PETITIONER: NATABAR PARIDA BISNU CHARAN PARIDA BATAKRUSHNAPARIDA BABAJI Vs. RESPONDENT: STATE OF ORISSA DATE OF JUDGMENT16/04/1975 BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. FAZALALI, SYED MURTAZA CITATION: 1975 AIR 1465 1975 SCR 137 1975 SCC (2) 220 CITATOR INFO : R 1987 SC 149 (21) R 1992 SC1768 (9) ACT: Code of Criminal Procedure, 1898, Sections 167 and 344- Remand of an accused to custody-Courts, if have inherent power. Code of Criminal Procedure, 1973, Sections 167(1), Proviso (a) to Section 167(2), 428 and 484(2)(a)-Investigation pending at the commencement of the Act and not completed within the period of 60 days-Accused, if has a right to be released on bail. HEADNOTE: In respect of an occurrence which took place on 8th March, 1974, at a place in the District of Cuttack, a police investigation commenced in connection with the offences alleged to have been committed under sections 147, 148, 307, 302 simpliciter as also with the aid of section 149 of the Indian Penal Code. Of the eight persons arrested during investigation, four have been enlarged on bail by the Sessions Judge of Cuttack, but the learned Sessions Judge refused to grant bail to the four appellants. Their conten- tion based on proviso (a) to sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973, was rejected by the learned Judge relying on the saving clause (a) of sub- section (2) of section 484. The High Court also rejected their contention. This appeal has been filed on the basis of the special leave granted by the Supreme Court. HELD : (i) A Magistrate having jurisdiction to try a case could remand an accused to jail custody from time to time during the pendency of the investigation in exercise of the power under section 344 of the Code of Criminal Procedure, 1898. In other words, the power of remand by the Magistrate during the process of investigation and collection of evidence was an integral part of the process. The power was meant to be exercised whenever necessary to aid the investigation and collection of further evidence. 14 1 E-F] A.Lakhmanrao v. Judicial Magistrate First Class Parvatipuram and others, [1970] 3 S.C.C. 501 and Gouri Shankar Jha v. The State of Bihar and others, [1972] 1 S.C.C. 564, relied on. The Superintendent and Remembrancer of Legal Affairs Government of West Bengal v. Bidhindra Kumar Roy and others, A.I.R. 1949, Calcutta 143; Chandradin Dubey v. The State, 1955 Bihar Law Journal Reports, 323; Dukhi and another v. State and another, A.I.R. 1955 Allahabad, 521; Shrilal Nandram & Another, v. R. R. Agrawal, S. D. M. First Class, Gwalior and another Kuttan, A.T.R. 1964, Kerala, 232; Artatran Mahasuara and others v. State of Orissa, A.I.R. 1956 Orissa, referred to. (ii)Courts will have no inherent power of remand of an accused to any custody unless the power is conferred by law. The High Court has crred in assuming, without reference to section 344 of the old Code, that such a power existed. [140D] (iii)The command of the Legislature in proviso(a) to section 167(2) of the new Code is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. Although the expression 'reasonable cause' occurring in sub-section (1A) of section 344 is no where to be found in section 309 of the New Code, the explanation to section 344 of the Old Code has been retained as explanation 1 to Section 309 in the identical language. The law as engrafted in 138 proviso (a) to section 167(2) and section 309(2) of the New Code confers the powersof remand to jail custody during the pendency of the investigation only tinderthe former and not under the latter. Section 309(2) is attracted only aftercognizance of an offence has been taken or commencement of trial has proceeded. [142G-H] Quere : What is the purpose of Explanation-1 in section 309 of the Code of Criminal Procedure, 1973. (iv)Unlike the wordings of section 428 the language of section 167(1) which will govern sub-section (2) also, is- "whenever any person is arrested", suggesting thereby that the section would be attracted when the arrest is made after coming into force of the Act of 1973. The expression used in section 428 is "where an accused Person has, on conviction been sentenced. . . . . ". To the facts of the present case, clause (a) of subsection (2) of section 484 will apply. Immediately before the 1st day of April, 1974 the investigation of this case was pending. Saving clause (a) therefore, enjoins that the said investigation shall be continued or made in accordance with Chapter XIV of the old Code. Section 167 of that Code could not enable the Magistrate to remand the appellants to jail custody during the pendency of the investigation. The police could seek the help of the Court for exercise of its power of remand under section 344, bringing it to the notice of the Court that sufficient evidence had been obtained to raise a suspicion that the appellants may have committed an offence and there will be hindrance to the obtaining of further evidence unless an order of remand was made. [143C-D-144B-C] Mr. Boucher Pierre Andra v. Superintendent, Central Jail, Tihar, New Delhi and another, A.I.R. 1975 S.C. 164, referred to. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 359 of
1974.
