{"id":256794,"date":"1972-01-20T00:00:00","date_gmt":"1972-01-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gouri-shankar-jha-vs-the-state-of-bihar-and-ors-on-20-january-1972"},"modified":"2018-09-17T10:20:53","modified_gmt":"2018-09-17T04:50:53","slug":"gouri-shankar-jha-vs-the-state-of-bihar-and-ors-on-20-january-1972","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gouri-shankar-jha-vs-the-state-of-bihar-and-ors-on-20-january-1972","title":{"rendered":"Gouri Shankar Jha vs The State Of Bihar And Ors on 20 January, 1972"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Gouri Shankar Jha vs The State Of Bihar And Ors on 20 January, 1972<\/div>\n
Equivalent citations: 1972 AIR 711, 1972 SCR (3) 129<\/div>\n
Author: Shelat<\/div>\n
Bench: Shelat, J.M.<\/div>\n
           PETITIONER:\nGOURI SHANKAR JHA\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF BIHAR AND ORS.\n\nDATE OF JUDGMENT20\/01\/1972\n\nBENCH:\nSHELAT, J.M.\nBENCH:\nSHELAT, J.M.\nKHANNA, HANS RAJ\n\nCITATION:\n 1972 AIR  711\t\t  1972 SCR  (3) 129\n 1972 SCC  (1) 564\n CITATOR INFO :\n R\t    1974 SC 871\t (3)\n R\t    1975 SC1465\t (6)\n D\t    1983 SC 439\t (15)\n\n\nACT:\nHabeas Corpus-Remand order-Magistrate can pass order if\t for\nsome  reason  the  accused cannot  be  produced-Order  sheet\nshowing\t wrongly that person in custody was produced  before\nmagistrate-Such wrong entry does not mean that remand  order\nwas not in fact passed.\nCode of Criminal Procedure, 1898-Ss. 167, 344-Scope of-Power\nunder  s.  34  can be exercised even  before  submission  of\ncharge-sheet.\n\n\n\nHEADNOTE:\nIn the appeal against the order of the High Court dismissing\nthe  appellant's  petition for a writ of habeas\t corpus\t the\nappellant urged that he was not produced before a magistrate\nwithin\t24 hours after his arrest as required by s.  167<\/a>  of\nthe  Code of Criminal Procedure or even later; that  he\t was\nnever  informed\t of  the grounds for  his  arrest;  that  no\ncustody\t  warrant  was\tever  issued  warranting  the\tjail\nauthorities to keep the appeal]ant in jail custody; that the\nremand\torders passed by the magistrate were tinder  s.\t 167<\/a>\nand not under s. 344<\/a> of the Code, as the latter section\t did\nnot apply at the stage of investigation and that even if  s.\n344<\/a>  applied  the magistrate could not order  detention\t for\nmore than 15 days in the whole.\t He also urged that the Jail\nSuperintendent\tdid not produce before\tthe High Court\tthe\njail  records but only produced his report,  thus  disabling\nthe  appellant from establishing his case.   Dismissing\t the\nappeal,\nHELD  : (1) The order sheet produced before the\t High  Court\nshowed that the appellant was produced before the magistrate\nwithin\t24-hours  after his arrest and that  the  magistrate\nremanded  him to jail custody.\tThough the order  sheet\t had\nentries\t showing  that on subsequent occasions\twhen  remand\norders\twere  made  the appellant was  produced\t before\t the\nmagistrate, the High Court has found that the Magistrate had\nwrongly recorded that the appellant was produced before\t him\non those occasions.  However, the wrong entries made by\t him\ndo  not mean that the remand orders were not in fact  passed\nby  him\t though he did so in the absence of  the  appellant.\nSuch  orders  can be lawfully passed if\t an  accused  person\ncannot\tfor some reason or the other be brought\t before\t the\nmagistrate. [134 E-F]\nRai Narain v. Superintendent, Central Jail, New Delhi,\tWrit\nPetition No. 330 of 1970, decided on Sept. 1, 1970, referred\nto.\n(ii) The  facts\t negative the suggestion  of  the  appellant\nbeing kept in ignorance of the reasons for his arrest.\t[135\nF]\n(iii)\t  There\t is no reason to think that  the  magistrate\nordered the appellant to lie taken into jail custody without\ncustody warrant. [136 A]\n(iv) S.\t 167<\/a> operates at a stage when a person\tis  arrested\nand either an investigation has started or is yet to  start,\nbut  is\t such that it cannot be completed within  24  hours.\nSection\t 344<\/a>, on the other- hand, shows\t that  investigation\nhas already begun and sufficient evidence has been  obtained\nraising\t a  suspicion  that  the  accused  person  may\thave\ncommitted the offence\n130\nand  further evidence may be obtained, to enable the  police\nto do which a remand to jail custody is necessary.  