Full Judgment
M.L. Jain, J.
(1) By this writ petition certain legal questions were raised by the petitioners who were arrested in connection with the murder of Baba Gurbachan Singh, the Nirankari chief. The petitioners have since then been released under the proviso to S. 167 Cr. P.C. and the writ petition only survives for consideration of two legal questions :-
(1)Whether the accused at the time of interrogation are entitled to the presence of a lawyer within the meaning of the Supreme court decision reported in Smt. Nandini Satpathy v. P. L. Dani and another : 1978 CriLJ968
(2)Whether where an accused person has been remanded to judicial custody, he could still be interrogated or not?
I have heard Gurcharan Singh Bawa at length on both the questions.
(2) On the first question, I had an occasion to examine the matter in Ram Lakwani v. Sate, Criminal Miscellaneous (Main) No. 211 of 1980, decided on April 24, 1980, and I see no reason to depart from the view taken therein then that the Supreme Court did not lay down any mandate but only suggested strongly that it would be prudent for the police to allow a lawyer where the accused wants to have one at the time of interrogation, if it wants to escape the censure that its interrogation is carried on in secrecy by physical and psychic torture. That answers the first question.
(3) The answer to the second question pertains to an interpretation of S. 167, Cr. P.O. There is no authority available on the controversy. The provisions of this section relevant for the purpose of the present inquiry are :-
(I)If the investigation cannot be completed within the period of twenty four hours fixed by S. 57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer marking the investigation not below the rank of a Sub-inspector shall (a) for- ward the accused to the nearest magistrate, and (b) transmit to him a copy of the entries in the case diary ;
(2)Such magistrate may authorise the detention of the accused in 'the custody of the police for a term not exceeding fifteen days in the whole;
(3)If such magistrate has no jurisdiction to try the case or to transmit it for trial, and considers further detention unnecessary, he may forward the accused to the magistrate having jurisdiction
(4)If the magistrate is satisfied that adequate grounds exist for further detention of the accused, he may authorise his detention otherwise than in custody of the police-that is what is called a remand to judicial custody;
(5)Such judicial custody cannot exceed 90 days where the offence is punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, and 60 days in case,of,other offences, and after the expiry of the said period the accused is entitled to be released on bail;
' ... .
(6)No such custody whether police or otherwise, can be authorised unless the accused is produced before the magistrate ; and
(7)The magistrate shall record reasons if he remands the accused to police custody.
(4) These provisions indicate one thing clearly more than anything alse, that once the accused is remanded to judicial custody, he cannot be sent back to police custody in connection with or in continuation of the same investigation. Since this section provides the procedure where investigation cannot be completed in twenty four hours, it 'obviously follows that the detention authorised by this section whether in police custody or otherwise, is for the duration of the investigation of which interrogation of the accused forms an important ingredient. thereforee, the accused even after his remand to judicial 'custody, can, subject to his right to silence, be questioned by the police with the permission of the magistrate in any place and manner which do not amount to custody in the police. Police custody commences when a police officer arrests a person by actually touching or confining his body or when the accused submits to the custody by word or action or offers to give information leading to discovery ; see Gurubaksh Singh Sibbia and others v. State of Punjab : 1980 CriLJ1125 . , This will be the answer to the second question.
(5) The petition shall stand disposed of in terms of the above answers.