JUDGMENT 1. - Both these petitions have been filed by the petitioner Ashok Dhariwal, under section 482 Cr.P.C. in the following circumstances: On 29th April, 1981, one Kailash Chand Jain lodged a report at police station Mahamandir, Jodhpur wherein it was alleged that his sister Smt. Hansarani, wife of the petitioner was admitted in the Mahatma Gandhi hospital with burn injuries, on 28th April, 1981 at 4 a.m and that the said Smt. Hansarani had died on 29th April, 1981 at 5.05 p.m. in the said hospital. In the said report it was stated that the informant suspected that the burning of Smt. Hansarani was not accidental and that she was a victim of the evil practise of dowry. On the basis of the aforesaid report the police made enquiries and a case under section 302 IPC was registered at police station Mahamandir. The police, after completing the investigation in the case, submitted a report (charge sheet) dated 9th June, 1981 in the court of Judicial Magistrate No. 3, Jodhpur. In the said charge sheet it was stated that offences under sections 302, 201 & 120B IPC were disclosed against the petitioner and Kanmal Dhariwal and Miss. Lalita Dhariwal and the offence under section 201 and 120B IPC were disclosed against Amrit Raj Dhariwal. In the said report it was also stated that Kanmal Dhariwal and Amrit Raj Dariwal were on bail and that the petitioner and Miss. Lalita Dhariwal were avoiding arrest. According to the said report the challan was being submitted against accused Kamal and Amrit Raj & the names of the petitioner & Miss Lalita Dhariwal were shown in the column relating to the names of accused who were not being challenged for the reason that they had not been arrested. On the basis of the aforesaid charge sheet the Judicial Magistrate took cognizance of the offences as disclosed in the charge sheet. Subsequently a supplementary charge sheet was filed by the police against Miss. Lalita Dhariwal. By order dated 30th September, 1982, the Judicial Magistrate committed the ease for trial to the court of Sessions Judge, Jodhpur. While the case was pending before the Sessions Judge, the petitioner surrendered himself before the Court of Sessions Judge, Jodhpur on 5th January, 1983 and he was sent to Judicial custody. Lalita Dhariwal. By order dated 30th September, 1982, the Judicial Magistrate committed the ease for trial to the court of Sessions Judge, Jodhpur. While the case was pending before the Sessions Judge, the petitioner surrendered himself before the Court of Sessions Judge, Jodhpur on 5th January, 1983 and he was sent to Judicial custody. Thereafter the petitioner moved an application for bail under section 439 Cr.P.C. The Sessions Judge, Jodhpur by his order dated 6th January, 1983, rejected the said bail application submitted by the petitioner. While rejecting the bail application the Sessions Judge directed the concerned police station and the Magistrate to take appropriate action in accordance with law with regard to the petitioner. After the passing of the aforesaid order dated 6th January, 1983 by the Sessions Judge, Jodhpur, the Addl. S.P., CID(CB), Jodhpur submitted an application dated 7th January, 1983 before the Judicial Magistrate No. 3. Jodhpur wherein it was prayed that the petitioner be remanded in police custody for the ten days as it was necessary to make investigation from the petitioner and to recover certain articles from him. On the said application the Judicial Magistrate passed an order dated 7th January, 1983 for production of the petitioner before him along with the papers on 11th January, 1983. Thereupon the petitioner filed these petitions in this Court under section 482 Cr.P.C. In S.B. Criminal Misc. application No. 12/83, the petitioner has prayed that the direction contained in the order dated 6th January, 1983 passed by the Sessions Judge, Jodhpur directing the concerned police station and the Magistrate to pass appropriate orders in accordance with law in connection with the petitioner be quashed. In S.B. Criminal Misc. application No. 13/83, the petitioner has prayed that order that was passed by the Judicial Magistrate on the application submitted Before him by the Addl. S.P., CID(CB), Jodhpur on 7th January, 1983 and the proceedings pending before the said Magistrate on the basis of the said application be quashed. 2. At the stage of admission of these petitions, the learned Public Prosecutor entered appearance on behalf of the State and opposed the applications. Both Shri Choudhary and the learned Public Prosecutor submitted that the petitioner may be heard and finally disposed of at the stage of admission itself. 