Order.-This revision petition by the State is against the order of the Sub-Magistrate, Irinjalakuda, refusing to hand over accused 1 and 5 in the Preliminary Enquiry Case No. 2 of 1972 to Police custody after they surrendered before the Magistrate on 7th April, 1972. 2. The case against these accused persons, as well as accused 2, 3 and 4, was that they formed themselves into an unlawful assembly at about 7-30 p.m. on 3rd February, 1972 armed with country made bombs, and committed rioting, in the course of which the 1st accused threw a bomb against one Anthu and caused injuries to him with the result that he died on the same day at 10-30 p.m. at the Headquarters Hospital, Trichur, and that the 5th accused with the same common object to cause the death of prosecution witnesses Nos. 1, 2 and 3 threw a similar bomb against them, with the result that they sustained serious injuries. Accused 2, 3 and 4 were arrested and they had been remanded to custody. But accused 1 and 5 were absconding and their whereabouts were not known. So the Magistrate issued a non-bailable warrant on 6th April, 1972 to those accused persons returnable on 13th April, 1972. In the meanwhile the police had laid charges against these five accused persons before the Magistrate on 3rd April, 1972 in respect of offences under sections 148, 307 and 302 read with section 149, Indian Penal Code and also under section 5(3)(b) of the Indian Explosives Act. On 7th April, 1972 accused 1 and 5 themselves surrendered before the Court. On the same day the Magistrate advanced the hearing of the case and remanded those accused persons to the Sub-Jail, Irinjalakuda. On that day the Magistrate also posted the case for evidence to 13th April, 1972, to which day it stood posted originally. On 8th April, 1972, the Inspector, Chalakudy Circle, filed an application before the Sub-Magistrate alleging that it was necessary in the interests of justice to trace the source of the explosives and other details which led to the crime. Hence the Inspector wanted accused 1 and 5 to be handed over to the police custody for 5 days. 3. On 8th April, 1972, the Inspector, Chalakudy Circle, filed an application before the Sub-Magistrate alleging that it was necessary in the interests of justice to trace the source of the explosives and other details which led to the crime. Hence the Inspector wanted accused 1 and 5 to be handed over to the police custody for 5 days. 3. The Sub-Magistrate stated that after filing a final report under section 173(1), Criminal Procedure Code, no further investigation in the case was possible as the Magistrate had already taken cognizance of the offence under section 190(b). The learned Magistrate also considered the scope of a decision of the Andhra Pradesh High Court in The State of Andhra Pradesh v. Golla Ramulu1, wherein in a similar situation the accused persons were handed over to the police custody. But the Magistrate was of the view that after a final report under section 173(1), Criminal Procedure Code, was filed by the police there was no scope of any further investigation in the case and therefore the Magistrate did not comply with the request to remand the accused 1 and 5 to police custody. 4. The learned Counsel for the respondents, who are accused 1 and 5 in the case, contended that though the Division Bench decision reported in Velu Viswanathan v. State2, to which I am a party, is on all fours with the facts of the present case, that decision requires reconsideration in view of the later decision of the Supreme Court in Gouri Shankar Jha v. The State of Bihar3. It does not appear that the decision of this Court is in conflict with the ruling of the Supreme Court 5. There are two provisions in the Code of Criminal Procedure which deal with the matter in question. They are sections 167 and 344. Section 167 gives power to a Magistrate in cases where investigation cannot be completed within 24 hours to authorise the detention of the accused in such custody as such Magistrate thinks fit for a term not exceeding 15 days in all. It is under this provision of law that Magistrates are empowered to remand the accused, whose cases are under investigation, into police custody though it may be noted that if the Magistrate so desires, he may in the very beginning remand the accused to judicial custody or police custody. It is under this provision of law that Magistrates are empowered to remand the accused, whose cases are under investigation, into police custody though it may be noted that if the Magistrate so desires, he may in the very beginning remand the accused to judicial custody or police custody. Section 344, Criminal Procedure Code, applies to cases where a report has been presented to the Court of the Magistrate by the police or where though the report has not been presented, the period of 15 days provided in section 167(2) is over, and investigation is not yet complete, and the police desires that there should be a remand. Under section 344 in one case it is an adjournment as the enquiry or trial is already pending in the Magistrate’s Court, while in the other it is a remand on the ground that sufficient evidence has been obtained to raise a suspicion that the accused might have committed the offence and it appears likely that further evidence may be obtained by a remand. In this regard, it is relevant