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State (Delhi Administration) v/s Dharam Pal And Others

    Crl. Misc. (Main) No. 427 of 1981 (Against order of Balbir Singh, Metropolitan Magistrate, New Delhi, D/- 4-9-1981)

    Decided On, 04 November 1981

    At, High Court of Delhi


    For the Petitioner: D.C. Mathur, Advocate. For the Respondent: Bawa Gurcharan Singh with Shiv Rai Singh, Advocates.

Judgment Text


The main question involved in this petition before the court relates to the nature of the custody that can be ordered by a Magistrate during the investigation of a serious offence. The provisions of the Constitution as well as the substantive provisions of the ordinary Municipal law of this country protect a person against unlawful arrest. A person who is arrested by the police can only be arrested in certain specified circumstances.

In the case of certain serious offences described as cognizable offences, the police can arrest without warrants, in other cases, the arrest has to be on the basis of a warrant issued by a Magistrate. The provisions of Art. 22(2) of the Constn. require such an arrested person to be produced before a Magistrate within, a period of 24 hours. S. 56 of the Cri.P.C. requires that the arrested person should be produced before a Magistrate having jurisdiction in the case or before an officer-in-charge of a Police Station. If the offence is a bailable one, which is a categorisation made by the Cr.P.C., the police itself can grant bail and has to give bail. If the arrested person is charged with a non-bailable offence or is unable to furnish bail, then the police has no option but to produce the person concerned before a Magistrate within the period of 24 hours exclusive of the time necessary for the journey. This is provided by S. 57 of the Cr.P.C. This provision is re-in forced as a fundamental right for every person whether a citizen or non-citizen, under Art. 22(2) of the Constn. However, the provision does not apply in the case of an enemy, alien or a person detained under any law providing for preventive detention.

2. In the present case, the respondents were accused of very serious offences under Sections 392/397/302/34 Penal Code; they were arrested on 29th August, 1981, on the basis of a First information Report recorded at police Station, Nizammuddin on 1st August 1981. It so happens that the respondents were earlier arrested on 28th August 1981, by the Special Staff of West District on the basis of a F.I.R. dated 28th August 1981, recorded at Police Station Nangloi. It was then found that they were also the accused in the F.I.R. recorded at Police Station Nizammuddin. The Station House Officer. Nizzammuddin Police Station moved the Magistrate for fixing a date for holding an identification parade. The Magistrate ordered on 29th August 1981, that the identification parade should be held on 1st September 1981, in the Jail and the Superintendent should be informed. On that very date, there was an application that the arrested persons be kept in judicial custody for the purpose of holding the identification parade and the request for an order for police custody should be kept pending. This resulted in the Metropolitan Magistrate directing the respondents to be kept in judicial custody up to 2nd September 1981.

3. On the date fixed for the identification parade, the respondents refused to join the same and, on 2nd S

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eptember 1981, a prayer was made to the Magistrate to direct the respondents to be remanded to police custody for a period of seven days to facilitate recovery of case property, etc. The Magistrate ordered that since the respondents' counsel wanted to argue this point the accused should be remanded to judicial custody till 4th September 1981, on which date this question would be dealt with. On 4th September 1981, the Magistrate passed an order to the effect that he could not remand the accused to police custody in view of the judgment of this Court reported as Gian Singh v. State (Delhi Administration) (1981) 19 Delhi LT 168 : (1981 Cri LJ 100).

4. The State then moved the present petition to this Court. The learned single Judge made a reference to a Division Bench stating that a point of great importance was involved in this case and it was desirable that the matter be heard by a Division Bench in view of the two Judgments of M. L. Jain J. in Gian Singh v. State (1981 Cri LJ 100) (supra) and Trilochan Singh v. State, Cri. Misc. (Main) No. 298 of 1981, decided on 17th July, 1981 (reported in 1981 Cri. LJ 1773). That is how this petition has come to be placed before this Bench.

5. In these circumstances, the substantial point involved in this case is whether a person who is produced before a Magistrate and sent to judicial custody for a short period can later on be remanded to police custody.

