State of Maharashtra vs Dattatraya Balwant Upadhyaya and others

C.S. Dharmadhikari, J.—The respondents in these cases were arrested by the Yeotmal Police u/s 151 of the New Criminal Procedure Code, 1973, referred to hereinafter as the Code. Thereafter so far as respondent Dattatraya Balwant Upadhaya, in Criminal Revision Application No. 35 of 1976, is concerned, he was produced before the Judicial Magistrate, First Class, Yeotmal, on 6th January 1976 and the respondents in Criminal Revision Application No. 38 of 1976 were produced before him on 4th January 1976, along with an application stating that all these persons were workers of a banned organisation known as Rashtriya Swayamsevak Sangh and Jan Sangh, a political party. It was further alleged in the application for remand that they had decided to arrange a procession in the city to give slogans against the lawfully established Government. According to the State, they had also made arrangements for distribution of pamphlets containing the material criticising the policy of the Government and thereby to cause a breach of peace. According to the State, these activities of the respondents amounted to offences under the Defence of India Rules and, therefore, with an intention to prevent commission of these cognizable offences they were arrested u/s 151 of the Code and an application for remand was filed before the Judicial Magistrate, First Class, Yeotmal.

It appears from the record that so far as Criminal Revision Application No. 38 of 1976 is concerned, initially the Magistrate granted remand till 17th January 1976, but as he was not satisfied with the reasons given by the police about the legality and propriety of the detention of the arrested persons, the Judicial Magistrate, First Class, asked the Police Prosecutor to explain how the persons arrested u/s 151 of the Code could be detained in a magisterial custody. So far as Criminal Revision Application No. 35 of 1976 is concerned, on 6th January 1976 itself the Magistrate rejected the application for grant of remand on the ground that such an application was not maintainable u/s 167 of the Code. In the case out of which Criminal Revision Application No. 38 of 1976 arises, the Judicial Magistrate passed a speaking order and ultimately came to the conclusion that in a case where a person is arrested u/s 151 of the Code, the Magistrate has no powers to remand a person to any custody u/s 167 of the Code. In the view which he had taken he directed the release of all the persons forthwith. It is these orders which are challenged in these revision applications by the State Government,

Shri Badar, the learned Assistant Government Pleader, contended before me that the Judicial Magistrate, First Class, committed an error in holding that the provisions of section 167 of the Code are not applicable to a case where a person is arrested u/s 151 of the Code. According to Shri Badar, the provisions of section 151 authorise a police officer to arrest a person so as to prevent commission of cognizable offences. Sub-section (2) of section 151 lays down that no person arrested under sub-section (1) shall be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required or authorised under any other provisions of the Code or of any other law for the time being in force. According to Shri Badar, it is not the law that as soon as the period of 24 hours lapses a person is entitled to be set at liberty forthwith. In a given case if the police officer thinks that his further detention is required under any of the provisions of the Code or any other law for the time being in force, then such a detention could be continued after obtaining necessary orders from the Judicial Magistrate. According to him, the view taken by the learned Judicial Magistrate, First Class, that in no case the provisions of section 167 of the Code will apply to such an arrest is obviously illegal. In support of his contentions, Shri Badar has relied upon two decisions of Kerala High Court in Chakkappan and Others Vs. State of Kerala, and A.K. Gopalan Vs. State of Kerala and Others, and a decision of Allahabad High Court in Radhey Shyam v. State 1965 (2) Cri. L J 271.

On the other hand, it is contended by Shri Udhoji, the learned counsel for the respondents, that if the provisions of the Code and particularly the various definitions incorporated in section 2 are read together with the substantive provisions of the Code, it is quite obvious that the power of arrest conferred by section 151 could be exercised by a police officer if he had a knowledge regarding the design of the person concerned in that behalf. Mere apprehension or suspicion is not enough. The powers u/s 151 could be exercised only in a case where the police officer has knowledge about a design of a person to commit any cognizable offence. The arrest contemplated u/s 151 is preventive in nature and not punitive, it cannot also be equated with a preventive detention. Therefore, the Legislature in its wisdom by enacting sub-section (2) has clearly laid down that such a detention could last only for a period of 24 hours. If the provisions of section 151, as a whole, are read with the various definitions incorporated in section 2, it is quite obvious that it was the intention of the Legislature that as soon as the period of 24 hours lapses, the person is entitled to be set at liberty. Continuance of a detention u/s 151 is not authorised at all, much less beyond the period of 24 hours. Shri Udhoji further contended that in the present case even from the bare reading of the application for remand, it is obvious that the police officer had no information or knowledge about the design of the respondents to commit any cognizable offence as such. The offence about which it is alleged that the police officer had information or knowledge was not a cognizable offence at all. Therefore, according to Shri Udhoji, the arrest of the respondents u/s 151 of the Code was illegal and unauthorised. If this is so, he further contended that such an arrest could not be legalised by taking recourse to the provisions of section 167. He further contended that initial arrest, which was illegal, could not be legalised or regularised by obtaining a subsequent order for remand from the Judicial Magistrate, First Class, u/s 167 of the Code. In support of his contentions Shri Udhoji has relied upon a decision of Delhi High Court in Balraj Madhok v. Union of India A I R 1967 Del 31, a decision of Allahabad High Court in Shravan Kumar Gupta Vs. Superintendent District Jail and Others, and also a decision of Patna High Court in Janardan Prasad Roy Vs. State of Bihar and Others, .

