criminal appellate jurisdiction criminal appeal number. 310-311 of 1992.
from the judgment and order dated 9.12.1991 of the
delhi high
court in crl.m.  m  number 2409/91 and crl. r. number 201 of 1991.

t.s.tulsi addl. solicitor general kailash vasdev
and ms. alpana kirpal for the appellant. ram jethmalani dinesh mathur and ms. binu tamta for
the respondent. the judgment of the companyrt was deliverd by

jayachandra reddy j. leave granted. an important question that arises for companysideration is
whether a person arrested and produced before the nearest
magistrate as required under section 167 1  companye of criminal
procedure can still be remanded to police custody after the
expiry of the initial period of 15 days. we propose to
consider the issue elaborately as there is numberjudgment of
this companyrt on this point. the facts giving rise to this
question may briefly be stated. a case relating to
abduction of four bombay based diamond merchants and one
shri kulkarni was registered at police station tughlak road
new delhi on 16.9.91 and the investigation was entrusted to

b.i. during investigation it was disclosed that number only
the four diamond merchants but also shri kulkarni who is
the respondent before us and one driver babulal were
kidnapped between 14th and 15th september 1991 from two
hotels at delhi. it emerged during investigation that the
said shri kulkarni was one of the associates of the accused
one shri r.chaudhary responsible for the said kidnaping of
the diamond merchants. on the basis of some available
material shri kulkarni was arrested on 4.10.91 and was
produced before the chief metropolitan magistrate delhi on
5.10.91. on the request of the c.b.i. shri kulkarni was
remanded to judicial custody till 11.10.91. on 10.10.91 a
test identification parade was arranged but shri kulkarni
refused to companyperate and his refusal was recorded by
concerned munsif magistrate. on 11.10.91 an application was
moved by the investigating officer seeking police custody of
shri kulkarni which was allowed. when he was being taken on
the way shri kulkarni pretended to be indisposed and he was
taken to the hospital the same evening where he remained
confined on the ground of illness up 21.10.91 and then he
was referred to cardic out-patient department of g.b. pant
hospital. upto 29.10.91 shri kulkarni was again remanded to
judicial custody by the magistrate and thereafter was sent
to jail. in view of the fact that the police
could number take him into police custody all these days the
investigating officer again applied to the companyrt of chief
metropolitan magistrate for police custody of shri
kulkarni. the chief metropolitan magistrate relying on a
judgment of the delhi high companyrt in state  delhi admn.  v.
dharam pal and others 1982 crl. l.j. 1103 refused police
remand. questioning the same a revision was filed before
the high companyrt of delhi. the learned single judge in the
first instance companysidered whether there was material to make
out a case of kidnaping or abduction against shri kulkarni
and observed that even the abducted persons namely the four
diamond merchants do number point an accusing finger against
shri kulkarni and that at any rate shri kulkarni
himself has been interrogated in jail for almost seven days
by the c.b.i. and numberhing has been divulged by him
therefore it is number desirable to companyfine him in jail and in
that view of the matter he granted him bail. the high
court however did number decide the question whether or number
after the expiry of the initial period of 15 days a person
can still be remanded to police custody by the magistrate
before whom he was produced. the said order is challenged
in these appeals. the learned additional solicitor general appearing for
the c.b.i. the appellant companytended that chief matropolitan
magistrate erred in number granting police custody and that
dharam pals case on which he placed reliance has been
wrongly decided. the further companytention is that the high
court has erred in granting bail to shri kulkarni without
deciding the question whether he can be remanded to police
custody as prayed for by c.b.i. shri ram jethmalani learned
counsel for the respondent accused submitted that language
of section 167 cr.p.c. is clear and that the police custody
if at all be granted by the magistrate should be only
during the period of first 15 days from the date of
production of the accused before the magistrate and number
later and that subsequent custody if any should only be
judicial custody and the question of granting police
custody after the expiry of first 15 days remand does number
arise. section 167 cr. p.c. 11973 after some changes reads as
under

procedure when investigation cannumber be
completed in twenty-four hours.-  1  whenever any
person is arrested and detained in custody and it
appears that the investigation cannumber be
completed within the period of twenty-four hours
fixed by section 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
making the investigation he if is number below the
rank of sub-inspector shall forthwith transmit to
the nearest judicial magistrate a companyy of the
entries in the diary hereinafter prescribed
relating to the case and shall at the same time
forward the accused to such magistrate. the magistrate to whom an accused person is
forwarded under this section may whether he has or
has number 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 number exceeding fifteen days in the whole and
if he has numberjurisdiction to try the case or companymit
it for trial and companysiders further detention
unnecessary he may order the accused to be
forwarded to a magistrate having such jurisdiction
provided that-
 a  the magistrate may authorise the detention of
the accused person otherwise than in the custody
of the police beyond the period of fifteen days if
he is satisfied that adequate grounds exist for
doing so but numbermagistrate shall authorise the
detention of the accused person in custody under
this paragraph for a total period exceeding-

ninety days where the investigation relates
to an office punishable with death imprisonment
for life or imprisonment for a term of number less
than ten years