Appeal by special leave from the Judgment and order dated
the 6th August 1974 of the Orissa High Court in Criminal
Misc. Case No. 180 of 1974.
Sharad Manohar, R. N. Nath and V. N. Gaupule, for the appel-
lant.
Gobind Das, and B. Parthasarathi, for the respondent.
The Judgment of the Court was delivered by :-
UTNTWALIA, J.-An occurrence took place on the 8th of March
1974 at a place situated in the District of Cuttack, Orissa.
First Information Report was lodged on the 9th March, 74 and
a police investigation started in connection with the
offences alleged to have been committed under sections 147,
148, 307, 302 simpliciter as also with the aid of section
149 of the Indian Penal Code. The four appellants in this
appeal by special leave were arrested by the police in the
course of the investigation on the 8th March and four others
who have been enlarged on bail by the Sessions Judge of
Cuttack were arrested on the 14th March. They were produced
before the Magistrate who remanded them to jail custody from
time to time. The learned Sessions Judge released on bail
four of the accused but refused to grant bail to the
appellants. An argument based upon proviso (a) to sub-
section (2) of section 167 of the Code of Criminal
,Procedure, 1973 (Act No. 2 of 1974) hereinafter referred to
as the New Code, was rejected by the Sessions Judge relying
on the saving clause (a) of sub-section (2) of section 484.
139
The appellants approached the Orissa High Court and pressed
their cases for releasing them on bail on merits as well as
on the ground of the provision of law aforesaid contained in
the New Code. A Bench of the High Court by its order dated
the 6th August, 1974 has repelled the arguments put forward
on behalf of the appellants and dismissed their application
for bail. They have filed the–present appeal by special
leave of this Court.
This Court is not expected to examine afresh the question of
releasing the appellants on bail on merits. But the
question for consideration is whether the appellants are
entitled to be released on bail under the proviso (a) of
section 167(2) of the New Code.
The New Code came into force on and from the 1st of April,
1974. Section 484(1) repealed the Code of Criminal
Procedure, 1898-hereinafter called the Old Code, But there
were certain saving clauses engravers in sub-section (2);
the relevant clause (a) would be adverted to hereinafter in
this judgment. Before doing so it is necessary to
appreciate the position of law in relation to the power of
remand by a Magistrate during the course of investigation of
a case by the police.
A person arrested without warrant could not be detained by a
police officer for a period exceeding 24 hours as provided
in section 61 of the Old Code. Section 167(1) required the
police officer to forward the accused to the nearest
Magistrate if the investigation could not be completed
within the period of 24 hours fixed by section 61 and if
there were rounds for believing that the accusation or
information was well-founded. Sub-section (2) provided
“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 on 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 : ”
The Magistrate to whom the accused was forwarded could
remand him to police custody or tail custody for a term not
exceeding 15 days in the whole under section 167(2). Even
the Magistrate who had jurisdiction to try the case could
not remand the accused to any custody beyond the period of
15 days under section 167(2) of the Old Code. There was no
other section which in clear or express language conferred
this power of remand on the Magistrate beyond the period of
15 days during the pendency of the investigation and before
the taking of cognizance on the submission of Charge-Sheet.
Section 344, however, enabled the Magistrate to postpone the
corn-
140
mencement of any enquiry or trial for any reasonable cause.
The explanation to section 344 of the Old Code read as
follows :
“If sufficient evidence has been obtained to
raise a suspicion that the accused may have
committed an offence, and it appears likely
that further evidence may be obtained by a
remand, this is a reasonable cause for a
remand.”
Various High Courts had taken the view that a Magistrate
having jurisdiction to try a case could remand an accused to
jail custody from time to time during the pendency of the
investigation in exercise of the power under section 344 :
to wit, The Superintendent and Remembrancer of Legal
Affairs, Government of West Bengal v. Bidhindra Kumar Roy
and others(1); Chandradi Dubey v. The State ( 2) , Dukhi and
another v. State and another(3) ; Shrilal Nandram and
another v. R. R. Agrawal, S. D. M. First Class, Gwalior and
another(1) and State of Kerala v. Madhavan Kuttan(5). A
contrary view was taken by the Orissa High Court in the case
of Artatran Mahasuara and others v. State of Orissa(6). It
may be emphasized here that the Court will have inherent
power of remand of an accused to any custody unless the
power is conferred by law. In the order under appeal the
High Court without reference to section 344 of the Old Code,
seems to have assumed that such a power existed. That is
not correct.