For properly appreciating the rival contentions raised before me it will be useful to reproduce the provisions of sections 151 and 167 of the Code, which read as under :

''''151. (1) A police officer knowing a design to commit any cognizable offence may arrest, without orders from the Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.

(2) No person arrested under sub-section (1) shall be detained in custody for a period exceeding twenty four hours from the time of his arrest unless his further detention is required or authorised under any other provisions of this Code or of any other law for the time being in force.

(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer-in-charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction :

Provided that:

(a) the Magistrate may authorise detention of the accused person otherwise than in custody of the police, beyond the period of 15 days if he is satisfied that adequate grounds exist for doing so, but, no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;

(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

Explanation--If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention.

(3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.

(4) Any Magistrate other than the Chief Judicial Magistrate, making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.

(5) If in any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.

(6) Where any order stopping further investigation into an offence has been made under sub section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, (hat further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.

From the bare reading of section 151 of the Code it is quite obvious that the arrest under the said section is contemplated with the sole intention of preventing commission of the cognizable offences. The object of the section is to prevent the commission of a cognizable offence by arresting beforehand the person who designs to commit it. It is quite obvious that the arrest contemplated u/s 151 is neither punitive nor the arrest under the said section could be equated with the preventive detention under the provisions of Maintenance of Internal Security Act. Sub-section (2) to section 151 of the Code is newly added. It clearly lays down that no person arrested under sub-section (1) can be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required or authorised under any other provisions of the Code or of any other law for the time being in force. The expression used, namely, "further detention is required or authorised" is indicative of the intention of the Legislature. From the phraseology used in sub-section (2) of section 151 it is quite obvious that the further detention is possible only if it is required or authorised under the provisions of this Code or any other law for the time being in force. Apart from the provisions of section 151, section 41 of the Code also provides that a police officer may without an order from a Magistrate and without a warrant arrest any person if he is concerned in any cognizable offence, or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists, of his having been so concerned with any cognizable offence. Section 50 of the Act then lays down that every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds, for such arrest. Section 56 then contemplates that a person arrested without warrant should be taken before the Magistrate or Officer-in-charge of the police station without unnecessary delay. Section 57 then further lays down that a person arrested without a warrant could not be detained in custody for a longer period than under all circumstances of the case is reasonable and in absence of a special order of a Magistrate u/s 167 such a period shall not exceed 24 hours. Section 59 further lays down that no person who has been arrested by police officer shall be discharged except on his own bond or a bail or under the special order of Magistrate, from the bare reading of sections 41 and 151 it is quite obvious that though the area of operation of these two sections is quite different and distinct, both the provisions confer a power upon the police officer to arrest a person without a warrant. Further though section 151 (2) lays down in specific terms that a person arrested under sub-section (1) of section 151 shall not be detained in custody for a period exceeding 24 hours, the very phraseology used in the said sub-section contemplates further detention if the same is required or authorised under any other provisions of the Code or any other law for the time being in force. It is pertinent to note that similar phraseology is used in section 167. Sub-section (2) of section 167 empowers a Magistrate to authorise a detention of the accused in the custody for a period he thinks fit and it will not be exceeding 15 days in the whole. Sub-section (2) of section 167 also uses the expression "authorise the detention". This phraseology itself provides internal evidence as well as intrinsic aid to the interpretation of these provisions. Therefore, in my opinion, the provisions of section 167 will have to be read together with section 151 which contemplates further detention if required or authorised under the provisions of the Code. The authorisation contemplated under any other provisions of the Code will obviously include authorisation u/s 167. Therefore, in a given case though a person is arrested u/s 151, if the police officer feels that his further detention is necessary, then also it is open to the police officer to approach the Judicial Magistrate, First Class, u/s 167 for necessary orders. In