minal Appeal No 123 of 1968
Appeal by special leave from the judgment and order dated May 3 1968 of the Patna High Court in Criminal WJC No 17 of 1968 and Criminal Miscellaneous Case No 447 of 1968
B C Ghose section N Misra and A K Nag for the appellant
D Goburdhun for the respondent
The Judgment of the Court was delivered by Shelat J
This appeal by special leave is
against the dismissal by the High Court of Patna of the Writ Petition and an application under section 561A of the Code of Criminal Procedure for a writ of habeas corpus and an order of a like nature
filed by the appellant
Both of them were heard together as they contained common allegations and both were dismissed by a common judgment
In the two aforesaid proceedings the case of the appellant was that he was arrested on February 18 1968 that since then he had been detained in custody without being informed of the grounds for his arrest and detention and also without having been produced before a Magistrate either within 24 hours after his detention as required under the Code or even thereafter
On February 21 1968 he was removed to Darbhanga jail where he was threatened that he would be falsely involved in several cases of dacoity unless he made certain incriminating statements which the police wanted him to make
He made two applications from jail one on February 25 1968 and the other on February 28 131 1968 to the Sub Divisional Magistrate
The first was not received at all by the Magistrate while the second was received but after a long time and was rejected
He also alleged that thereafter he made two further applications one dated March 22
1968 and the other dated March 27 1968 wherein he applied for directions to the police to furnish him with particulars of offences charged against him and for bail but that he received no order on either of them
On these allegations he claimed release forthwith from detention and the quashing of the criminal proceedings against him
In the counter affidavit filed by the State before the High Court it was stated that one Bilat Sahni and one Baleshwar Paswan made confessions before the Magistrate at Samastipur on 23rd and 24th January 1968 confessing their own guilt and implicating the appellant and certain other persons in about eight dacoity cases all having been committed in that locality Thereupon the appellant was arrested on February 17 1968 He was produced before the Sub Divisional Magistrate of Samastipur on February 18 1968 but was remanded to police custody by the said Magistrate for four days on an application by the police therefore
On February 21 1968 the appellant was once again produced before the same magistrate and on an application by the police he was remanded to jail custody
The affidavit alleged that the appellant was involved in as many as nine dacoity case wherein remand orders had been passed from time to time and that that was how he had since February 21 1968 been detained as an under trial prisoner
On April 19 1968 an identification parade was held in connection with one of the said nine cases whereat the relevant complainant identified the appellant
The case of the State was that the appellant was one of the three leaders engaged with certain hardened criminals in the aforesaid several dacoity cases that it Was not true that he was unaware of the case against him or that he was not produced before the magistrate or that he was kept in prison without proper remand orders having been passed by the Magistrate
Five contentions were raised before the High Court viz 1 that the appellant was never produced before any magistrate within 24 hours after his arrest or even thereafter hence his detention was in breach of article 22 of the Constitution ii that although the order sheet in respect of Laheriasarai Police Station Case No 1 of 1968 records that the appellant had been produced before the Magistrate on several days set out therein that order sheet had been falsely made iii that the magistrates had no power to detain the appellant in jail in excess of 15 days in all iv that even if he had the power to remand him in excess of 15 days in all the condition for passing such orders was not 13 2 satisfied and v that no remand order was factually ever passed
None of these contentions was accepted by the High Court and the High Court therefore dismissed as aforesaid both the applications on May 3 1968
Mr Ghose who appeared for the appellant before the High Court and who appeared before us also raised the following points 1 that the appellant was not produced before any magistrate either on February 18 1968 or on any other date thereafter 2 that the appellant was never informed of the rounds for his arrest and detention thereafter 3 that no custody warrant was ever issued warranting the jail authorities to keep the appellant in jail custody and 4 that assuming that the said remand orders were passed the appellant could not be kept in jail custody for more than 15 days in the whole
On the basis of these four points he urged that the appellant s arrest and detention were illegal and that therefore he was entitled to be released forthwith and the criminal proceedings instituted against him by the police quashed
Mr Ghose also made a point that the jail Superintendent did not produce before the High Court the jail records which would show his having been taken out of the jail for being produced before the Magistrate when the magistrate decided the applications for remand by the police and passed the remand orders said to have been passed by him and that instead the jail Superintendent produced his report thus disabling the appellant from establishing his case as laid in his writ petition