There are two decisions of this Court affirming the view
expressed by majority of the High Courts and over-ruling the
one taken by the Orissa High Court in the case referred to
above. In A. Lakshmanarao v. Judicial-Magistrate, First
Class Parvatipuram and others(7) an argument was advanced
that section 344 falling in Chapter 24 of the Old Code which
contained general provisions as to enquiries and trials
could not apply to a case which was at the stage of
investigation and collection of evidence only. Dua, J deli-
vering the judgment on behalf of this Court repelled the
argument thus at page 506.
“This argument appears to us to be negatives
by the express language both of sub-section
(1-A) and the explanation. Under sub-section
(1-A) the commencement of the inquiry or trial
can also be postponed. This clearly seems to
refer to the stage prior to the commencement
of the inquiry. The explanation makes it
clear beyond doubt that reasonable cause as
mentioned in sub-section (1-A) includes the
likelihood of obtaining further evidence
during investigation by securing a remand.
The language of section 344 is unambiguous and
clear and the fact that this section occurs in
Chapter 24 which contains general provisions
as
(1) A.I.R. 1949, Calcutta, 143.
(2) 1955 Bihar Law Journal Reports, 323.
(3) A.I.R. 1955, Allahabad, 521.
(4) A.I.R. 1960, Madhya Pradesh, 135.
(5) A.I.R. 1964, Kerala, 232.
(6) A.I.R 1956 Orissa. 129
(7) [1970] 3 S.C.C
141
to inquiries and trials does not justify a
strained construction.”.
In Gouri Shankar Jha v. The State of Bihar and
others(1) Shelat, J. delivering the judgment on behalf of
the Court has said at page 569 :
“In cases falling under section 167, a
magistrate undoubtedly can order custody for a
period at the most of fifteen days in the
whole and such custody can be either police or
jail custody. Section 344, on the other hand,
appears in Chapter XXIV which deal with
inquiries and trials. Further, the custody
which it speaks of is not such custody as the
magistrate thinks fit as in Section 167, but
only jail custody, the object being that once
an enquiry or a trial begins it is not proper
to let the accused remain under police
influence. Under this section, a
magistrate can remand an accusedperson to
custody for a term not exceeding fifteen days
ata time provided that sufficient evidence
has been collected to raise a suspicion that
such an accused person may have committed an
offence and it appears likely that further
evidence may be obtained by granting a
remand.”
Farther says the learned Judge at page 570 :
“The fact that Section 344 occurs in the
Chapter dealing with inquiries and trials does
not mean that it does not apply to cases in
which the process of investigation and
collection of evidence is still going on.”
It would thus be seen that under the Old Code the Magistrate
was given the power under section 344 to remand an accused
to jail custody as the section was also applicable to cases
in which process of investigation and collection of evidence
was going on. In other words, the power of remand by the
Magistrate during the process of investigation and
collection of evidence was an integral part of the process.
The power was meant to be exercised, whenever necessary, to
aid the investigation and collection of further evidence.
Let us now examine the position of law under the New Code.
No police officer can detain a person in custody, arrested
without a warrant, for a period longer than 24 hours as
mentioned in section 57 corresponding to section 61 of the
Old Code. Section 167 occurring in Chapter XII bearing the
heading “Information to the police and their powers to
investigate”-the same as in Chapter XIV of the Old Code-has
made some drastic departure. Similar, is the position in
regard to section 309 of the New Code corresponding to
section 344 of the Old Code. While retaining the provision
of forwarding the accused to the nearest Magistrate (of
course under the New Code to the Judicial Magistrate), and
while authorising the Magistrate to remand the accused to
either police or judicial custody for a period not exceeding
15 days, proviso (a) has been added in these terms
(1) [1972] 1 S.C.C. 564.
