STATE OF GUJARAT v. VELO ALIAS KASAM JUSAB — 1985 DIGILAW 4 (GUJ)

M. B. SHAH, J. ( 1 ) BEING aggrieved and dissatisfied by the judgment and order dated 11/09/1984 passed by the Sessions Judge Rajkot in Criminal Revision Application No. 391 of 1984 releasing the respondent on bail under sec. 167 (2) of the Criminal Procedure Code on the ground that the Chief Judicial Magistrate has not passed any orders keeping the respondent accused in Jail custody. the State has filed this Revision Application. ( 2 ) AGAINST the respondent-accused the A. I. R. was lodged for the offence punishable under sec. 307 read with secs. 147 148 and 114 of the Indian Penal Code before Pradyumannagar Police Station Rajkot city. The respondent was arrested and thereafter produced before the Chief Judicial Magistrate on 3/07/1984 The learned Magistrate issued warrant sending the accused to the judicial custody and he was ordered to be produced before the Court on 1 2/07/1984. On 1 2/07/1984 the matter was adjourned and the learned Magistrate ordered that the accused should be produced on 24/07/1984 On 24th July 1984 again t the matter was adjourned and the learned Magistrate directed the Jail authorities to produce him on 6/08/1984 Again the matter was adjourned to 16/08/1984 and the accused was directed to be produced on 29/08/1984 On 29th August 1984 the matatter was adjourned to the September 0. 1984 and the warrant was issued to produce the accused on 21/09/1984 ( 3 ) AS per the affidavit filed by Shri O. R. Sharma Police Sub-Inspector Pradyumannagar Police Station Rajkot city who investigated the case against the respondent-accused on 13/09/1984 the charge-sheet was submitted against the accused for the offences punishable under sec. 307 read with secs. 147 148 149 of the I. P. C. It has been further pointed out that against the accused another case was registered for the offences punishable under secs. 302 147 148 149 324 326 read with sec. 34 of the I. P. C. and also under secs 37 and 135 of the Bombay Police Act and for the offence punishable under sec. 95 (c) of the Indian. Arms Act. In that case the accused was released bail by the Court on 29th or 30/06/1984 Thereafter on the next day that is on July. 1984 it is alleged that the accused) committed the aforesaid offence by causing serious injuries on the victim. 95 (c) of the Indian. Arms Act. In that case the accused was released bail by the Court on 29th or 30/06/1984 Thereafter on the next day that is on July. 1984 it is alleged that the accused) committed the aforesaid offence by causing serious injuries on the victim. It has been further pointed out that the accused had filed Criminal Miscellaneous Application No. 250 of 1984 before the Sessions Court for bail which was rejected on 26/07/1984 Again he had moved the learned Chief Judicial Magistrate. Rajkot to release him on bail by an application dated 27/08/1984 which was also rejected on 1/09/1984 ( 4 ) THEREAFTER the respondent-accused filed the aforesaid Criminal Revision Application No. 321 of 1984 before the learned Sessions Judge on 5/09/1984 which is granted by him on 11/09/1984 The learned Sessions Judge who heard the application considered that after the accused was produced before the learned Magistrate the matter was adjourned from time to time and he was sent to Jail custody No report was submitted by the public prosecutor requesting that the accused should be kept in judicial custody nor any such order was passed by the learned Chief Judicial Magistrate. Therefore it cannot be said that there were sufficient reasonable grounds to keep the accused in jail custody. He held that the Chief Judicial Magistrate committed an error of law in not following the procedure prescribed under sec. 167 (2) of the Criminal Procedure Code and therefore the learned Sessions Judge released the accused on bail. ( 5 ) THE learned Public Prosecutor appearing on behalf of the State vehemently submitted that when F. I. R. was submitted to the learned Magistrate alleging that the accused has committed an offence punishable under sec. 307 read with secs. 147. 148 and 149 of the Indian Penal Code it was not necessary for the learned Magistrate to pass a speaking order every now and then that the accused should be kept in judicial custody. He further pointed out that it was an admitted fact that the application filed by the respondent-accused for releasing him on bail were rejected by the Chief Judicial Magistrate and the Sessions Judge. In this set of circumstances it was not necessary for the learned Magistrate to pass an order that the accused should be kept in judicial custody. He further pointed out that it was an admitted fact that the application filed by the respondent-accused for releasing him on bail were rejected by the Chief Judicial Magistrate and the Sessions Judge. In this set of circumstances it was not necessary for the learned Magistrate to pass an order that the accused should be kept in judicial custody. He pointed out that on 3/07/1984 the Investigating Officer produced the accused with a report that the accused should be kept in the judicial custody. It was stated that on 2/07/1984 at about 5-00 P. M. the accused were arrested and as the arrest period was likely to over the accused may be taken in the judicial custody. On that report the learned Magistrate has passed an order that at 4 P. M. the accused were produced before him and that they have not complained that they were harassed or illegally detained. They were accepted in the judicial custody. It is true that this order is rubber-stamped order and blanks are filled in. After the accused were produced before him as stated above a warrant was sent to the Jailor District Jail Rajkot staling that the respondent against whom there were allegations for the offence punishable under secs. 307. 