The fact\nthat s. 344<\/a> occurs in the Chapter dealing with inquiries and\ntrials\tdoes  not mean that it does not apply  to  cases  in\nwhich  the  process  of\t investigation\tand  collection\t  of\nevidence is still going on.  Therefore, it is not as if\t the\nstage  at which the Magistrate passed the remand orders\t was\nstill  the  stage when s. 167<\/a> applied and not s.  334<\/a>.\t The\nMagistrate,  provided he complied with the condition to\t the\nExplanation,  was competent to pass remand orders from\ttime\nto  time  subject  to  each order being\t not  for  a  period\nexceeding  15  days.   The Magistrate  had  satisfied\tthat\nCondition. [136 G]\nView contra in Artatran v. ATR 1956 Orissa 129 disapproved.\nA Lakshamanrao v. Judicial Magistrate<\/a>, A.I.R. 1971 S.C. 186,\nChanaraatn  v. State, (1953) 3 B.L.J.R., 323 and Ajit  Singh\nv. State<\/a>, (1970) 76 Crl.L.H. 1075, referred to\nThe  appellant\twas  content  with  the\t production  of\t the\nsuperintendent's  report.   No prejudice was caused  to\t the\nappellant's case since the jail record could not have proved\nanything  more\tthan what the jail  superintendent's  report\nproved.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 123  of
\n1968.\n<\/p>\n
Appeal\tby special leave from the judgment and\torder  dated
\nMay  3, 1968 of the Patna High Court in Criminal W.J.C.\t No.
\n17 of 1968 and Criminal Miscellaneous Case No. 447 of 1968.
\nB.   C. Ghose, S. N. Misra and A. K. Nag, for the appellant.
\nD.   Goburdhun, for the respondent.\n<\/p>\n
The Judgment of the Court was delivered by-
\nShelat,\t J. This appeal, by special leave, is.\tagainst\t the
\ndismissal  by the High Court of Patna of the  Writ  Petition
\nand  an\t application under S. 561A<\/a> of the Code\tof  Criminal
\nProcedure,  for\t a writ of habeas corpus and an order  of  a
\nlike  nature.  filed by the appellant.\tBoth  of  them\twere
\nheard together as they contained common allegations and both
\nwere dismissed by a common judgment.\n<\/p>\n
In the two aforesaid proceedings, the case of the  appellant
\nwas  that he was arrested on February 18, 1968,\t that  since
\nthen he had been detained in custody without being  informed
\nof the grounds for his arrest and detention and also without
\nhaving\tbeen produced before a Magistrate either  within  24
\nhours  after  his detention as required under the  Code<\/a>,  or
\neven  thereafter.  On February 21, 1968, he was\t removed  to
\nDarbhanga  jail\t where he was threatened that  he  would  be
\nfalsely involved in several cases of dacoity unless he\tmade
\ncertain incriminating statements which the police wanted him
\nto make.  He made two applications from jail one on February
\n25, 1968, and the other on February 28,
\n\t\t\t    131<\/span>
\n1968  to the Sub-Divisional Magistrate.\t The first  was\t not
\nreceived  at  all by the Magistrate, while  the\t second\t was
\nreceived but after ‘a long time, and was rejected.  He\talso
\nalleged\t that thereafter he made two  further  applications,
\none dated March 22. 1968 and the other dated March 27, 196,8
\nwherein he applied for directions to the police to  ‘furnish
\nhim with particulars of offences charged against him and for
\nbail,  but that he received no order on either of them.\t  On
\nthese\tallegations,  he  claimed  release  forthwith\tfrom
\ndetention  and\tthe  quashing of  the  criminal\t proceedings
\nagainst him.\n<\/p>\n
In the counter-affidavit filed by the State before the\tHigh
\nCourt, it was stated that one Bilat Sahni and one  Baleshwar
\nPaswan made confessions before the Magistrate at  Samastipur
\non  23rd and 24th January, 1968 confessing their  own  guilt
\nand implicating the appellant and certain other persons,  in
\nabout eight dacoity cases, all having been committed in that
\nlocality, Thereupon, the appellant was arrested on  February
\n17,   1968  He\twas  produced  before\tthe   Sub-Divisional
\nMagistrate  of\tSamastipur  on February 18,  1968,  but\t was
\nremanded  to police custody by the said Magistrate for\tfour