6. Before dealing with the merits of the main point, it is necessary to deal with a preliminary objection which was taken regarding the filing of the present petition. It was urged that the petition was filed by Mr. I. U. Khan who was not the Additional Public Prosecutor of Delhi and it was also urged that he had not been authorised to move the petition by the Delhi Administration. The substance of the preliminary objection was that the police had moved the present petition without reference to the Delhi Administration. It was urged that Sodhi Teja Singh, Standing Counsel of the Delhi Administration had not been asked to move the present petition. In effect, this raised a question whether the petition had been filed before this Court by an authorised person. We adjourned this matter to enable the learned counsel appearing for the State, Mr. D. C. Mathur, to establish that he was authorised by the State. Learned counsel has produced a notification dated 22nd September 1981, whereby the Administrator of the Union Territory of Delhi has appointed Shri D. C. Mathur as Special Public Prosecutor for conducting the present case. We have, therefore, not gone into the question whether the petition was moved wrongly initially because any defect or infirmity in instituting the petition that there may be has now been remedied by the fact that the Delhi Administration is supporting the petition and the Court has sufficient authority in such cases to use its inherent powers or revisional powers even suo motu. At the most the present petition even if held to be incompetent could be re-instituted on the very next day. So, we have noted the objection and in view of the aforementioned notification over-rule the objection.

7. Coming now to the substantive question, the provision that is applicable is S. 167 of the Cr.P.C. The first sub-section of this section states that if the investigation cannot be completed within the period of 24 hours fixed by Section 57 and there are grounds for believing that the accusation or information is well-founded, then the officer-in-charge of a police station shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary relating to the case and at the same time forward the accused to such Magistrate. This portion of the Section deals with the necessity of producing the accused together with relevant documents before a Magistrate if the investigation cannot be completed within 24 hours.

8. The next sub-section i.e., Section 167(2) deals with the powers of the Magistrate to whom the accused may be forwarded. The entire sub-section reads as follows: -

"(2) The Magistrate to whom an accused person is forwarded under this section 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 such Magistrate thinks fit, for a term not exceeding fifteen days in 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:

Provided that -

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding ......

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of. Chap. XXXIII for the purposes of that Chapter;

(b) no Magistrate shall authorise detention in any custody under this section unless the aroused is produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

Explanation-1. For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period, specified in para (a), the accused shall be detained in custody so long as he does not furnish bail.

Explanation-II. If any question arises whether an accused person was produced before the Magistrate as required under para (b), the production of the accused person may be proved by his signature on the order authorising detention."

9. We are concerned with the first part of this sub-section which authorises the detention of the accused in such custody as such Magistrate thinks fit. The provision shows, as indeed it must, that the Magistrate has a choice for determining the type of custody in which the accused person should be detained. As already pointed out, this provision contains the procedure for depriving a person of his liberty. It is a protection for the citizen or the accused person. The rule of law requires that a person should not be detained by an executive fiat. After the first 24 hours he can only be detained or kept in custody under the orders of a Judicial Magistrate who is a person quite independent from the police. It is this Magistrate who has to determine the period of the custody and the nature of the custody. It is an important safeguard regarding the liberty of a person. The safeguard is further apparent from the fact that the whole period of detention cannot exceed 15 days on the whole and can be altered from time to time. There is no mention in the provision of either police custody or judicial custody. Conceivably, the Magistrate would have to determine the nature of the custody according to the circumstances of the case. It might be the police or it might be the tail or it might be a mental asylum or it might be a children's home or the Nari Niketan or some other institution. The nature of the custody would vary according to the type of person that the accused might be. Different considerations would arise if the person is a child or a woman or a minor or an apparent lunatic. Therefore, a discretion is given to the Magistrate to determine the nature of the custody. The contention of the respondents is that police custody can be ordered, but if any other custody is ordered, then no fresh order for police custody can be passed. All further custody has to be judicial custody. In short, the contention is that you cannot change the nature of the custody once you have determined it. Does this meaning flow from the words used in the Section? We have first to construe the Section without reference to any reported authority. The Section says that the accused may be forwarded to a Magistrate who may or may not have jurisdiction to try the case. So, we may have a Magistrate dealing with the case who is not going to try it. He has only to determine the nature of the custody. In fact, it can happen that the accused is arrested in quite a different place from where he has to be tried. For instance, if the accused has run away to another State, it is possible that the accused in Punjab, may eventually be arrested in Assam and produced before a Magistrate there. That Magistrate will be more concerned with sending the accused to the correct Magistrate and may order any type of custody that may be convenient at that time. Later, the accused may be produced before the proper Magistrate after being forwarded from the original Magistrate. The next part of the sub-section, namely, that from time to time the Magistrate may authorise such custody as he thinks fit for a term not exceeding 15 days shows that the Magistrate has to pass an order or may pass an order from time to time during the period of 15 days. There is nothing in the provision to show that he cannot change the nature of the custody by subsequent orders. If he orders police custody or custody in an asylum for say two days, then he may order judicial custody or some other type of custody for a further period of some days and then again change the nature of the custody. It must be kept in view that almost everybody recognises that police custody has to be minimised as far as possible, and it is only when absolutely necessary that police custody has to be ordered. It is in the interest of the accused as well as the administration of justice generally, that the nature of the custody should be changed or be capable of being changed during the period of 15 days. In the present case, the first step that the police thought necessary was that an identification parade should be held. The accused also agreed to join the identification parade. For this purpose the proper course was to send the accused to judicial custody, which was done. After the time requisite for the identification parade was over, it would be necessary to order police custody if some further investigation, like recovery of 'the stolen property or weapon of offence', and so on, was necessary. Therefore, a necessary step in the investigation might be to remand the accused to police custody for such period as the Magistrate might think necessary.