147 and other offences be kept in jail and for the verification of the offences the matter was adjourned to 12/07/1984 He ordered that the accused should be produced before the Court on that day at 11-00 A. M. This warrant is also in the prescribed form. The New Criminal Procedure Code came into force force in the year 1974 and yet the lower courts are using the forms prescribed under the Old Criminal Code to which the learned advocate for the respondent took serious objection submitting that this was clear non-application of mind en the part of the learned Magistrate because the from was under sec. 341 of the Criminal Procedure Code. ( 6 ) THEREAFTER the accused was produced before the Court and on the warrant the learned Magistrate merely signed it stating that the matter was adjourned on a particular date. 341 of the Criminal Procedure Code. ( 6 ) THEREAFTER the accused was produced before the Court and on the warrant the learned Magistrate merely signed it stating that the matter was adjourned on a particular date. ( 7 ) NOW the questions which arise for consideration are (i) whether the learned Magistrate was required to pass any speaking order and (ii) whether the concerned Investigating Officer or the Public Prosecutor was required to file repeated applications whenever accused was produced before the Magistrate praying that the accused should be kept in the judicial custody under the provisions of sec. 167 (9) of the Criminal Procedure Code. ( 8 ) UNDER the Criminal Procedure Code power is given to the Police officer to arrest without warrant any person if that person has committed any cognizable offence as provided in sec. 41 of the Criminal Procedure Code. Sec. 41 (1) (a) to (i) empowers the police officer to arrest without warrant any person who has been concerned in any cognizable offence. Sub-sec (2) of sec. 41 empowers an officer in charge of a police station to arrest any person belonging to one or more of the categories of persons specified in sec. 109 or sec. 110 of the Code. Under sec. 57 of the Code such arrested person cannot be detained in police custody for a longer period than under all the circumstances of the case is reasonable and in no case such period shall exceed twenty-four hours exclusive of the time necessary for journey from the place of arrest to the Magistrates Court. During that time the arrested person is required to be produced before the Magistrate. Under sec. 167 (1) whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within a period of twenty-four hours fixed by sec. 57 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 is required to produce before the nearest Judicial Magistrate a copy of the entries in the diary relating to the case and also to produce the accused before the Magistrate. As sub-sec. (2) of sec. 167 is material for deciding the matter it is reproduced as under:"167 (2)The Magistrate to whom an accused person is forwarded under this section may. As sub-sec. (2) of sec. 167 is material for deciding the matter it is reproduced as under:"167 (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 and 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- (a) The Magistrate may authorise the detention of the accused person otherwise than in the custody of the police beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding (i) Ninety days where the investigation relates to an offence punishable will death imprisonment for life or imprisonment for a term of not less than ten years: (ii) Sixty days where the investigation relates to any other offence and on the expiry or the said period of ninety days or sixty days as the case may be the accused person shall be released on bail if he is prepared to and does furnish bail and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes Or that Chapter; (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; (c )no Magistrate of the second class not specially empowered in this behalf by the High Court shall authorise detention in the custody of the police. Explanation I : - x - x - x - x -. Sub-sec. (2 ). therefore provides that when the accused is produced before the Magistrate under sub-sec. (1) then he is entitled to authorise the detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding fifteen days in the whole. Such custody would mean either judicial custody or police custody. At that stage the Magistrate may have jurisdiction to try the case may not have jurisdiction to try the case. (1) then he is entitled to authorise the detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding fifteen days in the whole. Such custody would mean either judicial custody or police custody. At that stage the Magistrate may have jurisdiction to try the case may not have jurisdiction to try the case. If he has no jurisdiction to try the case or commit it for trial and considers further detention of the accused unnecessary he may order the accused to be forwarded to a Court having jurisdiction to try the case or commit lit for trial. ( 9 ) PROVISO to the aforesaid sub-sec. (2) of sec. 167 of the Code carves out an exception. It empowers the Magistrate to authorise the detention of the accused-person otherwise than in the custody of the police beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so. It also prescribes maximum period of such detention. It states that where the investigation relates to an offence punishable with deaths imprisonment for life or imprisonment for a term of