We may at this stage dispose of Mr Ghose s last point in regard to the non production of the jail record before the High Court
It is true that the appellant did ask for production of that record first in the writ petition and then on April 22 1968 to which date the hearing of the writ petition was adjourned
But the order sheet maintained by the High Court in connection with the writ petition and the said application under section 561A of the Code shows that when the writ petition came up for admission the learned Judges called for the record of the Magistrate s Court and report from the jail superintendent regarding the dates on which the appellant was said to have been produced before the Magistrate for the purpose of the hearing of the remand applications
It appears that on April 22 1968 to which date the writ petition was made returnable neither the record of the Magistrate s Court nor the report of the jail Superintendent had arrived
On that day the appellant made an application for his production in Court at the time of the hearing and for the production of the jail record
The High Court how ever rejected the prayer for his production in Court and as regards the jail record ordered as follows 133 so far as the production of the record of the jail is concerned an express reminder by telegram may be sent to the Superintendent of jail to send the report already called for immediately if possible by a special messenger
A reminder may also be sent to the Court concerned to send the records immediately if possible by a special messenger
 The High Court does not seem to have pressed for the produc tion of the jail record as it presumably thought that the Court s record would show the dates when the appellant was produced before it and the Superintendent s report would make that point clear
It appears from that order that the appellant also was content with the production of the Superintendent s report and did not press for the calling of jail record
The judgment of the High Court also shows that that was also the case when the High Court heard the writ petition and the said section 561A application
Neither the order sheet nor the judgment of the High Court seems to warrant the allegations made in para 28 of the Special Leave Petition that repeated prayers were made for the production of the jail record
In any event no prejudice appears to have been caused to the appellant s case since the jail record could not have proved anything more than what the jail Superintendent s report proved
The report which was before the High Court clearly pointed out that the appellant was remanded to jail custody on February 21 1968 by the Sub Divisional Magistrate Sadar in the case under section 395 of the Penal Code
The next date for his appearance was fixed on March 5 1968 but the appellant refused to go to the Magistrate s Court on that day as also on March 20 1968 and April 4 1968 on the ground that the identification parade for him had not yet been held and his going to and appearing in the Court would expose him to possible witnesses Me Magistrate therefore had to postpone his production before him to April 18 1968 when the appellant was produced and once again remanded to jail custody till the next date that is May 2 1968
The report of the jail Superintendent thus frankly conceded that the appellant could not be produced on the dates above stated and that the Magistrate therefore had to pass remand orders in his absence
It is clear from the report that the appellant himself had refused to appear and be present before the Magistrate when he heard the remand applications
therefore cannot legitimately make a grievance that those orders were passed in his absence
Those orders could be passed validly in his absence if his presence at the time could not be secured
This has been held by the majority judgment of this 134 Court recently in Rai Narain vs Superintendent Central jail New Delhi
1 We now proceed to consider the remaining points in the order in which Mr Ghose raised them
The first point urged before us was that the appellant was not produced before a magistrate within 24 hours after his arrest as required by section 167 of the Code of Criminal Procedure or even later and that therefore his arrest and the detention were bad in law
The order sheet of the Laheriasarai Police Station Case No 1i68 produced before the High Court shows that the appellant was produced before the Magistrate on February 18 1968 that is within 24 hours after his arrest and that the Magistrate remanded him to jail custody on the application by the police until March 5 1968
So far there is no difficulty because these entries in the order sheet are corroborated by the report of the Superintendent of jail
The order sheet however has entries dated March 5 1968 March 20 1968 and April 4 196 8 when remand orders are shown to have been made each for a period of 15 days and further that the appellant was produced before the Magistrate on each of those three occasions
That as the High Court has rightly observed was not correct as the jail Superintendent s report clearly showed that the appellant had refused to go from the jail for fear that he would be seen or be shown to probable witnesses
No reason has been shown as to why we should not agree with the aforesaid observation of the High Court viz that the Magistrate had wrongly recorded that the appellant was produced before him and that the remand orders were passed in his presence
