However, the submission made by the applicants that the learned Magistrate has committed an error in granting remand and ordering detention of the applicants from the beginning, as at no time the extracts of the case diary regarding investigation were submitted before the Magistrate, deserves to be accepted. The Magistrate before passing the order of detention or remand has to get himself satisfied regarding adequacy of grounds for the said purpose. This cannot be from what is stated in the application i.e. whether the investigation is complete or certain accused are to be arrested. He has to get himself satisfied from the case diary which is required to be maintained under section 172(1) by the Investigating Officer. It is obligatory upon every Investigating Officer to maintain the said diary which contains various details regarding the progress of the investigation. It is a chart or graph of the investigation which is carried out by the said officer as day to day progress of the investigation is required to be recorded in it. The said extract of the diary must be produced before the Magistrate when any remand or detention of the accused is claimed. The Magistrate must look into the same and get himself satisfied regarding adequacy of the grounds and pass necessary order. Without the extracts of the said diary of investigation or case papers, it is not possible for the Magistrate to find out the adequacy of grounds and to get himself satisfied. The Magistrate must indicate, however succinctly it may be, his satisfaction for detention or remand of the accused. Since the order passed by the learned Magistrate is having the effect of taking away the liberty of a person, which is a fundamental right guaranteed to every citizen under the Constitution of India, it must be scrupulously followed.
8. The learned advocate for the applicants cited MANU/GH/0013/1963, R. K. Nabachandra Singh v. Manipur Administration. It dealt with Section 167 of the Code of Criminal Procedure, 1898. Same provision is to be found in the Code of Criminal Procedure, 1973, as Section 167 (with some modifications). It is observed - (at page 312 (of Cri LJ)
"...... if the police do not transmit to the Court a copy of the entries in the diary relating to the case, to satisfy the Magistrate that there are grounds for believing that the accusation or information is well-founded, and that a remand is absolutely necessary for the purpose of investigation, the Magistrate has no jurisdiction to direct the detention of the arrested person."
Similarly, in MANU/AP/0154/1955 : AIR 1957 AP 561, In re B. J. Reddi the Division Bench considered the effect of Section 167 of the Code of Criminal Procedure, 1898. It came to be observed as follows : at page 1065 (of Cri LJ)
"It is manifest that the provision relating to the transmission of a copy of the entries in the diary prescribed in S. 172 is mandatory and therefore imperative that every one of the officers answering the description in the section should send along with the remand report a copy of the case-diary which he is bound to keep under S. 172, Criminal Procedure Code. The object of enacting this section is that the entries in the diary afford to the Magistrate information upon which he can decide whether or not the detention of the accused person in custody should be authorised and also to enable him to form an opinion as to whether any further detention is necessary.
In the absence of the entries referred to in that section, it is difficult for the Magistrate to decide whether either the detention was authorised or the further detention is necessary. By not complying with the first requirement, the investigating officer render that part of the section which requires the transmission of entries in the case diary otiose. It is really astounding that a Police Officer should offer the explanation that it is not usual to send copies of case-diary in spite of an obligation cast on them by the section.
We are unable to understand how the Magistrate are able to act on the remand reports without the entries. These are very relevant in considering whether a further remand should be granted or not. We hope that the Magistrate acting under S. 167 would insist upon the mandatory provisions of the section being complied with."
IN THE HIGH COURT OF BOMBAY AT NAGPUR
Criminal Revision Application No. 61 of 1993
Decided On: 17.06.1993
Shrawan Waman Nade Vs. The State of Maharashtra
Hon'ble Judges/Coram:
P.S. Patankar, J.
Citations: 1994 (2) BomCR 668, 1994 CriLJ 780, 1994 (1) MhLj 220,MANU/MH/0144/1993
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