- (1.) R K. Jain, J. Heard Sri Satyendra Narain Singh, learned counsel for the revisionists and the learned A. G. A.
(2.) IN crime No. 34 of 1997, PS. Paschim Sarira, district Allahabad, accused Dinesh Kumar and Ram Kripal Tiwari were nominated and a case under Sections 323, 324 and 504, I. P. C. was registered. After the accused were apprehended they were produced before the concerned Judi cial Magistrate alongwith relevant papers including the case diary and a prayer for remand of judicial custody for 14 days was made. The learned Magistrate, having gone through the first information report, medical examination report and the case diary, formed an opinion that prima facie a case under Section 307, I. P. C. was made out. Therefore, he passed the impugned order directing that the accused persons are remanded to judicial custody under Sections 307,323,324 and 504, I. P. C. Present revision is preferred against the said order dated 1- 4-1997 and the order is challenged on the grounds that the learned Magistrate had no juris diction to change the sections as it amounted to interference in the investiga tion. Learned A. G. A. submits that the learned Magistrate had to apply his judi cial mind at the time of passing of the remand order. Therefore, the present order does not amount to interference in the investigation. Section 167 (1) Cr. PC. provides that 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 feed by Section 57, and there are grounds for believing that the accusation or infor mation 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 for ward the accused to such Magistrate. Sub-clause (2) of Section 167, Cr. P. C. em powers the Magistrate to remand the ac cused to judicial custody as also to authorise his detention in police custody for a term not exceeding fifteen days in the whole and may further remand him to judicial custody as provided under the proviso.
(3.) IT is well settled that the functions of the Magistrate under Section 167 Cr. P. C. are judicial functions and an order granting remand to police custody or to judicial custody or an order refusing to remand to judicial custody or to police custody is to be passed after applying judicial mind to the facts of the case and material produced before the learned Magistrate. Therefore, in case where in vestigating agency has registered the case minimising the offence and if on perusal of the documents produced before the Magistrate at the time of passing of the order of remand, he is of the opinion that a major offence, prima facie, is made out, he has jurisdiction to pass the order remand ing the accused to judicial custody for a major offence. In case no offence is dis closed from the material produced before the learned Magistrate, he has power to refuse remand. The view that the order of remand to judicial custody or to police custody is a judicial order is to be passed after applying judicial mind to the facts of the case is well settled. In Harihar Chaitanya v. State of U. P. , 1990 All. Cr. R. 532, similar question arose before a Single Judge of the Luck-now Bench. That was a case in which the police challenged the accused under Sec tions 336 and 506, I. P. C. but the judicial Magistrate after going through the material before him formed an opinion that offence under Section 307, I. P. C. was made out and passed an order directing for preparation of jail warrant for detention of the accused under Section 307, I. P. C. The Court while dealing with the petition under S. 482, Cr. P. C. held as follows:- "it is well known that the functions of the judiciary and the police are complementary and not over- lapping. This is also in dubitable that investigation of a cognizable offence is the field exclusively reserved for executive through the police department, the superintendence of which vests in the State Government and, there fore, it should not be interfered with by the judiciary. An order for closing or dropping the investigation cannot be passed by the Magistrate, as it will amount to causing inter ference with the statutory powers conferred on the police. Further, this is also not open to doubt or suspicion that even at investigation stage the Magistrate has to perform certain functions and pass judicial orders e. g. , grant of bail, detention in judicial or police custody, release of property seized by the police. Such orders can be safely characterised as judicial orders passed at the investigation stage and it cannot be said by any stretch of reasoning that such orders cause in terference with the investigation by the judiciary. . . . . . . . . The police produces the accused in custody and also relevant papers before the Magistrate and prayed for the detention of the accused in judicial or police custody. The Magistrate looks into the material placed before him and is expected to apply his mind before passing an order at that stage. Thus although the matter is at initial stage of the investigation, the Magistrate while passing order under Sec tion 167 of the Code, performs judicial func tions. ";