not less than ten years then the Magistrate is empowered to authorise to detain the accused-person in the judicial custody for a total period not exceeding ninety days and where the investigation relates to any other offence the total period for which the accused can be detained is sixty days. After the aforesaid period of ninety days or sixty days as the case may be is over. The accused-person is entitled to be released on bail if he is prepared to and does furnish the bail. Explanation I clarifies that the accused-person shall he detained in the custody so long as he does not furnish bail. This would indicate that his further detention would not be illegal and he can be detained in judicial custody. till he furnishes bail. ( 10 ) THIS sub-sec. (2) of sec. 167 howhere provides that the investigating Officer is required to file an application or that the Magistrate is required to pass any speaking order stating that such accused should he detained in the judicial custody. It only provides that when the accused is produced before the Magistrate the Magistrate may authorise the detention of the accused if he is satisfied that adequate grounds exist for detaining him in the Judicial custody. It only provides that when the accused is produced before the Magistrate the Magistrate may authorise the detention of the accused if he is satisfied that adequate grounds exist for detaining him in the Judicial custody. He is not required to pass any speaking order that from the material which was produced before him or from the F. I. R. which was sent to him he was satisfied that the adequate grounds exist. This becomes clear by referring to sub-sec. (2a) of sec. 167 of the Code. It provides that where a judicial Magistrate is not available the accused call be produced before the nearest Executive Magistrate on whom the powers of Judicial Magistrate or a Metropolitan Magistrate have been conferred and thereupon such Executive Magistrate for the reasons to be recorded in writing may authorise the detention of the accused-person in such custody as he may think fit for a term not exceeding seven days in the aggregate. This sub-sec. (2a) in terms provides that such Executive Magistrate is bound to record reasons in writing that the accused is required to be detained in such custody. So far as the Executive Magistrate is concerned there is specific provision that he is required to pass speaking order. Further sub-sec. (3) of sec. 167 of the Code provides that a Magistrate authorising under this section the detention in the custody of the police shall record his reasons for so doing. From sub-sec. (2a) and sub-sec. (3) the legislative intent is abundantly clear that whenever it wanted to provide for the reasoned order it had in express terms provided for it. Hence when Magistrate is authorising the detention or the accused in the judicial custody under sec. 167 (2) he is pot required to pass any speaking order ( 11 ) FURTHER sub-sec. (2) of sec. 167 of the Code does not provide that the concerned Investigating Officer or Public Prosecutor should file an application submitting that the accused should be detained in the judicial custody. The Magistrate is required to see whether adequate grounds exist for detaining the accused or not. That he can consider from the F. I. R. that is copy of the entries in the diary of the case or any such other material which might have been forwarded by the Investigating Officer. The Magistrate is required to see whether adequate grounds exist for detaining the accused or not. That he can consider from the F. I. R. that is copy of the entries in the diary of the case or any such other material which might have been forwarded by the Investigating Officer. At this stage that Magistrate is concerned with the existence of the materials against the accused and not as to whether these materials are credible or not. He may either release the accused-person on bail or grant police custody if prayed for. If neither of these orders are passed of necessity accused would be required to be sent to judicial custody. ( 12 ) IT is to be noted that as that as the accused is arrested and detained the provisions of Chapter XXXIII regarding bail and bonds would come into operation. Sec. 436 of the Code makes an invariable rule for bail in case of bailable offences subject to the exceptions provided therein. It provides that in a case of bailable offences an officer in charge of a police station. or when such person appeals or is brought before the Court and is prepared at any time while in the custody of such officer or at any stage of the proceedings such court to give bail such person shall be released on bail. Sec. 437 (1) provides for bail in a case of a non-bailable offence. It provides that when any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Sessions he may be released on bail. But a ban is imposed on releasing such person on hail: (A) If there appeals a reasonable ground for believing that the accused has been guilty of an offence punishable with death or imprisonment for life of (b) In other cases if such offence is cognizable offence and the accused had been previously convicted of an offence punishable with death imprisonment for life or imprisonment for seven years or (c)He has been previously convicted on two or more occasions of a nonbailable and cognizable offence. The proviso carves out exceptions and provides that in all such cases if such person is under the age of sixteen years or is a woman or is sick or infirm the Court may direct release of such person. Next proviso further provides that even those persons convicted previously as stated