to quote both the sections. They are as follow: “167. (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 61, and there are grounds for believing that the accusation or information is well founded, the officer-in-charge of the police station or the police-officer making the investigation if he is not below the rank of sub-inspector shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) 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 in the whole. (2) 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 in the whole. If he has no 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: Provided that no Magistrate of the third class and no Magistrate of the second class not specially empowered in this behalf by the State Government shall authorise detention in the custody of the police. (3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing. (4) If such order is given by a Magistrate other than the District Magisstrate or Sub-Divisional Magistrate, he shall forward a copy of his order, with his reasons for making it, to the Magistrate to whom he is immediately subordinate. 344. (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. (1-A) If, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor, from time to time 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: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing. (2) Every order made under this section by a Court other than a High Court shall be in writing signed by the presiding Judge or Magistrate. Explanation.-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 case for a remand”. 6. As pointed out, section 67 lays down the procedure when the investigation cannot be completed in 24 hours. Under sub-section (1) of that section, a person who is arrested and detained in custody is required to be forwarded to the nearest judicial Magistrate within 124 hours fixed by section 61, Criminal Procedure Code, Sub-section (2) then provides that the Magistrate to whom the accused person is forwarded under that section may, whether he has or has not jurisdiction to try the case, from time to time authorise detention of the accused in such custody as such Magistrate thinks fit, for a certain term not exceeding 15 days in the whole. If he has no 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. Sub-section (3) provides that a Magistrate authorising under this section detention in the custody of the police shall record his reasons for doing so. It is the settled position in law that in view of sub-section (2) of section 167, the period of detention in police custody shall not exceed 15 days in the whole. If the accused is produced before a Magistrate having jurisdiction, he can give the accused in the custody of the police for a total number of 15 days and not more. If the investigation is complete, the usual way is to obtain remand under section 344, Criminal Procedure Code. The provisions of section 167 apply to both the Magistrates, one having no jurisdiction to try and the other having jurisdiction to try the case. The first part of sub-section (2) of section 167 deals with the authority of the Magistrate to detain the accused in such custody as the Magistrate thinks fit during the course of the investigation. The custody may be magisterial custody or police custody, but in either case, during the course of investigation the total period cannot exceed 15 days. The first part of sub-section (2) of section 167 deals with the authority of the Magistrate to detain the accused in such custody as the Magistrate thinks fit during the course of the investigation. The custody may be magisterial custody or police custody, but in either case, during the course of investigation the total period cannot exceed 15 days. What applies to a Magistrate having jurisdiction to try the case equally applies to a Magistrate who has no jurisdiction in that regard. The second part of sub-section (2) of section 167 enjoins upon the Magistrate having no jurisdiction to try the case, that if he considers further detention unnecessary he may order the accused to be forwarded to the Magistrate having jurisdiction. This right can be exercised at any time by the Magistrate having no jurisdiction to try the case by forwarding the accused to the Magistrate having jurisdiction. 7. The Supreme Court in Gouri Shankar Jha v. State of Bihar1, dealt with the scope of section 167 as follows: "Section 167 appears in Chapter XIV which deals with information and investigation. As its language shows, it deals with the stage when a person is arrested by the police on information that an offence has been committed. In providing that such a person must in terms of section 61, be produced before a Magistrate within 24 hours, after his arrest the section reveals the policy of the Legislature that such a person should be brought before a Magistrate with as little delay as possible. The object of the section is twofold, one that the law does not favour the detention in police custody except in special cases and that also for reason to be stated by the Magistrate in writing, and secondly, to enable such a person to make a representation before the Magistrate. 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." 