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Report No. 37

481. Section 167(2) and military custody.-

A suggestion1 of the Ministry of Defence may be noted regarding custody under section 167. Under sections 167(2) and 344, a Magistrate is empowered to remand an accused to any custody, that is to say, he can remand him to other than police custody. It is considered, that accused persons who are subject to military, naval or air force law may be permitted to be remanded to military, naval or air force custody. In fact, such custody has been ordered in some cases. In order that there may be no doubt left in the matter, the following additions should (it has been suggested) be made in the aforesaid sections after the word "custody":-

"including military, naval or air force custody where the accused belongs to any of these services."

We have considered the suggestion.

In section 167(2), the words used are "in such custody as the Magistrate thinks fit". These words are very wide.

In fact, it has been held 2 even under section 344, that the Magistrate can remand the accused to whatever custody he thinks fit. We are therefore of the view, that no change is necessary.

1. F. 3(2)/55-L.C., Pt. VII, S. No. 457 (Suggestion of the Ministry of Defence).

2. M.R. Venkataraman (in re:), AIR 1948 Mad 100 (Accused remanded to Central Jail, Trichinopoly, instead of Madurai Jail), by the Madurai Magistrate.

482. Section 167 and physical production of the accused.-

It has been suggested1 that an accused person should be physically produced before the Magistrate at the time when the police apply for remand, and that the grounds n which they ask for remand should also be put up before the Magistrate in the presence of the accused, so that if the accused wanted to controvert those grounds he could do so.

We examined the position on the subject.

Even now, Magistrates are requested to insist on the physical production of the accused. The position may, perhaps, be different for a subsequent remand.2

In our view, production of the accused every time is necessary whenever remand is desired. But no change is called for in the language.

1. F. 3(2)/55-L.C., Pt. VII, S. No. 449, Suggestion of the U.P. Committee for Investigation of Causes of Corruption in Subordinate Courts in Uttar Pradesh (1963), Report, p. 48, Bill at pp. 234-235.

2. Cf. Niranjan v. Manipur Administration, AIR 1958 Mani 33 (34).

483. Section 167(4).-

Section 167(4) will require re-drafting, in view of separation.

484. Section 168.- No change is needed in section 168.

485. Section 169.-

In section 169, the words "report in writing" etc. should be substituted for the words "police report".1

1. Cf discussion as to section 4(1)-definition of "complaint".

486. Section 170.-

In section 170, the following amendments are needed-

(a) The words "report of police officer" etc. should be substituted for the words "police report."1

(b) In section 170(3), the "Chief Judicial Magistrate" be substituted for the words "District Magistrate."

1. Cf discussion regarding section 4(1)-"complaint".

487. Section 171.-

A suggestion to delete the first part of section 171 has been received,1 but we do not accept it.

1. F. 27(3)/55-Judl. H (Home Ministry) Appendix I, Item No. 32.

488. Section 172.- No change is needed in section 172.

489. Section 172(1) and suggestion regarding sending case diaries to the Magistrate.-

With reference to section 172, the following suggestion1 has been made by the Markapur Bar Association, (Andhra Pradesh):

"Apart from section 172, the Police Standing Order in force in this State (vide P.S.O. 557) requires that the case diary be sent to the Superintendent of Police to ensure that the case diary is not altered subsequently for any reason. It is also mandatory that the case diary is sent to the Magistrate along with the remand report. But if the accused is not arrested, the case diary recorded even up to that time is not sent to the Magistrate. The case diary recorded upto the time of remand is never complete. In the interests of justice, and to ensure a fair trial, it is not sufficient if the case diary is sent to the Superintendent of Police. It is also necessary that the case diary is sent to the Magistrate having jurisdiction to try the case, day to day, and such course will be very much in the interest of justice."

It has therefore been suggested, that after sub-section (1), sub-section (1A) may be inserted as follows:-

"(1A) The proceedings so entered in the case diary shall day to day be s' communicated to the court having jurisdiction to try the case."

1. F. 3(2)/55-L.C., Pt. III, S. No. 50(o), (p. 219, correspondence).

490. We are unable to accept the suggestion. As regards statements under section 161, we have considered the matter1 separately. But statements in a police diary stand on a special footing. We do not see any need for the provision in question.

1. See discussion regarding section 161.

Code of Criminal Procedure, 1898 (Sections 1-176) Back

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