minal Appeal No 359 of 1974
Appeal by special leave from the Judgment and order dated the 6th August 1974 of the Orissa High Court in Criminal Misc
Case No 180 of 1974
Sharad Manohar R N Nath and V N Gaupule for the appel lant
Gobind Das and B Parthasarathi for the respondent
The Judgment of the Court was delivered by  UTNTWALIA J
An occurrence took place on the 8th of March 1974 at a place situated in the District of Cuttack Orissa
First Information Report was lodged on the 9th March 74 and a police investigation started in connection with the offences alleged to have been committed under sections 147 148 307 302 simpliciter as also with the aid of section 149 of the Indian Penal Code
The four appellants in this appeal by special leave were arrested by the police in the course of the investigation on the 8th March and four others who have been enlarged on bail by the Sessions Judge of Cuttack were arrested on the 14th March
They were produced before the Magistrate who remanded them to jail custody from time to time
The learned Sessions Judge released on bail four of the accused but refused to grant bail to the appellants
An argument based upon proviso a to sub section 2 of section 167 of the Code of Criminal Procedure 1973 Act No 2 of 1974 hereinafter referred to as the New Code was rejected by the Sessions Judge relying on the saving clause a of sub section 2 of section 484
139 The appellants approached the Orissa High Court and pressed their cases for releasing them on bail on merits as well as on the ground of the provision of law aforesaid contained in the New Code
A Bench of the High Court by its order dated the 6th August 1974 has repelled the arguments put forward on behalf of the appellants and dismissed their application for bail
They have filed the present appeal by special leave of this Court
This Court is not expected to examine afresh the question of releasing the appellants on bail on merits
But the question for consideration is whether the appellants are entitled to be released on bail under the proviso a of section 1672 of the New Code
The New Code came into force on and from the 1st of April 1974
Section 4841 repealed the Code of Criminal Procedure 1898 hereinafter called the Old Code But there were certain saving clauses engravers in sub section 2 the relevant clause a would be adverted to hereinafter in this judgment
Before doing so it is necessary to appreciate the position of law in relation to the power of remand by a Magistrate during the course of investigation of a case by the police
A person arrested without warrant could not be detained by a police officer for a period exceeding 24 hours as provided in section 61 of the Old Code
Section 1671 required the police officer to forward the accused to the nearest Magistrate if the investigation could not be completed within the period of 24 hours fixed by section 61 and if there were rounds for believing that the accusation or information was well founded
Sub section 2 provided 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 on the whole
If he has not 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   The Magistrate to whom the accused was forwarded could remand him to police custody or tail custody for a term not exceeding 15 days in the whole under section 1672
Even the Magistrate who had jurisdiction to try the case could not remand the accused to any custody beyond the period of 15 days under section 1672 of the Old Code
There was no other section which in clear or express language conferred this power of remand on the Magistrate beyond the period of 15 days during the pendency of the investigation and before the taking of cognizance on the submission of Charge Sheet
Section 344 however enabled the Magistrate to postpone the corn 140 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  to wit The Superintendent and Remembrancer of Legal Affairs Government of West Bengal vs Bidhindra Kumar Roy and others1 Chandradi Dubey vs The State  2  Dukhi and another vs State and another3  Shrilal Nandram and another vs R R Agrawal section D M First Class Gwalior and another1 and State of Kerala vs Madhavan Kuttan5
A contrary view was taken by the Orissa High Court in the case of Artatran Mahasuara and others vs State of Orissa6
It may be emphasized here that the Court will have inherent power of remand of an accused to any custody unless the power is conferred by law
In the order under appeal the High Court without reference to section 344 of the Old Code seems to have assumed that such a power existed
That is not correct
There are two decisions of this Court affirming the view expressed by majority of the High Courts and over ruling the one taken by the Orissa High Court in the case referred to above
In A Lakshmanarao vs Judicial Magistrate First Class Parvatipuram and others7 an argument was advanced that section 344 falling in Chapter 24 of the Old Code which contained general provisions as to enquiries and trials could not apply to a case which was at the stage of investigation and collection of evidence only
Dua J deli vering the judgment on behalf of this Court repelled the argument thus at page 506 This argument appears to us to be negatives by the express language both of sub section 1 A and the explanation
Under sub section 1 A the commencement of the inquiry or trial can also be postponed
This clearly seems to refer to the stage prior to the commencement of the inquiry
The explanation makes it clear beyond doubt that reasonable cause as mentioned in sub section 1 A includes the likelihood of obtaining further evidence during investigation by securing a remand
The language of section 344 is unambiguous and clear and the fact that this section occurs in Chapter 24 which contains general provisions as 1 AIR 1949 Calcutta 143
2 1955 Bihar Law Journal Reports 323
3 AIR 1955 Allahabad 521
4 AIR 1960 Madhya Pradesh 135
5 AIR 1964 Kerala 232
6 AIR 1956 Orissa
129 7 to inquiries and trials does not justify a strained construction
In Gouri Shankar Jha vs The State of Bihar and others1 Shelat J delivering the judgment on behalf of the Court has said at page 569  In cases falling under section 167 a magistrate undoubtedly can order custody for a period at the most of fifteen days in the whole and such custody can be either police or jail custody
Section 344 on the other hand appears in Chapter 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 enquiry or a trial begins it is not proper to let the accused remain under police influence
Under this section a magistrate can remand an accusedperson to custody for a term not exceeding fifteen days ata 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