2. At the stage of admission of these petitions, the learned Public Prosecutor entered appearance on behalf of the State and opposed the applications. Both Shri Choudhary and the learned Public Prosecutor submitted that the petitioner may be heard and finally disposed of at the stage of admission itself. Arguments of the learned counsel were, therefore, heard on these applications on the basis that they have to be finally disposed of at the stage of admission. 3. Shri P.L. Choudhary, the learned counsel for the petitioner, has submitted that in case where a report under section 173(2) Cr. P.C. has been filed by the police and after taking into consideration the said report, the Magistrate has taken cognisance of the offences disclosed in the said report the only power that can be exercised in the matter of remanding as accused to 309 Cr. P.C. and that the provisions of section custody is that contained in section 167 Cr. P.C. which empower a Magistrate to remand the accused to custody during the course of investigation cannot be invoked. Shri Choudhary has submitted that section 308 does not contemplate remanding an accused to police custody and that the only custody which is contemplated under section 309 is judicial custody. According to Shri Choudhary in the present case the police had submitted a report under section 173(2) Cr. P.C. disclosing offences under sections 302, 201 and 120B against the petitioner and the Judicial Magistrate, after taking cognisance of the offences disclosed in the said report, had committed the case to the court of the Sessions for trial and thereafter an order for remand to custody could only be passed under section 309 Cr.P.C. and the petitioner could only be remanded to judicial custody and no order for remand of the petitioner to police custody can be passed. In support of his aforesaid submission Shri Choudhary has placed reliance on the decision of a Division Bench of the Andhra Pradesh High Court in State v. G C Raw (1974 Cr. L J 1424) as well as the decision of the Supreme Court in Gauri Shankar Jha v. State of Bihar (AIR 1972 SC. All.) and Katabar Parida v. State of Orissa ( AIR 1975 SC 1465 ) . 4. L J 1424) as well as the decision of the Supreme Court in Gauri Shankar Jha v. State of Bihar (AIR 1972 SC. All.) and Katabar Parida v. State of Orissa ( AIR 1975 SC 1465 ) . 4. The learned Public Prosecutor, on the other hand, has submitted that gone the accused is before the magistrate, the magistrate is competent to pass an appropriate order remanding him to custody and while doing so the Magistrate may remand him to judicial custody or to police custody. The learned Public Prosecutor has further submitted that in the present case no challan has been filed by the police against the petitioner and the challan that was filed was against accused Kanmal Dhariwal and Amrit Raj Dhariwal only and, therefore, the provisions of section 309 Cr. P.C. are not applicable to the case of the petitioners and he is to be remanded to custody in accordance with the previsions of section 167 Cr. P.C The learned Public Prosecutor has submitted that under section 167 Cr. P.C. it is open to the magistrate to pass an order with regard to the custody in which the accused should be kept and, therefore, it is competent for the Judicial Magistrate to pass an appropriate order remanding the petitioners to the police custody on the basis of the application dated 7th January, 1983 submitted by the Addl. S.P. The learned Public Prosecutor has, therefore, submitted that the impugned directions contained in the order dated 6th January, 1983 passed by the Sessions Judge as well as the proceedings that are pending before the Judicial Magistrate, on the basis of the application dated 7th January, 1983 submitted by the Addl. S.P., are valid. 5. In view of the aforesaid submissions, the following two questions arise for consideration in this case: (i) Whether an order for the remand of the petitioner to custody is governed by the provisions of section 167 Cr.P.C. or such an order can only be passed under section 309 Cr.P.C.? (ii) While passing an order for remand under section 309 Cr.P.C. is it open to the court to remand the accused to police custody? 