in (b) and (c) above they can be released if it is found just and proper to do so for other special reasons. Therefore at this stage if from the material available there appeared reasonable ground for believing that a person has been guilty of an offence punishable with death or imprisonment for life the Court has no other option but to commit him to the judicial custody. ( 13 ) IN the case of Gurcharan Singh v. State (Delhi Admm.) reported in A. I. R. 1978 Supreme Court at page 179 the Supreme Court after considering the provisions of sec. 437 has held in terms as under:"there will be however certain overriding considerations to which we shall refer hereafter. Whenever a person is arrested by the police for such an offence there should be materials produced before the court to come to a conclusion as to the nature of the case he is involved in or he is suspected of. If at that stage from the materials available there appear reasonable grounds for believing that the person has been guilty of an offence punishable with death or imprisonment for life the Court has no Pother option than to commit him to custody. At that stage the Court is concerned with the existence of the materials against the accused and not as to whether those materials are credible or not on the merits". It has been further held that when all accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable I with death or imprisonment for life he has ordinarily no option in the matter but to refuse bail subject however to the first proviso to sec. 437 (1) Cr. P. C. and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. It has been clarified that this will. 437 (1) Cr. P. C. and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. It has been clarified that this will. however be an extraordinary occasion since there will be some materials at the stage of initial arrest for the accusation or for strong suspicion of commission by the person of such an offence. The Supreme Court has further observed as under. "it is difficult to conceive how it a police officer arrests a person on a reasonable suspicion of commission of an offence punishable with death or imprisonment for life (3. 41 Cr. P. C. of the new Codes and forward him to a Magistrate (see. 167 (1) Cr. P. C. of the new Code) the Magistrate at that stage will have reasons to hold that there are no reasonable grounds for believing that he has pot been guilty of such an offence. At that stage unless the Magistrate is able to act under the proviso to sec. 437 (1) Cr. P. C. bail appears to be out of the question the only limited inquiry may then relate to the materials for the suspicion. The question will naturally change as investigation progress and more facts and circumstances come to light". ( 14 ) FROM the aforesaid provisions and the discussion it is clear that once the accused is produced before the Magistrate and he is sent to the Judicial custody and subsequently when he is produce d before him normally il would not be necessary for the Magistrate to pass an order that the accused should be kept in judicial custody for a further period because before him there would be an order passed by the or by the Sessions Judge or by High Court rejecting the bail application filed by the accused Once the bail application filed by the accused is rejected and once it is not shown that the investigation is over or that the investigation so far carried out by the Investigating Officer does not reveal any offence it would not be necessary for the learned Magistrate to pass any order stating that the accused should be kept in Judicial custody. It would be sufficient if he directs the jail authority that the accused should be kept in jail and that the should be produced in the Court on particular day. On the contrary sec. 437 (2) in terms provides that if it appears to such officer or Court at any stage of the investigation inquiry or trial as the case may be that there are not reasonable grounds for believing that the accused has committed a non-bailable offence but there are sufficient grounds for further inquiry into the guilt the accused shall he released on hail or at the discretion of such officer or Court on the execution by him of a bond without sureties for his appearance. So even at the stage of investigation the Court under sec. 437 (2) of the Code or the police officer had jurisdiction to release the accused on bail if there are not reasonable grounds for believing that the accused has committed a non-bailable offence. So at this stage if the Court arrives at conclusion to that effect the Court is required to pass an order that there are not reasonable grounds for believing that the accused has committed non-bailable offence and therefore he should be released on bail. Therefore in my view sec. 167 (2) of the Code which provides that if the Magistrate is satisfied that adequate grounds exist for detaining the accused in the judicial custody that does not mean that the Magistrate is required to pass a speaking order on every date when the matter is adjourned that the accused shall be detained in the judicial custody. Order of keeping him in judicial custody is already passed and he continues under judicial custody till he is released on bail. The legislature has not provided that during this limited period of ninety days or sixty days as the case may be the concerned Investigating Officer on the Public Prosecutor should file an application requesting the Court that the accused should be further detained during the investigation. On the contrary if the accused wants to be released on bail on the ground that the Investigating Officer has not