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Criminal Miscellaneous No. 169 of 1960, decided on 13th March 1960.

S. 344‑Magistrate not to go on adjourning case under S. 344 indefinitely‑Accused's right to speedy trial.

A Magistrate cannot go on adjourning a case under section 344 of the Code of Criminal Procedure, 1898 indefinitely. The proper course for a Magistrate is to record some evidence and then determine, in the light of such evidence, if a prima facie case has been made out against the accused. He can then adjourn the case if there is hope of further evidence connecting the accused with the offence coming up before him. A Magistrate cannot detain a person for an indefinite period of time. It is the right of the accused to demand a speedy trial. He has also the right to say that if there is no evidence connecting him with the commission of the offence he should not be kept in custody.

Nasim Hasan for Petitioner.

Sami Paul for A. G. for Respondent.

On the 27th of December 1958, A. S. I. Muhammad Yaqub of Police Station Hujra was on duty at Shergarh in connection with an election. One Muhammad Raza handed over to him a written statement making allegations against the petitioner and certain others. A. S. I. Muhammad Yaqub forwarded the written statement to the S. H. O. Renala, who formally registered a case on the 27th of December 1959, at 2‑30 p.m., under sections 147, 148 and 307/149 of the Pakistan Penal Code.

2. Hamid Husain petitioner was arrested on the 27th of December 1959, and produced before a Magistrate on the 28th of December 1959 for a remand under section 167 of the Code of Criminal Procedure. The Magistrate granted a remand till the 31st of December 1959. On the 31st of December 1959, the investigating officer prayed for a further remand for five days. It is significant that Hamid Hussain, who was in police custody, was not produced before the Magistrate. It is also noteworthy that there is no order on the judicial file granting the remand as prayed for. On the 6th of January 1960, another application for remand up to the 12th of January 1960 was made and sanctioned. The petitioner was, however, remanded to judicial custody. Again, Hamid Husain was not produced before the Magistrate. On the 13th of January, the sixth application for remand was made, and it was granted and the accused was remanded to judicial custody till the 21st of January 1960. The seventh application was made on the 21st of January, and for the first time a prayer for adjournment under section 344 of the Code of Criminal Procedure was made. Without assigning any reason, the learned Magistrate allowed the application and adjourned the case till the 3rd of February 1960. The eighth application was again a prayer for adjournment till the 10th of February 1960. The prayer was granted without recording any reasons, and the accused was remanded to judicial custody till the 8th of February 1960. The ninth application is also for adjournment till the 18th of February 1960. The Magistrate granted the prayer without giving any reasons for adjourning the case. The last application is dated the 18th of February 1960 praying for an adjournment till the 29th of February 1960. The application was again granted without giving any reasons for the adjournment.

3. Feeling that he was not having a fair deal at the hands of the trial Magistrate, the accused moved this Court under section 498 of the Code of Criminal Procedure. Granting interim bail to the accused, I directed that he should be released on bail. I also sent for the judicial file and I have checked up the transactions given above with the help of the learned counsel for the petitioner and the learned counsel for the State.

4. Section 167 of the Code of Criminal Procedure deals with remands. The language of the section is quite clear. For the purposes of investigation an accused person can be remanded to police custody, but the remand cannot be for more than fifteen days on the whole. In Chapter 11‑B of the High Court Rules and Orders, Volume III, this Court has issued directions to the Subordinate Courts laying down the formalities which they have to observe in granting remands under section 167 and adjournments under section 344 of the Code of Criminal Procedure. The relevant rules are :‑

"6. It should be further remembered that remands to Police custody cannot be granted under the Code of Criminal Procedure, for a longer period than 15 days altogether, and cannot be granted at all by a Magistrate of the third class, or by a Magistrate of the second class not specially empowered by the Provincial Government. When an accused is brought before a Magistrate in accordance with section 167, sub section (1), Code of Criminal Procedure, the Magistrate must adopt one of the following courses :‑