6. In so far as the first question is concerned, there is no dispute that the charge sheet dated 9th June 1982, submitted by the police was a report submitted by the police under sub-section (2) of section 173 Cr. 6. In so far as the first question is concerned, there is no dispute that the charge sheet dated 9th June 1982, submitted by the police was a report submitted by the police under sub-section (2) of section 173 Cr. P.C. In the said report the Investigating Officer after completing the investigation, has stated that on account of Smt. Hansarani having brought less dowry and having filed to make up the said deficiency in dowry the petitioner, Shri Kanmal Dhariwal and Kumari Lalita Dhariwal had entered into a conspiracy to commit the murder of Smt. Hansarani and obtain dowry by performing the second marriage of the petitioner and that in the pursuance of the aforesaid conspiracy Smt. Hansarani was murdered by burning and that Amritraj had entered into a conspiracy with the aforesaid three persons for destroying the important evidence in connection with the said crime. According to the said report offences under sections 302, 201 and 120B IPC were disclosed against the petitioner, Kanmal. Dhariwal and Km. Lalita Dhriwal and offences under sections 201 and 120B IPC were disclosed against Amritraj Dhriwal and in the said report it was prayed that legal proceedings be taken. In the said report it was also stated that out of the four accused persons Kanmal Dhriwal and Amritraj Dhariwal were on bail and the other two accused persons viz, the petitioner and Km Lalita were avoiding arrest and were absconding In the said report the names of accused Kanmal Dhariwal and Amritraj Dhariwal were shown in column No. 3 relating to names of accused persons who were being challenged and the names of the petitioner and Km. Lalita were shown in column No. 2 relating to the names of accused persons who were not being challaned for the reason that they had not been arrested and were absconding. It is also not disputed that after the filing of the aforesaid charge sheet before him, the Judicial Magistrate No. 3, Jodhpur, took cognisance of the offences disclosed in the said report in exercise of the powers conferred on him under section 190(1) (b) Cr. P C. and thereafter by order dated 30th September, 1982 the judicial Magistrate in exercise of his powers under section 209 Cr. P.C., committed that case for trial to the court of Sessions Judge, Jodhpur. P C. and thereafter by order dated 30th September, 1982 the judicial Magistrate in exercise of his powers under section 209 Cr. P.C., committed that case for trial to the court of Sessions Judge, Jodhpur. it is true that in the charge sheet dated 9th June, 1982 it was stated that the petitioner was not being challaned. But in my opinion that is of no consequence in the matter of taking of cognizance because it is settled law that under section 190 Cr.P.C. the magistrate takes cognizance of the offences and not of the offenders According to the charge sheet dated 9th June, 1982,offences under secs, 302, 201 and 120B IPC were Disclosed and the Judicial Magistrate took cognizance of the said offences and thereafter he committed the case for trial to the court of Sessions Judge,Jodhpur under section 209 Cr.P.C. Once it is found that the Judicial Magistrate had taken cognizance of the offences under section 190 Cr.P.C. the provisions of section 167 Cr.P.C. would cease to be applicable because the legal position is well settled that after the magistrate has taken cognizance under section 190 Cr.P.C. the accused can be remanded to custody under section 309 Cr. P C. or under section 209 Cr.P.C. and section 167 Cr.P.C. can have no application In this context, reference may he made to the decision of the Supreme Court in Natabar Parida v. State of Orissa (supra) wherein it has observed:- "It is also clear that after the taking of the cognizance, the power to remand is to be exercised under section 309 of the New Code". In Beni Madhava v. State of Rajasthan (1982 Rajasthan Criminal Cases, 145) the relevant provisions of sections 167, 209 and 309 Cr. P C. (new) have been considered and it had been observed that the provisions of section 167 which empower the remand of the accused can be invoked only during the period the police is investigating the case and that after the investigation has been completed and the cognizance of the offence has been taken by the magistrate under section- 190 Cr. P.C. the accused person can be remanded to custody only under the provisions of secs 309 or 209 Cr P.C. 7. P.C. the accused person can be remanded to custody only under the provisions of secs 309 or 209 Cr P.C. 7. I am, therefore, unable to accept the contention of the learned Public Prosecutor that in view of the charge sheet dated 9th June, 1981, it cannot be said that the cognizance has been taken of the offence as against the petitioner and that the provisions of section 167 are applicable into far as the petitioner is concerned. In my view since cognizance of the offences disclosed in