STATE Vs. GALI CHALAPATHI RAO

JUDGEMENT

(1.) An interesting point of law is raised in this reference which has been made by the Sessions Judge, Khammam by his order date 24th July, 1973. The facts relevant for purposes of this reference are as follows:-

(2.) In all 19 accused have been charged under different heads, viz., under Sections 302,149,148, 120-B and other sections. All the accused were absconding after the offence was committed. However,A-6 to A-14, were remanded on 10-11-1972 and finally a charge sheet was. filed on 24-3-1973 against them. A-1 to A- 4, who were absconding surrendered eventually before the Court on 6-6-1973. On 8-6-1973 the prosecution filed a petition stating that A-l to A-4 have also srolen one watch, one gun licence, one car licence and some other articles from the person of the deceased, and prayed that the accused may be remanded to their custody for further investigation into the case. The learned Magistrate dismissed this petition holding that he had no jurisdiction to remand the accused to Police custody because the period of 15 days as envisaged under section 167 Cr. P.C., had already expired and, therefore, he was unable to grant the remand as prayed for. A revision was filed by the State and the learned Sessions judge, by his order stated above, recommended that the order of the Magistrate is liable to be set aside. In doing so, the learned Sessions Judge, relied upon a judgment of this Court in State of A.P. v. Golla Ramulu (I) 1971 Crl.L.J. 13(8 where Mohd. Mirza, J., had held that even under section'167(3) Cr.P.C., the Magistrate is empowered to remand the accused to custody after the charge-sheet has been filed. In this reference, Mr. K. jagannadha Rao the learned advocate appearing on behalf of the respondents accused contends that the order of remand should not be accepted. He submits that section 167 Cr.P.C. applies to a case where a charge-sheet has not been filed and the case is at the stage of investigation and, therefore, the ruling relied upon by the learned sessions judge has no application to the instant case, as in the instant case the charge sheet has already been filed on 24-3-73 and for some reason or other the enquiry was being continuously adjourned. Mr. Jagannadha Rao submits that even if section 344 Cr.F.C. is applicable to the instant case the custody referred to under section 344(1)(A) Cr.P.C. means judicial custody and not police custody. He further submits that the explanation to section 344 Cr.P.C., strictly speaking, does not apply to a case where a charge sheet has been filed but it applies to a case envisaged under section 167 Cr.P.C. Mr. Harishesha Reddythe learned advocate appearing on behalf of the public prosecutor, contends that it is section 344 C.P.C. which is applicable and the custody referred to under sectlcn 344(1) (A) Cr.P.C., would mean police custody. Of course, neither of the parties was able to place any direct ruling to show that the wor 'custody' referred to under section 344(1) (A) Cr.P.C. means judicial custady or police custody, as the case might be. It is now well settled that section 167 Cr.P.C., is applicable only when the accused after being in police custody for 24 hours under section 61 Cr.P.C., is brought before the Magistrate and remand is prayed for by the police authorities. The accused could be brought either before a magistrate who has jurisdiction or before a magistrate who has no jurisdiction to enquire. In either case, the first remand of 25 days could be made by either of the Magistrates having jurisdiction or not having jurisdiction. But if the police seek further remand then the Magistrate who has no jurisdiction to hear the case is bound to send the case to the Magistrate who has jurisdiction to hear the case. Thereafter, the Magistrate to whom the case is sent will have powers to remand the accused for a further period as requested by the police under section 344 Cr.P.C. This is the ratio which one can gather from all the rulings on this aspect of the case. In the instant case, however, the police have already filed the charge sheet on 24-3-1973. Mr. Jagannadha Rao, contends that when once a charge sheet is filed there is no provision in the Code of Criminal Procedure warranting remand of the accused back to the police custody, because the charge sheet is filed only after the completion of the investigation; and, therefore, the explanation referred to under section 344 Cr.P.C. should apply only to section 167 and not to section 344 Cr.P.C.

(3.) It is not in dispute that section 344 Cr.P. C. is applicable even before the enqviry is commenced. Obviously enquiry is commenced only after the filing of the charge sheet and not before. Therefore, when a charge sheet is filed and enquiry is about to commence, for some reason the court finds that an adjournment should be granted, then section 344 (1) (A) Cr. P. C., provides that in case adjournment is granted the court may by a warrant remand the accused if in custody". Mr. Jagannadha Rao contends that these words would mean that every time when the case is adjourned, the presiding officer has to sign the warrant as provided under rule 68 of the Andhra Pradesh Criminal Rules of Practice and, therefore, it is only a direction to the Magistrate to remand the accused to jail custody and not to police custody.