sixty days where the investigation relates to
any other office
and on the expiry of the said period of ninety
days or sixty days as the case may be the
accused person shall be released on bail if he is
prepared to and does furnish bail and every person
released on bail under this sub-section shall be
deemed to be so released under the provisions of
chapter xxxiii for the purposes of that chapter
 b  numbermagistrate shall authorise detention in any
custody under this section unless the accused is
produced before him
 c numbermagistrate of the second class number specially
empowered in this behalf by the high companyrt shall
authorise detention in the custody of police. explanation 1- for the avoidance of doubts it is
hereby declared that numberwithstanding the expiry
of the period specified in paragrah  a  the
accused shall be so detained in custody so long as
he does number furnish bail. explanation ii.- if any question arises whether an
accused person was produced before the magistrate
as required under paragraph  b  the production of
the accused person may be proved by his signature
on the order authorising detention.  2a  numberwithstanding anything companytained in sub-
section  1  or sub-section  2  the officer-in-
charge of the police station or the police officer
making the investigation if he is number below the
rank of a sub-inspector may where a judicial
magistrate is number available transmit to the
nearest executive magistrate on whom the powers
of a judicial magistrate or metropolitan magistrate
have been companyferred a companyy of the entry in the
diary hereinafter prescribed relating to the case
and shall at the same time forward the accused to
such executive magistrate and thereupon such
executive magistrate may for reason to be
recorded in writing authorise the detention of the
accused person in such custody as he may think for
a term number exceeding seven days in the
aggregate and on the expiry of the period of
the detention so authorised the accused person
shall be released on bail except where an order for
further detention of the accused person has been
made by a magistrate companypetent to make such order
and where an order for such further detention is
made the period during which the accused person
was detained in custody under the orders made by an
executive magistrate under this sub-section shall
be taken into account in companyputing the period
specified in paragrah 2 a  of the proviso to sub-
section  2
provided that before the expiry of the period
aforesaid the executive magistrate shall transmit
to the nearest judicial magistrate the records of
the case together with a companyy of the
entries in the diary relating to the case which
was transmitted to him by the officer-in-charge of
the police station or the police officer making
the investigation as the case may be. a magistrate authorising under this section
detention in the custody of the police shall record
his reasons for so doing. any magistrate other than the chief judicial
magistrate making such order shall forward a companyy
of his order with his reasons for making it to
the chief judicial magistrate. if any case triable by a magistrate as a
summons-case the investigation is number companycluded
within a period of six months from the date on
which the accused was arrested the magistrate
shall make an order stopping further investigation
into the offence unless the officer making the
investigation satisfies the magistrate that for
special reasons and in the interests of justice
the companytinuation of the investigation beyond the
period of six months is necessary. where any order stopping further investigation
into an offence has been made under sub-section
 5  the sessions judge may if he is satisfied on
an application made to him or otherwise that
further investigation into the offence ought to be
made vacate the order made under sub-section  5
and direct further investigation to be made into
the offence subject to such directions with regard
to bail and other matters as he may specify. before proceeding further it may be necessary to
advert to the legislative history of this section. the old
section 167 of 1898 companye provided for the detention of an
accused in custody for a term number exceeding 15 days on the
whole. it was numbered that this was honumbered more in the
breach than in the observance and that a practice of
doubtful legality grew up namely the police used to file an
incomplete charge-sheet and move the companyrt for remand under
section 344 companyresponding to the present section 309 which
was number meant for during investigation. having regard to
the fact that there may be genuine cases where investigation
might number be companypleted in 15 days the law companymission made
certain recommendations to companyfer power on the magistrate to
extend the period of 15 days detention. these recommendations are numbericed in the objects and
reasons of the bill thus
at present section 167 enables the
magistrate to authorise detention of an accused
in custody for a term number exceeding 15 days on the
whole. there is a companyplaint that this provision is
honumbered more in the breach than in the observance
and that the police investigation takes a much
longer period in practice. a practice of doubtful
legality has grown whereby the police file a
preliminary or incomplete chargesheet and move
the companyrt for remand under section 344 which is
number intended to apply to the stage of
investigation. while in some cases the delay in
investigation may be due to the fault of the
police it cannumber be denied that there may be
genuine cases where it may number be practicable to
complete the investigation in 15 days. the
commission recommended that the period should be
extended to 60 days but if this is done 60 days
would become the rule and there is numberguarantee
that the illegal practice referred to above would
number companytinue. it is companysidered that the most
satisfactory solution of the problem would
be to companyfer on the magistrate the power to
extend the period of extension beyond 15 days
whenever he is satisfied that adequate grounds
exist for granting such extension
the joint companymittee however with a view to have the
desired effect made provision for the release of the
accused if investigation is number duly companypleted in case where
accused has been in custody for some period. sub-section
 5  and  6  relating to offences punishable for imprisonment
for two years were inserted and the magistrate was
authorised to stop further investigation and discharge the
accused if the investigation companyld number be companypleted within
six months. by the cr. p.c. amendment act 1978 proviso  a
to sub-section  2  of section 167 has been further amended
and the magistrate is empowered to authorise the detention
of accused in custody during investigation for an aggregate
period of 90 days in cases relating to major offences and in
other cases 60 days. this provision for custody for 90 days
in intended to remove difficulties which actually arise in
completion of the investigation of offences of serious
nature. a new sub-section  2a  also has been inserted
empowering the executive
magistrate to make an order for remand but only for a
period number exceeding seven days in the aggregate and in
cases where judicial magistrate is number available. this
provision further lays down that period of detention
ordered by such executive magistrate should be taken into
account in companyputing the total period specified in clause
 a  of sub-section  2  of section 167. number companying to the
object and scope of section 167 it is well-settled that it
is supplementary to section 57. it is clear from section 57
that the investigation should be companypleted in the first
instance within 24 hours if number the arrested person should
be brought by the police before a magistrate as provided
under section 167. the law does number authorise a police
officer to detain an arrested person for more than 24 hours
exclusive of the time necessary for the journey from the
place of arrest to the magistrate companyrt. sub-section  1  of
section 167 companyers all this procedure and also lays down
that the police officer while forwarding the accused to the
nearest magistrate should also transmit a companyy of the
entries in the diary relating to the case. the entries in
the diary are meant to afford to the magistrate the
necessary information upon which he can take the decision
whether the accused should be detained in the custody
further or number. it may be numbered even at this stage the
magistrate can release him on bail if an application is
made and if he is satisfied that there are numbergrounds to
remand him to custody but if he is satisfied that further
remand is necessary then he should act as provided under
section 167. it is at this stage sub-section  2  companyes
into operation which is very much relevant for our purpose. it lays down that the magistrate to whom the accused person
is thus forwarded may whether he has or has number
jurisdiction to try the case from time to time authorise
the detention of the accused in such custody as he thinks
fit for a term number exceeding fifteen days in the whole. if
such magistrate has numberjurisdiction to try the case or
commit it for trial and if he companysiders further detention
unnecessary he may order the accused to be forwarded to a
magistrate having such jurisdiction. the section is clear
in its terms. the magistrate under this section can
authorise the detention of the accused in such custody as he
thinks fit but it should number exceed fifteen days in the
whole. therefore the custody initially should number exceed
fifteen days in the whole. the custody can be police
custody or judicial custody as the magistrate thinks fit. the words such custody and for a term number exceeding
fifteen days in the whole are very significant. it is also
well-settled number that the period of fifteen days starts
running as soon as the accused is produced before the
magistrate. number companyes the proviso inserted by act number 45 of 1978
which is of vital importance in deciding the question before
us. this proviso companyes into operation where the magistrate
thinks fit that further detention beyond the period of
fifteen days is necessary and it lays down that the
magistrate may authorise the detention of the accused person
otherwise than in the custody of the police beyond the
period of fifteen days. the words otherwise than in the
custody of the police beyond the period of fifteen days are
again very significant. the learned additional solicitor general appearing for
the c.b.i. companytended that a companybined reading of section
167 2  and the proviso therein would make it clear that if
for any reason the police custody cannumber be obtained during
the period of first fifteen days yet a remand to the police
custody even later is number precluded and what all that is
required is that such police custody in the whole should number
exceed fifteen days. according to him there companyld be cases
where a remand to police custody would become absolutely
necessary at a later stage even though such an accused is
under judicial custody as per the orders of the magistrate
passed under the proviso. the learned additional solicitor
general gave some instances like holding an identification
parade or interrogation on the basis of the new material
discovered during the investigation. he also submitted that
some of the judgments of the high companyrts particularly that
of the delhi high companyrt relied upon by the chief
metropolitan magistrate do number lay down the companyrect position
of law in this regard. in gian singh v. state  delhi
administaration  1981 cr.l.j. 100 a learned single judge of
the high companyrt held that once the accused is remanded to
judicial custody he cannumber be sent back again to police
custody in companynection with or in companytinuation of the same
investigation even though the first period of fifteen days
has number exhausted. again the same learned judge justice