 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  142 Provided that a the Magistrate may authorise detention of the accused person otherwise than in 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 section for a total period exceeding sixty days and on the expiry of the said period of sixty days 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 section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter  The expression the Magistrate in the proviso would the Magistrate having jurisdiction to try the case
Section 309 2 says If the Court after taking cognizance of an offence or commencement of trial finds it necessary or advisable to postpone the commencement of or adjourn any inquiry or trial it may from time to time for reasons to be recorded postpone or adjourn the same on such terms as it thinks fit for such time as it considers reasonable and may by a warrant remand the accused if in custody  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 1672 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 3092 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 143 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  paradise for the criminals but surely it would not be so as sometimes it is supposed to be because of the courts
It would be so under the command of the Legislature
But the question in this case is whether during the pendency of the investigation which started before coming into force of the New Code the appellants can press into service proviso a to section 167 2 of that Code and claim to be released on bail as a matter of right when they are prepared to furnish bail
The answer to this question depends on the interpretation of sections 167 and 484 of the New Code
Unlike the wordings of section 428 the language of section 1671 which will govern sub section 2 also is whenever any person is arrested suggesting thereby that the section would be attracted when the arrest is made after coming into force of the Act
While the expression used in section 428 is where an accused person has on conviction been sentenced 
Interpreting such a phrase it has been held in the case of Mr Boucher Pierre Andra vs Superin tendent Central Jail Tihar New Delhi and another1 by Bhagwati J delivering the judgment of this Court at page 166  This section on a plain natural construction of its language posits for its applicability of fact situation which is described by the clause Where an accused person has on conviction been sentenced to imprisonment for a term
There is nothing in this clause which suggests either expressly or by necessary implication that the conviction and sentence must be after the coming into force of the New Code of Criminal Procedure
 We may however hasten to add that in spite of the phrase is arrested occurring in section 1671 since the Old Code has been repealed by sub section 1 of section 484 of the New Code the provision would have applied a fortiori if the savings provided in subsection 2 would not have applied to the situation with which we are concerned in this case
In our judgment clause a of subsection 2 of section 484 does apply
It reads as follows Notwithstanding such repeal aIf immediately before the date on which this Code comes into force there is any appeal application trial inquiry or investigation pending then such appeal application trial inquiry or investigation shall be disposed of continued held or made as the case may be in accordance with the provisions of the Code of Criminal Procedure 1898 as in force immediately before such commencement hereinafter referred to as the Old Code as if this Code had not come into force 1AIR 1 975 SC 164
144 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 1672  of the New Code
In the result the appeal fails and is dismissed
Appeal dismissed


Summary:
In respect of an occurrence which took place on 8th March 1974 at a place in the District of Cuttack a police investigation commenced in connection with the offences alleged to have been committed under sections 147 148 307 302 simpliciter as also with the aid of section 149 of the Indian Penal Code
Of the eight persons arrested during investigation four have been enlarged on bail by the Sessions Judge of Cuttack but the learned Sessions Judge refused to grant bail to the four appellants
Their conten tion based on proviso a to sub section 2 of Section 167 of the Code of Criminal Procedure 1973 was rejected by the learned Judge relying on the saving clause a of sub section 2 of section 484
The High Court also rejected their contention
This appeal has been filed on the basis of the special leave granted by the Supreme Court
HELD  i 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 of the Code of Criminal Procedure 1898
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
14 1 E F ALakhmanrao vs Judicial Magistrate First Class Parvatipuram and others  and Gouri Shankar Jha vs The State of Bihar and others   relied on
The Superintendent and Remembrancer of Legal Affairs Government of West Bengal vs Bidhindra Kumar Roy and others AIR 1949 Calcutta 143 Chandradin Dubey vs The State 1955 Bihar Law Journal Reports 323 Dukhi and another vs State and another AIR 1955 Allahabad 521 Shrilal Nandram  Another vs R R Agrawal section D M First Class Gwalior and another Kuttan ATR 1964 Kerala 232 Artatran Mahasuara and others vs State of Orissa AIR 1956 Orissa referred to
iiCourts will have no inherent power of remand of an accused to any custody unless the power is conferred by law
The High Court has crred in assuming without reference to section 344 of the old Code that such a power existed
140D iiiThe command of the Legislature in provisoa to section 1672 of the new Code 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
Although the expression reasonable cause  occurring in sub section 1A 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 1 to Section 309 in the identical language
The law as engrafted in 138 proviso a to section 1672 and section 3092 of the New Code confers the powersof remand to jail custody during the pendency of the investigation only tinderthe former and not under the latter
Section 3092 is attracted only aftercognizance of an offence has been taken or commencement of trial has proceeded
142G H Quere  What is the purpose of Explanation 1 in section 309 of the Code of Criminal Procedure 1973
ivUnlike the wordings of section 428 the language of section 1671 which will govern sub section 2 also is whenever any person is arrested suggesting thereby that the section would be attracted when the arrest is made after coming into force of the Act of 1973
The expression used in section 428 is where an accused Person has on conviction been sentenced  
To the facts of the present case clause a of subsection 2 of section 484 will apply
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 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
143C D 144B C Mr Boucher Pierre Andra vs Superintendent Central Jail Tihar New Delhi and another AIR 1975 SC 164 referred to