1. SALAHUDDIN AHMED, J.-This appeal by special leave is from an order of a learned Single Judge of the Lahore High Court directing that the respondent who was in police custody should be transferred to judicial custody.
2. Leave was granted to consider the question whether sec--petition 167 of the Criminal Procedure Code empowered the Magistrate concerned to send the accused, respondent, who has surrendered before the Magistrate, to the police custody.
3. It appears that a case under section 307 read with section 34 of the Pakistan Penal Code was registered against the respondent and some others on 5-10-1970. He applied to the High Court for anticipatory bail but his prayer was rejected by a learned Single Judge of the Court on the 4th November 1970. He then surrendered himself before a local Magistrate of Lyallpur who remanded him to the custody of the police. This order was challenged by the respondent before the High Court on the ground that there was no provision in the Code of Criminal Procedure except those under section 167 for remanding the custody of an accused person to the Police. It was, however, argued that the application of that section was confined to cases in which an accused was produced before a Magistrate by the Police.
4. It has been strenuously contended before us on behalf of the respondent that the learned Magistrate having put the respondent in judicial custody could not have made him over to the custody of the Police.
5. It appears that the learned Magistrate had earlier issued a warrant of arrest against the respondent. On the date the Magistrate passed the orders remanding the respondent to the Police custody, an application had been made by the Police asking for the physical custody of the respondent for the purpose of recovering the weapon of offence. Thereupon the learned Magistrate gave the custody of the respondent to the Police for ten days only: It is thus evident that even before the Police obtained custody of the respondent, the former could arrest the latter, and keep him in custody for such time as is allowed under the Code of Criminal Procedure. Furthermore, the Magistrate's order makes it clear that the respondent continued to be in the custody of the Magistrate, and that for a brief period, and for a particular purpose the physical custody of the respon--dent was given to the Police. This position is made clear by the appellant's unchallenged statement in its petition for special leave to appeal. In para. (vii) of the Grounds of the petition it has been stated that the respondent was sent back to the judicial custody on 29-10-1970. There was, therefore, nothing wrong with the impugned order of the Magistrate.
6. A Magistrate of the First Class ordinarily has power to authorise detention of a person in the custody of Police during Police investigation. This is evident from section 36 read with Schedule III , No. III (7aq) of the Criminal Procedure Code. They read as follows: Section 36.-All District Magistrates, Sub-Divisional Magistrates and Magistrates of the first, second and third classes, have the powers hereinafter respectively conferred upon them and specified in the Third Schedule. Such powers are called their 'ordinary powers'.
7. Schedule III No. III (7aa).-Power to authorise detention of a person in the custody of the police during a police investigation, section 167.
8. The Magistrate has also power under Schedule III, No. I, item (14), read with item (1) of No. 11 and item (1) .Of No. III of the same Schedule, to authorise detention (not being detention in the custody of the police) of a person during a police investiga--petition, section 167.
9. Another relevant section of the Code is section 65 which is in these terms: "Any Magistrate may at any time arrest or direct the arrest, in his presence, within the local limits of his jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant."
10. The aforesaid provisions of law clearly empower the Magistrate to accept surrender, as in the present case, of a person for whose arrest the Magistrate is competent at the time and in the circumstances to issue a warrant. Furthermore, the Magistrate is empowered to hand over the custody of the said person to the Police during a Police investigation. Apparently the investigation had already started in the present case and the Magistrate was, therefore, entitled to give the custody of the respondent to the Police.
11. We are unable to accept the contention on behalf of the respondent that these powers of the Magistrate are exercisable only when the provisions of section 167, Cr. P. C. Are applicable. The section provides as follows: "167.-(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 61, and there are grounds for believing that the accusa--petition or information is well-founded, the officer in charge of the police station or the police officer making the investigation if he is not below the rank of Sub-Inspector shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has not jurisdic--petition to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that no Magistrate of the third class, and no Magistrate of the second class not specially empowered in this behalf by the Provincial Government shall authorise detention in the custody of the police.
(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.
(4) If such order is given by a Magistrate other than the District Magistrate or Sub-Divisional Magistrate, he shall forward a copy of his order, with his reasons for making it, to the Magistrate to whom he is immediately subordinate."
12. It is pertinent to mention here that the respondent by avoiding arrest by the police prevented the latter from adopting the natural procedure available to it under the Code.
13. If the procedure prescribed under the Criminal Procedure Code had been allowed to pursue its normal course, the appellant against whom a complaint had been made of his having been concerned in a cognizable offence could have been arrested by the police under section 54 of the Code without a warrant. Of course, under section 60 of the Code the Police Officer was required in such a case to take or send the person arrested before a Magistrate having jurisdiction in the case or before the Officer incharge of a police station, and under section 61, Cr. P. C. The Police Officer could not, except with the permission of the Magistrate, detain the person in custody for a period exceeding 24 hours.
14. It is profitable to reproduce here the following pertinent observations of the Privy Council in the case of- Emperor v. Khawaja Nazir Ahmad (AIR 1945 P C 18)
15. ". . . The receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation. No doubt in the great majority of cases, criminal prosecutions are undertaken as a result of information received and recorded in this way but their Lordships see no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognizable offence has been committed, should, not of their own motion undertake an investigation into the truth of the matters alleged. Section 157, Criminal Procedure Code, when directing that a police officer, who has reason to suspect from information or otherwise that an offence which he is empowered to investigate under section 156 has been committed shall proceed to investigate the facts and circumstances, supports this view.
16. No doubt, if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation . . . ."
17. The statutory right of the police to investigate a cognizable offence cannot be circumvented by the accused by avoiding the Police and surrendering before a Magistrate. It is true that having surrendered before the Magistrate and put himself in the custody of the Court the Police could not secure custody of the person without an order of the Magistrate concerned. And this is exactly how the police secured the custody of the respondent in the present case: It is for the Magistrate in such circumstances to consider whether the accused should continue to remain in the custody of the Court or be delivered over to the Police for the purpose of completing the investigation. In the present case the learned Magistrate in the exercise of the discretion allowed to him under the law made over the custody of the respondent to the Police for a limited time and for a particular purpose. This the Magistrate was legally competent to do. The learned Single Judge of the High Court, therefore, was not right in interfering with the order of the Magistrate without having first held that the Magistrate had not exercised his discretion in a judicial manner.
18. We, accordingly, allow this appeal and set aside the order of the High Court.