1. This is a reference by the learned Sessions Judge, Tripura, recommending that the orders dated 27-6-63, 8-7-63, 10-7-63, 19-7-63, and 22-7-63, passed by the learned Magistrate, remanding the petitioners to the Hajat are not warranted by law and hence the petitioners who are being detained in custody under these illegal orders should be discharged. The reference arises in the following circumstances: The two petitioners were arrested on 12-6-63, by the police at the Hamidia Hotel in Kailashahar market and they were produced before the S.D.M Kailashahar on 13-6-63 with a report that they were found moving suspiciously in the town and market and that when challenged they could not give any satisfactory account for their presence at Kailashahar, but were making conflicting statements regarding their arrival at the place, that their statements could not be properly recorded as they were speaking partly in. Hindi, Urdu and, Pushtu, from which it was not possible to ascertain their nationality though they said that they were Pathans, that when they were searched Pakistan currency notes of Rs. 100/- were found inside the pocket of the shirt of Rab Noaz, while Pakistan currency notes of the value of Rs. 20/- were seized from the possession of Nowab Khan, that from their movements and activities it was strongly suspected that they were Pakistan military spies and that it was necessary to record their statements by deputing an Officer from the Special Branch at Agartaia.
2. On this Police report, they were remanded to Jail custody till 27-6-63. On 27-6-63, the petitioners were produced before the learned Magistrate. As no further report from the I.O was received, therefore, the learned Magistrate remanded them to Hajat till 10-7-63 with a direction to the effect that the I.O should move the higher Police Authority to expedite the interrogation of the petitioners at Kailashahar Sub-Jail or Central Jail, Agartaia.
3. But before 10-7-63, the Superintendent of Police requested the District Magistrate, by a letter to have the petitioners transferred to the Central Jail at Agartaia for interrogation and the District Magistrate thereafter wrote a letter to the S.D.M, Kailashahar to transfer them to Agartaia. Thereupon, the petitioners were transferred to the Central Jail, Agartaia and the record of the case also appears to have been sent to the District Magistrate, Page: 341Agartaia. Thereafter, the petitioners were remanded, to Hajat till 6-8-63. On 1-8-63, the petitioners filed a petition, before the Sessions Judge, Agartaia, stating that their arrest under Section 55, Cri. P.C was unjustified and their further detention without any trial was illegal, that they were Afgan nationals who came to India from Pakistan without any valid travel document and as such if they had committed any offence they pleaded guilty to the same. That the learned Magistrate should have passed an order either about their release or conviction, but, no order has been passed by him as yet. Thus the order of the learned Magistrate regarding their detention in the Hajat is illegal, and hence they should be discharged.
4. The learned Sessions Judge, after going through the record and hearing the counsel for the petitioner has made this reference for quashing the orders of the learned Magistrate and to discharge the petitioners.
5. Heard, the learned counsel for the petitioners and the Government Advocate.
6. The contention advanced on behalf of the petitioners is that their detention in custody after arrest finder Section 55, Cri. P.C without any specific charge of any cognizable offence having been committed by them or of their being either vagabonds, or habitual robbers is illegal, that in the face of their admission both at Kailashahar and at Agairtala before the Magistrate that they were Afgan nationals, who entered India from Pakistan without any valid travel documents, the indefinite detention in custody without any trial was illegal against all principles of natural justice and an invasion of the fundamental rights of the petitioners.
7. The learned Government Advocate, on the other, hand, urged that under Section 55, Cri. P.C the Police have got the right to arrest any person who had no ostensible means of subsistence and cannot give a satisfactory account of himself and that therefore the Police acted correctly in arresting the petitioners who when questioned were not able to give satisfactory account of themselves. He further pointed out that the petitioners who, according to their own admission, were foreign nationals were not entitled to any fundamental rights and that they were rightly arrested and detained in custody.
8. It cannot be stated in this case that the petitioners were illegally arrested by the Police. They were arrested in Kailashahar which is a town near, the border between Tripura and Pakistan, under circumstances, which certainly gave room for suspicion that they were foreign nationals and that they had entered India illegally without any travel permits. The fact that both of them had concealed the Pakistan currency in their possession made this suspicion all the greater. The petitioners themselves admit that they were foreign nationals. As according to them they are Afgan nationals and had entered from Pakistan into India without any travel document, they are guilty, according to their own admission, of a cognizable offence under Section 14 of the Foreigners' Act and further guilty under the Indian Passport Act and Rules. Hence, their arrest cannot be said, to be illegal.