that case after following the procedure prescribed by section 167 if the Judicial Magistrate comes to the conclusion that the investigation in that behalf is necessary and cannot be completed within the period of 24 hours and there are grounds for believing that the accusation or information is well-founded, then he might authorise the further detention of the accused. In this view of the matter, in my opinion, the Judicial Magistrate was not right in coming to the conclusion that in all cases whenever a person is arrested u/s 151, the provisions of section 167 will not apply. I do not find any compelling reason for taking such a general view. Only because sub-section (2) of section 151 provides a period of 24 hours, in my opinion, it will not mean that the further detention even if required or authorised under any of the provisions of the Code or any other law for the time being in force is not contemplated at all. However, while deciding such a question no general rule can be laid down, nor it is advisable to lay down any such general rule in this behalf. Such an application will have to be decided having regard to the facts and circumstances of each case. It cannot also be forgotten that it is not the mere form, but substance of the matter which will have to be looked into while deciding such a question. It is pertinent to note that section 151 is a part and parcel of a procedural Code and is not a complete Code in itself. Section 151 will have to be read with other provisions of the Code and, therefore, in a given case if it is found that further investigation is necessary in the matter, it is open to the police officer to approach the Magistrate concerned for seeking an authorisation for further detention of the person concerned. It could be visualised that a police officer after coming to know of a design of a person to commit a cognizable offence might arrest a person concerned with an intention to prevent commission of the offence itself. A detention of a person for 24 hours in a given case might not be enough for preventing a cognizable offence itself. There is no time limit prescribed for commission of cognizable offence. In a given case the design of the accused might be to commit offence at any time, including beyond a period of 24 hours. In some cases design or preparation to commit an offence itself might constitute an offence. If this is so, then further investigation will be necessary for gathering information and collecting the evidence in that behalf. Such a position cannot be overlooked while construing the provisions of section 151 and, therefore, advisably the Legislature while prescribing time limit of 24 hours has further provided that if further detention is required under any of the provisions of the Code or is authorised by the same, then a person can be detained even beyond a period of 24 hours. If the interpretation put forward by the learned Magistrate is accepted, it will only mean that the further detention contemplated by sub-section (2) of section 151 will obviously depend upon the subjective satisfaction of the police officer himself. In that case it will not be obligatory on the part of the police officer to produce the accused before the Magistrate at all. In my opinion, this will obviously run counter to the specific provisions of the Code as well as the intention of the Legislature. This will also run counter to the provisions of Article 22 of the Constitution. Article 22 of the Constitution which finds place in Chapter III of the Constitution dealing with fundamental rights in itself provides protection in this behalf. The relevant provisions of the said Article read as under:

22(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.

If these provisions are read with section 151 it is quite obvious that the provisions made in section 151 take their colour from Article 22 of the Constitution. The intention of the Legislature which could be gathered from the various provisions of the Code clearly indicates that a person cannot be detained in police custody without his production before the Judicial Magistrate. He can be further detained only if the Judicial Magistrate after applying his mind authorises to do so. This authorisation can be given by the Magistrate alone.

At this stage reference could usefully be made to the reasons for introduction of sub-section (2) of section 151 as explained by the Joint Committee of the Parliament in its report to which a reference has been made by the Judicial Magistrate, First Class, in his order. The said report reads as under:

The Committee considers it necessary to clarify certain points relating to preventive arrest made by a police officer under the provisions of this section so as to reduce the scope for abuse or misuse of the power. Firstly, it is necessary to clarify that all the provisions of the Code applicable to arrest without warrant for example, production before Magistrate within a stipulated time, informing the arrested person of the grounds of arrest, etc. should, as far as may be, apply to any person arrested under this provision. Secondly, the person arrested should have the right to be released on bail if he is otherwise entitled to be so released. The intention is that if after arrest no proceedings are instituted against him either to demand a security bond from him or for launching proceedings against him as an accused in connection with an offence, he should be discharged. Finally, it is also necessary that the release from arrest should be under the orders of a Magistrate, as otherwise the provision is likely to be abused.