142
“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 XXXIII for the
purposes of that Chapter ;”
The expression “the Magistrate” in the proviso
would the Magistrate having jurisdiction to
try the case. Section 309 (2) says
“If the Court, after taking cognizance of an
offence, or commencement of 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
:
Although the expression ‘reasonable cause’ occurring in sub-
section (IA) of section 344 is no where to be found in
section 309 of the New Code, the explanation to section 344
of the Old Code has been retained as Explanation I to
Section 309 in the identical language. The law as engrafted
in proviso (a) to sections 167(2) and section 309 (2) of the
New Code confers the powers of remand to jail custody during
the pendency of the investigation only under the former and
not under the latter. Section 309(2) is attracted only
after cognizance of an offence has been taken or
commencement of trial has proceeded. In such a situation
what is the purpose of Explanation-I in section 309 is not
quite clear. But then the command of the Legislature in
proviso (a) is that the accused person has got to be
released on bail if he is prepared to and does furnish bail
and cannot be kept in detention beyond the period of 60 days
even if the investigation may still be proceeding. In
serious offences of criminal conspiracy-murders, dacoities,
robberies by inter-state gangs or the like, it may not be
possible for the police, in the circumstances as they do
exist in the various parts of our country, to complete the
investigation within the period of 60 days. Yet the
intention of the Legislature seems to be to grant no
discretion to the court and to make it obligatory for it to
release the accused on bail. Of course, it has been
provided in proviso (a) that the accused released on bail
under section 167 will be deemed to be so released under the
provisions of Chapter XXXIII and for the purposes of that
Chapter. That may empower the court releasing him on bail,
if it considers necessary so to do, to direct that such
person be arrested and committed to custody as provided in
sub-section (5) of section 437 occurring in Chapter XXXHI.
It is also clear that after the taking of the cognizance the
143
power of remand is to be exercised under section 309 of the
New Code. But if it is not possible to complete the
investigation within a period of 60 days then even in
serious and ghastly types of crime, the accused will be
entitled to be released on bail. Such a law may be a ”
paradise for the criminals,” but surely it would not be so,
as sometimes it is supposed to be, because of the courts.
It would be so under the command of the Legislature.
But the question in this case is whether during the pendency
of the investigation which started before coming into force
of the New Code the appellants can press into service
proviso (a) to section 167 (2) of that Code and claim to be
released on bail as a matter of right when they are prepared
to furnish bail. The answer to this question depends on the
interpretation of sections 167 and 484 of the New Code.
Unlike the wordings of section 428 the language of section
167(1) which will govern sub-section (2) also, is-“whenever
any person is arrested”, suggesting thereby that the section
would be attracted when the arrest is made after coming into
force of the Act. While the expression used in section 428
is “where an accused person has, on conviction, been
sentenced…….. Interpreting such a phrase it has been
held in the case of Mr. Boucher Pierre Andra v. Superin-
tendent, Central Jail, Tihar, New Delhi and another(1) by
Bhagwati, J. delivering the judgment of this Court at page
166 :
“This section, on a plain natural construction
of its language, posits for its applicability
of fact situation which is described by the
clause “Where an accused person has, on
conviction, been sentenced to imprisonment for
a term”. There is nothing in this clause
which suggests, either expressly or by
necessary implication, that the conviction and
sentence must be after the coming into force
of the New Code of Criminal Procedure.”
We may, however, hasten to add that in spite of the phrase
“is arrested” occurring in section 167(1), since the Old
Code has been repealed by sub-section (1) of section 484 of
the New Code, the provision would have applied, a fortiori,
if the savings provided in subsection (2) would not have
applied to the situation with which we are concerned in this
case. In our judgment clause (a) of subsection (2) of
section 484 does apply. It reads as follows
“Notwithstanding such repeal,-
(a)If, immediately, before the date on
which this Code comes into force, there is any
appeal, application, trial, inquiry or
investigation pending, then, such appeal,
application, trial, inquiry or investigation
shall be disposed of, continued, held or made,
as the case may be, in accordance with the
provisions of the Code of Criminal Procedure
1898, as in force immediately before such
commencement, (hereinafter referred to as the
Old Code), as if this Code had not come into
force”
(1)A.I.R. 1 975 S.C. 164.
144
Immediately before the 1st day of April, 1974 the
investigation of this case was pending. Saving clause (a)
therefore enjoins that the said investigation shall be
continued or made in accordance with the provisions of the
Old Code. The police officer, therefore, making the
investigation has to continue and complete it in accordance
with Chapter XIV of the Old Code. Section 167 of that Code
could not enable the Magistrate to remand the appellants to
jail custody during the pendency of the investigation. The
police could seek the help of- the Court for exercise of its
power of remand under section 344, bringing it to the notice
of the Court that sufficient evidence had been obtained to
raise a suspicion that the appellants may have committed an
offence and there will be hindrance to the obtaining of
further evidence unless an order of remand was made. As we
have said above, invoking the power of the court under
section 344 of the Old Code by the Investigating Officer
would be a part of the process of investigation which is to
be continued and made in accordance with the Old Code. That
being so, we hold that the appellants in this case cannot
claim to be released under proviso (a) to section 167(2 ) of
the New Code.
In the result the appeal fails and is dismissed.
Appeal dismissed.
V. M. K.
145