State vs Garasia Nathubha Merubha

Baxi, J.—This is a reference by the Sessions Judge, Halar Division, recommending that the order of the First Class Magistrate, Lalpur, rejecting the application of the Sub-Inspector of Police, Bhayavadar, u/s 167, Code of Criminal Procedure for the opponent''s remand may be set aside.

The facts are very simple. The opponent was arrested by the police on 11-3-52 u/s 216A, I.P.C. After a remand of five days he was handed over to judicial custody of the Magistrate on 16-3-52. The learned Magistrate thereafter released him on bail on 20-3-52. While he was at large the police, started investigation into the offences of murder and conspiracy to murder committed at Kharachia. It appears from the opponent''s allegations that the police began to harass him in connection with the investigation of these offences and he was afraid that even his life and liberty were in danger if he continued to remain on bail. He therefore surrendered to his bail and was remanded by the learned Magistrate to judicial custody.

Thereafter the Sub-Inspector of Police Bhayavadar made an application to the learned Magistrate requesting that the opponent may be remanded to police custody as he was to be arrested for the offences under Sections 302, 34 and 120, I.P.C. and u/s 19(e), Indian Arms Act and for investigation into these offences. The learned Magistrate rejected the application on the ground that the accused having already been taken into judicial custody in respect of an offence u/s 216A, I.P.C. he had no jurisdiction to remand him again to police custody for Anr. offence. The opponent had made allegations of police torture and the learned Magistrate observed that in view of the opponent''s allegations, he did not think it proper to remand the accused to police custody. The learned Sessions Judge, Halar, held that the order was contrary to law and has recommended that it should be set aside.

The Magistrate''s power to remand an accused person to police custody is regulated by the provisions of Section 167, Code of Criminal Procedure. That section requires that before the Magistrate can make an order of remand, the accused person must have been arrested by the police for the offence which is investigated and forwarded to such Magistrate. Reference may be made to a decision of this High Court in - ''Kanbi Bhagwan Purshotam v. The United State of Saurashtra 2 SLR187 (A). In the present case, after the accused had surrendered to bail he was not formally arrested by the police for the offence u/s 302, I.P.C. nor was he forwarded to the learned Magistrate after such arrest. We, therefore, hold that the learned Magistrate was not competent to grant the remand although we do not agree with him that he had no power to remand the opponent to police custody for investigation because he was already in judicial custody for Anr. offence.

We would, however, like to observe that the difficulty in cases of this type would be obviated if the police were to formally request the Magistrate who happens to have the custody of the accused to permit them to have access to the accused u/s 47, Code of Criminal Procedure for the purpose of arresting him. The police need not necessarily be taken to the judicial lockup. The accused may be brought to the Court and may be formally arrested by the Police Officer though he cannot take away the accused from the judicial custody without an order of the Magistrate. After having arrested the accused, the Police officer may immediately apply to the learned Magistrate for a remand. As the accused is already in the custody of the Magistrate, the question of "forwarding" him does not arise and the Magistrate may dispose of the application for remand on merits. We recommend that the above procedure be adopted by the Sub-Inspector, Bhayavadar, in this case. The learned Magistrate will give the police facilities for formally arresting the opponent and will thereafter consider on merits any application for remand which the Sub-Inspector might make. We should also impress upon the learned Magistrate that he should not be influenced by his observations contained in para. 5 of his order, concerning the opponent''s allegations about police torture. He shall consider the police application untrammelled by his observations in his previous order.

With these directions we reject the reference.

Shah, C.J.

I agree.