10. After all, the purpose of the Section is to facilitate investigation. The entire object of the Section is investigation and not detention without trial. It was urged by learned counsel for the respondents that investigation could even be carried on if the accused were in judicial custody; that may be so, but if would certainly hamper investigation to quite a great extent. We have only to construe the Section as it stands and it appears that the language used in the Section allows the Magistrate from time to time to pass an order placing the accused in such custody as the Magistrate deems fit. There is nothing at all in the Section to show that the nature of the custody cannot be changed from police custody to judicial custody or vice-versa during the first period of 15 days. After the first period of 15 days has expired, then the proviso comes into operation. At that stage the Magistrate cannot order police custody, but he can order any other type of custody.

11. Turning now to the judgments referred to in the reference order and to other - judgments cited at the Bar, we have to examine whether the interpretation just set out has to be altered or is defective in any manner. In the reported judgment, Gian Singh v. State (Delhi Administration), (1981) 19 Delhi LT 168 : (1981 Cri LJ 100) the learned Judge after setting out the provisions of the Section and the various stages set out therein stated as follows (at P. 101 of Cri LJ):

"These provisions indicate one thing clearly more than anything else that once the accused is remanded to judicial custody, he cannot be sent back to police custody in connection with or in continuation of the same investigation." The judgment then proceeds to hold that even after remand to judicial custody, the accused can be questioned by the police but only in such a manner which does not amount to custody in the police. It would be observed that the judgment does not indicate why the nature of the custody cannot be altered, but assumes that the nature of the custody cannot be changed.

12. In the unreported judgment decided by the same Judge. Trilochan Singh v. State, Criminal Misc. (Main) No. 298 of 1981 (since reported in 1981 Cri LJ 1773 at pp. 1775, 76) there is a more elaborate discussion. In this judgment it was did as follows: -

"Section 167 Cr.P.C. does not confer power on a Magistrate to dispense police custody but what it does is to empower him to extend such custody beyond what is permitted under S. 57 thereof. Reading these two sections together one can safely conclude that S. 167 comes into, play only when. (1) the accused is arrested without warrant and is detained by a police officer, (2) it appears that more than twenty four hours will be needed for investigation, (3) there are grounds for believing that the accusation or information against him is well founded, and, (4) the officer in charge of the police station or the Investigating officer not below the rank of a Sub-Inspector forwards the accused before the Magistrate. When this happens, the Magistrate can refuse to detain him or direct his detention either in police custody or judicial custody. When once he directs Judicial custody, there is no question of police remand for the simple reason that the conditions aforesaid are no more there.

"The learned Public Prosecutor maintains that S. 167 does not expressly so provide nor does it envisage any such inflexible rule that once a man is sent to the judicial custody in particular for a limited purpose he cannot then be remanded again to police custody. He relied upon a practice where any person wanted by the police in some cognizable non-bailable offence, surrenders before the Magistrate, he is then taken into judicial custody and later on handed over to the police when it asks for it. But such a practice is against law. Under what provision of the Cr.P.C. does he surrender before the Magistrate ? Suppose, the police just does not care to ask for his custody, what will the Magistrate do ? or if the police delays its request by some days, how long is the Magistrate to wait ?

..... ...... ....... ........ ....... ...

Though there is no ban in terms, of police remand after judicial remand but that is the clear implication of S. 167. The matter has to be governed by its provisions which I have already considered in Gian Singh (1981 Cri LJ 100) (Delhi) (supra) and I see no reason to reconsider or to depart from the conclusion which I had then arrived at." Thus, the learned Judge concluded that there was no express bar in the section regarding police custody after judicial custody, this was the intendment of the provision.

