PUBLIC PROSECUTOR KHANUBAM Vs. GHALAPATHI RAO

JUDGEMENT

(1.) This Criminal Revision Case has been placed before us in a Division Bench on a reference made by our learned brother Mukadar, J. The question of law that arises in the case and which has been argued before us at great length is whether the Court has power and discretion, while remand ing the accused to custody under Section 344 Cr.P.C. to remand him into police custody. To put the question in other words, it is, whether the Court has to remand an accused, while dealing with an offence which it has taken cognizance of, only to judicial or jail custody and has no discretion whatever under any circumstances to remand him to police custody. This question has arisen in the following manner. One K. Vedagiri Rao was attacked in the afternoon of 27-10-1972 by a large number of persons and was caused fatal injuries to which he succumbed subsequently. 19. persons were charged under sections 302, 149, 148, 120-B I.P.C., etc., though all the accused were absconding for some time, A-6 to A-14 were apprehended and were remanded to police custody on 10-11-1972. A charge sheet wag filed against all the 19 accused on 24-3-1973. A-1S to A-19 surrendered themselves to Court after the chargesheet was filed. Ths preliminary inquiry before the Munsif Magistrate, Madbira was numbered as P.R C. 1/1973. On 6th June, 1973 A-1 to A-4 surrendered to court and were, on that day, remanded to Judicial custody. The police, however filed Criminal Misc. Petition No. 302/1973 before the Munsif-Magistrate on 8-6-1973 seeking police custody of these four accused for more investigation in regard to them.

(2.) The Munsif-Magistrate, however, dismissed the petition holding that as the period of 15 days from 6-6-1973 hand expired, he could not grant police remand and while coming to this conclusion, he relied on the decision of the Orissa High Court in Artaran Mahasuara v. State of Orissa,(1). It may be noticed here that the 5th accused was still absconding and his case was separated from that of the others The Prosecution preferred Criminal Revison Petition No. 3/1973 to the Sessions Court at Khamman against the order of the Munsif-Magistrate, Madhira. The learned Sessions Judge felt that the Munsif Magistrate was wrong in rejecting the petition for police remand and in coming to this conclusion he relied on some cases particularly that of this court (of Mirza, J.) in State of Andhra Pradesh v Golla Ramulu (2). So, he referred the case to this Court for setting aside the order of the Munsif Magistrate, Madhira and tor allowing the petition of the police to have custody of A-1 to A-4 Public Prosecutor, Khatmmam v. Chalapitht Rao (Sambaslva Rao, J.) 257 for a reasonable time. Muktadar., J., before whom the matter came, opined that "there is no ruling directly on this aspect of the case interpreting the term "may by a warrant remand the accused if in custody" and also being a matter of importance, this is a fit case to be heard and disposed of by a Bench of this Court." It would be useful if we notice at the outset the respective contentions advanced before us by both sides. The learned Public Prosecutor contends that the Magistrate has enough discretion under Section 344 Cr.P.C., to remand tne accused to police custody. He is not bound to invariably keep them in jail custody, until the inquiry before him is over. It may be that, generally speaking, the accused will have to be in jail custody after an offence has been taken cognizance of. But it cannot be said that under no circumstances whatever, a Magistrate has power or discretion to entrust the accused to police custody. Section 344 Cr. P.C., confers adequate power on him to do so. But that power he has to exercise in bis judicial discretion and when he thinks it reasonable to place the accused in the police custody, he has to give his reasons for his conclusion. In this particular case, an extraordinary situation prevails. It is true that a charge sheet was filed on 24-3-1973. But A -1 to A 4 were not in police custody before it was filed and were not, therefore, available to the police tor interrogation and investigation in so far as they were concerned. It may become necessary for the police to make more and further investigation in regard to them after they are available If that is denied to the police, a complete investigation may not be possible in all cases. Full investigation into an oftence need not necessarily result in prosecuting the accused. It is quite possible that as more information is gathered and more light is thrown on the orfence, some accused may be found to be innocent of the offence. So, the possibility of the accused deriving benefit from further investigation cannot be ruled out. What is, therefore, required is a full investigation and in some cases it may not be possible for the police to complete it without the aid of the accused. Since A 1 to A4 were never in the custody of the police, it was not possible for the latter to complete their investigation. That is why, they sought police custody. If it is held that once Section 344 Cr. P.C., becomes applicable, no police custody can be given under any circumstances and the court has no power or discretion in this behalf, it would result in having inadequate investigations in some cases. Clever accused would surrender to the Court directly after the chargesheet has been filed and thus depreve the police of the opportunity of conducting a thorough inquiry into the offence in so far as they arc concerned. Section 344 Cr. P.C., is no bar to the Magistrate entrusting the accused to police custody, and the learned Public Prosecutor maintains that the legal position enables and the practical approach to offences requires that a Magistrate should have this power and discretion. Sri. K. Jagannadha Rao, on the other hand, submits that it is abundantly clear from the scheme of the Criminal Procedure Code that from stage to stage the rigour of the police custody is reduced and when it reaches Section 344 Cr. P.C. police custody is completely done away with and only judicial or jail custody is provided for. It may be that the prosecution may require some more time, even after filing the chargesbeet, to make more and further investigation. To enable the police to complete the investigation, the Court has power under Section 344 Cr. P.C. to place the accused in remand and continue it for not more than fifteen days at a time, but that remand is only to judicial custody. Judicial custody does not mean that the police cannot interrogate the accused in jail; that they can do with th; permission of the court. If the accused are prepared to make a confession, that can also be done while they are in judicial custody. Thus all reasonable investigation is possible even if the accused are in jail custody.

