NATABAR PARIDA BISNU CHARAN PARIDA BATAKRUSHNA PARIDA BABAJI PARIDA versus STATE OF ORISSA

Citation: [1975] SUPP. 1 S.C.R. 137 · Decided: 16-08-1975 · Supreme Court of India · Bench: N.L. UNTWALIA · Disposal: Dismissed

Judgment (excerpt)

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• 
137 
NATABAR PARIDA BISNU CHARAN PARIDA BATAKRUSHNA 
A 
. PARIDA BABAJI PARIDA 
v. 
STATE OF ORISSA 
tlpril 16, 1975 
[N. L UNTWALIA ANDS. MURTAzA FAZAL ALI, JJ.] 
Code of Criminal Procedure, 1898, Sections 167 and 344-Remand of an 
.accused to custody-Courts, if .~ave inherent power. 
B 
Code of Criminal Procedure, 1973, Sections 167(1), Proviso (a) to Sec-
C 
tion 167(2), 428 and 484(2)(a)-lnvestigation pending at the commence-
ment of the Act and not completed wi1hin the period of 60 days-Accused, 
if ha.! a right to be released on bail. 
In respect of an occurrence which took place on 8th March, 1974, at 
a place in the DistriCt of Cuttack, a police investigation commenced in Con~ 
nection with the offences alleged to have been committed under sections 
D 
147, 148, 
307~ 302 simpliciter as also with the aid of section 149 of the 
Indian Penal Code. Of the eight persons arrested during investigation, four 
have been enlarged on bail by the Sessiora Judge of Cuttack, but the learned 
Sessions Judge refused to grant bail to the four 
appellants. 
Their cont.en-
tion based on proviso (a) to sub-section (2) of Section 167 of the Code 
of Criminal Procedure, 1973, was rejected by the learned Judge relyinx on 
the saving clause (a) of sub-section (2) of section 484. The High Court E 
a1so rejected their contention. This appeal has been filed on the basis of 
the special leave granted by the Supreme Court. 
HEID : (i) A Magistrate having jurisdiction to try a case could remand 
an accused to jail custoO.'y from time to time during the pendency of the 
investigation in exercise of the power under section 344 of the Code of Cri-
minal Procedure, 1898. In other words, the power of remand by the Magis. 
trate during the process of investigation and collection of evidence was an 
integral part of the process. The power was meant to be exercised when-
ever necessary to aid the investigation and collection of 
further 
evidence. 
[141E-F] 
F 
A. Lakshmanrar) v. Judicial 
Magistrale, First Class Parvatipuram and 
others, [1970] 3 S.C.C. 501 and Gouri Shankar !ha v. Tlie State of Bihar and 
others, [1972] 1 S.C.C. 564, relied on. 
G 
.f.. 
The Superintendent and Remembrancer of Legal Affairs Governmen1 of 
West Bengal v. Bidhindra Kumar Roy and others, A.I.R. 1949, Calcutta 143; 
Chandradin Dubey v. The State, 1955 Bihar Law Journal Reports, 323; Dukhi 
and another v. State and another, A.I.R. 1955 Allahabad, 521; Shrilal Nanclram 
& Another, v. R. R. Agrawal, S. D. M. First Class, Gwalior and 
anather 
Kuttan, A.l.R. 1964, Kerala, 232; Artatran Mahasuara and others v State of H 
Orissa, A.LR. 1956 Orissa, referred to. 
· 
(ii) ·courts will have no inherent power of remand of an accused to any 
custody unless the power is conferred by law. The High Court has erred in 
assuming, without reference to section 344 of the old Code that $UCh a 
power existed. 
[1400] 
' 
(iii) The COlllll)and of the Legislature in proviso(a) to section 167(2) 
pf the. new Code IS that the accused person has got to be released on bail 
if he is prepar~d to and does furnish bail and cannot be kept in detention 
~yond the period of 60 ?ays even if the investigation may still be proceed. 
ing. 1\}thongh !he expression 'reasonable cause' occurring in sub-section (lA) 
of ""ction 3~4 IS no "'.here to be found in section. 309 of the New 
Code, 
the. explanation to section. 344 of the. Old Code has been retained as expla-
nation 1 w Section 309 m .the identical language. The law as engrafted in 
138 
SUPREME COURT REPORTS 
[1975]' SUPP. s.c.R. 
A 
proviso (a) to section 167(2) and section 309(2) of the New Code confers 
the po\\·ers of remand to jail custody during the pendency of the investigation 
only under the fonner and not under the latter. S'!ction 309(2) is attracted 
r 
B 
only after cognizance of an offence bas been taken or commencement of trial 
has proceeded. [142G-H] 
Quere : \Vhat is the purpose of Explanation-1 in section 309 of 
the Code of Criminal Procedure, 1973. 
(iv) Unlike the wordings of section 428 the language of section 167(1) 
\Vhich will govern .sub-section (2) also, 
is-"whCnever any person is arres-
ted", suggesting thereby that the section would be attracted when the arrest 
h; made after coming into force of the Act of 1973. The expression used 
in section 428 is "where an accused person has, on conviction been senten-
ced ..... ". To the facts of the present care, clause (a) of sub·section (2) 
of section 484 will apply.

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