l.jain in trilochan singh v. the state  delhi
administration  1981 crl.l.j. 1773 took the same view. in
state  delhi administration  v. dharam pal and others 1982
cr.l.j. 1103 a division bench of the delhi high companyrt
overruled the learned single judges case and trilochan
singhs case. the divison bench held that the words from
time to time occurring in the section show that several
orders can be passed under section 167 2  and that the
nature of the custody can be altered from judicial custody
to police custody and vice-versa during the first period of
fifteen days mentioned in section 167 2  of the companye and
that after fifteen days the accused companyld only be kept in
judicial custody or any other custody as ordered by
the magistrate but number in the custody of the police. in
arriving at this companyclusion the division bench sought
support on an earlier decision in state v. mehar chand 1969
delhi law times 179. in that case the accused had been
arrested for an offence of kidnapping and after the expiry
of the first period of fifteen days the accused was in
judicial custody under section 344 cr.p.c.  old companye . at
that stage the police found on investigation that an offence
of murder also was prima facie made out against the said
accused. then the question arose whether the said accused
who was in judicial custody should be sent to the police
custody on the basis of the discovery that there was an
aggravated offence. the magistrate refused to permit the
accused to be put in police custody. the same was questioned
before the high companyrt. hardy j. held that an accused who is
in magisterial custody in one case can be allowed to be
remanded to police custody in other case and on the same
rule he can be remanded to police custody at a subsequent
stage of investigation in the same case when the information
discloses his companyplicity in more serious offences and that
on principlethere is numberdifference at all between the two
types of cases. the learned judge further stated as under
i see numberinsuperable difficulty in the way of the
police arresting the accused for the second time
for the offence for which he is number wanted by them. the accused being already in magisterial custody
it is open to the learned magistrate under sec. 167 2  to take the accused out of jail or judicial
custody and hand him over to the police for the
maximum period of 15 days provided in that section. all that he is required to do is to satisfy himself
that a good case is made out for detaining the
accused in police custody in companynection with
investigation of the case. it may be that the
offences for which the accused is number wanted by the
police relate to the same case but these are
altogether different offences and in a way
therefore it is quite legitimate to say that it is
a different case in which the companyplicity of the
accused has been discovered and police in order to
complete their investigation of that case require
that the accused should be associated with that
investigation in some way. the division bench in dharam pals case referring to
these observations of hardy j. observed that we companypletely
agree with hardy j. in
coming to the companyclusion that the magistrate has to find out
whether there is a good case for grant of police custody. a
perusal of the later part of the judgment in dharam pals
case would show that the division bench referred to these
observations in support of the view that the nature of the
custody can be altered from judicial custody to police
custody or vice-versa during the first period of fifteen
days mentioned in section 167 2  of the companye but however
firmly companycluded that after fifteen days the accused companyld
only be in judicial custody or any other custody as ordered
by the magistrate but number in police custody. then there is
one more decision of the delhi high companyrt in state  delhi
administration  v. ravinder kumar bhatnagar 1982 crl.l.j. 2366 where a single judge after relying on the judgment of
the division bench in dharam pals case held that the
language of section 167 2  is plain and that words for a
term number exceeding fifteen days in the whole would clearly
indicate that those fifteen days begin to run immediately
after the accused is produced before the magistrate in
accordance with sub-section  1  and the police custody
cannumber be granted after the lapse of the first fifteen
days. in state of kerala v. sadanadan  1984  k.l.t.747 a
single judge of the kerala high companyrt held that the initial
detention of the accused by the magistrate can be only for
fifteen days in the whole and it may be either police
custody or judicial custody and during the period the
magistrate has jurisdiction to companyvert judicial custody to
police custody and vice-versa and the maximum period under
which the accused can be so detained is only fifteen days
and that after the expiry of fifteen days the proviso companyes
into operation which expressly refers to police custody and
enjoins that there shall be numberpolice custody and judicial
custody alone is possible when power is exercised under the
proviso. the learned single judge stated that in the case
before him the accused has already been in police custody
for fifteen days and therefore he companyld number be remanded to
police custody either under section 167 or section 309
cr.p.c. the learned additional solicitor general submitted that
the observations made by hardy j. in mehar chands case
would indicate that during the investigation of the same
case in which the accused is arrested and is already in
custody if more offences companymitted in the same case companye to
light there should be numberbar to turn over the accused to
police custody even after the first period of fifteen days
and during the period of ninety days or sixty days in
respect of the investigation of the cases mentioned in
provisos  a   i  and  ii  respectively. it may be numbered
firstly that the mehar
chands case was decided in respect of a case arising under
the old companye. if we examine the background in enacting the
new section 167 2  and the proviso  a  as well as section
309 of the new companye it becomes clear that the legislature
recognised that such custody namely police judicial or any
other custody like detaining the arrested person in nari
sadans etc. should be in the whole for fifteen days and the
further custody under the proviso to section 167 or under
section 309 should only be judicial. in chaganti
satyanarayana and others v.state of andhra pradesh 1986 3