8. The scope of section 344 however dealt with by the Supreme Court in the same decision as under: "Section 344, on the other hand, appears in Chapter XXIV which deal with enquiries and trials. The scope of section 344 however dealt with by the Supreme Court in the same decision as under: "Section 344, on the other hand, appears in Chapter XXIV which deal with enquiries and trials. Further, the custody 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 accused person to custody for a term not exceeding fifteen days at a 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." 9. The Supreme Court has also dispelled the notion that section 344 cannot be applied to cases in which the process of investigation and collection of evidence is in progress on the ground that the section occurs in the Chapter dealing with enquiries and trials. The Supreme Court therefore adds the following observation in the same decision: "The fact that section 344 occurs in the Chapter dealing with inquires 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. That is clear from the very language of sub section (1-A) (of section 344), under which the Magistrate has the power to postpone the commencement of the enquiry or trial. That would be the stage prior to the commencement of the enquiry or trial which would be the stage of investigation." 10. The Supreme Court had to consider the parallel question in earlier case which is reported in A. Lakshmana Rao v. Judicial Magistrate, I Class, Parvatipuram1. Regarding the scope of section 344 on the question of remand during the process of investigation of a case the Supreme Court stated as follows in the above case: ”The argument that since section 344 falls in Chapter XXIV, Criminal Procedure Code, which contains general provisions as to enquiries and trials and therefore it cannot apply to a case at the stage of investigation and collection of evidence is negatived 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.“ 11. Section 344 applies to cases where a report under section 173 has been presented to the Court of the Magistrate, or where though such report has not been presented the period of 15 days prescribed in section 167(2) is over, and the investigation is not yet complete, and the police desires that there should be a remand. In one case it is an adjournment as the case is already pending in the Magistrate’s Court, while in the other case it is remand on the ground that sufficient evidence has been obtained to raise a suspicion that the accused might have committed the offence, and it appears likely what further evidence may be obtained by a remand. 12. It is at this stage that we have to consider whether the Magistrate acting under section 344 can switch on to section 167 and order a remand to police custody of accused persons who surrender before the Magistrate before they are apprehended by the police. 13. The fact that a report had been filed by the police under section 173(1), Criminal Procedure Code, is not a bar for further investigation or for filing a supplementary report as against the same accused persons. The police has the right to reopen the investigation even after filing of the charge sheet under section 173, Criminal Procedure Code, if fresh facts come to light. I think the law is well settled that the police has the right to reopen the investigation even after submission of the charges under section 173, Criminal Procedure Code if fresh facts come to light. (See-Divakar Singh v. Ramamurthi Naidu2, Mohinder Singh v. Emperor3, Hanumantha Gowd v. Official Receiver, Bellary4; Mohammed Niwaz v. The Crown5, Prosecuting Inspector, Keonjhar v. Minaketan Mahato6, Raghunath Sharma v. The State7. In this regard it is relevant to point out the observation in Rama Shanker v. The State of Uttar Pradesh8. (See-Divakar Singh v. Ramamurthi Naidu2, Mohinder Singh v. Emperor3, Hanumantha Gowd v. Official Receiver, Bellary4; Mohammed Niwaz v. The Crown5, Prosecuting Inspector, Keonjhar v. Minaketan Mahato6, Raghunath Sharma v. The State7. In this regard it is relevant to point out the observation in Rama Shanker v. The State of Uttar Pradesh8. It is as follows: ”An investigating officer is required by section 173 of the Code to submit a charge-sheet, but this does not render his act of submitting a charge sheet a judicial act. A Court has not judicial control over the investigations and over the manner or the circumstances, in which an investigating officer makes his report under section 173. An investigating officer’s act is wholly administrative. There is, therefore, nothing to prevent his submitting another report in supersession of an earlier one. He can do it on his own initiative, or under direction of the Superintendent of Police or the District Magistrate......... Hence no illegality is committed by an investigating officer in submitting a charge-sheet after previously submitting a final report.“ The observation in Prosecuting Inspector, Keonjhar v. Minaketan Mahato1, may also be seen: ”The police have the right to reopen investigation even after submission of charge-sheet under section 173, Criminal Procedure Code if fresh facts come to light. Such fresh investigation can be made even after commitment proceeding had commenced and even after commitment proceeding had terminated.