- (1.) This petition designated as one under Section 482, Criminal Procedure Code, but in essence one under Section 397, Criminal Procedure Code, raises legal questions of far-reaching importance. These are:- (i) Whether the Magistrate authorising the detention of the accused in police or judicial custody under section 167(2), Criminal Procedure Code, undertakes any such proceedings or passes any such orders which are revisable by a Court of Session/High Court in exercise of powers under Section 397, Criminal Procedure Code (ii) The Magistrate authorising detention in the custody of the police is required to record his reasons for so doing under section 167(3) Criminal Procedure Code; is he required to record his reasons (for the benefit of the Court of revision) when authorising the detention of the accused in jail custody) (iii) If such proceeding or order is held to be subject of revision by the Court of Sessions or the High Court, is it essential for the accused to be produced before it in order to authorise his detention in custody other than the one ordered by the Magistrate (iv) Does the law authorise detention of the accused in police custody when he has once been sent to judicial custody These question arise in this manner. One Jaswant Singh was employed as a servant of Kashmir Singh petitioner No. 1, who is the father of Dilbag Singh, petitioner No. 2. It was alleged that Jaswant Singh and two others, while digging some foundations, has found a pot full with old silver coins which they divided amongst themselves. About twelve days prior to the registration of the case, the accused Kashmir Singh on a pretext which is not necessary to be detailed here, brought Jaswant Singh and Karnail Singh at the scene of the occurrence and allegedly tortured them to get back the old silver coins and were threatened to be killed on their failure to do so. Accused Kashmir Singh was stated to have fired on the heads of Karnail Singh and Jaswant Singh to frighten them, when nothing was brought out favourable to the accused. Thereafter, they were brought back to the house of the accused where the mother and sisters of Karnail Singh were allegedly brought and tortured. Signatures of Karnail Singh and his mother were allegedly taken on blank pronotes and some gold ornaments and valuable articles were taken by the accused from the house of Karnail Singh and Jaswant Singh. On registration of the case, the accused were arrested on 3.3.1982 and were produced before the Chief Judicial Magistrate, Faridkot on 4.3.1982, because the investigation was being carried on by the C. I. A. Staff Faridkot. The police sought police remand from the Chief Judicial Magistrate on 4.3.82. the Chief Judicial Magistrate remanded the petitioners to police custody up to 5.3.1982. On that day, on production, Shri B. C. Rajput, Sub Divisional Judicial Magistrate, Muktsar was requested to give police custody of the accused for seven days. The learned Magistrate declined the request being of the view that the police had sufficient time to interrogate the accused and to recover the alleged property. He thus remanded the accused to judicial custody till 19.3.1982. The petitioners applied for bail to the Court of Session and their cause was assigned to Shri Harnam Singh, Additional Sessions Judge II, Faridkot. the State, on the other hand, filed a revision petition against the order dated 5.3.1982 by which the request of the police had been declined for getting the accused in police custody. The learned Judge gave notice to the counsel for the petitioners in the bail case, and finally vide the impugned order dated 11th March, 1982 set aside the order of the Sub Divisional Judicial Magistrate dated 5th March, 1982 and directed the remand of the accused to police custody up to 14th March, 1982 and the production of the accused before the Ilaqa Magistrate on 15th March, 1982. Concededly, the accused-petitioners were not present before the learned Additional Sessions Judge. It was stated at the bar that in pursuance of the order of the Additional Sessions Judge, the persons of the accused were obtained from jail and allegedly some recoveries were foisted on them during the while they remained in police custody. It was maintained that the order of the learned Magistrate was interlocutory in character and not revisable by the Additional Sessions Judge. It was further maintained that the learned Additional sessions Judge could not sit in judgment over the discretion of the learned Magistrate in granting or not granting custody of the accused to the police. Obviously, the impugned order of the learned Additional Sessions Judge has been carried out in effect and cannot factually be undone. What is required by the petitioners now is that it should legally be undone so as to bury its repercussions on the eventual trial of the petitioners. After pondering over the matter for some time and having found the questions emerging therefrom to be of considerable importance, I have thought it proper to let this be settled by a larger Bench. I may mention that in State of Bihar v. Ram Naresh Pandey and another, 1957 AIR(SC) 389, the Supreme Court observed as follows:- "For instance, in the course of investigation, a person arrested must be brought before him within 24 hours (s. 61, Criminal P. C. ). Continuance of the affected person in detention for purpose of investigation from time to time has to be authorised by him. Plainly, the emphasised observation of the Supreme Court, proceedings and orders passed by the learned Magistrate under Section 167(2), Criminal Procedure Code, are not a prima facie judicial