\ndays on an application by the police therefore.\t On February
\n21,  1968, the appellant was once again produced before\t the
\nsame  magistrate and on an application by the police he\t was
\nremanded  to jail custody.  The affidavit alleged  that\t the
\nappellant  was\tinvolved in as many as\tnine  dacoity  case;
\nwherein remand orders had been passed from time to time\t and
\nthat  that  was how he had, since February  21,\t 1968,\tbeen
\ndetained as an under trial prisoner.  On April 19, 1968,  an
\nidentification\tparade was held in connection with  one,  of
\nthe  said  nine\t cases\twhereat\t the  relevant\t complainant
\nidentified  the appellant.  The case of the State  was\tthat
\nthe  appellant\twas one of the three  leaders  engaged\twith
\ncertain hardened criminals in the aforesaid several  dacoity
\ncases, that it Was not true that he was unaware of the\tcase
\nagainst\t him  or  that\the  was\t not  produced\tbefore\t the
\nmagistrate  or\tthat he was kept in  prison  without  proper
\nremand orders having been passed by the Magistrate.
\nFive  contentions were raised before the High  Court,  viz.,
\n(1)  that  the\tappellant  was\tnever  produced\t before\t any
\nmagistrate  within  24\thours  after  his  arrest  or\teven
\nthereafter; hence his detention was in breach of Art. 22<\/a>  of
\nthe  Constitution,  (ii) that although the  order-sheet,  in
\nrespect\t of Laheriasarai Police Station Case No. 1 of  1968,
\nrecords\t that  the appellant had been  produced\t before\t the
\nMagistrate on several days set out therein, that order-sheet
\nhad  been  falsely made; (iii) that the magistrates  had  no
\npower  to detain the appellant in jail in excess of 15\tdays
\nin all, (iv) that even if he had the power to remand him  in
\nexcess\tof  15 days in all, the condition for  passing\tsuch
\norders was not
\n13 2
\nsatisfied,  and (v) that no remand order was factually\tever
\npassed.\t None of these contentions was accepted by the\tHigh
\nCourt,\t and  the  High\t Court,\t therefore,  dismissed,\t  as
\naforesaid, both the applications on May 3, 1968.
\nMr.  Ghose, who appeared for the appellant before  the\tHigh
\nCourt  and who appeared before us also raised the  following
\npoints:\t (1) that the appellant was not produced before\t any
\nmagistrate either on February 18, 1968 or on any other\tdate
\nthereafter, (2) that the appellant was never informed of the
\n,,rounds for his arrest, and detention thereafter, (3)\tthat
\nno  custody  warrant  was ever issued  warranting  the\tjail
\nauthorities  to keep the appellant in jail custody, and\t (4)
\nthat  assuming that the said remand orders were passed,\t the
\nappellant could not be kept in jail custody for more than 15
\ndays  in  the whole.  On the basis of these four  points  he
\nurged  that  the  appellant’s  arrest  .and  detention\twere
\nillegal\t and that therefore he was entitled to\tbe  released
\nforthwith  and the criminal proceedings instituted against
\nhim by the police quashed.  Mr. Ghose also made a point that
\nthe  jail  Superintendent did not produce  before  the\tHigh
\nCourt  the  jail records which would show  his\thaving\tbeen
\ntaken  out  of\tthe  jail  for\tbeing  produced\t before\t the
\nMagistrate when the magistrate decided the applications\t for
\nremand\tby the police and passed the remand orders  said  to
\nhave  been  passed  by\thim and\t that  instead\tthe   jail
\nSuperintendent\tproduced  his  report,\tthus  disabling\t the
\nappellant  from\t establishing his case as laid in  his\twrit
\npetition.\n<\/p>\n
We  may at this stage dispose of Mr. Ghose’s last  point  in
\nregard\tto the non-production of the jail record before\t the
\nHigh  ,;Court.\t It is true that the appellant did  ask\t for
\nproduction  of that record first in the writ  petition,\t and
\nthen on April 22, 1968 to which date the hearing of the writ
\npetition  was adjourned. But the order-sheet  maintained  by
\nthe High Court in connection with the writ petition and\t the
\nsaid  application under s. 561A<\/a> of the Code shows that\twhen
\nthe writ petition came up for admission, the learned  Judges
\ncalled\tfor the record of the Magistrate’s Court and  report
\nfrom  the jail superintendent regarding the dates  on  which
