JUDGMENT Hon’ble Ravindra Singh, J.—Heard Sri A.K.Sand, Additional Government Advocate for the applicant State of U.P. through A.T.S. U.P.P. Lucknow and perused the record. 2. This application has been filed on behalf of the State of U.P. with a prayer to quash the order dated 6.3.2010 passed by the learned In Charge Judicial Magistrate Ist, Court No. 1, Allahabad in case Crime No. 37 of 2010 under Sections 18, 20, 21, 23(2) of Unlawful Activities (Prevention) Act 1967 read with Sections 120-B, 121, 121-A I.P.C. P.S. Khuldabad district Allahabad whereby the application filed by the I.O. for remanding the O.P. Nos. 1 and 2 to police custody for three days, has been rejected. 3. The facts in brief of this case are that the F.I.R. has been lodged against O.P. No. 2 and 1 by Sri Ved Prakash Rai S.T.F. Field Unit, Allahabad on 6.2.2010 at 11.50 p.m. in respect of the incident, which had allegedly occurred on 6.2.2010 at about 9.30 p.m. alleging therein that the S.T.F. (Headquarter) received an information that the prohibited organization Bhartiya Communist Party (Maowadi) has become active in U.P. also, on 6.2.2010 it was apprised by Sri Manoj Kumar Jha, Additional S.P. that one Asha alias Hiramani Munda wife of Balraj alias B.R. alias Arvind alias Bachcha Prasad Singh r/o Tilak Nagar P.S. Ekma district Chhapra (Bihar) active member of C.P.I. (Maowadi) has been arrested, who disclosed that O.P. No. 1 Viswa Vijay alias Kamal and his wife Seema Azad are active members of C.P.I. (Maowadi) O.P. No. 1 is the Chief of U.P. Organizing Committee, on receipt of such information, the first informant S.I. Sri Ved Prakash Rai alongwith others police personnel came at the resident of O.P. Nos. 1 and 2, it was informed by Mukhbir Khas that O.P. Nos. 1 and 2 have left their house just before reaching the police, they may be available at the Railway Station, thereafter, they proceeded towards Khushro Bagh, Jal Sansthan, O.P. Nos. 1 and 2 were present in front of the Gate of Jal Sansthan, from where they were apprehended and on search being made from the possession of O.P. No. 1 some documents alongwith Rs. 30,000/- were recovered from his bag, daily use cloths were also recovered and from his purse Rs. 420/- was recovered and from the possession of O.P. No. 2 one Cann Camera, Rs. 30,000/- were recovered from his bag, daily use cloths were also recovered and from his purse Rs. 420/- was recovered and from the possession of O.P. No. 2 one Cann Camera, Rs. 20,000/- and some documents were recovered from her lady bag, on query made by the first informant, O.P. No. 1 stated that he was the Chief of U.P. State Organizing Committee, C.P.I. (Maowadi) some others relevant informations were also revealed by him, O.P. No. 2 also stated that she was follower of Maowadi, Lenin, philosophy and she was actively involved in the activities of C.P.I. (Maowadi). O.P. Nos. 1 and 2 were arrested and recovered articles were sealed. The I.O. moved an application for handing over O.P. Nos. 1 and 2 in police custody, the same was rejected on 20.2.2010. The order dated 20.2.2010 was challenged by way of filing a criminal revision, the same was dismissed by the first Additional Sessions Judge, Court No. 1, Allahabad on 4.3.2010. Thereafter second application for police remand was moved in the Court of learned magistrate concerned, the same was rejected by the In-charge Judicial Magistrate, Court No. 1, Allahabad on 6.3.2010, against the order dated 6.3.2010 the present application under Section 482, Cr.P.C. has been filed by the state of U.P. 4. It is contended by the learned Additional Government Advocate : (1) that the magistrate concerned committed manifest error by rejecting the application filed by the applicant vide order dated 6.3.2010 without considering the gravity of the offence. (2) that in the present case for the purpose of investigation the provisions of Section 167 Cr.P.C. are applicable, the provisions of sub-section (2) of Section 167, Cr.P.C. are applicable subject to modification of Section 43 D (2) of the Unlawful Activities (Prevention) Act, 1967 which have been modified by Act No. 35 of 2008, which is quoted below. “Section 43-D Modified application of certain provisions of Code (1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (C) of Section 2 of the Code, and “cognizable cause” as defined in that clause shall be construed accordingly. “Section 43-D Modified application of certain provisions of Code (1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (C) of Section 2 of the Code, and “cognizable cause” as defined in that clause shall be construed accordingly. (2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to modification that in sub-section (2),— (a) the reference to “fifteen days”, “ninety days” and ‘’Sixty days”, wherever they occur, shall be construed as references to “thirty days”, “ ninety days” and “ninety days” respectively; and (b) after the proviso, the following proviso shall be inserted namely. “Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prospector indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period upto one hundred and eighty days. Provided also that if the Police Officer making the investigation under this Act, requests for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.” 3. that the learned magistrate concerned has rejected the application filed by the I.O. seeking police remand of O.P. Nos. 1 and 2 on the ground that it was a second application, first application has already been rejected on 20.2.2010, the same was challenged by way of filing criminal revision, which has been dismissed by the learned First Additional Sessions Jude, Court No. 1 Allahabad on 4.3.2010 and the order dated 4.3.2010 has not been challenged by the applicant, it has become final but the learned magistrate concerned did not consider the material collected by the I.O. during investigation collected after aforesaid order, some more material may be collected only when the O.P. Nos. 1 and 2 remanded to police custody. 