himself of the provisions of Section 344 without taking cognizance of the offence or while the matter is still under investigation by the police. We were satisfied that the first question should be answered in the negative and the second question, in the affirmative; so we held that the detention of the applicants was not unlawful and dismissed their application. We now proceed to give seasons for our views.

(3.) THE Legislature has expressly divided the period for which a person can be detained in custody prior to the commencement of an inquiry or trial into two stages. The first stage is of the period of 24 hours; in this period the police have absolute discretion to detain the person anywhere they like during the investigation. If the investigation cannot be completed within 24 hours, the police must forward the accused to the nearest Magistrate; see Section 167 (1 ). The second stage consists of 15 days, the Magistrate to whom the police have forwarded the accused can authorise his detention in such custody as he thinks fit for a term not exceeding 15 days in the whole; see Section 167 (2 ). This remand is practically automatic as soon as the police report that the investigation cannot be completed within 24 hours and that the accused must be remanded to custody for 15 days, the Magistrate would feel bound to grant the remand. The legislature expects investigations to be completed within the period of 15 days, but frequently investigation must go on for more than 15 days; other persons involved in the commission of the offence may be absconding, identification proceedings in respect of the arrested persons or property may have to be done, a report may have to be obtained from an expert such as the chemical Examiner or the Imperial Sereologist or a handwriting export, witnesses may not be available for interrogation on account oi illness or being away from their homes, or the investigating officer may be absent, on leave or may have more urgent investigations to do in the period. On account of these and other reasons investigations, particularly investigations in dacoity, riot and murder cases, are often delayed beyond 15 days. So there must be a third stage of investigation, e. g. , the stage after 15 days. The Legist lature must have realised that frequently investigation would last more than 15 days, particularly investigation of serious crimes like dacoity and murder. It could not have contemplated that the arrested person must be released from custody after the expiry of 15 days regardless of the nature of the accusation or information against him and regardless of the quantity of evidence so far available against him. Therefore, it must have made provision for continuing the arrested person's detention after 15 days in suitable cases and there is no provision barring that contained in Section 344. It follows that Section 344 is meant to be applied when the investigation cannot be completed within 15 days and there is a reasonable ground to believo that the accusation or information is true. It is stated in the explanation to Section 344 that if sufficient evidence has been obtained to raise a suspicion that the accused might have committed the offence and it appears likely that further evidence may be obtained by a remand, it is a reasonable cause for a remand. This explanation necessarily refers to the stage when the offence is still under investigation by the police. The investigation is to be done by the police only; only they can unearth or collect evidence. The Court simply tries or holds an inquiry by examining witnesses produced before it by the police or the complainant; it does not investigate and docs not collect evidence. Therefore, when the explanation refers to the probability of obtaining further evidence it means that the remand under Section 344 can be granted while the case is still being investigated by the police. If the investigation has been completed, normally there would not arise any question of the probability of obtaining more evidence by further investigation. If there are good grounds for not completing the investigation within 15 days and there is sufficient evidence or reasonable suspicion against the accused, the Court may postpone the commencement of enquiry or trial pending completion of the investigation and remand the accused to custody in the meanwhile; this is exactly what Section 344 permits. This remand under Section 344 is to be distinguished from the remand under Section 167 (2 ). Section 344 is more general than Section 167 (2), which is confined in its operation to the stage of 15 days of investigation; it can be used at any stage and can be used by any Magistrate or judge. A remand under Section 344 can be ordered only by the Court having jurisdiction for the offence and not by any Magistrate like a remand under Section 167 (2 ). It has to be for a reasonable cause and is not almost automatic or as a matter of course like a remand under Section 167 (2 ). Under Section 167 (2) the Magistrate has hardly any discretion; if the police report to him that the investigation cannot be completed within 24 hours and that there are reasons to believe that the accusation or information is well founded, he will have no option but to remand the accused. He is not required to give any reasons for granting remand to jail custody; but a Court granting remand under Section 344 has to give reasons. A Magistrate granting remand under Section 167 (2) has discretion to remand the accused either to police custody or to jail custody but it is doubtful if a Court granting remand under Section 344 has such discretion and can remand the accused to police custody.