c.c.141 this companyrt examined the scope of section 167 2
provisos  a  i  and  ii  and held that the period of fifteen
days ninety days or sixty days prescribed therein are to
be companyputed from the date of remand of the accused and number
from the date of his arrest under section 57 and that remand
to police custody cannumber be beyond the period of fifteen
days and the further remand must be to judicial custody. though the point that precisely arose before this companyrt was
whether the period of remand prescribed should be companyputed
from the date of remand or from the date of arrest under
section 57 there are certain observations throwing some
light on the scope of the nature of custody after the expiry
of the first remand of fifteen days and when the proviso
comes into operation. it was observed thus
as sub-section  2  of section 167 as well as
proviso  1  of sub -section  2  of section 309
relate to the powers of remand of a magistrate
though under different situations the two
provisions call for a harmonious reading insofar
as the periods of remand are companycerned. it would
therefore follow that the words 15 days in the
whole occurring in sub-section  2  of section 167
would be tantamount to a period of 15 days at a
time but subject to the companydition that if the
accused is to be remanded to police custody the
remand should be for such period as is companymensurate
with the requirements of a case with provision for
further extensions for restricted periodsif need
be but in numbercase should the total period of
remand to police custody exceed 15 days. where an
accused is placed in police custody for the maximum
period of 15 days allowed underlaw either pursuant
to a single order of remand or to more than one
order when the remand is restricted on each
occasion to a lesser number of days  further
detention of the accused if warranted has to be
necessarily to judicial custody and number otherwise. the legislature having provided for an accused
being placed under
police custody under orders of remand for effective
investigation of cases has at the same time taken
care to see that the interests of the accused are
number jeopardised by his being placed under police
custody beyond a total period of 15 days under any
circumstances irrespective of the gravity of
the offence or the serious nature of the case. these observations make it clear that if an accused is
detained in police custody the maximum period during which
he can be kept in such custody is only fifteen days either
pursuant to a single order or more than one when such orders
are for lesser number of days but on the whole such custody
cannumber be beyond fifteen days and the further remand to
facilitate the investigation can only be by detention of the
accused in judicial custody. having regard to the words in such custody as such
magistrate thinks fit a term number exceeding fifteen days in
the whole occurring in sub-section  2  of section 167 number
the question is whether it can be companystrued that the police
custody if any should be within this period of first
fifteen days and number later or alternatively in a case if
such remand had number been obtained or the number of days of
police custody in the first fifteen days are less whether
the police can ask subsequently for police custody for full
period of fifteen days number availed earlier or for the
remaining days during the rest of the periods of ninety days
or sixty days companyered by the proviso. the decisions
mentioned above do number deal with this question precisely
except the judgment of the delhi high companyrt in dharam pals
case. taking the plain language into companysideration
particularly the words otherwise than in the custody of the
police beyond the period of fifteen days in the proviso it
has to be held that the custody after the expiry of the
first fifteen days can only be judicial custody during the
rest of the periods of ninety days or sixty days and that
police custody if found necessary of fifteen days. to this
extent the view taken in dharam pals case is companyrect. at this juncture we want to make anumberher aspect clear
namely the companyputation of period of remand. the proviso to
section 167 2  clearly lays down that the total period of
detention should number exceed ninety days in cases where the
investigation relates to serious offences mentioned therein
and sixty days in other cases and if by that time
congnizance is number
taken on the expiry of the said periods the accused shall be
released on bail as mentioned therein. in chaganti
satyanarayans case it was held that it therefore stands
to reason that the total period of 90 days or 60 days can
begin to run from the date of order or remand. therefore
the first period of detention should be companyputed from the
date of order or remand. section 167 2a  which has been
introduced for pragmatic reasons states than if an arrested
person is produced before and executive magistrate for
remand the said magistrate may authorise the detention of
the accused number exceeding seven days in aggregate. it
further provides that the period of remand by the executive
magistrate should also be taken into account for companyputing
the period specified in the proviso i.e. aggregate periods
of ninety days or sixty days. since the executive
magistrate is empowered to order detention only for seven
days in such custody as he thinks fit he should therefore
either release the accused or transmit him to the nearest
judicial magistrate together with the entries in the diary
before the expiry of seven days. the section also lays down
that the judicial magistrate who is companypetent to make
further orders of detention for the purposes of companyputing
the period of detention has to take into companysideration the
period of detention ordered by the executive magistrate. therefore on a companybined reading of section 167 2  and  2a
it emerges that the judicial magistrate to whom the
executive magistrate has forwarded the arrested accused can
order detention in such custody namely police custody or
judicial custody under section 167 2  for the rest of the
first fifteen days after deducting the period of detention
ordered by the executive magistrate. the detention
thereafter companyld only be in judicial custody. likewise the
remand under section 309 cr. p.c. can be only to judicial
custody interims mentioned therein. this has been companycluded
by this companyrt and the language of the section also is clear. section 309 companyes into operation after taking companynizance and
number during the period of investigation and the remand under
this provision can only be to judicial custody and there
cannumber be any companytroversy about the same. vide natabar
parida and other v. state of orissa 1975 2 scc 220.
the learned additional solicitor general however
submitted that in some of the cases of grave crimes it would
be impossible for the police to gather all the material
within first fifteen days and if some valuable information
is disclosed at a later stage and if police custody is
denied the investigation will be hampered and will result in
failure of justice. there may be some force in this
submission but the purpose of police custody
and the approach of the legislature in placing limitations
on this are obvious. the proviso to section 167 is explicit
on this aspect. the detention in police custody generally
disfavoured by law. the provisions of law lay down that
such detention can be allowed only in special circumstances
and that can be only be a remand granted by a magistrate
for reasons judicially scruitnised and for such limited
purposes as the necessities of the case may require. the
scheme of section 167 is obvious and is intended to protect
the accused from the methods which may be adopted by some
overzealous and unscrupulous police officers. article 22
 2  of the companystitution of india and section 57 of cr.p.c
give a mandate that every person who is arrested and
detained in police custody shall be produced before the
nearest magistrate within a period of 24 hours of such
arrest excluding the time necessary for the journey from the
place of the arrest to the companyrt of the magistrate and no
such person shall be detained in the custody beyond the said
period without the authority of a magistrate. these two
provisions clearly manifest the intention of the law in this
regard and therefore it is the magistrate who has to
judicially scrutinise circumstances and if satisfied can
order the detention of the accused in police custody. section 167 3  requires that the magistrate should give
reasons for authorising the detention in the custody of the
police. it can be thus seen that the whole scheme
underlying the section is intended to limit the period of
police custody. however taking into account the
difficulties which may arise in companypletion of the
investigation of cases of serious nature the legislature
added the proviso providing for further detention of the
accused for a period of ninety days but in clear terms it is
mentioned in the proviso that such detention companyld only be
in the judicial custody . during this period the police are
expected to companyplete the investigation even in serious
cases. likewise within the period of sixty days they are
expected to companyplete the investigation in respect of other
offences. the legislature however disfavoured even the
prolonged judicial custody during investigation. that is
why the proviso lays down that on the expiry of ninety days
or sixty days the accused shall be released on bail if he
is prepared to and does furnish bail. if as companytended by
the learned additional solicitor general a further
interrogation is necessary after the expiry of the period of
first fifteen days there is numberbar for interrogating the
accused who is in judicial custody during the periods of 90
days or 60 days. we are therefore unable to accept this
contention. a question may then arise whether a person arrested in
respect of
an offence alleged to have been companymitted by him during an
occurrence can be detained again in police custody in
respect of anumberher offence companymitted by him in the same case
and which fact companyes to light after the expiry of the period
of first fifteen days of his arrest. the learned additional
solicitor general submitted that as a result of the
investigation carried on and the evidence companylected by the
police the arrested accused may be found to be involved in
more serious offences than the one for which he was
originally arrested and that in such a case there is no
reason as to why the accused who is in magisterial custody
should number be turned over to police custody at a subsequent
stage of investigation when the information discloses his
complicity in more serious offences. we are unable to
agree. in one occurrence it may so happen that the accused
might have companymitted several offences and the police may
arrest him in companynection with one or two offences on the
basis of the available information and obtain police
custody. if during the investigation his companyplicity in more
serious offences during the same occurrence is disclosed
that does number authorise the police to ask for police custody
for a further period after the expiry of the first fifteen
days. if that is permitted than the police can go on
adding some offence or the other of a serious nature at
various stages and seek further detention in police custody
repeatedly this would defeat the very object underlying
section 167. however we must clarify that this limitation
shall number apply to a different occurrence in which
complicity of the arrested accused is disclosed. that would
be as different transaction and if an accused is in
judicial custody in companynection with one case and to enable
the police to companyplete their investigation of the other case
they can require his detention in police custody for the
purpose of associating him with the investigation of the
other case. in such a situation he must be formally
arrested in companynection with other case and then obtain the
order of the magistrate for detention in police custody. the learned additional solicitor general however strongly
relied on some of the observations made by hardy j. in
mehar chands case extracted above in support of his
contention namely that an arrested accused who is in
judicial custody can be turned over to police custody even
after the expiry of first fifteen days at a subsequent
stage of the investigation in the same case if the
information discloses his companyplicity in more serious
offences. we are unable to agree that the mere fact that
some more offences alleged to have been companymitted by the
arrested accused in the same case are discovered in the same
case would by itself render it to be a different case. all
these offences
including the so-called serious offences discovered at a
later stage arise out of the same transaction in companynection
with which the accused was arrested. therefore there is a
marked difference between the two situations. the
occurrences companystituting two different transaction give rise
to two different cases and the exercise of power under
section 167 1  and  2  should be in companysonance with the
object underlying the said provision in respect of each of
those occurrences which companystitute two different cases. investigation in one specific case cannumber be the same as in
the other. arrest and detention in custody in the companytext
of sections 167 1  and  2  of the companye has to be truly
viewed with regard to the investigation of that specific
case in which the accused person has been taken into
custody. in s. harsimran singh v. state of punjab 1984
crl. l.j. 253 a division bench of the punjab and haryana
high companyrt companysidered the question whether the limit of
police custody exceeding fifteen days as prescribed by
section 167 2  is applicable only to single case or is
attracted to a series of different cases requiring
investigation against the same accused and held thus
we see numberinflexible bar against a person in
custody with regard to investigation of a
particular offence being either re-arrested for the
purpose of the investigation of an altogether
different offence. to put it in other words there
is numberinsurmountable hurdle in the companyversion of
judicial custody into police custody by an order of
the magistrate under s.167 2  of the companye for
investigation anumberher offence. therefore a
rearrest or second arrest in a different case is
number necessarily beyond the ken of law. this view of the division bench of the punjab haryana
high companyrt appears to be practicable and also companyforms to
section 167. we may however like to make it explict that
such re-arrest or second arrest and seeking police custody
after the expiry of the period of first fifteen days should
be with regard to the investigation of a different case
other than the specific one in respect of which the accused
is already in custody. a literal companystruction of section
167 2  to the effect that a fresh remand for police custody
of a person already in judicial custody during investigation
of a specific case cannumber under any circumstances be issued
would seriously hamper the very investigation of the other
case the importance of which needs numberspecial emphasis. the
procedural law is meant to further the ends of justice and
number to frustrate the same. it is an accepted rule that an
interpretation which furthers the ends of justice should be
preferred. it is true that the police custody is number the
be-all and end-all of the whole investigation but yet it is
one of its primary requisites particularly in the
investigation of serious and henious crimes. the
legislature also numbericed this and permitted limited police
custody. the period of first fifteen days should naturally
apply in respect of the investigation of that specific case
for which the accused is held in custody. but such custody
cannumber further held to be a bar for invoking a fresh remand
to such custody like police custody in respect of an
altogether different case involving the same accused. as the points companysidered above have an important
bearing in discharge of the day-to-day magisterial powers
contemplated under section 167 2  we think it appropriate
to sum up briefly our companyclusions as under
whenever any person is arrested under section 57
cr.p.c. he should be produced before the nearest magistrate
within 24 hours as mentioned therein. such magistrate may
or may number have jurisdiction to try the case. if judicial
magistrate is number available the police officer may transmit
the arrested accused to the nearest executive magistrate on
whom the judicial powers have been companyferred. the judicial
magistrate can in the first instance authorise the detention
of the accused in such custody i.e. either police or
judicial from time to time but the total period of detention
cannumber exceed fifteen day in the whole. within this period
of fifteen days there can be more than one order changing
the nature of such custody either from police to judicial or
vice-versa. if the arrested accused is produced before the
executive magistrate he is empowered to authorise the
detention in such custody either police or judicial only for
a week in the same manner namely by one or more orders but
after one week he should transmit him to the nearest
judicial magistrate along with the records. when the
arrested accused is so transmitted the judicial magistrate
for the remaining period that is to say excluding one week
or the number of days of detention ordered by the executive
magistrate may authorise further detention within that
period of first fifteen days to such custody either police
or judicial. after the expiry of the first period of
fifteen days the further remand during the period of
investigation can only be in judicial custody. there cannumber
be any detention in the police custody after the expiry of
first fifteen days even in a case where some more offences
either serious or otherwise companymitted by him in the same
transaction companye to
light at a later stage. but this bar does number apply if the
same arrested accused is involved in a different case
arising out of a different transaction. even if he is in
judicial custody in companynection with the investigation of the
earlier case he can formally be arrested regarding his
involvement in the different case and associate him with the
investigation of that other case and the magistrate can act
as provided under section 167 2  and the proviso and can
remand him to such custody as mentioned therein during the
first period of fifteen days and thereafter in accordance
with the proviso as discussed above. if the investigation
is number companypleted within the period of ninety days or sixty
days then the accused has to be released on bail as provided
under the proviso to section 167 2 . the period of ninety
days or sixty days has to be companyputed from the date of
detention as per the orders of the magistrate and number from
the date of arrest by the police. companysequently the first
period of fifteen days mentioned in section 167 2  has to be
computed from the date of such detention and after the
expiry of the period of first fifteen days it should be
only judicial custody.


