The main legal point established is that the police have the right to question accused persons who surrendered before magistrates and can request custody for questioning under Section 161 of the Criminal Procedure Code.

RAGHAVAN, J.

One of these revisions is by the accused persons and the other by the State, in two different cases. Both the cases are now at the investigation stage; and the accused persons in both the cases surrendered before two Magistrates. Shortly after the surrender, the police officers concerned applied to the magistrates to give custody of the accused persons to them to be questioned; and one of the magistrates allowed it while the other did not. The revision by the accused persons is against the former; and the revision by the State is against the latter.

2. When these petitions came before Narayana Pillai, J., the order in re the Sub-Inspector of Police Meenachil (Crl. R.P. No. 152 of 1961) by a Division Bench of this Court was placed before the learned Judge. In that case what happened was that the magistrate remanded the accused to police custody first and then went back on the order and declined to give custody of the accused to the police. The matter came to this Court, and Raman Nayar, J. (as he then was) and Govinda Menon, J. dismissed the petition without considering the question on merits. The learned Judges just observed that, since the averment in the petition by the Sub-Inspector was that the accused told him when he was questioned in the Sub Jail that he was prepared to point out the weapon used for committing the offence and since the accused denied it and said that he had nothing to tell the police and was not willing to co-operate in the investigation, there was no use handing him over to the police. Narayana Pillai, J. has observed in the Reference Order that, if in such cases where the accused persons surrender before magistrate the police have no right to question them, then the accused persons have only to abscond and surrender before magistrates and tell the magistrates that they have no information to pass on to the police in order to avoid their being questioned by the police. The question we have to consider in these cases is whether the police have a right, in such cases, to question the accused persons.

3. The first aspect of the question is whether, under Section 161 of the Code of Criminal Procedure, the police can question an accused person during the investigation. It is urged by the counsel of the accused persons that Section 161 applies only to witnesses and not to accused persons. A few decisions have been brought to our notice on this question; and the most important one is the decision of the Privy Council in Pakala Narayana Swami v. Emperor, (AIR 1939 PC 47). The Judicial Committee was considering the meaning of the expression "any person' in Sec. 162 of the Code of Criminal Procedure, and their Lordships held that that expression was wide enough to include even a person who might ultimately be the accused. In this connection, it is worth while to consider the language of three sections. Sections 160, 161 and 162. Section 160 provides that a police officer making an investigation may require the attendance before himself of "any person ......... who .......... appears to be acquainted with the circumstances of the case." Section 161(1) states that a police officer making an investigation may examine orally "any person supposed to be acquainted with the facts and circumstances of the case." Section 162(1) then provides that no statement made by "any person" to a police officer in the course of an investigation shall, if reduced into writing, be signed, etc. The marginal notes of Ss. 160 and 161 are "Police Officer's power to require attendance of witnesses" and "Examination of witnesses by police" respectively. We need not mention the marginal note of Section 162.

4. The argument before us is that the expression "any person supposed to be acquainted with the facts and circumstances of the case" will not include the accused. For this some reliance has been placed on the marginal notes of Sections 160 and 161 as well, which speak of "witnesses". It is a well-established propos