- (1.) THIS order will govern the disposal of Criminal Original Applications Nos : 28 and 29 of 1982, as they raise common questions of law and fact.
(2.) THREE persons, namely, Vijay, Kumar, Kulvinder Singh and Davinder Singh were arrested by Jammu Police on 25 -12 -1981 for an offence u/s 302 R P. C. read with Section 34 R. P. C. The police nodoubt, completed the investigation on 23 -2 -1982, but charge sheet against them in terms of Sec. 173 Cr. Pr. Code was produced by them in the court of Chief Judicial Magistrate, Jammu, on 24 -2 -1982, i. e. more than sixty days after arrest.
(3.) ON the production of the challan, they made a prayer to be released on bail, pressing into service the provisions of the proviso to Sub -section 2 of Sec. 167 Cr. Pr. Code, but their prayer was rejected by the Chief Judicial Magistrate on the ground that the investigation of the case having been completed on the sixtieth day of their arrest, provisions of the proviso could not came into their rescue. The offence being otherwise punishable with death or imprisonment for life, the learned Magistrate refused to enlarge them on bail. On being committed to the court of Sessions, they again moved three applications for bail, one after the other, but there too they met with the same fate, and their applications were rejected by Additional Sessions Judge, Jammu, on the same ground. They nave now come to this court in these bail applications which they have moved under ,section 498 Cr. Pr. Code. Whereas Vijay Kumar and Kulvinder Singh figure as petitioners in Criminal Original Application No : 21, Davinder Singh figures as petitioner in Criminal original Application No. 23, with a view to appreciating the real point in controversy, it is necessary to have a critical look at section 167. This section after its amendment by virtue of Code of Criminal Procedure Amendment Act, No XXXVII of 1978 reads as under: "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 and it appears 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 -incharge 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 Executive or 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. If he has not 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 Chapter XXXIV for the purpose 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 Government or the High Court, as the case may be, shall authorise detention in the custody of the police. 3 A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing. If such order is given by an Executive Magistrate other than the District Magistrate or Sub -Divisional Magistrate, he shall forward a copy of this order, with his reasons for making it, to the Magistrate to whom he is immediately subordinate ; and if such order is given by a Judicial Magistrate he shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.;