This report of the Committee of the Legislature cannot be used for the purposes of interpretation of the provisions, but it provides an external aid to find out as to the evils, if any, which the statute intended to remedy, or of the circumstances which led to the passing of the statute. It can also be looked into for the purpose of ascertaining the object which the Legislature had in view in using the words in question. In this context the Supreme Court in Anandji Haridas and Co. Pvt. Ltd. Vs. Engineering Mazdoor Sangh and Another, of the judgment observed as under :

As a general principle of interpretation, where the words of a statute are plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external evidence such as Parliamentary Debates, Reports of the Committees of the legislature or even the statement made by the Minister on the introduction of a measure or by the framers of the Act is admissible to construe those words. It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more than one meaning or shades of meaning, that external evidence as to the evils, if any, which the statute was intended to remedy, or of the circumstances which led to the passing of the statute may be looked into for the purpose of ascertaining the object which the Legislature had in view in using the words in question.

Therefore, even from aforesaid observations of the Committee it is quite obvious that it was the intention of the framers of the enactment that the other provisions of the Code should apply even to an arrest u/s 151 of the Code. 8. It is pertinent to note that such a view was taken by Kerala High Court and Allahabad High Court in the aforestated decisions, though under the old Code.

Only because sub-section (2) is newly added to section 151, in my opinion, it will not make any difference. The phraseology used in sub-section (a) of section 151 and particularly the expression "authorised" clearly indicates that such an authorisation could be given by the Judicial Magistrate, First Class, by exercising his power u/s 167, if and when the accused is produced before him. As observed by Kerala High Court in A. K. Gopalan v. State of Kerala (cit, supra) it cannot be said that the power u/s 167(2) cannot apply to a case of a person arrested u/s 151 of the Code. The conditions required to attract the section are that there must be a person arrested and detained in custody and that it must appear to the police officer that he has to conduct an investigation and that the investigation against the arrested person cannot be completed within twenty-four hours. Whether the arrest was u/s 151 or u/s 54 is not relevant for the purpose of remanding the accused u/s 167 of the Code. Similar view was taken by Kerala High Court in its earlier decision in Chokkappan v. Slate of Kerala (cit. supra). A reference could usefully be made to the following observations of Kerala High Court in para 3 of the said judgment:

The next question for consideration is whether the Magistrate''s order remanding the accused to custody for 14 days was illegal. Section 61 of the Code of Criminal Procedure contains a mandatory provision that a person arrested without warrant should not be detained in police custody for more than 24 hours without obtaining a special order from a Magistrate u/s 167. Sub-section (1) of section 167 states that where it is felt that the investigation of the case taken up against the arrested person cannot be completed within a period of 24 hours of his arrest and 1 hat there are grounds that the accusation or information against the accused person is well-founded, the Officer in charge of the Police station shall forthwith transmit to the nearest Magistrate, a copy of the entries in the diary relating to the case and shall also produce the accused before the Magistrate.

Sub-section (2) states that the Magistrate, to whom the accused person is forwarded under sub-section (1), may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding 15 days on the whole. It was in the exercise of this power that the Magistrate had remanded the petitioners to custody for 14 days. It is argued on behalf of the petitioners that the power under sub-section (2) of section 167 can be exercised by the Magistrate only where the accused has been arrested and a case registered against him for the actual commission of a cognizable offence and not where the arrest has been u/s 151 of the Code. I can find no justification for thus limiting the scope of section 167. The conditions required to attract that section are that there must be a person arrested and detained in custody and that it must appear to the Police Officer that the investigation against the arrested person cannot be completed within a period of 24 hours of his arrest and that there are grounds for believing that the accusation or information against the arrested person is well founded.

The arrest need not necessarily be in connection with a case for the actual commission of a Cognizable offence. The arrest may as well be u/s 151 of the Code in order to prevent the commission of a cognizable offence. In either case, a reasonable time may be required for investigating into the accusation of the person concerned and it is to enable the conduct of such an investigation in an effective manner that the Magistrate has been empowered under sub-section (2) of section 167 to pass an order remanding the accused to custody. If the arrest is u/s 151 and if on investigation it is found that proceedings u/s 107 have to be initiated against the arrested persons, then the charge may be suitably altered so that further proceedings may be carried on under that section. But this does not mean that the order of remand passed at the earlier stage will be illegal. Such a contention urged on behalf of the petitioners does not find real support from Shravan Kumar Gupta v. Superintendent, District Jail, cited on their behalf.