determination of any specific issue and are rather executive in nature being supplementary to those of the executive and conferred on him in order to prevent abuse. This seemingly implies that action of the Magistrate under Section 167(2), Criminal Procedure Code, was not intended to be open to revision by the Court of Sessions or the High Court, as the case may be. On the other hand, in Amar Nath and others v. State of Haryana and others, 1977 AIR(SC) 2185, in the context of the "interlocutory order" the Court observed: "Thus, for instance, orders summoning witnesses adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the Code. "But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court. " The embhasised passage seemingly implies, though negatively, that bail orders, whether grant or refusal, being interlocutory orders and necessarily involving custody in the event of refusal, be it jail or police custody, are interlocutory orders and hence not revisable. Yet, seemingly, these orders are matters of moment which would effect or adjudicate the rights of the accused as also on a particular aspect of the eventual trial and thus be not interlocutory. Amar Nath's case was quoted with approval in Madhu Limaya v. State of Maharashtra, 1978 AIR(SC) 47, on this particular aspects of the matter and it was observed:- "On the one hand, the legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears to us that the real intention of the legislature was not to equate the expression "interlocutory order" as invariably being converse to the words "final order". "It is neither advisable, nor possible, to make catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of order. " Proviso (b) to sub-section (2) of Section 167 debars a Magistrate from authorising detention in any custody under that section unless the accused is produced before him. Now here, the learned Additional Sessions Judge concededly did not call for the accused to be presented before him and yet passed the impugned order. As a court of Revision, he had ventured to substitute his own order with that of the Magistrate; but could he have bye-passed the aforesaid mandatory provision, is a question which is not free from doubt. Added thereto is the question whether he could terminate jail custody and order police custody of the accused after a time when the accused had remained in police custody and then sent to jail custody. An Hon'ble Single Judge of Delhi High Court in Tirlochan Singh v. State (Delhi Admn. ), 1981 CrLJ 1773, has taken the view that the Magistrate cannot order police custody after he has sent the accused once to jail custody. That view is apparently too narrow and restrictive of the language of section 167, Criminal Procedure Code, when the choice of custody is with the Magistrate, as he thinks fit, whenever the accused is produced before him from time to time; the only limitation being that police custody can in no case exceed 15 days, and jail custody beyond a period of 15 days, if he is satisfied that adequate grounds exist for doing so, but subject to the other requirements as now incorporated by virtue of the amendment of Section 167, Code of Criminal Procedure. This too is a question which is germane to the facts of the present case as is plain. For the difficulty experienced and as expressed heretofore, let the papers of this case be placed before my Lord the Chief Justice for constituting a larger Bench to decide the aforesaid questions of law as also the case expeditiously for two reasons (1) its decision is likely to affect a larger number of cases and is thus a question of general and public importance and (2) delay may tend to defeat the relief sought in the petition. Sd/- M. M. Punchhi, Judge. August 26, 1982. Judgment dated 24th August, 1983. (DB) S. S. Sandhawalia, C. J. - For reasons delineated hereinafter, the primary and indeed the solitary question that now survives for determination in this reference to the Larger Bench may well be formulated in the following terms:- Whether a Magistrate exercising the jurisdiction under Section 167 of the Code of Criminal Procedure, 1973, performs essentially a judicial function or merely an executive one
(2.) The facts relevant to the aforesaid issue may be recounted with relative brevity: Dilbagh Singh petitioner No. 2, is the son of Kashmir Singh petitioner No. 1. One Jaswant Singh was employed as a servant of Kashmir Singh petitioner No. 1. Whilst digging some foundations with two others, he had found a pot full of old silver coins which they divided amongst themselves. About 12 days prior to the registration of the case, Kashmir Singh and Dilbagh Singh petitioners brought Jaswant Singh and Karnail Singh at the scene of the occurrence and allegedly tortured them to produce the aforesaid old silver coins and further threatened to kill them on their failure to do so. Kashmir Singh petitioner is stated to have fired over the heads of Karnail Singh and Jaswant Singh to terrorise them and thereafter brought them back to his house where the mother and sisters of Karnail Singh were also allegedly brought and tortured. Signatures of Karnail Singh and his mother were allegedly taken on blank promotes and some gold ornaments and valuable articles were further taken away by the petitioners from the house of Karnail Singh and Jawant Singh.
(3.) Pursuant to the registration of the case the petitioners were arrested on March 3, 1982 and were produced before the Chief Judicial Magistrate, Faridkot (because the investigation was being carried on by the C. I. A. Staff, Faridkot), on March 4, 1982, when further police remand was sought.;