13. With respect, we do not find any such inference to arise on a construction of the Section. The fact whether the police wants a remand to judicial custody or to police custody has nothing to do with the question nor does the expiry of 24 hours mentioned in S. 57 or in the Constitutional Art. 22 have anything to do with the question. S. 57 only applies if the accused is arrested without a warrant. If the investigation cannot be completed within 24 hours, then the police is bound to produce the accused before a Magistrate. The object of this production before a Magistrate is to ensure the liberty of the citizen. Any further custody is to be under the rule of law and not on the dictates of the police. It is a part of the fundamental liberty of the citizen and other persons in a free democratic country that he should not be detained merely because the police wants it. Thereafter the repository of the rule of law is the Judicial Magistrate concerned. He has to ensure that the proper custody is given. He may refuse to give any custody on the ground that no case is made out, or he may authorise such custody as he deems fit. The words 'from time to time' occurring in the Section show that several orders can be passed under S. 167(2). There is no question of continuation of police custody involved in S. 167(2). The Magistrate is not a wing of the police but is part of the judicial set up of the country. The order has to be passed by a Judicial Magistrate acting judicially. It is, therefore, his duty to see that the custody is the right custody and the order has to be passed for the ultimate object of securing justice. There is, therefore, no rule to be found by inference, that the Magistrate has to continue police custody or to end it. He has to act independently to determine the nature of the custody. He can change his order from time to time. However, he cannot order police custody beyond the period of 15 days.

14. Turning now to another judgment cited at the bar; reliance was placed by learned counsel for the respondents on Dhaman Hiranand v. Emperor, AIR 1937 Sind 251, wherein the learned Judicial Commissioner held that once an accused person had been arrested and forwarded to another Magistrate then the first part of S. 167(2) did not apply. It may be mentioned that this was a case under the Criminal Procedure Code of 1898. At that time it had been held that S. 344 permitting remand, was to be utilised also during the investigation proceedings. What had happened was that the accused was arrested in Bombay for an offence committed at Karachi. The opinion of the learned Judicial Commissioner was that once the person was arrested at Bombay, then the Magistrate at Bombay had exhausted the application of the first part of S. 167 permitting remand to judicial or police custody and thereafter the remand had to be under S. 344. It may be mentioned that this position no longer holds good because the re-enacted provision of the Cri.P.C. of 1973, viz., Section 309 which is in the same terms as Section 344 of the Act of 1898, has already been held by the Supreme Court in Natabar Parida v. State of Orissa, AIR 1975 SC 1465 : (1975 Cri LJ 1212) to be not applicable at the investigation stage.

15. It may be mentioned that the observations of the Supreme Court are quite the reverse of what was decided by the Sind Court. It was observed at page 1467 (Para 5) (of AIR) as follows: -

"The Magistrate to whom the accused was forwarded could remand him to police custody or jail custody for a term not exceeding 15 days in the whole under Section 167(2). Even the Magistrate who had jurisdiction to try the case could not remand the accused to any custody beyond the period of 15 days under Section 167(2)."

The judgment then states: -

"Various High Courts had taken the view that a Magistrate having jurisdiction to try a case could remand an accused to jail custody from time to time during the pendency of the investigation in "exercise of the power under Sec. 344, (then a list of judgments is set out)."

Eventually the judgment came to the conclusion that there had been a departure from this and the new Code and Sec. 309 of the new Code applied in a different manner. We are not directly concerned with this point, but have only noted the observations of the Supreme Court to the effect that under the old Code the Magistrate having jurisdiction to whom the accused was forwarded did have power to remand the accused to police custody or to judicial custody, which is quite the opposite result from what was held by the Sind Court in the judgment previously mentioned.

16. In any 'event', the judgment of Sind Court has no application to the facts of this case because that Court was concerned with the powers of the Magistrate to whom the accused had been forwarded and not the original Magistrate. We are at present concerned with the powers of the Magistrate under Section 167 at a stage before the accused had been forwarded to any other Magistrate and we are clearly of the view that there is no bar to the change of the nature of the custody during the period of 15 days.