\nthe  appellant\twas said to have been  produced\t before\t the
\nMagistrate  for\t the purpose of the hearing of\tthe  remand
\napplications.\tIt appears that on April 22, 1968, to  which
\ndate  the  writ petition was made  returnable,\tneither\t the
\nrecord of the Magistrate’s Court nor the report of the\tjail
\nSuperintendent had arrived.  On that day, the appellant made
\nan  application for his production in Court at the  time  of
\nthe hearing and for the production of the jail record.\t The
\nHigh Court, how-ever, rejected the prayer for his production
\nin Court and as regards the jail record ordered as follows:\n<\/p>\n
\t\t\t    133<\/span><\/p>\n
\t      so far as the production of the record of\t the
\n\t      jail  is\tconcerned, an  express\treminder  by
\n\t      telegram may be sent to the Superintendent  of
\n\t      jail  to\tsend the report already\t called\t for
\n\t      immediately,   if\t  possible  by\t a   special
\n\t      messenger.  A reminder may also be sent to the
\n\t      Court   concerned\t  to   send   the    records
\n\t      immediately,   if\t possible,  by\t a   special
\n\t      messenger.”\n<\/p><\/blockquote>\n
The High Court does not seem to have pressed for the produc-
\ntion  of the jail record as it presumably thought  that\t the
\nCourt’s\t record would show the dates when the appellant\t was
\nproduced  before  it and the Superintendent’s  report  would
\nmake that point\t    clear.  It ‘appears from that order that
\nthe  appellant also was content with the production  of\t the
\nSuperintendent’s report and did not press for the calling of
\njail record.  The judgment of the High Court also shows that
\nthat  was also the case when the High Court heard  the\twrit
\npetition  and  the said s. 561A<\/a>\t application.\tNeither\t the
\norder-sheet nor the judgment of the High Court seems   to
\nwarrant the allegations made in para 28 of the Special Leave
\nPetition that repeated prayers were made for the  production
\nof  the jail record.  In any event, no prejudice appears  to
\nhave  been  caused to the appellant’s case  since  the\tjail
\nrecord\tcould  not have proved anything more than  what\t the
\njail Superintendent’s report proved.\n<\/p>\n
The report, which was before the High Court, clearly pointed
\nout  that  the\tappellant was remanded to  jail\t custody  on
\nFebruary 21, 1968 by the Sub-Divisional Magistrate, Sadar in
\nthe case under s. 395<\/a> of the Penal Code.  The next date\t for
\nhis appearance was fixed on March 5, 1968, but the appellant
\nrefused to go to the Magistrate’s Court on that day as\talso
\non  March 20,\t1968 and April 4, 1968, on the\tground\tthat
\nthe identification parade for him had not yet been held\t and
\nhis going to and appearing in the Court would expose him  to
\npossible  witnesses.   ‘Me  Magistrate,\t therefore,  had  to
\npostpone  his production before him to April 18,  1968\twhen
\nthe  appellant was produced and once again remanded to\tjail
\ncustody\t till the, next date, that is,\t May 2,\t 1968.\t The
\nreport\tof the jail Superintendent, thus,  frankly  conceded
\nthat the appellant could not be produced on the dates above-
\nstated\tand  that  the Magistrate, therefore,  had  to\tpass
\nremand\torders in his absence.\tIt is clear from the  report
\nthat  the  appellant himself had refused to  appear  and  be
\npresent\t before\t the  Magistrate when he  heard\t the  remand
\napplications.\t therefore,  cannot  legitimately   make   a
\ngrievance  that\t those orders were passed  in  his  absence.
\nThose  orders could be passed validly in his absence if\t his
\npresence  at the time could not be secured.  This  has\tbeen
\nheld by the majority judgment of this
\n134<\/span>
\nCourt  recently\t in Rai Narain\tv.  Superintendent,  Central<\/a>
\njail, New Delhi. (1)
\nWe now proceed to consider the remaining points in the order
\nin  which  Mr.\tGhose raised them.  The\t first\tpoint  urged
\nbefore\tus was that the appellant was not produced before  a
\nmagistrate  within 24 hours after his arrest as required  by
\nS. 167 of the Code<\/a> of Criminal Procedure, or even later\t and
\nthat therefore his arrest and the detention were bad in law.
