Report No. 37
Note on Sections 167 and 344
There is a controversy as to whether a Magistrate has jurisdiction to remand the accused to a judicial custody under section 344 before submission of the report by the police under section 173.
The case-law on the subject is discussed in a recent decision1 where the Madhya Pradesh decision on the subject2 was followed, and it was held that while ordinarily, the investigation should be completed in 15 days, the Legislature could not have contemplated that the person must be released after 15 days if, as in the case of grave crimes, the investigation takes more than 15 days and it becomes necessary to continue the investigation. The Explanation to section 344(2) was cited in support of this view as making it clear that section 344 also relates to a stage where the offence is still under investigation.
It may also be noted, that the Calcutta High Court has taken conflicting views in the matter.3-4
A clarification on the subject is, therefore, all the more necessary.
The Explanation to section 344(2) was not contained in the Code of 1861. It was inserted by section 194 of the 1872 Code, for the first time.
1. State of Kerala v. Madhavan, AIR 1964 Ker 232.
2. Shrilal v. Aggarwal, AIR 1960 MP 135.
3. Bhola Nath v. Emp., ILR 51 Cal 402: AIR 1924 Cal 614 (616) (Grees & Paton JJ.).
4. Superintendent and Legal Remembrancer v. Bidhindra, AIR 1949 Cal 143, para. 5 ( Roxburgh and Blank JJ.).
Sections 124 and 194 of the 1872 Code (corresponding to present sections 167 and 344) were as follows:-
"124. Accused not to be detained by police more than twenty-four hours without special authority.-No Police officer shall detain an accused person in custody for a longer period than, under all the circumstances of the case, is reasonable, and such period shall not, in the absence of the special order of Magistrate, whether laving jurisdiction to inquire into or try the case or not, exceed twenty-four hours, exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.
If the investigation has not been completed within twenty-four hours and no such special order has been passed, and if there are grounds for believing that the accusation is well founded, the officer in charge of the police-station shall forward the accused person to the Magistrate having jurisdiction, with a statement of the offence for which he has been arrested.
A Magistrate authorising detention under this section shall record his reasons for so doing.
If such order be given by a Magistrate other than the Magistrate of the District or of a Division of a District, he shall forward a copy of his order, with his reasons for making it, to the Magistrate to whom he is subordinate".
"194. Adjournment of inquiry and remand.-If, from the absence of a witness or from any other reasonable cause, it becomes necessary or advisable to defer the examination or further examination of witnesses, the Magistrate may, by a written order, from time to time adjourn the inquiry and remand the accused person for such time as is deemed reasonable, not exceeding fifteen days.
Instead of detaining the accused person in custody during the period for which he is so remanded, the Magistrate may release him, upon his entering into a recognizance, with or without a security or sureties, at the discretion of such Magistrate, conditioned for his appearance before such Magistrate at the time and place appointed for the continuance of such examination.
Explanation.-After commencing the inquiry, if sufficient evidence has been obtained to raise a suspicion that the person accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable ground for a remand.
In the Code of 1882, section 167 used the words "not exceeding fifteen days", while section 344 used the words "not exceeding fifteen days at a time. Moreover, section 344 in that Code spoke of 'postponing' the commencement of the inquiry, and the Explanation did not open with the words "After commencing the inquiry".
When the Bill which led to the Code of 1898 was introduced, clause 167(2), first sentence, did not contain the words "in the whole". The Select Committee which considered the Bill1 stated as follows:-
"Clause 167-It has been held by the High Court of Madras2 that the clause does not contemplate remands for successive period of fifteen days. We think that this decision is right and have put in words to make the point clear. Any further proceedings should be taken under section 344".
The Select Committee, accordingly, added the words "in the whole" in section 167(2), first sentence. It seems, that in the debates on the 1898 Bill, (after the Report of the Select Committee), an amendment was moved to substitute for the words "in the whole" the words "at any one time". It would appear,3 that the Government of Bombay had considered the restriction indicated by the words "in the whole" undesirable-"since important cases arise in which the police require time for investigation and for the collection of evidence, while such cases would frequently be prejudiced by any such proceedings in court as are contemplated by section 344 of the Code." The amendment was, however, rejected after some discussion.
1. Legislative Council Debates, 12th March, 1898, speech of Mr. H.E.M. James.
2. The reference seems to be to Q.E. v. Engadu, 1887 ILR 11 Mad 98.
3. Legislative Council Debates, 12 March, 1898, speech of Mr. James.
(The Law Member, Mr. Chalmers, after referring to the conflicting decisions on the subject, stated that he could not express an opinion as to which view was preferable, since that was matter for people with Indian experience. The Hon'ble Mr. Nicholson said, that while remands under section 167 could be ordered by any Magistrate whether he had or had not jurisdiction, the Bill (as amended by the Select Committee) provided that such preliminary detention should not exceed fifteen days in all. At the expiry of this period, he said, the suspect must either be released or placed before the Magistrate having jurisdiction, with a report. He added-
"Such report, however, need not be the final charge sheet, and in fact, is usually an occurrence report, nor is it necessary for the Magistrate to begin enquiry thereon; on the contrary, by section 344 he is expressly empowered to postpone such commencement and to give any reasonable number of remands of fifteen days at a time if reasonable cause is shown, and the Explanation to section 344 expressly states, that if there is evidence creating a suspicion that the accused has committed an offence, and that further evidence may be procurable, if a remand be granted, that is a reasonable cause for remand.
A man arrested, perhaps merely on suspicion, ought not to be detained indefinitely in custody under section 167, while the police are running round, hoping to find out something. If the police had found out something which casts reasonable suspicion, on the person in custody, he could be detained under section 344 for a reasonable time. If they had not found out evidence which gave ground for action under the Explanation to section 344, he should be released."
Reading sections 61, 167, 169, 170 and 344 together, one finds that after expiry of the time allowed by sections 61 and 167, an accused must either be (1) released by the police under section 169, or (ii) forwarded for taking cognizance under section 170 to a Magistrate empowered to take cognizance upon police report. The Magistrate may either take cognizance and grant remand under section 344, or released him1. He cannot grant remand under section 344 to enable completion of the investigation. Thus, the narrower view is correct
The controversy on the subject was referred to in the 14th Report 2 of the Law Commission, and the recommendation made in that Report was that:-
(i) Section 167 should be amended to enable a magistrate to remand an accused to custody for a period exceeding fifteen days but not exceeding sixty days if the investigation is not completed within that period;
(ii) it was wrong to utilise section 344, for the purpose in question as that would mean, in effect, giving an "unrestricted licence to the police and the discretion of the Magistrate can be seldom effectively exercised."
1. Cf. Bhola Nath v. Emp., AIR 1924 Cal 614 (615, 616, 617).
2. 14th Report, Vol. 2.