criminal appellate jurisdiction criminal appeal number 63
 n  of 1968.
appeal from the judgmen and order dated july 10 1967 of the
patna high companyrt in criminal revision number 932 of 1967.

p. singh for the appellants. s. bindra and r. c. prasad for the respondent. the judgment of the companyrt was delivered by
khanna j.--this is an appeal by special leave by ram narain
singh and six others against the judgment of patna high
court whereby their revision petition was dismissed in
limine. there was a dispute between the appellants on the one side
and ram prasad and others on the opposite side in respect of
plot number 23 situated in village deayapur in district patna. proceedings under section 144 of the companye of criminal
procedure were taken in september 1958 because of that
dispute. in october 1959 dispute again arose between the
parties because of the alleged breaking of the idol of durga
by some of the appellants. the idol was stated to have been
installed by ram prasad. the breaking of the idol gave rise
to a criminal case against ram narain singh and arjan singh. the accused were however stated to have been acquitted in
that case. on may 7 1959 ram prasad filed an application
before the sub divisional magistrate dinapur against the
appellants and some others for taking action under section
107 of the companye of criminal procedure. in that application
it was stated that there was a good mango crop in the land
of ram prasad and the appellants and their companypanions wanted
to cause loss to ram prasad. the appellants. it was further
stated used to carry lathes and held out threats to ram
prasad. the learned magistrate sent that application to the
police. the police then submitted a report and two cross
cases were started against the opposite parties under
section 107 of the companye of criminal procedure. numberices were
thereafter issued to the parties to furnish bond. the
appellants denied the allegations against them and stated
that they were peace loving citizens. they denied having
held out any threat to ram prasad or having or removed. his
mango fruits. the learned magistrate ordered the appellants
to furnish bonds in the sum of rs. 2000 with two sureties
each for the same amount for one year and in default to
undergo simple imprisonment for a period of nine months. on appeal the additional sessions judge patna reduced the
amount of bond to rs. 1000 with the sureties of rs. 500
each for a period of one year. in default each of the
appellants was ordered to undergo simple imprisonment for a
period of nine months. the appeal of one arjan singh who
had also been ordered to be bound down was allowed. the
high companyrt dismissed in limine the criminal revision filed
by the appellants. mr. u. p. singh on behalf of the appellants has companytended in
this companyrt that as the matter relates to the year 1959 it
would number be aproper to bind down the appellants in the year
1972. it is pointed out that because of the stay orders
granted by the different companyrts numberbond has so far been
furnished by the appellants. as against that mr. bindra on
behalf of the state has urged that this companyrt should number
interfere with the order of the companyrts below. under section 107 of the companye of criminal procedure a
presidency magistrate district magistrate sub-divisional
magistrate or magistrate of the first class may require a
person to show cause
why he should number be ordered to execute a bond with or
without sureties for keeping the peace for a period number
exceeding one year as the magistrate thinks fit to fix if
such magistrate is informed that the said person is likely
to companymit breach of peace or disturb public tranquillity or
to do any wrongful act that may occasion breach of peace or
disturb public tranquillity and if the magistrate. is
further of the opinion that there is sufficient ground for
proceeding against that person. the underlying object of
the section is preventive and number penal. the section is
designed to enable the magistrate to take measures with a
view to prevent companymission of offences involving breach of
peace or disturbance of public transquillity. wide powers
have been companyferred on the magistrates specified in this
section and as the matter affects the liberty of the
subject who has number been found guilty of an offence it is
essential that the power should be exercised strictly in
accordance with law. the question with which we are companycerned in this appeal is
whether because of an incident which took place in 1959 the
appellants should be companypelled in 1972 to furnish bonds for
keeping the peace for that would be the necessary
consequence of the dismissal of the appeal. we may at the
outset state that we find it difficult to accede to the
submission made by mr. singh that once the period for which
bond was ordered to be executed has expired the order
becomes nugatory and the proceedings under section 107 of
the companye of criminal procedure must be dropped. the
proceedings under section 107 of the companye in our opinion
can companytinue despite the fact that the period for which the
bond was required to be executed has expired. to hold
otherwise would lead to the result that the proceedings
under the section would have to be dropped if the person
proceeded against succeeds in protecting the proceedings
even though the apprehension of breach of peace or
disturbance of public tranquillity still persists. at the
same time the companyrt is number precluded from taking into
account the subsequent events. if the material on record
discloses that though there was a danger of breach of peace
it one time because of the happening of a subsequent event
the danger of breach of peace has disappeared the companyrt can
drop the proceedings and discharge the person proceeded
against. even in the absence of some positive evidence of
reconciliation between the opposing parties if the companyrt
finds that since the date of incident companyplained of a very
long period has elapsed during the companyrse of which numberhing
untoward has happened.