(1) If he has jurisdiction to try the case or commit it for trial, either‑

(a) discharge the accused at once, on the ground that there is no cause shown for further detention, or

(b) remand him to police custody (if empowered to do so) or to magisterial custody as he may think fit, for a term not exceeding 15 days, which term, if less than 15 days, may subsequently be extended up to the limit of 15 days in all, or

(c) proceed at once to try the accused himself, or hold an inquiry with a view to committing him for trial, or

(d) if for any reason it seems necessary, forward the accused at once to the District or Sub‑Divisional Magistrate to whom he is subordinate, or

(e) if himself a District or Sub‑Divisional Magistrate, send the accused to a competent subordinate Magistrate for trial or commitment,

(2) If he has not jurisdiction to try the accused or commit him for trial, he must either‑

(a) if he thinks there is no ground for further detention, at once send the accused to a Magistrate having jurisdiction, with a view of his trial or discharge, or

(b) if he thinks there is ground for further detention, remand him to police custody (if empowered to do so) or to magisterial custody as he may think fit, for a term not exceeding 15 days, which term, if less than 15 days, may subsequent be extended up to the limit of 15 days in all."

"7. Before making an order of remand to Police custody under section 167 of the Code of Criminal Procedure, the Magistrate should satisfy himself that‑

(1) there are grounds for believing that the accusation against the person sent up by the police is well founded

(2) there are good and sufficient reasons for remanding the accused to police custody instead of detaining him in magisterial custody.

In order to form an opinion as to the necessity or otherwise of the remand applied for by the police, the Magistrate should examine the copies of the diaries submitted under section 167‑and ascertain what previous orders (if any) have been made in the case, and the longer the accused person has been in custody the stronger should be the grounds required for a further remand to police custody. The accused person must always be produced before the Magistrate when a remand is asked for."

Under rule 11, the District Magistrates and the Sub‑Divisional Magistrates have been directed to take measures to exercise strict supervision over the actions of all Magistrates subordinate to them in regard to the granting of remands under section 167 of the Code of Criminal Procedure.

5. In the case in hand, the remands were granted from the 27th of December 1959 to the 20th of January 1960. By the first six orders, the learned Magistrate remanded the accused to police or judicial custody from time to time, extending over a period of 25 days, although the Magistrate could remand the accused to police or judicial custody for a period of 15 days only. A Magistrate can remand the accused to judicial custody by adjourning the case under section 344 of the Code of Criminal Procedure. There is no other provision. As regards adjourn ments, the High Court has issued the following instructions contained in Chapter 11‑B, High Court Rules & Orders, Volume 111, Rule 10 reads :‑--

"If the limit of 15 days has elapsed, and there is still need for further investigation by the police, the procedure to be adopted is that laid down in section 344, Criminal Procedure Code. The case is brought on to the Magistrate's file and the accused, if detention is‑ necessary, will remain in magisterial custody. The case may be postponed or adjourned from time to time for periods of not more than 15 days each, and as each adjournment expires the accused must be produced before the Magistrate, and the order of adjournment must show good reasons for making the order." ,

6. An adjournment or postponement of an inquiry under section 344 of the Code of Criminal Procedure is a step taken in the course of judicial proceedings. A Magistrate cannot go on adjourning a case under section 344 of the Code of Criminal Procedure indefinitely, The proper course for a Magistrate is to record some evidence and then determine, in the light of such evidence, if a prima facie case has been made out against the accused. He can then adjourn the case if there is hope of further evidence connecting the accused with the offence coming up before him. In fact no reason has been given in any of the orders referred to above. A Magistrate cannot detain a person for an indefinite period of time. It is the right of the accused to demand a speedy trial. He has also the right to say that if there is no evidence connecting him with the commission of the offence he should not be kept in custody. There are numerous authorities on the subject, which I need not set out at length.

7. For the reasons given above, I confirm my order dated the 22nd of February 1960 releasing the accused‑petitioner on interim bail.

K.M.A. Appeal accepted.

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