“ 14. That the accused persons shall not be handed over to the police even after the case went on trial is not an invariable rule as it is pointed out in State v. Sukhsingh2, that if the police, in order to complete the investigation of the case, requires to question the accused in respect of another ease pending against him, the Court was competent to hand over the accused to the police when he is already in judicial custody in respect of another case. Wanchoo C.J., (as he then was), in the above decision, made the following observation as to the necessity to hand over the accused to police custody in respect of another case pending against him while he is already in the judicial custody. It is stated: “Supposing a person is accused of one offence, and investigation of that case is complete and the challan has been submitted to Court, he will, in these circumstances, be sent to jail or to judicial custody to await his trial. It is stated: “Supposing a person is accused of one offence, and investigation of that case is complete and the challan has been submitted to Court, he will, in these circumstances, be sent to jail or to judicial custody to await his trial. Supposing later evidence is discovered of his complicity in another case, and the police in order to complete the investigation of the case requires to question the accused, or the handing over of the accused to police custody would aid the investigation in some way, in such a case we fail to understand why it may not be open to a Magistrate under section 167(2) to take the accused out of jail or judicial custody and band him over to the police for the maximum period of 15 days provided in that section. Of course, before the Magistrate does so, he will have to satisfy himself that a good case is made out for detaining the accused in police custody in connection with the investigation of the other case.” 15. It does not appear from the wording of sections 167 and 344, Criminal Procedure Code that the power of the Magistrate is in any way curtailed under section 344 in passing an order of remand to whatever custody he thinks fit. It is pointed out in In re, M.R. Venkataraman and others3, that the absence of the words “as he thinks fit” in section 344 would indicate that the Magistrate has the same freedom as in section 167 to remand the accused to whatever custody in the circumstances of each case even after the charge is filed. The opinion of Horwill, J., who spoke for the Division Bench in the above ruling is as follows: “Section 344 does not use the words ‘as he thinks fit’ with regard to the order of remand; but there is nothing in the section which suggests that after a charge sheet has been filed, the Magistrate has not the same freedom with regard to the custody to which he commits the accused as he had before a charge sheet was filed......Whenever an accused is brought before the Court and the Court issues an order of remand, the Magistrate has complete freedom, as far as we can see, to remand the accused to whatever custody he thinks fit.” 16. The next question for consideration is whether the decision of this Court in Vela Viswanathan v. State4, requires reconsideration. The learned Counsel of the respondents has relied upon the observation at page 569 in Gouri Shanker Jha v. The State of Bihar5. It is as follows: ”The object of the section (Section 167, Criminal Procedure Code) is two-fold, one that the law does not favour detention in police custody except in special cases and that also for reason to be stated l. A.I.R. 1952 Orissa 350. by the magistrate in writing, and secondly, to enable such a person to make a representation before a magistrate. 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 inquiry or a trial begins it is not proper to let the accused remain under police influence. Under this section, a magistrate can remand an accused person to custody for a term not exceeding fifteen days at a 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." 17. The relevant conclusion in Velu Viswanathan v. State1, by Raghavan, J. (as he then was), to which I am a party, is stated as follows: "In cases where the accused persons were not arrested by the police, but surrendered before magistrate, the taking into custody of such persons by the magistrate (it is not called a remand) was really under section 167 of the Code. Otherwise, a person who absconds and surrenders before a magistrate without allowing himself to be arrested by the police cannot be questioned at all by the police. The Legislature would never have intended such a consequence. The magistrate has also power to arrest a person suspected of an offence. If so, where the accused persons surrendered before magistrates and where the magistrates took them into custody, the taking into custody is under section 167. The Legislature would never have intended such a consequence. The magistrate has also power to arrest a person suspected of an offence. If so, where the accused persons surrendered before magistrates and where the magistrates took them into custody, the taking into custody is under section 167. It must then follow that the police are entitled to request the magistrates under the same section to give custody to them of the persons for questioning. Simply because there is a possibility of the police compelling the accused persons to give out incriminating material, their right to question them cannot be denied." 