(3.) On the other hand, jail custody is contemplated for avoiding unfair and undesirable methods of investigation by the police. Remitting the accused from jail into the custody of the police would result in encouraging such methods. The intendment of the Code is clearly against this. If the contention of the learned Public Prosecutor is accepted, the very purpose of Section 167 Cr. P.C., that there should not be more than fifteen days police custody of any accused would be defeated, It is not as if for all accused police custody is compulsory ; the custody of an accused can as well start with his surrender to Court, thus resulting in judicial custody right from the beginning. It is, therefore, manifest from a harmonious reading of the relevant provisions of the Code that Section 344 Cr. P.C., postulates only judicial custody and nothing else. It does not comtemplate any exceptions and to say that the Court has discretion to remand the accused to police custody in extraordinary cases, is to read something into Section 344 Cr. P.C. which is not there. In this light, the view taken by Mirza, J., in State of Andhra Pradesh v. Golla Ramulu [1]. requires re-consideration. Learned counsel also submits that the circumstances of the case do not warrant handing over the four accused to police custody even if the legal position is to be held against him We will do well by understanding the scheme of the Criminal Procedure Code in this behalf, and the scope of the few relevant provisions therein in regard to custody of offenders Chapter V of part III of the Code relates to anest. escape and retaking. Section A thereof is concerned with 'arrest generally. Section B deals with arrest without warrant". The provisions in this Section show the anxiety of the framers of the Code to see that as far as possible, persons should be arrested only under a warrant issued by a Magistrate and if one is arrested without warrant, many precautions should be taken. Clear guide lines are laid down in what circumstances a person may be arrested without a warrant." Then section 60 requires a police officer making an arrett without the aid of a warrant, to take or send the person arrested before a Magistrate having jurisdiction in the case or before the officer in-charge of a police station. Section 61 goes further and lays down that "No police-officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magisitrate's Court". The fact that the law, as stated by the Code, requires tbit person arested without warrant should be produced before a Magistrate at the earliest possible moment after the arrest, which should not in and case exceed 24 hours, is quite manifest from this provision. However, custody of the arrested person by the police for more than 24 hours can be extended only by a Magistrate and that too under section 167. To us, it looks very significant that Section 61 refers only to an order under Section 167 as the cote exception and not to any other provision in the law and even to Section 344 Cr. P.C. It follows that unless an order is made under Section 167, no arrested person can be kept in police custody for more than 24 hours and further that further detention in such custody is permissible only under Section 167, and no other provision.