All that was decided in that case is that where the accused persons were arrested and were detained in connection with the proceedings for prevention of the breach of the peace u/s 107, Criminal Procedure Code, and not on any allegation or suspicion that they had committed any offence, section 167 will not be applicable. It was also pointed out in that case that in proceedings u/s 107 an order detaining the accused persons in custody can be passed only in accordance with the procedure contemplated in sections 12 to 118. The position in the present case, is entirely different. The order remanding the accused to custody was passed merely to enable the Police to complete the investigation into the accusation against the petitioners. It has been pointed out by the Supreme Court in The State of Bihar Vs. Ram Naresh Pandey, that the continuance of the arrested person in detention for purposes of investigation from time to time has, to be authorised by the Magistrate. Thus it cannot be said that the remand order passed by the Magistrate in the present case is illegal or without authority.''''

Similar view was also taken by a Division Bench of Allahabad High Court in Radhye Shyam v. State (cit. supra). In the said case a Division Bench of the Allahabad High Court did not approve the earlier view taken by the same High Court in Shravan Kumar Gupta v. Superintendent District Jail, Mathura on which reliance was placed by Shri Udhoji. In this context Allahabad High Court observed as under:

With great respect to the learned Judges who decided the case of Shravan Kumar Gupta, we find ourselves unable to agree with the view that the scope of section 167 (2), Criminal Procedure Code is confined to cases where an accused has been arrested and a case has been registered against him for the commission of a cognizable or non-cognizable offence. We respectfully agree with the view of Sankaran C. J. in the Kerala case Chakkappan v. State of Kerala cited above that the provision (Section 167 (2), Criminal Procedure Code) would be applicable, even if the arrest is made u/s 151, Criminal Procedure Code.

We may also refer to the case of Naik Ram Pandey v. District Magistrate, Allahabad 1960 All L J 227, wherein another Division Bench of this Court doubted the correctness of the view expressed in Shravan Kumar''s case (reported above), regarding the scope of section 167 (2) , Criminal Procedure Code.

As to what is the true scope of the provisions of section 167 also fell for consideration before the Supreme Court in Gouri Shankar Jha Vs. The State of Bihar and Others, . In this context while indicating the true import of the provisions of sections 167 and 344 of the Criminal Procedure Code the Supreme Court in paras 11 and 12 of the said decision observed as under:

The last contention of Mr. Ghose was, firstly, that the remand orders passed by the Magistrate were u/s 167 and not section 344, as the latter section did not apply at that stage, and secondly, that even if section 344 applied, the Magistrate could not order detention for more than 15 days in the whole. Section 167 appears in Chapter XIV which deals with information and investigation. As its language shows, it deals with the stage when a person is arrested by the police on information that an offence has been committed. In providing that such a person must, in terms of section 61, be produced before a Magistrate within 24 hours after his arrest, the section reveals the policy of the Legislature that such a person should be brought before a Magistrate with as little delay as possible. The object of the section is two fold, one that the law does not favour detention in police custody except in special cases and that also for reasons to be stated by the Magistrate in writing, and secondly, to enable such a person to make a representation before a Magistrate. In cases falling u/s 167, a Magistrate undoubtedly can order custody for a period at the most of 15 days in the whole and such custody can be either police or jail custody. Section 344, on the other hand, appears in Chapter XXIV which deals with inquiries and trials. Further, the custody which it speaks of is not such custody as the Magistrate thinks fit as in section 167, but only jail custody, the object being that once an inquiry or a trial begins it is not proper to let the accused remain under police influence. Under this section a Magistrate can remand an accused person to custody for a term not exceeding 15 days at a time provided that sufficient evidence has been collected to raise a suspicion that such an accused person may have committed an offence and it appears likely that further evidence may be obtained by granting a remand.