the charge sheet has been taken on the basis of the report submitted under sub-section (2) of section 173 Cr. P.C there is no question of taking further cognizance as against the petitioner and, therefore, the provisions of section 167 can have no application and the order for the remand of the petitioner to custody can be passed only under section 309 Cr. P.C. 8. The next question which arises for consideration is whether while remanding an accused to custody the court can remand him to police custody under section 309 Cr. P.C. In Gauri Shankar v. State of Bihar (supra) the Supreme Court while dealing with the provisions contained in the Code of Criminal Procedure, 1898 (Old Code) has observed:- "Section 167 appears in Ch 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 S. 6, 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 two fold, one that the law does not favour detention in police custody except in special cases and that also for reasons to be stated 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 a, the most of 15 days in the whole and such custody can be either police or jail custody. Section 344, on the other hand, appears in Ch. XXIV which deals with inquiries and trials. In cases falling, under section 167, a magistrate undoubtedly can order custody for a period a, the most of 15 days in the whole and such custody can be either police or jail custody. Section 344, on the other hand, appears in Ch. XXIV which deals 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 15 days at a time provided that sufficient evidence has been collected to raise a suspiction that such an accused person may have committed an offence and it appears likely that further evidence may be obtained by granting a remand". In State v. G.C. Rao (supra) a Division Bench of the A.P. High Court has considered the question as to whether while remanding the accused to custody under section 344 Cr.P.C. (old) the Court had the power or discretion to remand him to police custody. In that case there were 19 accused persons out of whom some were absconding on the date of the filing of the charge sheet and after the filing of the charge sheet some of those accused persons, who were absconding, surrendered themselves before the court and they were remanded to judicial custody. Subsequently the police moved the magistrate seeking police custody of the accused persons for investigation with regard to them. The said application was dismissed by the magistrate and the matter was taken to the High Court. Before the High Court it was submitted on behalf of the State that if it was held that police custody could not be given in cases where 344 Cr.P.C. become applicable the result would be that in some cases the investigation would be inadequate and claver accused would surrender to the Court directly after the charge sheet has been filed and thus deprive the police of the opportunity of conducting a through enquiry into the offence in so far as they were concerned. The learned Judge of the A.P. High Court did not accept the aforesaid contention in view of the provisions contained in sections 61 sub-section (2) of section 167 and section 344 of the old Code. The learned Judges pointed out that under section 6l of the old Code, which empowered an accused to be detained in police custody, reference was made to section 167 and these was mention of section 344, and, therefore, a person could be kept in police custody for a period more than 24 hours only under an order of remand passed under section 167 Cr. P.C. and not under section 344 Cr. P.C. In arriving at the aforesaid conclusion the learned Judges have placed reliance on the decision of the Supreme Court in Gauri Shankar Jha v. State of Bihar (supra). 9. In the new Code section 57 reproduced the provisions contained in section 61 of the old Code and it provides that no police officer shall de,tain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a magistrate under section 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the magistrate's court. In other words, section 57 postulates detention of a person in police custody beyond 24 hours only in cases where there is a special order of the magistrate under section 167 Cr. P.C. There is no mention of section 309 Cr. P.C. (which is in part materia with section 344 of the old Code). Moreover, in the new Code it has been expressly provided in clause(a) of the proviso to sub-section (2) of section 167 Cr. P.C. that the magistrate may authorise the detention of the accused person, otherwise than the custody of police, beyond the period of 15 days if he is satisfied that adequate grounds exists