DAN BAHADUR SINGH Vs. EMPEROR

JUDGEMENT

(1.) The first of these two matters is an application in revision by Dan Bahadur Singh against an order of the Sessions Judge of Shahjahanpur declining to interfere with the order of a first class Magistrate directing that one Hazari, a confessing accused, should be kept in police custody beyond the maximum period of 15 days prescribed by Section 167, Criminal P. C. I do not propose to deal with this application because since it was made the investigation of that case has been finished and the accused have been committed for trial to the Court of Session. The accused Hazari has been tendered a pardon under the provisions of Section 337, Criminal P.C., and he is now detained in custody not under the order to which the application in Revision No. 445 of 1942 relates but under an order of the Magistrate made under the provisions of Sub-section (3) of Section 387. It is conceded that, in these circumstances, the question which arose in Revision No. 445 of 1942 no longer arises and the matter becomes really of an academic nature only. I accordingly dismiss this application.

(2.) I come now to the connected matter criminal reference NO. 580 of 1942. On 15 June 1942 a pardon was tendered to the confessing accused, Hazari, under the provisions of Section 337, Criminal P. C. On the same day the Magistrate considered the question of the detention of Hazari with reference to the provisions of Sub-section (3) of Section 337. That sub-section provides: "Such person, unless he is already on bail, shall be detained in custody until the termination of the trial." The Magistrate heard arguments on the question whether the custody in which Hazari should be ordered to be detained under this sub-section could or could not be police custody. He made inquiries from the Superintendent of the Shajahanpur jail as also from the Superintendent of Police as to whether they could guarantee the safety of Hazari and he also made inquiries as to the wishes of Hazari himself. He also considered an application made on behalf of the accused in the case (a very serious case under Secs.396, 302 and 120B, Indian Penal Code) asking that the approver should be sent to jail and not allowed to remain in police custody. He considered two cases of the Lahore High Court to which I shall make reference later and also the peculiar circumstances of the present case and he decided that it was not advisable to disturb the present custody of Hazari as he expected the matter to be decided shortly on the revision application to this Court to which I have referred earlier. Against this order, an application was made in revision to the Sessions Judge of Shahjahanpur on 4 July 1942 upon which the learned Sessions Judge has on 20 July made the present reference to this Court recommending that the order of the learned Magistrate be set aside as in his opinion it was illegal at the time it was passed. He said that he was not prepared to make any recommendation as to what order should be passed in its place, because this would depend entirely on whether this Court, after hearing the full circumstances of this present ease, considers that they justify a departure from the principle laid down by the Lahore High Court.

(3.) I have listened to a very full argument by learned Counsel on behalf of Dan Bahadur Singh (the applicant in revision in the Court of the Sessions Judge). He has relied strongly on the two cases of the Lahore High Court referred to by the learned Sessions Judge and to some other cases in which it has been held that the custody referred to in Section 344, Criminal P. C, is always jail or judicial custody and can never be police custody. On the other hand, the learned Deputy Government Advocate contends that even if it be the case, as he concedes it is, that the custody provided for by Section 344 must be jail custody, it does not follow that the custody referred to in Sub-section (3) of Section 337 is necessarily jail custody. He points out that the wording of this sub-section differs markedly from the wording of Section 344. Sub-section (3) of Section 337 provides merely that such person shall be detained in custody until the termination of the trial, whereas Section 344 provides for the remanding of an accused to custody by a warrant. It is, of course, evident that there is a considerable difference in the language of the two sections and it is also necessary to note that Sub-section (3) of Section 337 does not require that an approver should invariably be detained in custody since the sub-section itself visualises cases where the approver is already on bail, in which case the law does not require his detention in custody. The learned Deputy Government Advocate relies on the view taken in one of the Lahore cases that an approver is not to be regarded any longer as an accused but is to be regarded as a witness and he contends, in these circumstances, that it cannot be regarded as a binding rule that the detention must be detention in jail or judicial custody.