Thus, section 167 operates at a stage when a person is arrested and either an investigation has started or is yet to start, but is such that it cannot be completed within 24 hours. Section 344, on the other hand, shows that investigation has already begun and sufficient evidence has been obtained raising a suspicion that the accused person may have committed the offence and further evidence may be obtained, to enable the police to do which, a remand to jail custody is necessary. The fact that section 344 occurs in the Chapter dealing with inquiries and trials does not mean that it does nut apply to cases in which the process of investigation and collection of evidence is still going on. That is clear from the very language of sub-section (1-A) under which the Magistrate has the power to postpone the commencement of the inquiry or trial. That would be the stage prior to the commencement of the inquiry or trial, which would be the stage of investigation. See A. Lakshmanarao Vs. Judicial Magistrate, First Class, Parvatipuram and Others, . Therefore, it is not as if the stage at which the Magistrate passed the remand orders was still the stage when section 167 applied and not section 344. The decision of the Orissa High Court in Ariatran v. State of Orissa A I R 1956 S C 129 to the effect that section 344 does not apply at the stage of investigation and can apply only after the Magistrate has taken cognizance of and issued processes or warrant for the production of the accused if he is not produced before him cannot, in view of A. Lakshamanrao''s case, be regarded as correct. The power u/s 344 can be exercised even before the submission of the charge sheet, of. Chandradip v. State 1955 B L J R 323 and Ajit Singh and Another Vs. The State, , that is, at the stage when the investigation is still not over. If the view we hold is correct that section 344 operated, the Magistrate, provided he complied with the condition in the Explanation, was competent to pass remand orders from time to time subject to each order being not for a period exceeding 15 days. There can be no doubt that the Magistrate had satisfied that condition. The judgment of the High Court in para 11 points out that the prosecution case was that the appellant had himself made a confession before the police. That was in addition to a confession by two others which implicated the appellant in the commission of offences u/s 395 of the Code.

Therefore, it is quite obvious that section 167 operates at a stage when a person is arrested and either an investigation has started or is yet to start, but is such that it cannot be completed within 24 hours. It contemplates both the contingencies, namely, where the investigation has already started or is yet to start. In my opinion, such a contingency might arise even in a case where a person is arrested u/s 151 with an intention to prevent him from committing a cognizable offence. In the case before me from the remand application itself it appears that some of the associates of the accused persons were already arrested under the provisions of the Defence of India Rules, 1971. It was the case of the State that the accused had also a design to commit the said offence, and therefore, it was necessary to arrest them u/s 151 of the Code to prevent them from committing a cognizable offence. It is further clear from the application filed by Police for remand that they wanted to carry out further investigation into the matter and it was not possible for them to complete it within 24 hours. It is further clear from the remand application as well as the material placed on record that in fact the offence was registered and further investigation was contemplated.

Rule 169 of the Defence of India Rules, 1971 reads as under:

Attempts, etc., to contravene the Rules:--Any person who attempts to contravene, or abets, or attempts to abet, or does any act preparatory to, a contravention of, any of the provisions of these Rules or of any order made thereunder, shall be deemed to have contravened that provision or, as the case may be, that order.

From the bare reading of this rule it is quite obvious that a fiction has been created whereby if a person does any act preparatory to a contravention of any of the provisions of the Rules or of any order made thereunder then he shall be deemed to have contravened that provision itself. If this is so, in a given case if a person is arrested u/s 151 on an information or on the basis of knowledge of his design to commit a cognizable offence under the Defence of India Rules, a possibility of further investigation in that behalf is not wholly ruled out. In the cases before me such an allegation was made by the police in the remand application itself. If this is so, then having regard to the facts and circumstances of the present cases it cannot be said that no investigation as such was either in offing or was necessary. If, therefore, the averments made in the application of remand were true and further investigation was thought necessary or expedient in the matter, then obviously, in my opinion, the provisions of section 167 of the Code will apply to such a case.

In this view of the matter, in my opinion, the learned Judicial Magistrate First Class, was not right in releasing the accused persons forthwith without applying his mind to the averments made in the remand application or material placed before him in that behalf.

However, as the position stands today, no material has been placed before me nor there is any material even with the police officer concerned also to show that any further investigation into the matter is either contemplated or is thought expedient or necessary at this stage. The accused persons before me were arrested in the first week of January 1976. Though the accused persons were released from custody there was no bar so far as the investigation machinery was concerned to carry out further investigation into the matter. Obviously this has not been done. The documents produced before me by the learned Assistant Government, Pleader clearly indicate that but for filing an application for remand before the Judicial Magistrate, First Class, nothing has been done by the police officers at all. From the record it is further clear that now no further investigation is in contemplation of the police officers. If this is so, in my opinion, no useful purpose will be served by remitting back the papers to the Judicial Magistrate, First Class, over again at this stage. Therefore, though the order passed by the Judicial Magistrate, First Class, releasing the respondents accused from the custody cannot be sustained, in my opinion, as no further proceedings are contemplated, it is not necessary to remand back the cases to the Judicial Magistrate, First Class, Yeotmal.

In the view which I have taken, it is not necessary to deal with either the contentions raised or the cases cited by Shri Udhoji, so far as the merits of the cases are concerned.

In the result, therefore, no interference is called for in these Criminal Revision application at this stage.