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Criminal Miscellaneous No. 191/Q of 1971, decided on 22nd April 1971.

Ss. 167 & 344-Remand of accused-Police applying for custody of accused in a case different from one in which he had already been sent to judicial custody-Provisions of Ss. 167 & 344 no bar.

Muhammad Hayat and another v. The State 1969 P Cr. L J 786 distinguished.

State v. Sukhsingh and others A I R 1954 Raj. 290 rel.

Dukhi and another v. State and another A I R 1955 All. 521 ref.

Raja Muhammad Ayub Khan for Petitioners.

Dilawar Mahmood, A. A.-G. for Respondents.

The facts giving rise to this petition are that on the 30th of March 1971, a case under section 366/307/34, P. P. C. was registered against the four petitioners at Police Station Mitha Tiwana. Four days later on the 3rd of April 1971, the petitioners appear to have surrendered themselves before a Magistrate Ist Class at Sargodha, who sent them to the judicial lock-up and directed that they should be produced before the Assistant Commissioner, Jauharabad on the 17th of April 1971. The latter being on leave they were produced before the Duty Magistrate on the aforesaid date when Mr. Muhammad Nawaz, A. S. I. Mitha Tiwana, submitted an application before the learned Magistrate with a request that the four petitioners be remanded to his custody as he wanted them to be associated in the investigation of a case under section 457/380, P. P. C. registered on the 11th of September 1970. The application was allowed by the learned Magistrate who remanded the custody of the petitioners to the police till the 22nd of April 1971. Feeling aggrieved the petitioners filed the present miscellaneous petition under section 561-A, Cr. P. C.

2. Learned counsel for the petitioners contended before me that once an accused person having surrendered himself was sent to judicial custody he could not be remanded to the custody of the police as an application for remand could only be made under section 167, Cr. P. C. which would not be attracted to in the circumstances of the case, for the reason that it presumed the arrest of a person and his detention in police custody in a case under investigation which had not been completed. Reliance was placed in this regard on Muhammad Hayat and another v. The State (1969 P Cr. L J 786). an authority which prima facie lends some collateral support to the petitioners' case. The petition was accordingly admitted to examine the correct legal position in this regard and notice was issued to the learned Additional Advocate General. I have heard both sides.

3. The contentions raised by the learned Additional Advocate-General before me are that the authority relied upon by the learned counsel for the petitioners proceeded on distinguishable facts inasmuch as unlike the instant case the police had not sought the custody of the accused in the precedent case for associating them with the investigation of a different case. Secondly it is submitted that Special Leave to Appeal in order to consider the precise scope and interpretation of sections 167 and 344, Cr. P. C. has already been granted by the Supreme Court in a similar case, Appeal No. 17 of 1971, wherein reliance was also placed on the impugned judgment on the authority pressed into service by the learned counsel in the instant case. It is next contended that the proposition is not devoid of authority that where the police applies for the custody of an accused person in a case different from the one in which he had already been sent to judicial custody, the provisions contained in sections 167 and 344, Cr. P. C. do not stand in the way. Reliance is placed in this regard on State v. Sukhsingh and others (A I R 1954 Raj. 290), In re: Khunjan Nadir (A I R 1955 Trav. Coch. 74) and Dukhi and another v. State and another (A I R 1955 Alt. 521). It is submitted that the facts and circumstances of the first mentioned authority are almost identical with those of the instant case. Lastly it is submitted that even otherwise the period of remand of the petitioners being over today, the police is not seeking extension of the period of remand and accordingly they are already being sent to the judicial custody.

4. The authority relied upon by the learned counsel for the petitioners besides having been challenged before their Lordships of the Supreme Court proceeds on distinguishable facts and is not directly in point in the instant case. Even otherwise State v. Sukhsingh and others is practically on all fours and justifies the remand order passed by the learned Magistrate. Accordingly the petition is dismissed which has also become infructuous owing to the remand of the petitioners to judicial authority with effect from today, the 22nd of April 1971, as stated by the Investigating Officer.

K. B. A.

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