The wrong entries made by him however do not mean that the remand orders were not in fact passed by him though he did so in the absence of the appellant
Such orders as already pointed out can be lawfully passed if ail accused person cannot for some reason or the other be brought before the Magistrate
It is therefore not possible to say that remand orders were not passed or that consequently his detention in the jail was without a valid basis
In the High Court no such contention viz that remand orders were not passed on those three dates appears to have been raised
Indeed the allegation that the appellant was never produced before the Magistrate is belied by an elaborate order made by the Magistrate on March 28 1968 when the appellant was represented by counsel
At that stage his counsel did not argue that the appellant was never produced before the Court or that no remand orders were ever passed
The argument urged at that time was that the proceedings at that stage attracted section 167 of the Code that the stage had not yet reached when section 344 would operate and that therefore the Magistrate bad no power to remand the appellant to jail custody for more than 15 days in the whole
That contention was 1 Writ Petition No 330 of 1970 dcc
on September 1 1970
135 rejected by the Magistrate holding that there was an inquiry before him and that therefore section 344 applied and he was competent therefore to pass remand orders from time to time so long as each of those orders was not for a period in excess of 15 days
By that very order the Magistrate rejected the bail application made by the appellant s advocate holding that the investigation in the cases of dacoity in which the appellant was concerned was going on at that stage and that release of the appellant on bail would hinder its progress
The next contention was that the appellant was never informed of the grounds of his detention and that that being so his detention was invalid
Paras 3 4 and 35 of his writ petition did not charge that at the time of his arrest he was not informed of the grounds for his arrest and that even when he filed his writ petition he was not informed of those reasons and that that constituted breach of article 221
This allegation is without any foundation
All throughout his case was that the police had tortured him and threatened to involve him in a number of dacoity cases unless he made certain incriminating statements which they wanted from him
What were those incriminating statements which the police were trying to get from him  From the fact that the police were wanting him to make those statements he must have realised that those statements were related to the cases for which he had been arrested
Next in the application he made from jail to the Magistrate on February 28 1968 he alleged that the senior Sub Inspector of Police came to him on February 19 1968 first abused him and then later on asked him to admit that offence and promised that by doing so I would be discharged
According to that application he refused to admit the offence whereupon he was assaulted by the police
It also appears that he knew that an identification parade was going to be held and therefore had refused to be taken out of jail for being produced before the Magistrate
All these facts negative the suggestion of his being kept in ignorance of the reasons for his arrest or the cases charged against him
The third contention was that no valid custody warrant was issued by the Magistrate enabling the jail authorities to detain the appellant in the Darbhanga jail and licence the detention must be held to be without any legal authority
In support of the argument counsel pointed out the custody warrant dated February 18 1968 which according to him must be deemed to have been cancelled is at the foot of it there is the Magistrate s endorsement that the appellant was instead remanded to police custody
Assuming that to be so there is nothing to show that on February 21 1968 when the Magistrate ordered the appellant to be taken into jail custody a fresh custody warrant had not been issued by him
The Magistrate while passing that order must have known that the 136 jail authorities would not accept the appellant in jail unless the police taking him there produced a custody warrant
There is no reason to think first that the Magistrate had not issued such a warrant and secondly that the jail Superintendent inducted the appellant in the jail without such a warrant
The contention in our view is wholly without any basis
The last contention of Mr Ghose was firstly that the remand orders passed by the Magistrate were under section 167 and not section 344 as the latter section did not apply at that stage and secondly that even if section 344 applied the Magistrate could not order detention for more than 15 days in the whole
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 section 61 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 at the most of 15 days in the whole and such custody can be either police or jail custody
Sec 344 on the other hand appears in Ch
XXIV which deal 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 suspicion that such an accused person may have committed an offence and it appears likely that further evidence may be obtained by granting a remand Thus section 167 operates at a stage when a person is arrested and either an investigation has started or is yet to start but is such that it cannot be completed within 24 hours