\nThe order-sheet of the Laheriasarai Police Station Case\t No.
\n1(i)68\tproduced  before  the  High  Court  shows  that\t the
\nappellant was produced before the Magistrate on February 18,
\n1968, that is, within 24 hours after his arrest and that the
\nMagistrate  remanded him to jail custody on the\t application
\nby  the\t police\t until March 5, 1968.  So far  there  is  no
\ndifficulty  because  these entries in  the  order-sheet\t are
\ncorroborated  by the report of the Superintendent  of  jail.
\nThe  order-sheet, however, has entries dated March 5,  1968,
\nMarch  20,  1968 and April 4, 196 8 when remand\t orders\t are
\nshown  to have been made, each for a period of 15 days,\t and
\nfurther\t  that\tthe  appellant\twas  produced\tbefore\t the
\nMagistrate  on each of those three occasions.  That, as\t the
\nHigh Court has rightly observed, was not correct as the jail
\nSuperintendent’s  report clearly showed that  the  appellant
\nhad  refused to go from the jail for fear that he  would  be
\nseen or be shown to probable witnesses.\t No reason has\tbeen
\nshown  as  to  why we should not agree\twith  the  aforesaid
\nobservation of the High Court, viz., that the Magistrate had
\nwrongly recorded that the appellant was produced before\t him
\nand that the remand orders were passed in his presence.\t The
\nwrong  entries\tmade by him, however, do not mean  that\t the
\nremand\torders were not in fact passed by him though he\t did
\nso in the absence of the appellant.  Such orders, as already
\npointed\t out, can be lawfully passed if ail  accused  person
\ncannot\tfor some reason or the other be brought\t before\t the
\nMagistrate.   It  is, therefore, not possible  to  say\tthat
\nremand\torders\twere  not passed or  that  consequently\t his
\ndetention  in  the jail was without a valid basis.   In\t the
\nHigh Court no such contention, viz., that remand orders were
\nnot  passed  on\t those three dates appears  to\thave  been
\nraised.\t Indeed, the allegation that the appellant was never
\nproduced  before  the Magistrate is belied by  an  elaborate
\norder  made  by the Magistrate on March 28,  1968  when\t the
\nappellant  was\trepresented by counsel.\t At that  stage\t his
\ncounsel did not argue that the appellant was never  produced
\nbefore the Court or that no remand orders were ever, passed.
\nThe argument urged at that time was that the proceedings  at
\nthat stage attracted s. 167<\/a> of the Code, that the stage\t had
\nnot yet reached when s. 344<\/a> would operate and that therefore
\nthe Magistrate bad no power to remand the appellant to\tjail
\ncustody for more than 15 days in the whole.  That contention
\nwas
\n(1)  Writ  Petition  No. 330 of 1970, dcc. on  September  1,
\n1970.\n<\/p>\n
\t\t\t    135<\/span><\/p>\n
rejected by the Magistrate holding that there was an inquiry
\nbefore\thim, and that therefore, s. 344<\/a> applied and  he\t was
\ncompetent,  therefore,\tto pass remand orders from  time  to
\ntime so long as each of those orders was not for a period in
\nexcess\tof  15\tdays.  By that very  order,  the  Magistrate
\nrejected  the  bail  application  made\tby  the\t appellant’s
\nadvocate  holding  that the investigation in  the  cases  of
\ndacoity in which the appellant was concerned was going on at
\nthat  stage and that release of the appellant on bail  would
\nhinder its progress.\n<\/p>\n
The  next  contention  was  that  the  appellant  was  never
\ninformed of the grounds of his detention and that that being
\nso,  his  detention was invalid.  Paras 3, 4 and 35  of\t his
\nwrit petition did not charge that at the time of his  arrest
\nhe  was not informed of the grounds for his arrest and\tthat
\neven when he filed his writ petition he was not informed  of
\nthose  reasons,\t and that that constituted  breach  of\tArt.
