TMI Blog1983 (3) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... dment in 1978. It appears that the Investigating Officer failed to submit the charge-sheet within the prescribed period and according to the High Court till as late as February 5, 1965. Thereupon the two respondents moved an application under Section 439 of the Cr. P.C. invoking the power of the High Court to grant bail to any person accused of an offence, even where the offence is punishable with death or imprisonment for life. 2. A Division Bench of the Allahabad High Court which heard the application was of the opinion that after the charge-sheet has been submitted under Section 170 Cr. P.C, the Magistrate has no jurisdiction to authorise the detention of an accused in custody under Section 167 Cr. P.C, and, therefore, the authority to remand the accused to custody after the charge-sheet has been submitted, has to be gathered from other provisions of the Code. The High Court then posed to itself the question whether in a case instituted upon a police report exclusively triable by the Court of Sessions, the Magistrate while committing the accused to the Court of Sessions under Section 209, Cr. P. C. has, after the accused is brought before him and before the order committing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warranted by the code, and who would not be otherwise entitled to the discretionary relief of bail. It is this submission which has persuaded us to examine the contention on merits. 4. Section 2(g) of the Code defines inquiry to mean every inquiry, other than a trial, conducted under the Code by a Magistrate or Court. Cognizable offence has been defined in Section 2(c) to mean an offence for which, a police officer may, in accordance with the First Schedule or under any other law for the time in force, arrest without warrant. Section 57 provides that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable and such period shall not, in the absence of a special order of a Magistrate under Section 167 exceed twenty-four hours, exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. In fact, the provision contained in Section 57 incorporates the fundamental right guaranteed by Article 22 of the Constitution. Chapter XII of the Code incorporates provisions for initiation of investigation on receipt of information of a cognizable offence co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. 5. In this appeal, we are concerned with Section 167 hereinabove extracted. The High Court after examining the scheme of Section 167(1) and (2) with the proviso rightly concluded that, on the expiry of 60 days from the date of the arrest of the accused, his further detention does not become ipso facto illegal or void, but if the charge-sheet is not submitted within the period of 60 days, then notwithstanding anything to the contrary in sec, 437(1), the accused would be entitled to an order for being released on bail if he is prepared to and does furnish bail. In this case, it is an admitted position that the respondents did not apply to the Magistrate for being released on bail on the expiry of 60 days from the date of their arrest. The High Court was of the opinion that as the respondents did not apply for bail on the expiry of sixty days from the date of their arrest, their continued detention would not be illegal or without the authority of law. So far there is no controversy. 6. It was next cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situation is to forthwith pass an order committing the accused to Court of Sessions to stand his trial and then invoke his jurisdiction to remand the accused to custody under Section 309 of the Code. The High Court held that as the Magistrate before whom the charge-sheet was submitted remanded the respondents to custody without making the order of commitment, the order remanding the accused to custody, cannot be sustained under Sections 167(2), 209, 309 of the Code, and no other provision under which the respondents could be remanded to the custody at that stage having been indicated to the Court, the High Court considered it a compelling necessity to accede to the request of the respondents to direct that they should be released on bail. Serious exception is taken to this view of the High Court by the learned Counsel for the appellant. 7. Respondents were suspected of having committed an offence punishable under sec, 302 IPC. On their having surrendered, they were taken into custody. When the matter was before the High Court, as noticed by the High Court, the charge-sheet was not submitted against them by the Investigating Officer meaning thereby that investigation was still in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings before the Magistrate. But before we refer, to those provisions, we must make a passing reference to the provision contained in Section 190 which provides for taking cognizance of any offence by Magistrate, one such mode of taking cognizance of an offence being upon 'a police report if the facts disclose an offence. The police report contemplated by Section 190(1)(b) is the one submitted to the Magistrate under Section 170. Section 204 provides for issue of process. Section 207 provides that in any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of costs, a copy of each of the documents set out therein. There are two provisos to this section which are not material for the present purpose. Section 209 confers power on the Magistrate to commit the accused to the Court of Sessions when the offence disclosed in the police report is triable exclusively by it. Section 209 reads as under : 209. Commitment of case to Court of Session when offence is triable exclusively by it; when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a view to commit the case to Sessions, it cannot be said that the provisions contained in sees. 204, 207 to 209 of the Code contemplate an inquiry under the Code. 11. With respect this approach is not only not brone out by the relevant provisions of the Code but it overlooks the scheme of the sections, and the purpose underlying the same. 12. Section 170 obligates the Investigating Officer to submit the police report if in the course of investigation sufficient evidence or reasonable ground is made out for the trial or for commitment of trial of the accused, to the Magistrate empowered to take cognizance of the offence upon a police report. On this report being submitted the Magistrate takes cognizance of the offence disclosed in investigation as envisaged by Section 190. It is indisputable that taking cognizance of an offence under Section 190 is a purely judicial function subject to judicial review by court of appeal or revision to which the Magistrate is subject. Cognizance of an offence even if exclusively triable by the Court of Sessions has to be taken by the Magistrate because Section 193 precludes it from taking cognizance of any offence when it provides that no Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the copies of the various documents set out in Section 207 have been supplied to him or not. No order committing the accused to the Court of Sessions can be made under Section 209 unless the Magistrate fully complies with the provisions of Section 207. And if it is shown that the copies of relevant documents or some of them are not supplied, the matter will have to be adjourned to get the copies prepared and supplied to the accused. This is implicit in Section 207 and Section 209 provides that on being satisfied that the requisite copies have been supplied to the accused, the Magistrate may proceed to commit the accused to the Court of Sessions to stand his trial. The statutory obligation imposed by Section 207 read with Section 209 on the Magistrate to furnish free of costs copies of documents is a judicial obligation. It is not an administrative function. It is a judicial function which is to be discharged in a judicial manner. It is distinctly possible that the copies may not be ready. That makes it necessary to adjourn the matter for some time which may be spent in preparing the copies and supplying the same to the accused. The Magistrate can proceed to commit the accused for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f trial, finds it necessary or advisable to postpone the commencement or adjourn any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody. There are three provisos to Sub-section 2 which are not material. If, therefore, the proceedings before the Magistrate since the submission of the police report under Section 170 and till the order of commitment is made under Section 209 would be an inquiry and if it is an inquiry, during the period, the inquiry is completed, Section 309(2) would enable the Magistrate to remand the accused to the custody. Therefore with respect, the High Court committed an error in holding that the order remanding the respondents to custody, made after cognizance of offence was taken, cannot be justified under Section 167(2), 209 and 309 of the Code and no other provision under which the respondents can be remanded to custody at this stage, has been indicated by the learned Government Advocate, we feel that it would be proper to accede to the request made by the respondents and to direct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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