Sec. 167 appears in Ch. 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 s. 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.
Object
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 under 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
Sec. 344, on the other hand, appears in Ch. XXIV which deal with inquiries and trials. Further, the custody which it speaks of is not such custody as the magistrate thinks fit as in s. 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, s. 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. Sec. 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 s. 344 occurs in the Chapter dealing with inquiries and trials does not mean that it does not 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-s. 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.
Therefore, it is not as if the stage at which the Magistrate passed the remand orders was still the stage when s. 167 applied and not s. 344.
The decision of the Orissa High Court in Artatran v. Orissa[1], to the effect that s. 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[2] be regarded as correct.
The power under s. 344 can be exercised even before the submission of the charge-sheet, (cf. Chandradip v. State[3] and Ajit Singh v. State[4], that is, at the stage when the investigation is still not over. If the view we hold is correct that s. 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 under s. 395 of the Code.
Reference
Gauri Shankar Jha v. State of Bihar (1972)
[1] A.I.R. 1956 Orissa 129.
[2] A.I.R. 1971 S.C. 186
[3] (1955)Bihar Law Journal Reports, 323
[4] (1970) 76 Cr. L.J. 1075.