17. A more opposite judgment is State v. Mehar Chand (1969) 5 Delhi LT 179. In that case, the accused had been arrested for kidnapping one Hima Ram and after the period prescribed in Sec. 167 of the Cr.P.C. had run out, the accused was in judicial custody under Section 344, Cr.P.C. (old Code). At that stage, the police found on investigation that besides the offence under Sec. 364, Penal Code. Hima Ram had actually been murdered and, therefore, offences under Sees. 302 and 201, Penal Code had also been committed. The question arose whether the accused could be sent to police custody on the basis of the discovery that there was an aggravated offence. The Magistrate had refused to permit the accused to be put in police custody after, he was in judicial custody. The observations of Hardy J., in this respect may be reproduced here with advantage. It was stated: -

"The investigation in both the cases is an investigation into crime which the police alone are authorised to carry out. The Magistrate's function is only to enquire into and try the offence after the police have completed their investigation and submitted a charge sheet against the accused. He cannot however hamper the police-investigation by refusing to allow the police to perform their duties. The only object of restricting the power of the police to detain the accused in their custody to a total period of 15 days is to prevent the use of third degree methods by them. But when there is no such allegation there is no apparent reason why the police should not be able to obtain the custody of the accused in order that they may question him or obtain his assistance in investigation in some other lawful manner. I fail to understand why if an accused who is in magisterial custody in one case can be allowed to be remanded to police custody in another case then the same rule should not apply to the accused who is in magisterial custody and is sought to be turned over to police custody at a subsequent stage of investigation, in the same case when the information discloses his complicity in more serious offences. On principle. I can see no difference at all between the two types of cases." Thus, this judgment goes to the other extreme by holding that even after the period of 15 days was over and the accused was in judicial custody, he could still be made over to the custody of the police on account of the further facts which had come to light.

18. The judgment of Hardy J. then stated as follows: -

"I see no insuperable difficulty in the way of the police arresting the accused for the second time for the offence for which he is now wanted by them. The accused being already in magisterial custody it is open to the learned Magistrate under Section 167(2) to take the accused out of jail or judicial custody and hand him over to the police for the maximum period of 15 days provided in that section. All that he is required to do is to satisfy himself that a good case is made out for detaining the accused in police custody in connection with investigation of the case. It may be that the offences for which the accused is now wanted by the police relate to the same case but these are altogether different offences and in a way therefore it is quite legitimate to say that it is a different case in which the complicity of the accused has been discovered and police in order to complete their investigation of that case require that the accused should be associated with that investigation in some way."

This, therefore, is a case in which police custody was granted over and beyond the original period of 15 days fixed by S. 167. The learned Judge found no difficulty in the judicial custody being converted into police custody.

19. We have already set out the provisions of the Section and also the interpretation to be given to the Section. We must keep in view that the object of the Section is to facilitate investigation into an offence. We completely agree with Hardy J., in coming to the conclusion that the Magistrate has to find out whether there is a good case for grant of police custody. There is no sign in the Section that the nature of the custody cannot be altered. In fact, experience would show that investigation would be hampered and made more difficult if the nature of the custody was not capable of alteration in the first 15 days. It might be necessary to send the accused to a hospital for examination, or to produce him before a Magistrate for recording a confession, in such eases, a useful precaution to take is to send the accused to judicial custody so that the confession might be free and without pressure. Another example is provided on the facts of this case for enabling an identification parade to be held in the jail. Another possibility is that the police may not require the prisoner immediately for lack of material which might be forthcoming later. In such a case the period of police custody might be shortened by remanding the prisoner to judicial custody while the police is collecting the necessary material for further investigation. There can be many examples of this type dependent on the circumstances of the case.

20. We are, therefore, of the view that the nature of the custody can be altered from judicial custody to police custody and vice versa during the first period of 15 days mentioned in S. 167(2) of the Code. After 15 days, the accused can only be kept in judicial custody or any other custody as ordered by the Magistrate, but not the custody of the Police.

21. In these circumstances, we have to accept this petition and set aside the order of the Magistrate. Now the question arises as to what further orders are necessary because the 15 days mentioned in Section 167(2) have already expired. We think the interests of justice demand that the Magistrate should take up this case and pass such order as he would have been able to pass on 4th September 1981 if he had not been compelled to follow the judgment in Gian Singh's case (1981 Cri LJ 100) aforementioned. He will thus be able to pass an order directing custody of the police for the unexpired period out of 15 days as remained on 4th September 1981. This, order should be immediately conveyed to the Magistrate to pass such orders as he deems fil in accordance with the directions contained herein. Dasti.

Petition allowed