1969L3061 (PLP)

Syed Fayaz Hassan Hamaduni for Petitioners. Rana Maqbool Ahmad for A.‑G. for the State. This is a petition under section 561‑A, Cr. P. C. for quashment of the order, dated the 19th of April 1969, passed by the learned S. D. M. Jauharabad remanding the petitioners to police custody.

2. A case under sections 302 and 307, P. P. C. read with section 34, P. P. C. was registered against the petitioners and one Muhammad Nawaz. The latter was arrested while the petitioners appeared before the learned Magistrate on the 19th of April 1969 and surrendered themselves. The learned Magistrate took them into custody. On the same day the investigating officer made an application to the learned Magistrate that the petitioners be delivered to their custody and remand be granted under section 167, Cr. P. C. for the purpose of investigation. This request was granted and the petitioners were remanded to police custody for a period of ten days. Aggrieved by this action, the present petition was filed.

3. The learned counsel fur the petitioners strongly urged and it was conceded by the learned counsel for the State that the action of the learned Magistrate remanding the petitioners to police custody after they had surrendered themselves and were in judicial custody was not covered by the provisions of section 167, Cr. P. C. and, therefore, it was illegal. I find considerable force in this contention.

4. There are two sections which empower the Magistrate to order the custody of an accused person. One is section 167, Cr. P. C. This section is intended to order the custody of the accused person during the course of investigation. Although the nature of the custody is not mentioned in the section but it appears clear that this is a police custody. According to this section whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within a period of 24 hours fixed by section 61, the Magistrate is empowered to order the detention of the custody for a period not exceeding fifteen days. It also requires that when the person arrested is likely to be detained for a period of more than 24 hours it is incumbent upon the investigating officer to forward the accused to the Magistrate from whom the remand is sought. Reading the entire subsection (1) of section 167 it becomes clear that the accused person must be in the custody of the police officer otherwise he cannot be forwarded to the Magistrate. Similarly, subsection (2) says, that when the accused person is forwarded to the Magistrate for such authorization, he may order the detention. There is nothing in the section to suggest that when a person surrenders before the Magistrate and he is actually taken in the judicial custody, he can be remanded to the police custody. The remand for the custody of the petitioners was sought under section 167, Cr. P. C. but this section is inapplicable.

5. The other section is 344, Cr. P. C. but this section relates to the proceedings, inquiries or trials and has nothing to do with the police investigation, So it is intended for an under trial prisoner and the postponement is granted for the conditions laid down by the section.

6. By reading the two sections together it becomes clear that section 167 contemplates remand to police custody while section 344 contemplates remand to judicial custody. Neither of these gives power to the Magistrate to remand the accused person to police custody after he surrenders and is taken in the judicial custody.

7. For the foregoing reasons, it must be held that the action of the learned Magistrate remanding the accused to police custody is illegal. His order is, therefore, quashed and the accused be sent back to judicial custody. The Investigating Officer is present and he is directed to comply with this order.