18. This decision was based upon the facts and circumstances of that case. In that case too, the accused persons were absconding and they surrendered to the Court for the first time in which case this Court stated that the accused persons shall be deemed to have been taken into custody under section 167, Criminal Procedure Code. It followed that the police would be entitled to request the Magistrate under the same section to give the accused into police custody for questioning. 19. It cannot be argued that he 15 days’ period of remand as required by section 167, Criminal Procedure Code, in respect of accused 1 and 5 had already been exhausted and therefore the could not therefore be remanded under that section even if the Court purported to act under it. But in the facts and circumstances of this case the accused 1 and 5 were deemed to have been produced before the Court for the first time under section 167. It may be noted that the Supreme Court in the aforesaid decision did not envisage the procedure under section 344, Criminal Procedure Code, confined only to inquiries and trials but it stated that it did apply to cases in which process of investigation and collection of evidence was still going on. What the Supreme Court had in mind in Gouri Shankar Jha v. State of Bihar2, when it stated that "the custody which is (section 344) speaks of is not such custody as the Magistrate thinks fit as in section 167, but only judicial custody, the object being that once an enquiry or trial beings it is not proper to let the accused remain under police influence", was clear that the toboo was against putting the accused in police custody after the enquiry or trial had begun. So the decision reported in the above Supreme Court cases is not inconsistent with the decision of this Court which deals with a different aspect of the case. This Court’s view has also found concurrence in decision of the Andhra Pradesh High Court in State of Andhra Pradesh v. Golla Ramulu1. There is therefore no illegality in the circumstances of the case to permit the Magistrate to hand over these accused persons to police custody as they surrendered in Court before they are apprehended by the police. 20. If the police required no permission of the Committing Magistrate for reopening the investigation before or after commitment proceeding had begun and the Magistrate had no jurisdiction to to disallow further investigation, it can be said that an accused person who surrendered before the Court for the first time whether the charge is filed or not against him, could be made over to the police in furtherance of process of investigation. Such an accused person cannot be heard to say that the 15 days’ remand contemplated under section 167 is terminated so far as he is concerned or that the charge has already been filed against him and others so that he can be dealt with only under section 344. If a Magistrate having jurisdiction to try a case has the right to remand one of the accused persons to police custody under section 167 before a trial or enquiry begins, I do not know how that right cannot be exercised by the same Magistrate in respect of another accused person who surrenders for the first time in that Court before such enquiry or trial begins in the case. That the Magistrate has already allowed remand for the maximum period of 15 days in the case of one accused under section 167 will not be an answer in the case of another accused who surrenders before him. But the Court which is to pass the order of remand in respect of such an accused perron must be on guard to record reasons for remand. The discretion vested by law Upon the Magistrate under section 167(2) and (3) has to be exercised judicially on well recognised principles. Order of remand being a judicial one it is required to be exercised on general principles guided by rules of reason and justice on the facts of each case. The discretion vested by law Upon the Magistrate under section 167(2) and (3) has to be exercised judicially on well recognised principles. Order of remand being a judicial one it is required to be exercised on general principles guided by rules of reason and justice on the facts of each case. One cardinal principle to be noticed is that detention shall be allowed only in special cases and for reasons recorded and not as a matter of course whenever asked, the object being that the Magistrate shall consider whether on facts there are good grounds. Remand without recording reason may gravely prejudice the accused. 21. The learned Magistrate in the instant case did not consider the case on merits, whether there is sufficient ground to hand over accused 1 and 5 to the police custody. That is a matter purely in the discretion of the Magistrate taking into consideration the gravity of the offence, the nature of the charge, the are of investigation, antecedents of the accused, and all other relevant factors including the facts and circumstances of the case. The Magistrate will therefore consider whether the accused 1 and 5 should be handed over to the police or not in the particular facts and circumstances of the present case. 21. In the result, in allowing the revision petition, the order passed by the Magistrate is set aside. The petition to hand over the accused 1 and 5 is remitted to the Sub Magistrate, Irinjalakuda, for appropriate order to be passed in the circumstances of the case after hearing both sides. M.C.M. ----- Order accordingly.