Report No. 37
471. Section 164 and recording statements at the instance of the accused.-
With reference to section 164, the following suggestion1 has been made by the Bar Association, Adoni (Andhra Pradesh). (The Judicial First Class Magistrate Adoni, agrees with this).
"Provision should be made for recording statements under section 164 for witnesses produced on behalf of the accused."
We examined the law on the subject.
The accused seems to have no right at present, in this respect. In fact, the police also, have no such right. But, there is nothing to prevent the Magistrate from recording the statement at the instance of the accused.2-3
We do not, therefore, see the need for any amendment.
1. F. No. F. 3(2)/55-L.C., Pt. III, S. No. 50(n).
2. C.W. Casse (in re:), AIR 1948 Mad 489 (490).
3. Muhammad Sarfraz Khan, 52 Cr LJ 1425.
472. Section 164(1) and suggestion to make recording of statements by Magistrate obligatory.-
The following suggestion has been made by a Bar Council.1
"(1) A discretion is given to the police while investigating an offence to produce witnesses before the Magistrate for the purpose of recording their statements on oath. A statutory obligation may be imposed on the investigating officer to produce eye-witness before the Magistrate for recording their statements.
(2) The role of the Magistrate at the investigating stage may be enlarged.
(3) The Magistrate may be empowered to take the evidence of identifying witness on oath, when he presides over the identification parades.
(4) The right of taking advantage under section 27 of the Evidence Act (admission of statements from an accused person in police custody leading to the discovery of property) is denied to the police. The investigating officer may be empowered to resume his custody for the limited purpose and with the permission of the. Magistrate who had remanded him to custody".
The view of the State Government concerned on this suggestion is that Item 4 of the proposal of the Bar Council will not be necessary in view of section 167.
We agree on this point with the State Government.
The State Government also felt that the other proposals would not be practicable. We are of the same view as regards items (1) and (2). But, as regards item (3), we are already recommending a provision for recording the statement on oath.2
1. F. No. F. 3(2)/55-L.C., Pt. III, S.No. 52.
2. See section 164, as proposed.
473. Section 165.-
Copies under section 165 should, we think, be given free of cost. The section may be amended accordingly.
474. Section 165(5).-
A State Government1 has suggested the removal from section 165(5) and section 166 of the obligation to furnish copies of reasons recorded under section 165(3). We are unable to accept the suggestion, having regard to the fact that the matter is one of protection of privacy of property.
Section 165(5) was inserted in 1923, by means of an amendment in the Assembly. We may quote here the reasons advanced by Rao Bahadur T. Rangachariar, who moved the amendment.2
"As Honourable Members will see, the object of this amendment is that, as soon as a search is made, an immediate report should be made to the nearest Magistrate. That is one of the objects. The second object is that the person whose house is searched should have copies of the records made under sub-clauses (i) and (iii). Sub-clause (4) as it stands, enables the provisions of section 103 to apply, that is, the general rules relating to searches are made applicable. Under section 103 the occupier of the place where the search was made gets only a list of the articles taken, but what I want him to get is the reason for the search which has to be recorded in writing, which has to be sent to the Magistrate, and he gets a copy thereof. That is the object of this further sub-clause (5) which I move, Sir, as it stands".
Government accepted the amendment, and no further debate seems to have taken place.
1. F. 3(2)/55-L.C., SI. No. 13.
2. Legislative Assembly Debates, 31st January, 1923, Vol. III, No. 27.
475. Section 165 and recovery by police of abducted persons.-
An Inspector General of Police has suggested1 that power be given to the police to recover victims of abduction or kidnapping who are wrongfully confined. We are not inclined to accept the suggestion. Section 100, is, in our view, enough for the purpose. As the matter involves personal liberty, it is better to confine it to Magistrates competent to act under section 100.
1. F. 3(2)/55-L.C., Pt. H, S. No. 32.
476. Section 166.-
Copies under section 166 should be given free of cost. The section should be amended accordingly.
477. Section 167 and period of remand.-
In relation to section 167, a point of great practical importance has to be considered. The remand under section 167 cannot be ordered for more than 15 days in the whole. Where the investigation is not completed within 15 days, the police (in some States) secure remand under section 344, without submitting a charge-sheet in the prescribed form.1
Now, there is a conflict of decisions on the question whether a remand can be ordered under section 344 without taking cognizance.2 In this connection, we went at length into the history of sections 167 and 344.
1. Cf. 14th Report, Vol. 2.
2. For detailed discussion, see Appendix 15.
478. The view expressed on the subject in an earlier Report,1 and the recommendation made therein to the effect that the maximum period under section 167 should be extended to 60 days, were also considered at length by us. Our conclusions are as follows:
(i) It is not proper to extend the maximum period in section 167, as the extended period is apt to become a routine, and is likely to be restored to in all cases.
(ii) Section 344 is not at all intended to be used at a stage before the Court has taken cognizance. This is clear from its placing in the Chapter on Inquiries and Trials, and from the history of section 167 and also from the words "inquiry or trial" which occur in section 344(1).
(iii) The real misunderstanding is caused by the Explanation to section 344, as its wide language obscures the object of the legislature that section 344, being a provision occurring in the Chapter dealing with inquiries and trials, is intended to be used only after cognizance has been taken. The Explanation to section 344 should be confined to the post cognizance state, by way of clarification.2
1. 14th Report, Vol. 2.
2. To be carried out under section 344.
479. Section 167 and remand for more than 15 days.-
With reference to section 167, the following suggestion1 has been made by a High Court:
"Section 167 may be amended to provide for detention in judicial custody for more than 15 days at the stage of investigation. If necessary, subject to a maximum period beyond which remand should not be granted. (This was also the recommendation of the Law Commission)"2.
We have already expressed our views in the matter.3
1. File No. F. 3(2)/55-L.C., Pt. III, S. No. 28.
2. The reference is to 14th Report, Vol. 2.
3. See discussion regarding section 167.
480. Section 167 and Magistrates to be empowered.-
We had also to consider the question whether powers under section 167 should be given to both classes of Magistrates (as in Punjab) or to Judicial Magistrates only (as in Bombay). In our view, these powers should be given only to Judicial Magistrates. The power is ancillary to the trial of offences, its exercise requires an approach different from that of mere maintenance of law and order.
It may require, particularly where detention in police custody is to be ordered, a careful recording of reasons,1 for which Executive Magistrates may not have sufficient time. As has been pointed out,2 a Magistrate acting under section 167 has to weigh the evidence with respect to the offence and does not act in a purely executive capacity.
(i) Amir Khan v. Emp., (1902) 7 CWN 457 (459).
(ii) Emp. v. Kampu Kuka, (1906) 11 CWN 554 (551).
2. Sunder Singh v. Emp., ILR 12 Lah 16: AIR 1930 Lah 945 (946) (Bhide J.).