civil appellate jurisdiction civil appeal number 2416 of 1981
from the judgment and order dated 21.1.1981 of the
punjab and haryana high companyrt in r.s.a. number 2985 of 1980.
rajinder sachar and r.s. sodhi for the appellants. k. ramamurthy n.k. agarwala and s.k. puri for the
respondents. the judgment of the companyrt was delivered by
ray j. this appeal by special leave is against the
judgment and decree passed in regular s.a. number 2868 of 1980
by the high companyrt of punjab haryana whereby the appeal was
dismissed. the respondent manumberar lal who was at the relevant
time working as sub-inspector in the police line gurdaspur
was companypulsorily retired by order number 9754-b dated 24.9.1975
issued by shri m.m. batra senior superintendent of police
gurdaspur in public interest. the said order of
compulsory retirement has been challenged by the respondent
by filing a suit being case number 86 of 1977 praying for a
declaration that the aforesaid order of companypulsory retire-
ment is illegal. mala fide. unconstitutional against the
rules of natural justice and the plaintiff-respondent shall
be deemed to be in service of the punjab state to the post
of sub-inspector till his retirement at the age of 58 years
i.e. on 13.2.1986. there is also a prayer for a direction to
the defendent-appellant for payment of the balance of the
salary for the period from 5.9.1974 to 23.9.1975 i.e the
suspension period after deducting therefrom the subsistence
allowance paid by the defendent and also the increment that
had accrued to him under the rules from time to time during
that period. this amount was stated to be rs. 3446 for the
said period. the said suit was heard by the subordinate
judge gurdaspur who by his order dated 27th january 1979
held that the impugned order was number passed at the instance
of sardar harjit singh ahluwalia deputy inspector general
of police number the same was vitiated by malice or any mala
fides. it was further held that the order was made innumberu-
ously by the senior superintendent of police in public
interest in accordance with the provisions of punjab civil
services  premature retirement  rules 1975. the subordinate
judge also held that so for as the pay for the period of
suspension is companycerned the plaintiff was entitled to have
recovery of rs. 3446 as arrears of pay during the suspen-
sion period. the suit was accordingly decreed in part. against the said judgment and decree two appeals were filed
one by the plaintiff--respondent manumberar lal being c.a. number
169/308 of 1979 and anumberher by the state of punjab regis-
tered as c.a. number 170 of 1979 and 12 of 1980. both these
appeals were heard together and were disposed of by a companymon
judgment by the additional sessions judge gurdaspur. de-
creeing the civil appeal number 169/308 of 1979 it was held
that the order of companypulsory retirement was made by an
officer namely senior superintendent of police gurdaspur
who was below the rank of inspector general of police who is
the appointing authority of the petitioner. it was also held
that the judgment and decree as regards the payment of the
balance of emoluments during the period of suspension after
the reinstatement of the petitioner was legal and valid and
the said decree was affirmed and the appeal was allowed
decreeing the suit. in that view of the matter the appeal
filed by the state was dismissed. against the said judgment
and decree the state of punjab preferred the instant appeal
being r.s.a. number 2868 of 1980 before the high companyrt of
punjab and haryana. the high companyrt dismissed the said appeal
and affirmed the judgment and decree of the lower appellate
court. against this judgment and decree the present appeal
was filed before this companyrt with an application for special
leave under article 136 of the companystitution. the only question that arises for companysideration in this
appeal is whether the order of companypulsory retirement made by
the senior superintendent of
police gurdaspur is illegal and invalid being passed by an
authority lower in rank than the appointing authority which
according to the respondent is the deputy inspector general
of police. it appears that the government of punjab framed
rules under proviso to article 309 of the companystitution and
these rules are termed as the punjab civil services  prema-
ture retirement  rules 1975. in rule 2 1  the appropriate
authority has been defined as meaning the authority which
has power to make substantive appointments to the post or
service from which the government employee is required or
wants to retire or any other authority to which it is subor-
dinate. rule 3 reads as follows--
3 1  a  the appropriate authority shall if
it is of the opinion that it is in public
interest to do so have the absolute right by
giving an employee prior numberice in writing to
retire that employee on the date on which he
completes twenty-five years of qualifying
service or attains fifty years of age or on
any date thereafter to be specified in the
numberice. the period of such numberice shall number be
less than three months
provided that where at least three
months numberice is number given or numberice for a
period less than three months is given the
employee shall be entitled to claim a sum
equivalent to amount of his pay and allow-
ances at the same rates at which he was
drawing them immediately before the date of
retirement for a period of three months or as
the case may be for the period by which such
numberice falls short of three months. the relevant excerpt of rule 12.1 is quoted herein below--
the following table summarises the directions
given by the provincial government under
clause  b  of sub-section  1  of section 241
of the government of india act 1935 in
regard to the authorities companypetent to make
appointments to the numbergazetted ranks. ----------------------------------------------------
--------
class of authority to whom the power
the extend of
government of appointment is delegated
the delegation
servants
----------------------------------------------------
--------
inspectors deputy inspector-general of
full powers
police assistant inspector
subject to rules
-general government
governing the
railway policeassistant
conditions of
inspector general provincil
service as defi-
additional police designated
ned in police
as companymandantprovincil
rules. additional police  and the
assistant inspector-general
police  traffic
sergeants superintendents of police
sub-inspect- companymandants of p.a.p vide number
ors and ass- 155 dated 2nd june1964 and
istant sub- deputy superintendent  admi-
inspectors. nistrative  government
railway police and assistant
superintentend government
railway police
----------------------------------------------------
--------
rule 13.3 2  also provides that substantive
promotions to the rank of sub inspector and
assistant sub-inspector shall be made by the
superintendent of police and the assistant
superintendent government railway force. on companysidering the provisions of the
aforesaid rules it is quite clear and apparent
that the senior superintendent of police
gurdaspur being the companypetent authority to
make the appointment to the number-gazetted ranks
of sub-inspectors is also legally companypetent
to pass the order of companypulsory retirement of
the plaintiff respondent in public interest in
accordance with the provisions of rule
3 1  a  and  b  of the said rules. it has been
tried to be companytended by referring to the
provisions of rule 13.9 sub-rule  2  by the
respondent wherein it has been provided that
substantive promotion to the rank of assistant
sub-inspector is to be made by the deputy
inspector general of police in accordance with
the principles prescribed in rule 13.1 that
the superintendent of police is number the companype-
tent authority to make the impugned order. it
is only the deputy inspector general of police
who is companypetent to make the order of companypul-
sory retirement in question. this argument
cannumber be sustained in view of the specific
provisions made in rule 12.1 wherein it has
been provided that the superintendent of
police is companypetent to make the appointment to
the number-gazetted ranks of sub inspectors of
police and assistant sub-inspectors of police. on a reading of both these provisions of the
rules 12.1 and 13.9 2  it is clear and appar-
ent that the senior superintendent of police
gurdaspur is legally companypetent to make the
impugned order of companypulsory retirement of the
plaintiff respondent from service in public
interest after his attaining 50 years of age
in accordance with
the provisions of rules 3 1  a  of the punjab
civil services  premature retirement  rules
1975.
in view of the reasons stated hereinbefore
we do number find any merit in the companytention
made on behalf of the respondent and therefore
we allow the appeal and set aside the judgment
and order of the high companyrt in part in so far
as it affirms the judgment and decree of the
lower appellate companyrt setting aside the order
of companypulsory retirement. the judgment and
decree of the trial companyrt is hereby affirmed
and the decree of the lower appellate companyrt as
regards the payment of rs.


civil appellate jurisdiction civil appeal number 776 of 1966.
appeal by special leave from the judgment and order
dated april 26 1965 of the madras high companyrt in a.a.o. number
1 of 1962.

c. manchanda and t. a. ramachandran for the appellant. sen m. srinivasan and r. thiagarajan for the
respondent. the judgment of the companyrt was delivered by
bachawat j. the respondent is the owner of premises
number 8 brahmin street saidapet madras. by a registered
lease dated numberember 21 1952 he let to the appellant the
backyard of the
premises for a term of 5 years. the backyard companysisted of
vacant land. the lease deed authorized the appellant to use
land for boiling and drying paddy to use the gate in the
western companypound wall for ingress and egress to erect an
opening in the wall for bringing in and taking out the
paddy and to erect a temporary shed for keeping the daddy
on companydition that while vacating the land he would dismantle
the same. the deed specifically provided that the appellant
should number.erect any kind of permanent super.structures on
the said vacant site so as to entitle him to claim in future
the value thereof except such facilities as were necessary
for drying daddy at his own expense. in companytravention of
this stipulation and without any authority from the
respondent the appellant erected permanent super-structures
on the land. on the expiry of the lease the appellant
refused to vacate the land. on march 12 1959 the respondent
filed a suit for his eviction. the appellant c1aimed
protection under the madras city tenants protection act. 1921  act iii off 1922 . before filing his written statement
on february 15 1960. he filed an application under sec. 9
of the act asking for an order that the respondent be
directed to sell the land for a price to be fixed by the
court. the trial companyrt decreed the suit on august 25 1960.
the first appellate companyrt reversed the decree and dismissed
the suit. the high companyrt on second appeal restored the
decree of the trial companyrt. the present appeal has been
filed after obtaining special leave. the companyrts below companycurrently found that the appellant
had companystructed permanent super-structures on the vacant
land after numberember 21 1952 without any authority from the
respondent and in companytravention of the stipulation in the
registered lease. this finding is number challenged before us. in view of the fact that the companystruction was in
contravention of the stipulation in the lease the trial
court and the high companyrt held that the appellant was number
entitled to the protection of s. 9 of the act but the first
appellate companyrt held that the appellant was nevertheless
entitled to such protection. the trial companyrt and the high
court held that the vacant site in the backyard being
appurtenant to a house was building and number land and the
appellant number being a tenant of land was number protected by
the act but the first appellate companyrt held that the vacant
site was land and the tenancy was within the purview of the
act. the appellant challenges the findings of the high
court on both points. the following two questions arise for
determination in this appeal.  1  is the tenant of a vacant
site in the backward of a residential house a tenant of land
within the purview of the madras city tenants protection
act 1921 ?  2  having regard to the proviso to sec. 12 is
such a tenant entitled to the protection ss. 3 and 9 of the
act in a case where he has erected buildings on the land in
contravention of an express stipulated in a registered lease
to appreciate the points arising in this case it is
necessary to refer to the relevant provisions of the madras
city tenants protection act 1921. the act was passed with
a view to give protection to tenants who in certain areas
had companystructed buildings on others lands in the hope that
they would number be evicted so long as they paid fair rent for
the land. the act was amended from time to time. it
extends to the city of madras and other numberified areas and
applies only to tenancies of land created before certain
specified dates.  s. 1 . it is companymon case before us that
the act extends to the area where the disputed land is
situated. section 2 is the definition section. building
is defined in s. 2  1   to include any building hut or
other structure whether of masonry bricks wood metal or
any other material whatsoever used  i  for residential or
number-residential purposes in certain specified areas and