collected sufficient material even after the lapse of a particular period he may file an application pointing out to the Magistrate and the Magistrate would pass an appropriate order under sec. 437 (2) and (4) of the Criminal Procedure Code. 437 (2) and (4) of the Criminal Procedure Code. It seems that the learned Sessions Judge has level sec. 167 (2) in isolation. He has not considered other provisions of the Criminal Procedure Code with regard to granting of bail. He also ought to have considered that sec. 167 (2) does not provide for releasing the accused on bail except in those cases where the period of detention in judicial custody exceeds ninety days or sixty days as the case may be. Under sub-sec. (2) of sec. 437 the Investigation Officer or Court is empowered to release such person who is detained if it appears that there are not reasonable grounds for believing that the accused has committed a non-bailable offence. Sub-sec. (4) of sec. 437 in terms provides that an officer or a Court. releasing any person on bail under sub-sec. (1) or sub-sec. (9 ). shall record in writing his or its reasons or special reasons for so doing. Subsec. (6) of sec. 437 provides that if in any case triable by a Magistrate the trial of a person accused of any non-bailable offences is not concluded within a period of sixty days from the first date fixed for taking evidence in the case such person shall if he is in custody during the whole of the said period be released on bail to the satisfaction of the Magistrate unless for reasons to be recorded in writing the Magistrate otherwise directs. Sec. 439 empowers the High Court or the Sessions Court to release the accused-person on bail even h those cases where the Magistrate is not empowered to release the accused on bail Now at all these stages the Court is required to exercise its judicial mind. ( 15 ) THE learned advocate for the respondent has relied upon the decision in the case of Mohan v. State of Rajasthan reported in 1983 (II) Crimes at page 616 where in similiar set of circumstances Rajasthan High Court has held as under:" I have no hesitation to say that no application for further remand was submitted by the police before the learned Magistrate and as such there was no question of granting further remand and permitting the police to detain the petitioner in judicial custody. As there is no authorization there is no written order by the learned Magistrate authorising the detention of the petitioner in judicial custody beyond 11-7-83 the detention of the petitioner thereafter is not legal detention without authority the petitioner is being detained in Bail there was no obstruction for the police to submit the application for remand before the Magistrate and the Magistrate could have passed the order authorising the detention of the petitioner beyond 11-7-83". With due respect it is difficult to agree with the aforesaid reasoning. In my view sec. 167 (2) does not contemplate any application by the police before the learned Magistrate that the accused should be further remanded to the judicial custody. Once the accused is produced before the learned Magistrate alongwith the F. I. R. and other case papers as provided under sec. 167 (2) the Magistrate is bound to pass appropriate order in conformity with the provision of the Criminal Producer Code. He may release the accused on bail he may send him to the judicial custody or he may grant an application of the Investigating Officer for police remand. For sending him to the police custody. application is required. But at that stage before authorising the detention in the body to of police he shall pass a reasoned order because sec. 167 (3) itself provides that a Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing. Therefore once the accused is produced before the Magistrate and he is not released on bail for his detention in the custody of police is authorised the Magistrate would take him under judicial custody and send him to jail. ( 16 ) THE learned advocate for the respondent however. relied upon a decision of this Supreme Court in the case of Ramnarayansingh v. State of Delhi reported in A. I. R. 1953 Supreme Court at page 277. There the Supreme Court has of already sec. 344 of the Old Criminal Procedure Code and has observed as under:"the trying Magistrate was obviously proceeding at that stage under sec. 344 Criminal P. C. which requires him if he chooses to adjourn the case pending before him to remand by warrant the accused if in custody and it goes on to provide. 344 of the Old Criminal Procedure Code and has observed as under:"the trying Magistrate was obviously proceeding at that stage under sec. 344 Criminal P. C. which requires him if he chooses to adjourn the case pending before him to remand by warrant the accused if in custody and it goes on to provide. 