Judgment

UNTWALIA, J.:- An occurrence took place on the 8th of, March, 1974 at a place situated in the District of Cuttack, Orissa. First Information Report was lodged on the 9th March, 74 and a police investigation started in connection with the offences alleged to have been committed under Sections 147; 148, 307, 302 simpliciter as also with the aid of Section 149 of the Indian Penal Code. The four appellants in this appeal by special leave were arrested by the police in the course of the investigation on the 10th March and four others who have been enlarged on bail by the Sessions Judge of Cuttack were arrested on the 14th March. They were produced before the Magistrate who remanded them to jail custody from time to time. The learned Sessions Judge released on bail four of the accused but refused to grant bail to the appellants. An argument based upon proviso (a) to sub-section (2) of Sec, 167 of the code of Criminal Procedure, 1973 (Act No. 2 of 1974) - herein- after referred to as the New Code, was rejected by the Sessions Judge relying on the saving clause (a) of sub-section (2) of Section 484.

2. The appellants approached the Orissa High Court and pressed their cases for releasing them on bail on merits as well as on the ground of the provision of law aforesaid contained in the New Code. A Bench of the High Court by its order dated the 6th August,1974 has repelled the arguments put forward on behalf of the appellants and dismissed their application for bail. They have filed the present appeal by special leave of this Court.

3. This Court is not expected to examine afresh the question of releasing the appellants on bail on merits. But the question for Consideration is whether the appellants are entitled to be released on bail under the proviso (a) of Section 167 (2) of the New Code.

4. The New Code came into force on and from the 1st of April, 1974. Section 484 (1) repealed the Code of Criminal Procedure, 1898 hereinafter called the Old Code. But there were certain saving clauses engrafted in sub-section (2); the relevant clause (a) would be adverted to hereinafter in this judgement. Before doing so it necessary to appreciate the position of law in relation to the power of remand by a Magistrate during the course of investigation of a case by the police.

5. A person arrested without warrant could not be detained by a police officer for a period exceeding 24 hours as provided in Section 61 of the Old Code. Section 167 (1) required the police officer to forward the accused to the nearest Magistrate if the investigation could not be completed within the period of 24 hours fixed by Section 61 and if there were grounds for believing that the accusation or information was well-founded. Sub section (2) provided:

"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. If he has not 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:"

The Magistrate to whom the accused was forwarded could remand him to police custody or jail custody for a term not exceeding 15 days in the whole under Section 167 (2). Even the Magistrate who had jurisdiction to try the case could not remand the accused to any custody beyond the period of 15 days under Section 167 (2) of the Old Code. There was no other section which in clear or express language conferred this power of remand on the Magistrate beyond the period of 15 days during the pendency of the investigation and before the taking of cognizance on the submission of Charge-Sheet. Section 344, however, enabled the Magistrate to postpone the commencement of any enquiry or trial for any reasonable cause. The explanation to Section 344 of the Old Co