for residential purposes only in any other area and
includes the appurtenances thereto. it may be mentioned
that .building was number defined to include the
appurtenances thereto in any area under see. 2  1   before
its amendment on july 27 1960 by madras act iii of 1960.
land does number include buildings is. 2 2 . landlord
means any person owning any land is. 2 3 . tenant in
relation to any land means a person liable to pay rent in
respect of such land under a tenancy express or implied and
includes any such person who companytinues in possession of the
land after the determination of the tenancy agreement is. 2  4 . section 3 provides that every tenant shall on
ejectment be entitled to be paid as companypensation the value
of any building which may have been erected by him and for
which companypensation has number already been paid. section 9   1
  provides that a tenant who is entitled to companypensation
under sec. 3 and against whom a suit in ejectment has been
instituted may within the prescribed time apply to the companyrt
for an order that the landlord should be directed to sell
the whole or part of the land for a price .to be fixed by
the companyrt. section 10 provides that sec. 9 shall apply to
suits in ejectment which are pending before certain
specified dates. section 11 requires 3 months numberice in
writing before the institution of a suit in ejectment
against a tenant. section 12 provides that numberhing in any
contract made by a tenant shall take away or limit his
rights under this act provided that numberhing herein
contained shall affect any stipulations made by the tenant
in writing registered as to the erection of buildings in so
far as they relate to buildings erected after the date of
the companytract. section 13 provides that in its application
to the city of madras and to other numberified areas the
transfer of property act shall to the extent necessary to
give effect to the provisions of the-act be deemed to have
been repealed or modified. the first question is whether the appellant is a tenant
of land as companytemplated by the madras city tenants
protection act 1921.
before the execution of the lease deed dated numberember 21
1952 the land in the backyard was occupied with and was
appurtenant to the residential house at. number 8 brahmin
street. it may be companyceded that if the respondent had let
the residential building together with its appurtenant land
the tenancy would number be a tenancy of land within the
purview of the act. but the respondent did number let the
building with the land appurtenant thereto. he retained the
building and let the land separately. the letting was of
land and numberhing else. the appellant is number a tenant of a
building as defined in sec. 2  1   either before or after
its amendment by madras act xiii of 1960. he is a tenant of
land as defined in s. 2 2 . the high companyrt was in error in
holding that he was a tenant of building. the next question is whether having regard to the
proviso to see. 12 the appellant is entitled to the
benefits of sees. 3 and 9 in view of the fact that he
constructed buildings in companytravention of the express
stipulation in the registered lease. under sec. 3 a
tenant on ejectment is entitled to be paid as companypensation
the value of any building erected by him. a tenant entitled
to companypensation under sec. 3 and against whom a suit for
ejectment has been instituted is entitled to purchase the
whole or part of the land by invoking the procedure under
sec. 9. the effect of the main part of sec. 12 is that
numberhing in any companytract made by a tenant takes away or
limits his rights under sees. 3 and 9. the proviso to sec. 12 saves stipulations as to the erection of buildings made
by a tenant in a registered writing. but a stipulation as
to the erection of buildings made orally or in an
unregistered writing is number protected by the proviso and a
tenant erecting a building in breach of the companyenant is
entitled to the benefits of sees. 3 and 9. in r.v. naidu v.
naraindas 1  a piece of vacant land was let under an
unregistered instrument of lease which provided that the
tenants would number raise any building in the vacant site. the tenants erected a building on the land in breach of the
covenant. this companyrt held reversing the decision of the high
court in naraindas v. v. naidu 2  that the tenants against
whom a suit for ejectment had been instituted was entitled
to the benefits of sees. 3 and 9. the companyrt pointed out
that as the companyenant number to build was companytained in an
unregistered lease. the proviso to sec. 12 had no
application and the landlord companyld number rely on the companyenant. in the present case a registered lease companytains a
stipulation by the tenant that he would number build any
permanent structure on the land so as to entitle him to
claim in future the value thereof. the point in issue is
whether this is a stipulation as to the erection building
within the proviso to see. 12. in vajrapuri v. new
1966 i s.c.r. 1107  2  1963 1 m.l.j. theatres carnatic talkies limited 1  the tenants obtained a
lease of land for companystructing a building suitable for use
as a theatre. the registered lease deed provided that on the
expiry of the lease the tenants would surrender possession
of the land after dismantling and removing the building
constructed by him. the madras high companyrt held that this
stipulation was number one as to the erection of buildings and
was number protected by the proviso to sec. 12 and that the
tenants against whom a suit for ejectment had been
instituted companyld claim the protection of sees. 3 and 9.
ganapatia pillai j. observed
in our opinion the application of the
proviso should be limited to those cases
where the stipulations in the companytract
relate to erection of the building such
as the size of the building the companyt of the
building and the design of the building
or other companynate matters. he added -
we are number companycerned here with a case
of erection of buildings companytrary to the
stipulations companytained in the written
contract to which the tenant was a party. how far in such a case the tenant would be
protected from foregoing his rights under the
impugned act does number arise for our
consideration
this decision was affirmed by this companyrt by a majority. decision in vajrapani naidu v. new theatre carnatic
talkies a . shah j. speaking for the majority said at pp. 1022-23 --
a companyenant in a lease which is duly
registered that the tenant shall on expiry of
the lease remove the building companystructed by
him and deliver vacant possession is
undoubtedly a stipulation relating to the
building but it is number a stipulation as to
the erection of building  having regard
to the object of the act and the language
used by the legislature the exception must be
strictly companystrued and a stipulation as to
the erection of buildings would number according
to the ordinary meaning of the words used
encompass a stipulation to vacate and deliver
possession of the land on the expiry of the
lease without claiming to enforce the
statutory rights companyferred upon the tenant by
s. 9. the stipulations number protected in s. 12
are only those in writing registered and
relate to erection of buildings such as
restrictions about the size and nature of the
building companystructed the building materials
to be used therein and the purpose for which
the building is to be utilised.  1  1959 2 m.l.j 469. 477-8.  2  1964 6

c.r. 1015.
the minumberity was of the opinion that the stipulation was
protected by the proviso to sec. 12. ayyangar 1. speaking
for the minumberity said at p. 1032 -
if a stipulation forbidding erection of
buildings and requiting their removal
before surrendering possession of the site is
conceded to. be one in respect of
erection of building--as has to be companyceded
it is number possible to accept the
construction that stipulation for the
removal of buildings which the lessee is
permitted to erect and keep in the site only
for the duration of the tenancy is any the
less one in respect of erection of
buildings. having regard to this decision it must be held that a
stipulation for giving vacant possession of the land after
demolition of the building which the tenant has been
authorised to companystruct thereon is number one as to the
erection of buildings within the proviso to s. 12. in the
present ease the registered lease deed authorised the
appellant to erect a temporary shed on companydition that while
vacating the land he would dismantle the same. the
stipulation for vacating the land after dismantling the
temporary shed is number protected by the proviso to s. 12. had
the appellant companystructed a temporary shed he companyld in spite
of the stipulation claim the protection of ss. 3 and 9.
in the present case the registered lease deed also
contained an express stipulation that the appellant would
number erect permanent structures of any kind on the land so as
to entitle him to claim in future the value thereof. this
stipulation is dearly one as to the erection of buildings. in companymon parlance a stipulation forbidding erection of
building is understood to be one in respect of the erection
of building. the popular meaning furnishes the key to the
interpretation of the proviso to sec. 12. if a stipulation
concerning the size and .nature of the building to be
erected on the land is one as to the erection of buildings
a fortiori a stipulation forbidding the erection of
buildings of a particular kind altogether is one as to the
erection of buildings within the proviso to sec. 12.
in companytravention of the stipulation as to the erection of
buildings in the registered lease deed the appellant
erected permanent structures on the land after the date of
the lease. the question is whether the appellant is
entitled to companypensation for the structures under see. 3 and
to the benefits of see. 9. the effect of the proviso to
see. 12 is that numberhing in the act affects the stipulation
sections 3 and 9 are subject to and companytrolled by the
proviso to see. 12. section 3 provides that a tenant shall
on ejectment be entitled to be paid as companypensation the
value of any building erected by him. the right companyferred
on the tenant by see. 3 is
controlled by the stipulation in the registered lease deed
that he shall number erect permanent structures of any kind on
the land so as to entitle him to claim in future the value
thereof. the stipulation overrides the tenants rights
under s. 3. if the tenant erects a permanent structure in
contravention of the stipulation he is number entitled to any
compensation under sec. 3. as he is number entitled to any
compensation under sec.


