Murlidhar - (1.) THIS bail application dated 25-7-80 was pressed only on the legal ground that the Magistrate had no power to remand the applicant to judicial custody for a period of 90 days (from 12-5-80 to 10-8-80) by the order dated 12-5-80. It was urged on this ground that the detention of the applicant in custody was illegal and he was entitled to be released on bail. The hearing of the application was protracted and during the pendency of the application on 5-8-80 the Magistrate committed the case for trial under Section 393/302 IPC to the court of Sessions simultaneously passing an order for the accused's remand to custody in these words:"......All the three accused are committed to the court of session to face their trial. They being in jail custody are remanded to jail custody..............." The learned counsel then challenged this order also on the grounds (1) If as contended in the main argument, the custody was illegal the remand to custody order under Section 209 pending the bail application could not cure it. (2) Even in itself the detention order dated 5-8-80 is illegal as it specifies no term of detention. As the question raised about the order dated 12-5-80 is of general importance, the learned counsel gave valuable assistance to the court by arguing the case at length on a number of dates covering various aspects of the matter.
(2.) BEFORE taking up the points raised, it would be proper to very briefly indicate the facts. The occurrence is of 6-5-80. Three miscreants were said to have way-laid a rickshaw at about 11 p.m. in Moradabad town and in the course of the attempt to rob the passenger murdered him by a stab wound and a Tamancha shot. The FIR did not name any accused but mentioned that they had been identified. The evidence against the applicant was of identification. He had been produced by the police before the Magistrate apparently in a Bapurdah condition on 12th May and the aforesaid impugned remand order was passed. Identification proceedings were held on 23-5-80. In order to appreciate and appraise the points raised, it is necessary to refer to the relevant portions of Sections 167, 209 and 309 of the CrPC 1973 which cover the subject of remand to custody of an accused person pending investigation committal inquiry, or trial. "167. (1)................... (2) The Magistrate to whom ain accused is forwarded under this section may, whether he has or has no 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 authories 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 XXXIII for the purposes of that Chapter; The corresponding provision in the 1898 Code was as follows : 167 (2)- "The Magistrate to whom an accused person is forwarded under this section may, whether he has or has. no 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 the second class not specially empowered in this behalf by the State Government shall authorise detention in the custody of the police." The provision dealing with commitment of cases in Section 209 : "209. Commitment of case to court of Sessions when offence is triable exclusively by it: When in a case instituted on a polity report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the court of Sessions, he shall.........(a) commit the case to the court of Sessions; or (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c)...............(d)............... Under the old Code commitment far trial by a court of session was under Section 213 CrPC but that section made no mention of remanding the accused to custody. Section 220 occurring as the last section in the Chapter of XVIII inquiring into cases triable by the court of Sessions or High Court however provided that until and during the trial the Magistrate shall subject to the provisions of this Code regarding the taking of bail commit the accused by warrant to custody. Thus pending the inquiry the Magistrate exercised the power of remand to custody under old Section 344 and at commitment under Section 220 whereafter the Sessions Court in cases of adjournment exercised the power under Section 344. Section 309. This general section provides for postponement and adjournment of the proceedings. Sub-section (2) relates to remand. The section runs as follows: "309. Power to postpone or adjourn proceedings. 0)............... (2) If the Court, after taking cognizance of an offence, or commencement or trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody : Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time : Provided further that............... Explanation 1............... Explanation 2..............." The corresponding provision under the 1898 Code was Section 344 : "344. Power to postpone or adjourn proceeding : (1)............... (1-A) If from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of or adjorun any inquiry or trial, the court may, if it thinks, fit, by order in writing, stating the reasons therefor, from time to time, postpone or adjourn the same on such terms as it thinks fit for such time as it considers reasonable, and may by a warrant remand the accused if in custody : Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time : Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reason to be recorded in writing. (2)..............."
(3.) IT would seem from a perusal of the relevant provisions under the old and new Codes that the old Section 167 (2) conferred a power of remand to custody of an accused person pending investigation for a maximum period of 15 days. Any further remand pending investigation) was not possible under Section 167 CrPC cases. Cases however occurred where investigation could not be completed within 15 days and it was necessary to detain the accused. In such cases further remands were granted under Section 344. This is clearly brought out by Natwar Farida v. State of Orissa, 1975 ACC 299. It was observed that under the old Code after 15 days, the investigating agency could seek remand of the accused to custody under Section 344 provided it satisfied the court that sufficient evidence had been obtained to raise a suspicion that the accused may have committed an offence and that there will be hindrance in obtaining of further evidence unless an order of remand was made. This was the reason for the change in the new Code. In the Statement of Objects and Reasons of the Bill it was stated in respect of the change in 167 (2); "At present Sec. 167 CrPC (empowers) Magistrate to authorise detention of the accused in custody for a term not exceeding 15 days on the whole. There is a complaint that the provision Is honoured more in breach than in observance and that the police investigation takes a much longer period in practice of doubtful illegality had grown whereby the police file a preliminary or incomplete charge sheet and move the court for remand under Section 344 which is not Intended to apply to stage of investigation. While in some cases, the delay in investigation may be due to fault of the police, in cannot be denied that there may be genuine cases where it may not be practical to complete the investigation in 15 days. The commission recommended that the period should be extended to 60 days but if this is done, 60 days would become the rule and there is no guarantee that the illegal practice referred to above will not continue. It is considered the most satisfactory solution of the problem would be to confer on the Magistrate the power to extend the period of detention beyond 15 days whenever he is satisfied that adequate ground exists for granting such extension. Clause 117 gives effect to this." ;