Sec 344 on the other hand shows that investigation has already begun and sufficient evidence has been obtained raising a suspicion that the accused person may have committed the offence and further evidence may be obtained to enable the police to do which a remand to jail custody is necessary
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 137 collection of evidence is still going on
That is clear from the very language of sub section
1 A under which the magistrate has the power to postpone the commencement of the inquiry or trial
That would be the stage prior to the commencement of the inquiry or trial which would be the stage of investigation
see A Lakshamanrao vs Judicial Magistrate1
Therefore it is not as if the stage at which the Magistrate passed the remand orders was still the stage when section 167 applied and not section 344
The decision of the Orissa High Court in Artatran vs Orissa2 to the effect that section 344 does not apply at the stage of investigation and can apply only after the Magistrate has taken cognizance of and issued processes or warrant for the production of the accused if he is not produced before him cannot in view of A Lakshamanrao s case1 be regarded as correct
The power under section 344 can be exercised even before the submission of the charge sheet cf
Chandradip vs State3 and Ajit Singh vs State4 that is at the stage when the investigation is still not over
If the view we hold is correct that section 344 operated the Magistrate provided he complied with the condition in the Explanation was competent to pass remand orders from time to time subject to each order being not for a period exceeding 15 days
There can be no doubt that the Magistrate had satisfied that condition
The judgment of the High Court in para 11 points out that the prosecution case was that the appellant had himself made a confession before the police
That was in addition to a confession by two others which implicated the appellant in the commission of offences under section 395 of the Code
In our view none of the contentions raised on behalf of the appellant can be sustained
The appeal therefore fails and has to be rejected
KBN Appeal dismissed
1  2 AIR 1956 Orissa 129
31955Bihar Law Journal Reports 323


Summary:
In the appeal against the order of the High Court dismissing the appellant s petition for a writ of habeas corpus the appellant urged that he was not produced before a magistrate within 24 hours after his arrest as required by section 167 of the Code of Criminal Procedure or even later that he was never informed of the grounds for his arrest that no custody warrant was ever issued warranting the jail authorities to keep the appealant in jail custody that the remand orders passed by the magistrate were tinder section 167 and not under section 344 of the Code as the latter section did not apply at the stage of investigation and that even if section 344 applied the magistrate could not order detention for more than 15 days in the whole
He also urged that the Jail Superintendent did not produce before the High Court the jail records but only produced his report thus disabling the appellant from establishing his case
Dismissing the appeal HELD  1 The order sheet produced before the High Court showed that the appellant was produced before the magistrate within 24 hours after his arrest and that the magistrate remanded him to jail custody
Though the order sheet had entries showing that on subsequent occasions when remand orders were made the appellant was produced before the magistrate the High Court has found that the Magistrate had wrongly recorded that the appellant was produced before him on those occasions
However the wrong entries made by him do not mean that the remand orders were not in fact passed by him though he did so in the absence of the appellant
Such orders can be lawfully passed if an accused person cannot for some reason or the other be brought before the magistrate
134 E F Rai Narain vs Superintendent Central Jail New Delhi Writ Petition No 330 of 1970 decided on Sept 1 1970 referred to
ii The facts negative the suggestion of the appellant being kept in ignorance of the reasons for his arrest
135 F iii There is no reason to think that the magistrate ordered the appellant to lie taken into jail custody without custody warrant
136 A iv section 167 operates at a stage when a person is arrested and either an investigation has started or is yet to start but is such that it cannot be completed within 24 hours
Section 344 on the other hand shows that investigation has already begun and sufficient evidence has been obtained raising a suspicion that the accused person may have committed the offence 130 and further evidence may be obtained to enable the police to do which a remand to jail custody is necessary
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
Therefore it is not as if the stage at which the Magistrate passed the remand orders was still the stage when section 167 applied and not section 334
The Magistrate provided he complied with the condition to the Explanation was competent to pass remand orders from time to time subject to each order being not for a period exceeding 15 days
The Magistrate had satisfied that Condition
136 G View contra in Artatran vs ATR 1956 Orissa 129 disapproved
A Lakshamanrao vs Judicial Magistrate   Chanaraatn vs State and Ajit Singh vs State 1970 76 Crl
LH 1075 referred to The appellant was content with the production of the superintendent s report
No prejudice was caused to the appellant s case since the jail record could not have proved anything more than what the jail superintendent s report proved