The Magistrate has the discretion to determine the nature of the custody in which the accused person should be detained. The Magistrate can change the nature of the custody from time to time during the first 15 days.

( 1 ) THE main question involved in this petition before the court relates to the nature of the custody that can be ordered by a Magistrate during the investigation of a serious offence. The provisions of the Constitution of India as well as the substantive provisions of the ordinary Municipal law of this country protect a person against unlawful arrest. A person who is arrested by the police can only be arrested in certain specified circumstances. In the case of certain serious offences described as cognizable offences, the police can arrest without warrants. In other cases, the arrest has to be on the basis of a warrant issued by a Magistrate. The provisions of Article 22 (2) of the Constitution require such an arrested person to be produced before a Magistrate within a period of 24 hours. Section 56 of the Criminal Procedure Code requires that the arrested person should be produced before a Magistrate having jurisdiction in the case or before an officer incharge of a Police Station. It the offence is a bailable one, which is a categorisation made by the Criminal Procedure, Code, the police itself can grant bail and has to give bail. If the arrested person is charged with a non-bailable offence or is unable to furnish bail, then the police has no option but to produce the person concerned before a Magistrate within the period of 24 hours exclusive of the time necessary for the journey. This is provided by Section 5 7 of the Criminal Procedure Code. This provision is re-inforced as a fundamental right for every person whether a citizen or noncitizen, under Article 22 (2) of the Constitution. However, the provision does not apply in the case of an enemy, alien or a person detained under any law providing for preventive detention.

( 2 ) IN the present case, the respondents were accused of very serious offences under Sections 392/397/302/34 Indian Penal Code; they were arrested on 29th August, 1981, on the basis of a First Information Report recorded at Police Station, Nizammuddin on 1st August, 1981. It so happens that the respondents were earlier arrested on 28th August, 1981, by the Special Staff of West District on the basis of a First Information Report dated 28th August, 1981, recorded at Police Station Nangloi. It was then found that they were also the accused in the First Information Report recorded at Police Station Nizammuddin. The Station House Officer, Nizammuddin Police Station moved the Magistrate for fixing a date for holding an identification parade. The Magistrate ordered on 29th August, 1981, that the identification parade should be held on 1st September, 1981, in the Jail and the Superintendent should be informed. On that very date, there was an application that the arrested persons be kept in judicial custody for the purpose of holding the identification parade and the request for an order for police custody should be kept pending. This resulted in the Metropolitan Magistrate directing the respondents to be kept in judicial custody up to 2nd September, 1981.

( 3 ) ON the date fixed for the identification parade, the respondents refused to join the same and) on 2nd September, 1981, a prayer was made to the Magistrate to direct the respondents to be remanded to police custody for a period of seven days to facilitate recovery of case property, etc. The Magistrate ordered that since the respondents counsel wanted to argue this point the accused should be remanded to judicial custody till 4th September, 1981, on which date this question would be dealt with. On 4th September, 1981, the Magistrate passed an order to the effect that he could not remand the accused to police custody in view of the judgment of this Court reported as Gian Singh and others v. State (Delhi Administration) and others, 1981, D. L. T. 168.

( 4 ) THE State then moved the present petition to this Court. The learned Single Judge made a reference to a Division Bench staling that a point of great importance was involved in this c