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". Thereafter the Supreme Court held that there was no such order passed by the Magistrate remanding the accused to custody and the order which was produced merely directed the ajdournment of the case till 11th March and contained no direction for remanding the accused to custody till that date and therefore had that the detention of the accused was illegal. In my view this decision of the Supreme Court will in no way be helpful in deciding the point whether under sec. 167 (2) of the New Code the Magistrate is requited to pass his speaking order every now and then directing that the accused should be kept in the judicial custody. ( 17 ) SEC. 344 (2) of the Old Criminal Procedure Code in terms provided that every order made under sec. 344 (1a) if the said order was passed by the Court other than the High Court it should be in writing signed by the presiding Officer or the Magistrate. As such the scheme of sec. 344 and sec. 167 (2) of the Criminal Procedure Code is entirely different. Under sec. 167 itself when the Legislature intended that the order should be in writing it has been speci fically provided for doing so under sec. 167 (2a) and (3 ). As discussed above when the order is passed by the Executive Magistrate under sec. 167 (2a) or when the order is passed by the Magistrate authorising the detention in custody of police written order is required to to no passed seating the reasons for doing so ( 18 ) THE learned advocate for the respondent relied upon the decision of Hariharanand v. The Jailor 1/c District Jail reported in A. I. R. 1954 Allahabad at page 601 where the Court has consdierccl the provisions of sec. 167 of the Old Criminal Procedure Code and held that when the accused is produced before the Magistrate under his arrest without warrant the Magistrate before whom the is produced. has to scrutinise the act of arrest and to see whether the act of arrest was legal and proper and the formalities required by law have been compound with or not after considering the copy of the entries in the police diary. ( 19 ) THE learned advocate for the respondent also referred to a decision in the case of Bir Bhadra Pratap Singh v. D. M. Azamgrah reported in A. I. R. 1959 Allahabad at page 384. There also the Court considered the provisions of sec. 167 of the Criminal Procedure Code ( (DId) and held that when the accused is produced before the Magistrate he should pass proper order in the prescribed form. It was further held that sec. 167 of the Code indicates that the purpose of producing an accused before the Magistrate is to ensure that the arrest and the detention of the accused-person is at any rate prima-facie justified. The against a further hell that the in a apparently did not reply an the judgment of the price for purposes of accepting that the charge that was being levelled against a person was even prima facie sustainable. The Court also held that the Magistrate is required to apply his judicial mind for detention of the accused in prison. ( 20 ) THE learned advocate for the respondent further relied on the decision in the case of in re Raju Thevan reported in A. I. R. 1966 Madras at page 349. There the Court considered the provisions of secs. 167 and 344 of the criminal Procedure Coda (Old ). The (court considered whether under sec. 344 before laying the cognizance of the case the Magistrate has jurisdiction to pass an order of remand. The Court held in paragraph 15 as under:-" (15) At every stage when they obtain remain the police must satisfy the Magistrate that there is sufficient evidence against the accused and that furtherevidence must be obtained and then if the Magistrate is satisfied I thinks he could direct remand. The Court held in paragraph 15 as under:-" (15) At every stage when they obtain remain the police must satisfy the Magistrate that there is sufficient evidence against the accused and that furtherevidence must be obtained and then if the Magistrate is satisfied I thinks he could direct remand. Thus in Pommusami v. Queen (1883) ILR 6 Mad 69 at P. 70 Turner C. I. observed:- it would not we think be necessary on the first occasion accused persons are produced to go fully into the charge. It is ordinarily sufficient to show by the evidence not of an officer of the police that the notice are in possession of information they believe to be reliable that an offence has been committed and that the accused persons were concerned in its commission. When the accused are brought up after a remand some direct evidence of the connection of the accused with the crime should be required to justify the Magistrate in refusing bail and with each remand the necessity for the production of implicating proof becomes more strong. Again in Queen Employee v. Engadu (1888) ILR 11 Mad 98 at P. 102 it is observed: There may be cases in which no evidence may be available within 15 days from the date of an accused persons arrest but such cases should be and probably are rare and such evidence as may then be available should be placed before a Magistrate competent to hold an inquiry or try. The Magistrate has then power under sec. 344 Cr. P. C. to postpone without limit (provided that the accused be not remanded for more than fifteen days at a time) the commencement of the inquiry or trial for the purpose of obtaining further evidence which it appears likely may be obtained if time is) given or for other reasonable cause and it no such evidence is forthcoming and if it is not shown that any is likely to be obtained it appears only reasonable that the accused person should no longer be detained in custody there is nothing to prevent his being re-arrested if evidence be subsequently secured". . ( 21 ) IT is no doubt true that even under sec. . ( 21 ) IT is no doubt true that even under sec. 167 (1) of the New Criminal Procedure Code when the accused is produced before the Magistrate the Investigating Officer is required to forward forthwith a copy of the entries in the diary in the prescribed form relating to the case. Under sub-sec. (2) the Magistrate is required to take into consideration the said entries before authorising the detention of the accused in the police custody pr judicial custody as the case may be. But scheme of sec. 167 (9) and sec. 344 Old Criminal Procedure Code is entirely different. ( 22 ) SEE. 367 (2) is added to avoid all controversies whether after lapse of fifteen days of the