for doing so. In other words, under the aforesaid clause of the proviso the maximum period for which an accused person can be detained in police custody under section 167 Cr. P.C. is 15 days. In other words, under the aforesaid clause of the proviso the maximum period for which an accused person can be detained in police custody under section 167 Cr. P.C. is 15 days. The principles laid down by the Supreme Court in Gauri Shankar v. State of Bihar (supra) which have been followed by the A.P. High Court in State v G.C. Rao (supra) are, in my opinion, fully applicable to orders of remand passed under section 309 of the new Code and while remanding the accused to custody under section 309 Cr. P C. or 209 the court concerned can only remand him to judicial custody and cannot remand him to police custody. 10. The learned Public Procedure has placed reliance on the decision of a Division Bench of the Delhi High Court in State (Delhi Administration) v. Dharmpal (1982 Cr. L.J. 1103) In my view the aforesaid decision can have no application to the present case because in that case the court was dealing with the powers of remand of as contained in section 167(2) and in that context it has been laid down that while remanding an accused to custody it will be open to change the custody from judicial to police custody for the purpose of investigation during the first fifteen days after his arrest as mentioned in section 167(2) of the new Cede and that after the expiry of the 15 days the accused shall only be kept in judicial custody or in any other custody as ordered by the magistrate but not in the custody of the police. In the present case, as held earlier, the provisions of section 167 Cr. P.C. are not applicable and that order for the remand of the petitioner can only be passed under section 309 Cr. P.C. 11. The learned Public Prosecutor has also referred to the decision of the Supreme Court in Niranjan Singh v. Prabhakar (1980 Cr. L.J. 426) . In that case the Supreme Court has defined custody for the purpose of section 439 Cr. P.C. The aforesaid decision in my view has no relevance to the question as to whether an order remanding an accused to police custody can be passed under section 309 Cr. P C. and the said decision has, therefore, no application to the present case. 12. P.C. The aforesaid decision in my view has no relevance to the question as to whether an order remanding an accused to police custody can be passed under section 309 Cr. P C. and the said decision has, therefore, no application to the present case. 12. For the reasons aforesaid, it must he held that the petitioner can be remanded to custody only under section 309 Cr. P.C. and under section 309 Cr. P.C it is not open the court to remand the accused to police custody The direction contained in the last portion of the order dated 6th January, 1983 passed by the Sessions Judge, Jodhpur whereby the concerned police station and the Magistrate have been directed to take proceeding in accordance with the law in connection with the petitioner postulates that the police authorities may move and the Magistrate may pass orders for remanding the petitioner to police custody and, therefore, the said direction cannot be upheld in so far as it permits such a course. For the same reason the application dated 7th January, 1983 that has been submitted by the Addl. S.P. CID(CB), Jodhpur in the court of Judicial Magistrate No. 5 Jodhpur and the proceedings that are pending before the Judicial Magistrate on the basis of the said application are liable to be quashed. 13. In the result S.B. Criminal Misc. application No. 12/83 is partly allowed to the extent that it is declared that the direction that has been given by the Sessions Judge, Jodhpur in his order dated 6th January, 1982 on criminal misc. application No. 4/83 directing the concerned police station and the Magistrate to take action in accordance with law relating to the petitioner would not empower the police authorities to move or the Magistrate to pass an order remanding the petitioner to police custody. S.B. Criminal Misc. application No. 13/83 is allowed and the proceedings that are pending before the Judicial Magistrate No. 3 on the basis of the application dated 7th January, 1983 submitted by the Addl. S.P. CID (CB), Jodhpur seeking the remand of the petitioner to police custody are quashed. It is however, made clear that this order will not preclude the police authorities from making further investigation from the petitioner while in judicial custody and from seeking the necessary directions in that regard from the court concerned.Application party allowed. *******