( 1 ) THE main point which is involved in this Reference is whether while making order of remand of the accused in custody as contemplated by sec. 344 of the Criminal Procedure Code it is open to the magistrate to remand the accused to the police custody or not. The contention of Shri Barot who appeared on behalf of the accused is that the custody which is contemplated by sec. 344 of the Code of Criminal Procedure is only judicial custody and not the police custody while the contention of Shri Nanavati who appeared on behalf of the State is that the custody contemplated by sec. 344 of the Code is judicial as well as police custody.

( 2 ) IN order to appreciate the contentions raised by the learned advocates of the parties it would be necessary to state shortly the facts relevant to this Reference. The prosecution case is that the opponent-accused has committed an offence of murder of one Bai Savita whose dead body was found at a Dharmsala at Khedbrahma. The offence is said to have been committed somewhere between 2nd April 1973 and 4th April 1973 The complaint was lodged at the relevant police station by one head constable on 4th April 1973 at about 2. 50 p. m. After