KOTESWARA RAO Vs. STATE OF KERALA
LAWS(KER)-1974-5-1
HIGH COURT OF KERALA
Decided on May 03,1974

KOTESWARA RAO Appellant
VERSUS
STATE OF KERALA Respondents

JUDGEMENT

- (1.) There is a common question raised in all these petitions and that is the reason why they are beard and disposed of together. These are applications for bail and apart from the contention on the merits of the respective cases there is a common question raisee by all the petitioners herein. The petitioners are in custody for more than 60 days. Investigation has not been completed in any of the cases. Under these circumstances the petitioners claim that they have to be released on bail. For this they rely on S.167 of the Code of Criminal Procedure, 1973. In this new Code there is a provision, for which there is no corresponding provision in the Code which has been repealed. It may be necessary to extract sub-s.(1) and (2) with the proviso thereto, of S.167 of the new Code in this context. "167. Procedure when investigation cannot be completed in twenty four hours. (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty four hours fixed by S.57, ana there are grounds for believing that the accusation or information is well founded, the officer in charge of the Police Station or the Police Officer making the investigation, if he is not below the rank of Sub Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (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 detention of the accused person, otherwise than in 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 section for a total period exceeding sixty days, and on the expiry of the said period of sixty days, 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 section shall be deemed to be so released under the provisions of Chap.33 for the purposes of that chapter; (b) No Magistrate shall authorise detention in any custody under this section unless the accused 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.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be produced by his signature on the order authorising detention."
(2.) Sub-s.(1) evidently specifies the duty of the Police Officer making the investigation or the officer in charge of the Police Station to forward the accused to the nearest Judicial Magistrate within 24 hours of the arrest. The Magistrate to whom the accused person is so forwarded may be a Magistrate who has no jurisdiction to try the case, but the accused has been forwarded to him only because he is the nearest Magistrate or it may be that he is the Magistrate who has also jurisdiction to try the case. In either case he can authorise the detention of the accused in such custody as he thinks fit. But that shall not be for a period of exceeding 15 days. It may so happen that the 15 days may expire and further orders may have to be passed with regard to the release or further detention of the accused. If the Magistrate has no jurisdiction to try the case or commit the case for trial there is a proviso to sub-s.(2) in the new Code. The proviso is different from the proviso to S.167(2) of the repealed Code. The proviso as it stood in the section of the repealed Code read: "Provided that no Magistrate of the Third Class and no Magistrate of the Second Class not specifically empowered in this behalf by the State Government shall authorise detention in the custody of the police."
(3.) It is the case of the petitioners that under the proviso to sub-s.(2) of S.167 of the Code of 1973 the Magistrate is not empowered to authorise the detention of the person in custody under S.167 beyond the period of 60 days. On the expiry of that period he has to be released on bail if he is prepared to furnish such bail. Therefore petitioners contend that unless investigation is completed within 60 days of the date of arrest the accused can, as of right, claim bail and there is no discretion in the Magistrate to refuse such bail.;


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