Wanchoo, C.J.—This is a reference by the Sessions Judge of Balotra, and has arisen in in the following circumstances :—

2. Sukhsingh and Shera accused were in judicial custody under orders of a magistrate of Barmer, under sec. 344 of the Code of Criminal Procedure. I An application was made to the District Magistrate of Barmer on the 30th October, 1952, by the Sub-Inspector of Police Station Tharad, district Banas Kantha, Bombay State, praying that these two accused be remanded to police custody for a period of 15 days presumably under sec. 167 of the Code of Criminal Procedure. The District Magistrate originally allowed this prayer, but later, on the objection of these two accused, set aside his order relying on Dhaman Hiranand vs. Emperor(l). He took the view based on certain observations in that case that the accused could not be in magisterial and police custody at the same time, and therefore as Sukhsingh and Shera were already in magisterial custody, they could not be handed over to the police for purposes of investigation in another case. This order was taken in revision to the Sessions Judge, and he has made this reference to us recommending that the order should be set: asi

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