arrest the accused can be further remanded to judicial custody even before taking cognizance of the offence. It would be worthwhile to quote the objects and reasons for amending sec. 167:"at present. sec. 167 enables the Magistrate to authorise detention of an accused in custody for a term not exceeding 15 days on the whole. There is a complaint that this provision is honoured more in the breach than in the observance and that the police investigation takes a much longer period in practice. A practice of doubtful legality has grown whereby the police file a preliminary or incomplete chargesheet and move the court for remand under see. 344 which is not intended to apply to the stage of investigation. While in some cases the delay in investigation may be due to the fault or the police it cannot be denied that there may be genuine cases where it may not be practicable to complete the investigation in 15 days. The Commission recommended that the period should be extended to 60 days but if it is done 60 days would become the rule and there Rs no guarantee that the illegal practice referred to above would not continue. It is considered that the most satisfactory solution of the problem would be to confer on the Magistrate the power to extend the period of detention beyond 15 days whenever he is satisfied that adequate grounds existing granting such extension". In the year 1978 sec. It is considered that the most satisfactory solution of the problem would be to confer on the Magistrate the power to extend the period of detention beyond 15 days whenever he is satisfied that adequate grounds existing granting such extension". In the year 1978 sec. 167 (2) was amended and it provided detention for a period of ninety days in serious cases mentioned there ( 23 ) 167 confers the powers of remand to custody during the pendency of the investigation sec. 309 (2) is attracted only after congnizance of an offence has been taken or commencement of trial has proceeded. Further it is the command of the Legislature that even if the investigation may still be proceeding in serious offences of murders dacoities robberies by inter-State gangs or the like the accused would have right to be released on bail after a period of ninety days or sixty days as the case may be if he is prepared to furnish bail. Beyond the period of ninety days or sixty days as the case may be the court has no discretion but to release the accused on bail if he is prepared to furnish bail. ( 24 ) THE Magistrate before whom the accused is produced can authorise the detention of the accused in custody as he thinks fit for a term not exceeding fifteen days in the whole under sub-sec. (2) of sec. 67 even if he has jurisdiction or has not jurisdiction to try the case. Proviso to said sub-section empowers the Magistrate to authorise the detention of the accused-person otherwise in custody of the police beyond the period of fifteen days but in no case he can authorise the detention of the accused-person in custody for a total period of ninety days or sixty days as the case may be. The Magistrate is to be satisfied that adequate grounds exist for passing such order. But this does not mean that the Magistrate is bound to pass a speaking reasoned order. The learned advocate for the respondent however submitted that this would authorise the Magistrate to detain the accused-person in custody for a maximum period of ninety days or sixty day as the case may be without applying his mind. But this does not mean that the Magistrate is bound to pass a speaking reasoned order. The learned advocate for the respondent however submitted that this would authorise the Magistrate to detain the accused-person in custody for a maximum period of ninety days or sixty day as the case may be without applying his mind. In my view his submission is totally misconceived for the following reasons:- (1) The Magistrate has no consider the case diary submitted by the police and arrive at a conclusion whether adequate grounds exist for detention; (2) Under sec. 437 (2) and under sec. 439 the accused is entitled to file an application for releasing him on Wail; (3) Under sec. 437 (2) the Magistrate is entitled to release the accused at any stage of the investigation if there are not reasonable grounds for believing that the accused have committed a non-bailable offence; (5) If bail application is rejected of necessity the accused would be required to be sent to judicial custody. Therefore it cannot be said that the accused would be detained in jail under sec. 167 for a maximum period of ninety days or sixty days as the case may be without any application of mind by the Magistrate. At that stage the Court has to merely consider the case diary and its progress and is concerned with the existence of the materials against the accused and not as to whether those materials are credible or not on merits. But this does not mean that the Magistrate should not apply his mind to the progress of the investigation because sec. 437 provides that the accused can be released on hail if their are not reasons able grounds for believing that the accused have committed a non-bailable offence. But this also does not mean that at every stage when the accused is produced before a Magistrate he should go on passing an order to the effect that he should be kept in judicial custody for a further period because that would be implied. ( 25 ) IN above view of the matter it is not necessary that the Magistrate before whom the accused is produced under see. 167 (1) of the Code should pass any speaking order under see. ( 25 ) IN above view of the matter it is not necessary that the