9. The other contention of the learned counsel for the petitioners is that the petitioners were arrested on 12-6-63 and they were detained in custody under section 167, Cri. P.C and still they are in Judicial lock-up under the provisions of the same section. He pointed out that under Section 167, Cri. P.C they can be detained in custody under the orders of a Magistrate only for 15 days and any further detention after the expiry of 15 days is illegal. If their further detention is desired it can only be done under Section 344, Cri. P.C, after the Magistrate has taken cognizance of the case on a Police report filed under Section 173, Cri, P.C In this case the Magistrate did not take cognizance of the case, and therefore, the detention of the petitioners shall be treated under Section 167, Cri. P.C They are in Hajat for nearly two months, therefore, their further detention over and above 15 days after their arrest on 12-3-63 is illegal, and hence they should be set at liberty.
10. The liearned Government Advocate urged that in this case the petitioners were first detained under Section 167, Cri. P.C and thereafter they were detained under Section 344, Cri. P.C because their further detention was thought very essential in order to find out as to whether they were Afgan nationals or Pakistan nationals and whether they entered into India for carrying out subversive activities.
11. The learned Government Advocate further pointed out that the law does not lay down that any person arrested by the Police without, a warrant must be released from custody on the expiry of the period of 15 days, mentioned in S. 167(2) of the Code, unless the Magistrate having jurisdiction takes cognizance of the offence and decides to postpone the enquiry or trial under Section 344 of the Code. According to the provisions of Section 344, a Magistrate without taking cognizance of the offence, while the matter is still under investigation of the Police, can remand, a man to the Judicial lock-up.
12. From a perusal of the record, it appears that in the instant case the Magistrate has kept legally the petitioners in the Judicial lock-up under the provisions of Section 344, Cri. P.C
13. Now the point for consideration is as to whether the detention of the petitioners for more than 15 days in the Judicial lock-up on the orders of the learned Magistrate is legal or not. It is not disputed that Section 167, Cri. P.C applies only to the stage when the case is still under Police investigation, and that after cognizance of the offence is taken by a competent Magistrate, Section 344 applies. But there is a conflict of opinion as to whether Section 344 applies before cognizance has been taken by a Magistrate. In some cases it has been held that the power under Section 344 can be exercised only after the Court has taken cognizance of the offence. On the other hand, in some cases it has been held that a Magistrate having jurisdiction to take cognizance of an offence can avail himself of the provisions of S. 344, Cri. P.C without taking cognizance of the offence or while the matter is still under investigation by the Police.
14. Now the question arises as to which view out of the two is sound and should be adopted in Page: 342this case. I feel that the view taken by the Courts that the Magistrate having jurisdiction to take cognizance of the offence can avail himself of the provisions of Section 344, Cri. P.C without taking cognizance of the offence or while the matter is still under investigation by the Police appears sound and it should be followed. In order to understand the implications of Section 344, it is better to examine it with Section 167, Cri. P.C
15. The Legislature has expressly divided the period for which a person can be detained in custody prior to the commencement of an inquiry or trial into two stages. The first stage is of the period of 24 hours in this period the police have absolute discretion to detain the person anywhere they like during the investigation. If the investigation cannot be completed within 24 hours, the police must forward the accused to the nearest Magistrate, see lection 167(1).
16. The second stage consists of 15 days; the Magistrate to whom the police have forwarded the accused can authorise his detention in such custody as he thinks fit for a term not exceeding 15 days in the whole; see Section 167(2). This remand is practically automatic as soon as the police report that the investigation cannot be completed within 24 hours and that the accused must be remanded to custody for is days, the Magistrate would feel bound to grant the remand. The Legislature expects investigations to be completed within the period of 15 days, but frequently investigation must go on for more than 15 days other persons involved in the commission of the offence may be absconding, identification proceedings in respect of the arrested persons or property may have to be done, a report may have to be obtained from an expert such as the Chemical Examiner or the Imperial Serologist or a handwriting expert, witnesses may not be available for interrogation on account of illness or being away from their home, or the investigating officer may be absent on leave or may have more urgent investigations to do in the period.
17. On account of these and other reasons Investigations, particularly investigations in dacoity, riot and murder cases, are often delayed beyond 15 days. So there must be a third stage of investigation, e.g, the stage after 15 days. The Legislature must have realised that frequently investigation would last more than 15 days, particularly investigation of serious crimes like dacoity and murder.
