Decided on April 30,1955

STATE Appellant


- (1.) SANTOKH Singh had been convicted under the Anns Act and sentenced to 3 years' rigorous imprisonment in Rajasthan. He is undergoing his sentence in Jail and has now been transferred to the Central Jaid, Lashkar, The Police now desire that he be transferred to their custody for investigation of an offence of murder that took place on the night of 25-2-1953 in Madhya Bliarat. The learned Magistrate before whom an application was made to this effect rejected it. The State then went in revision to the Sessions Judge, Gwalior, who has made this reference recommending that the order of the Magistrate dated 7-2-1955 be set aside and orders be passed for handing over Santokh Singh non-applicant to the Police for investigation for the said murder case.
(2.) THE learned Government Advocate sup. ports the reference on the ground that the police nave a statutory right to investigate an offence, and according to tile learned Government Advocate, the detention of the accused in the police custody is essential for investigation, He placed reliance on the provisions embodied in Sections 60, 61 and 167 Criminal P. C. In my opinion the argument is based on an erroneous view of the operation of these sections. Section 60 states that a person arrested without warrant should be taken before a Magistrate without unnecessary delay and Section 61 provides that the person arrested should not be detained in police custody for more than twenty-four hours. Sections 60 and 61 cannot, therefore, come into operation until a Police officer makes an arrest of the accused person without warrant. The first two sub-sections of Section 167, then material for this case, run as follows: (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 Section 61 and 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 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. 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 no Magistrate of the third class, and no Magistrate of thesecond class not specially empowered in this behalf by the Provincial Government shall authorise detention in the custody of the police.
(3.) IT will be obvious that this section also cannot be made applicable unless the accused is forwarded to the Magistrate after his arrest by the Police. It will thus be manifest that if an accused penson is not arrested by police and if he is already a convict in Jail. Sectons 60. 61 and 167 will have no application to the case. In other words, a Magistrate can authorise the detention of an accused in police custody only when the police arrests him and takes him before him.;

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