Magistrate before whom the accused is produced under see. 167 (1) of the Code should pass any speaking order under see. 167 (2) or its proviso on a written application which may be filed by the Public Prosecutor that the accused should be detained in the judicial custody. At the initial stage the Investigating Officer would submit a report when he is forwarding the accused before the Magistrate narrating the allegations against the accused and the time when the accused was arrested submitting that the accused may be kept in judicial custody. On that report the Magistrate would pass an appropriate order. If the Investigating Officer submits an application asking the police custody of the accused the Magistrate would be required to pass an order under sec. 167 (3 ). If an accused files an application for bail and if it is rejected then there would not be any alternative but to keeping he accused in judicial custody. Further in some cases the accused may refuse to furnish bail. Then also the accused may he required to be kept in judicial custody ( 26 ) IN the present ease it is an admitted fact that the bail applications filed by the accused were rejected on merits. The accused was produced before the learned Magistrate on the adjourned dates and the learned Magistrate has issued warrant authorising detention of the accused by the Jailor. Therefore it cannot be said that the detention of the accused in the judicial custody was illegal. ( 27 ) THE learned advocate for the State further submitted that under sec. 167 Proviso the Magistrate is empowered to authorise the detention of the arrested person for more than fifteen days and straightway he can pass an order authorising the detention upto ninety clays. As against this the learned advocate for the other side relied upon sec. 167 (2) and Rule 20 of Criminal Manual issued by the High Court of Gujarat which says that in no case the accused person should. be remanded to custody under sec. 167 (2) of the Code of Criminal Procedure for a period exceeding fifteen days at a time. Rule 20 further provides that in no case the accused should be remanded to custody under sec. be remanded to custody under sec. 167 (2) of the Code of Criminal Procedure for a period exceeding fifteen days at a time. Rule 20 further provides that in no case the accused should be remanded to custody under sec. 167 (2) of the Code for a total period of more than sixty days during the investigation and if the charge-sheet is not submitted or the investigation is not completed within sixty days the Magistrate shall act according to the provisions of sec. 167 of the Criminal Procedure Code. It seems that this rule 20 is not suitably amended after the amendment of sec. 167 (2) in 1978 which empowers the Magistrate to authorise the detention of the accused for a period of ninety days of sixty days as the case may be. ( 28 ) THE learned Additional Public Prosecutor relied upon the decision in the case of T. V. Sharma v. Smt. Durgakamala Devi and others reported in I. L. R. Andhra Pradesh at page 589 and on the decision in the case of Babu Ali v. State reported in 1981 Allahabad Law Journal at page 103 in which the Court held that under sec. 167 (2) proviso the Court is empowered to grant remand to the judicial custody at initial stage to one shot for a period of ninety days or sixty-one days as the case may be. The Allahabad High Court further observed as under :-"18 Lastly leaving aside quibbling over words we may consider the basics. The advantages of the two interpretations are relevant consideration When choosing between the same where the legislative mandate is not clear. There is no advantage in insisting on an initial remand period of 15 days under the proviso. The legislative has already imposed the cheek that the extended period of remand beyond 15 days can be granted only to non-police custody and only if the Magistrate is satisfied that adequate grounds exist for doing so. If these conditions are satisfied at the initial stage there is no reason why one shot remand for the whole period about the need for which the Magistrate is satisfied should not be granted avoiding the needless-production of the accused and an intermediate order of remand at the end of 15 days. If these conditions are satisfied at the initial stage there is no reason why one shot remand for the whole period about the need for which the Magistrate is satisfied should not be granted avoiding the needless-production of the accused and an intermediate order of remand at the end of 15 days. Anyone familiar with the working of the Magistrates Courts knows that in quite a few casts investigation has to take much longer than 15 days. It is to avoid intermediate remand orders in such cases that the proviso has been added in the new Code". In my view this question is not required to be decided in the present proceedings as the learned Magistrate had ordered that the accused should be produced before him on a particular date which was beyond the period of fifteen days. ( 29 ) IN the result Revision Application is allowed and the Judgment and Order passed by the learned Sessions Judge On 11/09/1984 releasing the respondent-accused on bail is quashed and set aside. The accused to surrender forthwith. ( 30 ) IT appears from the warrant issued by the learned Magistrate that the learned Magistrate has used old form under the Old Criminal procedure (Code. The Registrar is therefore directed to sec that the lower judiciary uses the form prescribed under the New Criminal Procedure Code and under the Criminal Manual issued by the High Court in 1977. (PAP) appeal allowed. Bail cancelled. .