Indian Kanoon - Search engine for Indian Law

mencement of any enquiry or trial for any reasonable cause. The explanation to section 344 of the Old Code read as follows :

"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 cause for a remand."

Various High Courts had taken the view that a Magistrate having jurisdiction to try a case could remand an accused to jail custody from time to time during the pendency of the investigation in exercise of the power under section 344 :

Farther says the learned Judge at page 570 :

"The fact that Section 344 occurs in the Chapter dealing with inquiries 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."

It would thus be seen that under the Old Code the Magistrate was given the power under section 344 to remand an accused to jail custody as the section was also applicable to cases in which process of investigation and collection of evidence was going on. In other words, the power of remand by the Magistrate during the process of investigation and collection of evidence was an integral part of the process. The power was meant to be exercised, whenever necessary, to aid the investigation and collection of further evidence. Let us now examine the position of law under the New Code. No police officer can detain a person in custody, arrested without a warrant, for a period longer than 24 hours as mentioned in section 57 corresponding to section 61 of the Old Code. Section 167 occurring in Chapter XII bearing the heading "Information to the police and their powers to investigate"-the same as in Chapter XIV of the Old Code-has made some drastic departure. Similar, is the position in regard to section 309 of the New Code corresponding to section 344 of the Old Code. While retaining the provision of forwarding the accused to the nearest Magistrate (of course under the New Code to the Judicial Magistrate), and while authorising the Magistrate to remand the accused to either police or judicial custody for a period not exceeding 15 days, proviso (a) has been added in these terms (1) [1972] 1 S.C.C. 564.

Although the expression 'reasonable cause' occurring in sub- section (IA) of section 344 is no where to be found in section 309 of the New Code, the explanation to section 344 of the Old Code has been retained as Explanation I to Section 309 in the identical language. The law as engrafted in proviso (a) to sections 167(2) and section 309 (2) of the New Code confers the powers of remand to jail custody during the pendency of the investigation only under the former and not under the latter. Section 309(2) is attracted only after cognizance of an offence has been taken or commencement of trial has proceeded. In such a situation what is the purpose of Explanation-I in section 309 is not quite clear. But then the command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. In serious offences of criminal conspiracy-murders, dacoities, robberies by inter-state gangs or the like, it may not be possible for the police, in the circumstances as they do exist in the various parts of our country, to complete the investigation within the period of 60 days. Yet the intention of the Legislature seems to be to grant no discretion to the court and to make it obligatory for it to release the accused on bail. Of course, it has been provided in proviso (a) that the accused released on bail under section 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter. That may empower the court releasing him on bail, if it considers necessary so to do, to direct that such person be arrested and committed to custody as provided in sub-section (5) of section 437 occurring in Chapter XXXHI. It is also clear that after the taking of the cognizance the power of remand is to be exercised under section 309 of the New Code. But if it is not possible to complete the investigation within a period of 60 days then even in serious and ghastly types of crime, the accused will be entitled to be released on bail. Such a law may be a "

(1)A.I.R. 1 975 S.C. 164.

Immediately before the 1st day of April, 1974 the investigation of this case was pending. Saving clause (a) therefore enjoins that the said investigation shall be continued or made in accordance with the provisions of the Old Code. The police officer, therefore, making the investigation has to continue and complete it in accordance with Chapter XIV of the Old Code. Section 167 of that Code could not enable the Magistrate to remand the appellants to jail custody during the pendency of the investigation. The police could seek the help of- the Court for exercise of its power of remand under section 344, bringing it to the notice of the Court that sufficient evidence had been obtained to raise a suspicion that the appellants may have committed an offence and there will be hindrance to the obtaining of further evidence unless an order of remand was made. As we have said above, invoking the power of the court under section 344 of the Old Code by the Investigating Officer would be a part of the process of investigation which is to be continued and made in accordance with the Old Code. That being so, we hold that the appellants in this case cannot claim to be released under proviso (a) to section 167(2 ) of the New Code.