1981 (11) TMI 188 - HC - Indian Laws

Summary

Issues Involved:

1. Nature of custody that can be ordered by a Magistrate during the investigation of a serious offence.
2. Validity of the petition filed by an unauthorized person.
3. Interpretation of Section 167 of the Criminal Procedure Code (Cr.P.C.) regarding police and judicial custody.
4. The ability of a Magistrate to remand an accused to police custody after initially placing them in judicial custody.
5. Examination of relevant case law and precedents.

Issue-wise Detailed Analysis:

1. Nature of Custody During Investigation:
The primary issue in this case is the nature of custody that can be ordered by a Magistrate during the investigation of a serious offence. The court examined the provisions of the Constitution and the Criminal Procedure Code (Cr.P.C.) which protect individuals against unlawful arrest. Specifically, the court noted that under Article 22(2) of the Constitution and Section 56 of the Cr.P.C., an arrested person must be produced before a Magistrate within 24 hours. For non-bailable offences, if the police cannot complete the investigation within this period, the accused must be produced before a Magistrate for further orders.

2. Validity of the Petition Filed by an Unauthorized Person:
A preliminary objection was raised regarding the filing of the petition by Mr. I. U. Khan, who was not the Additional Public Prosecutor of Delhi. It was argued that the petition was filed without authorization from the Delhi Administration. The court noted that Mr. D. C. Mathur was subsequently appointed as Special Public Prosecutor for the case by a notification dated 22nd September 1981. The court overruled the objection, stating that any initial defect was remedied by the subsequent authorization, and the court had the inherent power to proceed with the petition.

3. Interpretation of Section 167 of the Cr.P.C.:
Section 167 of the Cr.P.C. deals with the powers of a Magistrate to authorize the detention of an accused in such custody as the Magistrate thinks fit for a term not exceeding fifteen days in total. The section allows the Magistrate to determine the type of custody (police or judicial) and to change it as necessary within the first fifteen days. The court emphasized that the purpose of this section is to facilitate investigation and protect the liberty of the accused by ensuring that detention is not solely at the discretion of the police but under judicial oversight.

4. Ability to Remand to Police Custody After Judicial Custody:
The respondents contended that once an accused is placed in judicial custody, they cannot be remanded to police custody. The court rejected this contention, stating that the Magistrate has the discretion to change the nature of the custody within the first fifteen days as required by the circumstances of the case. The court clarified that the Magistrate can order police custody after judicial custody if necessary for the investigation, provided it is within the initial fifteen-day period.

5. Examination of Relevant Case Law:
The court examined various judgments, including Gian Singh v. State (1981 Cri LJ 100) and Trilochan Singh v. State (1981 Cri LJ 1773), which suggested that once judicial custody is ordered, police custody cannot be subsequently ordered. The court disagreed with these judgments, stating that Section 167(2) allows for the alteration of custody type within the first fifteen days. The court also referred to the judgment in State v. Mehar Chand (1969) 5 DLT 179, which supported the view that the Magistrate can change the nature of custody during the investigation.

Conclusion:
The court concluded that the nature of custody can be altered from judicial custody to police custody and vice versa during the first fifteen days mentioned in Section 167(2) of the Cr.P.C. After this period, the accused can only be kept in judicial custody or any other custody as ordered by the Magistrate, but not in police custody. The petition was allowed, and the Magistrate was directed to pass appropriate orders as he would have on 4th September 1981, considering the unexpired period out of the initial fifteen days.