\n22(1).<\/a>\t This  allegation is without  any  foundation.\t All
\nthroughout,  his case was that the police had  tortured\t him
\nand  threatened to involve him in a number of dacoity  cases
\nunless\the made certain incriminating statements which\tthey
\nwanted\tfrom him.  What were those incriminating  statements
\nwhich the police were trying to get from him ? From the fact
\nthat  the police were wanting him to make those\t statements,
\nhe must have realised that those statements were related  to
\nthe  cases  for which he had been arrested.   Next,  in\t the
\napplication he made from jail to the Magistrate on  February
\n28, 1968, he alleged that the senior Sub-Inspector of Police
\ncame to him on February 19, 1968, first abused him and\tthen
\nlater on asked him “to admit that offence and promised\tthat
\nby  doing  so  I would be discharged”.\t According  to\tthat
\napplication he refused to admit the offence whereupon he was
\nassaulted by the police.  It also appears that he knew\tthat
\nan identification parade was going to be held and  therefore
\nhad  refused  to  be taken out of jail\tfor  being  produced
\nbefore\tthe  Magistrate.   All\tthese  facts  negative\t the
\nsuggestion of his being kept in ignorance of the reasons for
\nhis arrest or the cases charged against him.
\nThe  third contention was that no valid custody warrant\t was
\nissued\tby the Magistrate enabling the jail  authorities  to
\ndetain\tthe appellant in the Darbhanga jail and licence\t the
\ndetention  must be held to be without any  legal  authority.
\nIn support of the argument, counsel pointed out the  custody
\nwarrant dated February 18, 1968 which according to him\tmust
\nbe deemed to have been cancelled is at the foot of it  there
\nis  the\t Magistrate’s  endorsement that\t the  appellant\t was
\ninstead remanded to police custody.  Assuming that to be so,
\nthere is nothing to show that on February 21, 1968 when\t the
\nMagistrate  ordered  the  appellant to be  taken  into\tjail
\ncustody, a fresh custody warrant had not been issued by him.
\nThe  Magistrate, while passing that order, must\t have  known
\nthat the
\n136<\/span>
\njail  authorities  would not accept the\t appellant  in\tjail
\nunless\tthe  police  taking him\t there\tproduced  a  custody
\nwarrant.   There  is  no  reason to  think  first  that\t the
\nMagistrate  had\t not issued such, a warrant,  and  secondly,
\nthat  the jail Superintendent inducted the appellant in\t the
\njail without such a warrant.  The contention, in our view is
\nwholly without any basis.\n<\/p>\n
The  last  contention of Mr. Ghose was,\t firstly,  that\t the
\nremand orders passed by the Magistrate were under s. 167<\/a> and
\nnot  s.\t 344<\/a>, as the latter section did not  apply  at\tthat
\nstage,\tand  secondly,\tthat even if  s.  344<\/a>  applied,\t the
\nMagistrate  could not order detention for more than 15\tdays
\nin the whole.  Sec. 167 appears in Ch.\tXIV which deals with
\ninformation  and investigation.\t As its language  shows,  it
\ndeals with the stage when a person is arrested by the police
\non  information\t that  an offence has  been  committed.\t  In
\nproviding  that\t such a person must, in terms of s.  61<\/a>,  be
\nproduced  before  a  magistrate within 24  hours  after\t his
\narrest,\t the section reveals the policy of  the\t legislature
\nthat  such  a person should be brought before  a  magistrate
\nwith as little delay as possible.  The object of the section
\nis  two-fold, one that the law does not favour detention  in
\npolice\tcustody\t except in special cases and that  also\t for
\nreasons\t to  be\t stated by the magistrate  in  writing,\t and
\nsecondly,  to enable such a person to make a  representation
\nbefore\ta  magistrate.\t In cases falling under\t s.  167<\/a>,  a
\nmagistrate undoubtedly can order custody for a period at the
\nmost of 15 days in the whole and such custody can be  either
\npolice\tor,  jail  custody.  Sec. 344, on  the\tother  hand,
\nappears\t in Ch.\t XXIV which deal with inquiries and  trials.
\nFurther, the custody which it speaks of is not such  custody
\nas  the\t magistrate thinks fit as in s. 167<\/a>, but  only\tjail
\ncustody,  the object being that once an inquiry or  a  trial
\nbegins\tit  is not proper to let the  accused  remain  under
\npolice\tinfluence.   Under this section,  a  magistrate\t can
\nremand an accused person to custody for a term not exceeding
\n15 days at a time provided that sufficient evidence has been
\ncollected  to raise a suspicion that such an accused  person
\nmay  have  committed an offence and it appears\tlikely\tthat
\nfurther evidence may be obtained by granting a remand
\nThus,  s. 167<\/a> operates at a stage when a person is  arrested
\nand either an investigation has started or is yet to  start,
\nbut  is such that it cannot; be completed within  24  hours.