18. It could not have contemplated that the arrested person must be released from custody after the expiry of 15 days regardless of the nature of the accusation or information against him and regardless of the quantity of evidence so far available against him. Therefore, it must have made provision for continuing the arrested person's detention after 15 days, in suitable cases and there is no provision barring that contained in Section 344.
19. It follows that Section 344 is meant to be applied when the investigation cannot be completed within 15 days and there is a reasonable ground to believe that the accusation or information is true. It is stated in the explanation to Section 344 that if sufficient evidence has been obtained to raise a suspicion that the accused might have committed the offence and it appears likely that further evidence may be obtained by a remand, it is a reasonable cause for a remand.
20. This explanation necessarily refers to the stage when the offence is still under investigation by the police. The investigation is to be done by the. Police only; only they can unearth or collect evidence. The Court simply tries or holds an inquiry by examining witnesses produced before it by the police or the complainant; it does not investigate and does riot collect evidence.
21. Therefore, when the explanation refers to the probability of obtaining further evidence it means that the remand under Section 344 can be granted while the case is still being investigated by the police. If the investigation has been completed, normally there would not arise any question of the probability of obtaining more evidence by further, investigation. If there are good grounds for not completing the investigation within 15 days and there is sufficient evidence or reasonable suspicion against the accused, the Court may postpone the commencement of enquiry or trial pending completion of the investigation and remand the accused to custody in the meanwhile; this is exactly what Section 344 permits.
22. This remand under Section 344 is to be distinguished from the remand under Section 167(2). Section 344 is more general than Section 167(2), which is confined in its operation to the stage of 15 days of investigation; it can be used at any stage and can be used by any Magistrate or Judge. A remand under Section 344 can be ordered only by the Court having jurisdiction for the offence and not by any Magistrate like a remand under Section 167(2).
23. It has to be for a reasonable cause and is not almost automatic or as a matter of course like a remand under Section 167(2). Under S. 167(2) the Magistrate has hardly any discretion; if the police report to him that the investigation cannot be completed within 24 hours and that there are reasons to believe that the accusation or information is well founded, he will have no option but to remand the accused.
24. He is not required to give any reasons for granting remand to jail custody; but a Court granting remand under Section, 344 has to give reasons. A Magistrate granting remand under Section 167(2) has discretion to remand the accused either to police custody or to jail custody but it is doubtful if a Court granting remand under Section 344 has such discretion and can remand the accused to police custody.
25. From the above discussions, it is clear that a Magistrate having jurisdiction to take cognizance of the offence can avail himself of the provisions of Section 344 without taking cognizance of the offence or while the matter is still under investigation by the Police. I, therefore, find that the orders of the learned Magistrate in remanding the petitioners to the Jail lock-up under Section 344, Cri. P.C was not illegal.
26. The last contention of the learned counsel for the petitioners was that the transfer of the petitioners Page: 343to Agartala from Kaiiashahar without any order under Section 528(2), Cri. P.C by the District Magistrate was illegal and that they should therefore be set at liberty forthwith. This argument is also without any merit.
27. From the report of the learned District Magistrate, it appears that he simply asked the S.D.M, Kaiiashahar to send the petitioners to the Central Jail, Agartala for interrogation by an expert of the Intelligence Bureau of the Ministry of Home Affairs as they were strongly suspected to for Pakistan Military Spies. The learned Magistrate while sending the petitioners to the Central Jail, Agartala, sent the record also in order to facilitate further interrogation of the petitioners by an expert after going through the record. In the presence of these facts, it cannot be said that the case was transferred from the file of the learned S.D.M, Kaiiashahar to the file of the learned S.D.M or the D.M, Agartala. It is a simple case of transfer of the accused from one Jail to another Jail for interrogation. The learned counsel for the petitioners failed to show me any law which bars a Magistrate from sending an accused from one Jail to another. Jail for interrogation in special circumstances like the one in the present case. The transfer of an accused from one Jail to another Jail for interrogation for special reasons does not amount to illegality.
28. No other argument was pressed before me. As observed above, the detention of the petitioners by the learned S.D.M under S. 344, Cri, P.C is not unlawful. I, therefore, see no reason to interfere with the orders of the learned Magistrate and hence, I reject this reference and direct that the file of the case be returned.
GH/V.B.B
29. Reference rejected.