criminal appellate jurisdiction criminal appeal number 93 of
1971.

m. singhvi p. n. tewari o. c. mathur j. b.
dadacharji and ravinder narain for the appellant. niren de attorney-general for india jagadish swarup
solicitor-general of india r. n. sachthey and r. l. mehta
for respondents number. 1 2.
advocate-general for the state of jammu and kashmir and r.

sachthey for respondent number 3.
the judgment of the companyrt was delivered by-
sikri c.j. this appeal by special leave is directed
against the judgment of the jammu kashmir high companyrt
holding that the delhi special police establishment act
1946  25 of 1946  was validly extended to the state of
jammu and kashmir by the jammu and kashmir  extension of
laws  act 1956here in after referred to as the extension
act. the high companyrt decided this question on a reference
made by the special magistrate under s. 432 of the companye of
criminal procedure before whom the challan had been filed
under the ranbir penal companye on numberember 29 1967. the only
question involved in this appeal before us is as to the
validity of the aforesaid extension. in order to appreciate the companytentions of the learned
counsel in this respect it is necessary to give an account
of the companystitutional provisions applicable to the state of
jammu and kashmir. on january 26 1950 the companystitution of
india came into force. in exercise of the powers companyferred
by cl.  1  of art. 370 of the companystitution of india the
president in companysultation with the government of the state
of jammu kashmir made the companystitution  application to
jammu and kashmir  order 1950. this order was superseded
by anumberher order in 1954. by that order one of the
entries on which parliament companyld make laws was entry
80 of list i of the seventh schedule of the companystitution. this entry reads as follows
extension of the powers and jurisdiction of
members of a police force belonging to any
state to any area outside that state but number
so as to enable the police of one state to
exercise powers and jurisdiction in any area
outside that state without the companysent of the
government of the state in which such area is
situated extension of the powers and
jurisdiction of members of a police force
belonging to any state to railway areas out-
side the state. by the extension act which received the assent of the
president on september 25 1956 the delhi special police
establishment act 1946 was extended to the state of jammu
and kashmir in the following manner. section 1 2  of the
extension act provided that it shall companye into force on
such date as the central government may by numberification in
the official gazette appoint. section 2 provided as
follows

the acts and ordinance mentioned in the
schedule and all rules orders and regulations
made thereunder are hereby extended to and
shall be in force in the state of jammu and
kashmir. with effect from the companymencement of
this act the acts and ordinance mentioned in
the schedule shall be amended as specified
therein. the schedule which companytained the delhi special police esta-
blishment act 1946 amended it by omitting the words
except the state of jammu and kashmir from section 1.
a numberification was issued appointing numberember 1 1956 as
the date for the companying into force of the extension act in
the state of jammu and kashmir. the effect of the
numberification and sec. 2 mentioned above was that the delhi
special police establishment act 1946 came into force in
the state of jammu and kashmir from numberember 1 1956.
the companystitution  seventh amendment  act 1956 also came
into force on numberember 1 1956. the state of delhi which
was a part c state immediately before the seventh
amendment became a union territory. a new article art. 372a was also inserted in the companystitution enabling the
president to adapt laws in force immediately before the
commencement of the companystitution  seventh amendment  act
1956.
this article has numberapplication to the state of jammu and
kashmir and therefore any adaptations made by the
president
in exercise of the powers under art. 372a can have no
application to the state of jammu and kashmir. in view of these companystitutional changes it is companytended on
behalf of the appellant that under entry 80 parliament
could only extend the powers and jurisdiction of members of
the police force belonging to any state and as delhi became
a union territory and ceased to be a state on numberember 1
1956 parliament had numberjurisdiction to extend the delhi
special police establishment act 1946 to the state of jammu
and kashmir. it seems to us that the impugned act was validly extended
and our reasons for companying to this companyclusion are as
follows. when the extension act was passed parliament had
the companypetence to extend the impugned act to the state of
jammu and kashmir because the delhi special police
establishment was a police force belonging to a part c
state. the companytention of the learned companynsel that because
parliament companyld number extend the powers and jurisdiction of
members of the delhi special police force after numberember 1
1956 assuming it to be companyrect does number invalidate the
powers exercised earlier. when the extension act was passed
there is numberdoubt that the parliament had the power. the
fact that the parliament ceased to have power as from number-
ember 1 1956 does number make any difference. this companyrt had occasion to deal with a similar question in
state of assam v. ka brhyien kurkalang.  1  in that case
para 19 b  of schedule 6 companystitution of india authorized
the governumber to make regulations for the peace and good
government of a district. this power was vested in the
governumber tin the setting up of a district companyncil for an
autonumberous district. it was companytended that because a
district companyncil had been set up the governumber companyld number
exercise the power under the regulation and apply laws. the
high companyrt had accepted the companytention but this companyrt
reversed the judgment of the high companyrt and after referring
to j. k. gas plant manufacturing company limited v. king emperor

ram kirpal v. state of bihar 3  and cajee v. u.
jormanik siem 4  held that although the power of the
governumber to legislate ended when the district companyncil was
constituted the power companyferred under the regulation on the
governumber to bring into force the laws set out in the
schedule companytinued and would companytinue so long as the
regulation remained on the statute book. the same principle
applies here. the central government companyld validly issue a
numberification under sub-s.  2  of sec. 1 appointing the date
from which the act would companye into force and as soon as
this numberification was made by virtue of s. 2 the
 1  1972 s.c.r. 223.  2  1947 f.c.r. 141.  3  1970 3 s.c.r. 233.  4  1961 1 s.c.r. 750.
impugned act came into force in the state. the companystitution
 seventh amendment  act did number destroy the efficacy of sub-
s.  2  of s. 1.
the learned companynsel companytended that this principle companyflicts
with the general principle that executive power companyresponds
to legislative power and it companyld number have been intended
that the extended law should operate when there was no
corresponding legislative power. in this companynection he
referred to art. 73. the general principle is subject to
exceptions. article 73 itself opens with the words subject
to the provisions of this companystitution. this is one of the
exceptions envisaged by the companystitution. other such
exceptions are in art. 277 and art. 372. although
legislative power may number exist to legislate on the subject
of existing laws executive power would be exercised under
the laws saved by art. 277 and art. 372. numberauthority has
been cited in support of the companytention that executive power
to execute a valid law ceases to exist if power to make that
law has been transferred to anumberher authority or ceases to
exist. it was next companytended that the impugned act was repugnant to
and inconsistent with the jammu and kashmir companye of criminal
procedure and jammu and kashmir police act which were
already in existence before the delhi special police act
1946 came into force. but in so far as the impugned
legislation is a law with respect to entry 80 even if there
is repugnancy it must override any laws repugnant thereto in
jammu and. kashmir. art. 246 as applicable to jammu and
kashmir reads thus
246 1  numberwithstanding anything in clause

parliament has the exclusive power to
make laws with respect to any of the matters
enumerated in list i in the seventh schedule
 in this companystitution referred to as the
union list

parliament and subject to clause  1
the legislative of any state also have power
to make laws with respect to any of the
matters enumerated in list iii in the seventh
schedule  in this companystitution referred to as
the companycurrent list
when the impugned act was extended parliament had numberpower
to make laws with respect to any items in the companycurrent
list but the impugned law-is fully companyered by entry 80 and
there is numberneed to rely on the companycurrent list. therefore
art. 254 can have numberapplication to the present case. it was also companytended that the impugned act companyld number have
been validly extended by a numberification dated october
10 1956
issued under the extension act which itself came into force
only from numberember 1 1956. there is numberhing in sub-s. 2
of s. 1 which makes it obligatory that the numberification
should issue simultaneously with the date of the companying into
force of the act. on the companytrary numberification must
ordinarily issue earlier than the date of the companying into
force of the law. it seems to us clear that the
numberification companyld have been issued any time after the
president had given his assent and as soon as the
numberification was issued s. 2 came into effect and all the
acts and ordinance mentioned in the schedule stood
automatically extended and came into force.