\nSec.  344, on the other hand, shows that  investigation\t has
\nalready\t begun\tand sufficient evidence\t has  been  obtained
\nraising\t a  suspicion  that  the  accused  person  may\thave
\ncommitted the offence and further evidence may be  obtained,
\nto  enable the police to do which, a remand to jail  custody
\nis  necessary.\tThe fact that s. 344<\/a> occurs in\tthe  Chapter
\ndealing with inquiries and trials does not mean that it does
\nnot apply to cases in which the process of investigation and
\n\t\t\t    137<\/span>
\ncollection  of\tevidence is still going on.  That  is  clear
\nfrom  the  very\t language  of sub-s.  1-A  under  which\t the
\nmagistrate has the power to postpone the commencement of the
\ninquiry\t or  trial.  That would be the stage  prior  to\t the
\ncommencement  of  the inquiry or trial which  would  be\t the
\nstage  of  investigation. (see A. Lakshamanrao\tv.  Judicial
\nMagistrate<\/a>(1).\t Therefore,  it is not as if  the  stage  at
\nwhich the Magistrate passed the remand orders was still\t the
\nstage  when s. 167<\/a> applied and not s. 344<\/a>.  The decision  of
\nthe  Orissa  High  Court in Artatran v.\t Orissa<\/a>(2),  to\t the
\neffect\tthat  s.  344<\/a>  does  not  apply\t at  the  stage\t  of
\ninvestigation  and can apply only after the  Magistrate\t has
\ntaken cognizance of and issued processes or warrant for\t the
\nproduction  of the accused if he is not produced before\t him
\ncannot, in view of A. Lakshamanrao’s case(1)  be regarded as
\ncorrect.   The\tpower  under s. 344<\/a> can\t be  exercised\teven
\nbefore the submission of the charge-sheet, (cf.\t  Chandradip
\nv.  State(3)  and Ajit Singh v. State<\/a>(4), that\tis,  at\t the
\nstage when the investigation is still not over.\t If the view
\nwe  hold  is correct that s. 344<\/a> operated,  the\t Magistrate,
\nprovided he complied with the condition in the\tExplanation,
\nwas  competent\tto  pass remand orders\tfrom  time  to\ttime
\nsubject\t to each order being not for a period  exceeding  15
\ndays.\tThere  can  be\tno doubt  that\tthe  Magistrate\t had
\nsatisfied that condition.  The judgment of the High Court in
\npara  11 points out that the prosecution case was  that\t the
\nappellant  had himself made a confession before the  police.
\nThat  was  in addition to a confession by two  others  which
\nimplicated the appellant in the commission of offences under
\ns. 395 of the Code<\/a>.\n<\/p>\n
In our view none of the contentions raised on behalf of\t the
\nappellant  can be sustained.  The appeal,  therefore,  fails
\nand has to be rejected.\n<\/p>\n
K.B.N.\t\t\t\t       Appeal dismissed.\n(1)  A.I.R. 1971 S.C. 186.\n(2)  A.I.R. 1956 Orissa 129.\n<\/pre>\n
(3)(1955)Bihar Law Journal Reports, 323.
\n(4) (1970) 76 Cr.  L.J. 1075.\n<\/p>\n
10-L864SupCI\/72
\n138<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Gouri Shankar Jha vs The State Of Bihar And Ors on 20 January, 1972 Equivalent citations: 1972 AIR 711, 1972 SCR (3) 129 Author: Shelat Bench: Shelat, J.M. PETITIONER: GOURI SHANKAR JHA Vs. RESPONDENT: THE STATE OF BIHAR AND ORS. DATE OF JUDGMENT20\/01\/1972 BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. KHANNA, HANS […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-256794","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGouri Shankar Jha vs The State Of Bihar And Ors on 20 January, 1972 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gouri-shankar-jha-vs-the-state-of-bihar-and-ors-on-20-january-1972\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gouri Shankar Jha vs The State Of Bihar And Ors on 20 January, 1972 - 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