4. that the gravity of the offence is too much, O.P. Nos. 1 and 2 remanded to police custody. 4. that the gravity of the offence is too much, O.P. Nos. 1 and 2 are active members of prohibited organization, they are involved in unlawful activities, the learned magistrate concerned has not considered the gravity of the offence as well as necessity of the I.O. for the purpose of proper investigation. 5. that the provisions of Section 167, Cr.P.C. shall be applicable in the present case subject to modification in Section 43 D(2) of the Act , according to the modification, the magistrate concerned may authorize detention of the accused in such custody as such magistrate thinks fit for a term not exceeding 30 days instead of 15 days, and the total period of detention of the accused in custody may exceed upto 180 days. In the present case, O.P. Nos. 1 and 2 were arrested on 6.2.2010, the application for police remand was given within a period of 30 days but the learned magistrate concerned has illegally rejected the first application on 20.2.2010, thereafter the second application was again rejected on 6.3.2010, the second application was moved by the applicant with the reasons which have been clearly mentioned in the case diary, the same was placed before the learned magistrate, even then the learned magistrate concerned has not considered the necessity disclosed in the case diary for the purpose of proper investigation. 6. that it was clearly mentioned by the I.O. that O.P. Nos. 1 and 2 were interrogated in Naini Jail, Allahabad, the contents of the interrogation are clearly mentioned in the G.D. No. C.D. 11 24.2.2010. From mobile phones of O.P. Nos. 1 and 2 phone book/deleted massages may be available, disclosing the movement to different secret places of Sonbhadra, Chandauli, Farrukhabad, and Kanpur from where other active members of the prohibited organization may also be arrested and the documents containing the activities of the prohibited organization, may also be recovered. The entry of the above mentioned revealed facts, has been made on 24.2.2010, in case diary i.e. after rejection of the first application moved by the applicant for the grant of police custody at that time above mentioned facts were not available. 7. There is no legal bar in handing over the O.P. Nos. The entry of the above mentioned revealed facts, has been made on 24.2.2010, in case diary i.e. after rejection of the first application moved by the applicant for the grant of police custody at that time above mentioned facts were not available. 7. There is no legal bar in handing over the O.P. Nos. 1 and 2 to the police for the purpose of fair and proper investigation but the learned magistrate concerned has not considered the relevant facts for the purpose of granting police remand for this purpose, it is expedient in the interest of justice that O.P. Nos. 1 and 2 may be remanded to police custody so that some more material may be collected by the I.O. 5. After considering the submission made by the learned A.G.A. and from the perusal of the record it appears that in the present case provisions of Section 43D(2) of Unlawful Activities (Prevention) Act, 1967 have been amended by Act No. 35 of 2008, after modification every offence punishable under the Unlawful Activities (Prevention) Act, 1967, shall be deemed to be cognizable offence within the meaning of clause (c) of Section 2 of the Code of Criminal Procedure and cognizable office is defined in that clause shall be construed accordingly. 6. For the purpose of detention of the accused the provision of Section 167(2), Cr.P.C. shall apply with modification, after modification reference to 15 days, 90 days and 60 days wherever they occurred shall be construed as reference to 30 days, 90 days and 90 days respectively and after the proviso of Section of the Code, it has been inserted if it is not the possible to complete the investigation within a period of 90 days, the Court may, if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and specific reasons for the detention of the accused beyond the said period of 90 days extend the said period upto 180 days provided also that if the Police Officer making investigation under this Act, requests for the purpose of investigation for the police custody from the Judicial custody of any person, in judicial custody, he shall file an affidavit stating the reasons for doing so, and shall also explain the delay, if any, for requesting such police custody. In the present case the O.P. Nos. In the present case the O.P. Nos. 1 and 2 were in Judicial custody, request was made by the I.O. for police custody from the judicial custody, the same has been refused. The application was moved by the I.O. alongwith affidavit and entire case diary showing reasons but the learned magistrate concerned has not considered the amended provisions of Section 43-D(2) of the Unlawful Activities ( Prevention) Act 1967 amended by Act No. 35 of 2008. 7. The learned magistrate concerned rejected the application because it was second application and the applicant has challenged the order passed by the learned magistrate concerned on the first application, the same was affirmed by the revisional Court, the order of the revisional Court has not been challenged. The impugned order sows that the learned magistrate concerned has not considered the legal position including the amended provisions of Section 43-D (2) of Unlawful Activities (Prevention) Act it is a fit case for remittal to the Court of learned magistrate concerned for passing a fresh order in accordance with law, therefore, the impugned order dated 6.3.2010 is set aside and the learned magistrate concerned is directed to pass a fresh order on the merits of case ignoring the refusal of first application expeditiously in accordance with law without being prejudiced by the impugned order. 8. Accordingly this application is disposed of. ————