HIGH COURT OF JAMMU AND KASHMIR
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(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,
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
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.;
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