( 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 this complaint was recorded the police was in search of the accused but could not arrest him immediately. Ultimately on 30th May 1973 the accused voluntarily appeared before the Judicial Magistrate First Class Idar and made an application for enlarging him on bail. The Magistrate thereupon took the accused into his judicial custody and fixed the bail application for hearing.

( 3 ) ON the next day i. e. on 31st May 1973 the police applied to the learned Magistrate for remanding the accused to police custody. This application for remand was fixed for hearing on 1-6-73. On that day the advocate of the accused could not reach the court in time and therefore in his absence the matter was disposed of by the learned Magistrate who ordered the accused to be handed over to the police custody on remand for 3 days. After the learned advocate of the accused reached the court he applied to the learned Magistrate contending that the order of remand to the police custody from judicial custody was illegal. This application was fixed for hearing on 4-6-73. In the mean while the remand period of 3 days already granted by the court was over and therefore the police prayed for further remand. This prayer of the police was resisted by the accused on the ground that the Code of Criminal Procedure does not contain any provision empowering the Judicial Magistrate to hand over an accused person to the police custody on remand after he is already taken into judicial custody. The learned Magistrate heard both the parties on this question on 6-6-73 and delivered his judgment on 22-6-73 holding that he had no jurisdiction to order the remand of the accused to police custody after once he was taken in judicial custody.

( 4 ) AGAINST this judgment of the learned Magistrate the State approached the Sessions Court in revision. The learned Sessions Judge disapproved of the view taken by the learned Magistrate and has Preferred to make this Reference by holding that the accused could have been remanded to police custody by the learned Magistrate under sec. 344 of the Code of Cri. Pro. The learned Sessions Judge has however held that this is not a case in which the provisions of sec. 167 of the Crim. Pro. Code would apply. This is how this Reference has come to this court.

( 5 ) SO far as the detention and custody or an accused person are concerned there are three relevant provisions in the Code of Criminal Procedure. These provisions are contained in secs. 61 167 and 344 of the Code. Sec. 61 provides that the police cannot detain any person in its custody for more than 24 hours without obtaining a special order of the Magistrate to that effect under sec. 167. Thus according to this section if an accused person is required to be kept in police custody for more than 24 hours an order o