1975 (4) TMI 132

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....nded 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. 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. ....

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....en 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(A.I.R. 1949, Calcutta, 143.); Chandradi 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 and another v. R. R. Agrawal, S. D. M. First Class, Gwalior and another(A.I.R. 1960, Madhya Pradesh, 135.) and State of Kerala v. Madhavan Kuttan(A.I.R. 1964, Kerala, 232.). A contrary view was taken by the Orissa High Court in the case of Artatran Mahasuara and others v. State of Orissa(A.I.R 1956 Orissa. 129). 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 expres....

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....ries 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 sect....

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....l 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 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 eve....