Law:

Section:

Criminal Procedure Code (V of 1898), S. 167 read with Ss. 36 & 65-Remand of accused to Police custody-Person, accused of offence, himself surrendering before Magistrate-Whether S. 167, in circumstance, empowers Magistrate to send such person to Police custody. A case under section 307 read with section 34, P. P. C. was registered against F and some other persons. F applied to the High Court for anticipatory bail but the same was refused and F there­after surrendered himself before a local Magistrate who remanded him to the custody of the Police. This order was challenged on the ground that there was no provision in the Cr. P. C. save one under section 167 for remanding the custody of an accused to the Police but the provision of section 167, it was urged, was attracted only to cases in which an accused was produced before a Magistrate by the Police and not when the accused of his own volition surrenders himself before the Magistrate and that once he was taken into judicial custody he could not have been made over to the custody of the Police. Held: Section 167 mentioned against item (7aa) of No. III of Schedule III of the Criminal Procedure Code does not mean that the ordinary power given to the Magistrate under this item is attracted only when the provisions of section 167 are applicable. The reference to section 167 merely indicates the stage at which the Magistrate can exercise the power mentioned in the said item. There is nothing in the Code to suggest that this power is subject to the other provisions of the Code. The statutory right of the police to investigate a cognizable offence cannot be circumvented by the accused by avoiding the Police and surrendering before a Magistrate. It is true that having surrendered before the Magistrate and put himself in the custody of the Court the Police could not secure custody of the person without an order of the Magistrate concerned. It is for the Magistrate in such circumstances to consider whether the accused should continue to remain in the custody of the Court or be delivered over to the Police for the purpose of completing the investigation. Where a Magistrate in the exercise of the discre­tion allowed to…

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