TMI Blog1981 (9) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... ns in the Court of Judicial Magistrate, Weir under Sections 395, 397. 398 and 307, I.P.C. Before that the accused applicants Beni Madhava, Brijlal and Subedar moved a bail petition which was rejected by the Sessions Judge, Bharatpur by his order, dated March 10, 1981. The bail petition filed by the accused petitioner Shivram. was rejected by the Addl. Sessions Judge, .Bharatpur dated June 8, 1981. Thereafter the petitioners moved this bail petition. 3. In Bail Application No. 802 of 198l the applicants are Shriram and Bangali. On the basis of a report lodged by one Johari at P.S. Rajakhera on March 15, 1981 a case under Sections 395, 397 and 398, I.P.C. was registered and in connection with the aforesaid case the accused-applicants were arrested on April 7. 1981. They were remanded to the Judicial Magistrate No. 1, Dholpur from time to time, by order, dt. July 1, 1981, they were remanded to judicial custody by the Additional Munsiff and Judicial Magistrate till July 15, 1981. In the meanwhile on July 3, 1981, the challan was filed in the Court of Additional Munsiff and Judicial Magistrate No, 1, Dholpur. The accused-petitioners filed a bail petition which was rejected by Additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners have placed reliance on the decision of the Supreme Court in Natabar Parjda v. State of Orissa AIR1975SC1465 and the decisions of this Court in Khinydan v. State of Rajasthan and Prem Raj v. State of Rajasthan. 5. At this stage it may be noted that Shri Tibrewal .has conceded that a accused-petitioner. Shiv Ram, in Bail Application No. 721/81 is not entitled to invoke the provisions of the proviso to Sub-section (2) of Section 167 because he was arrested on Feb. 20, 1981 and the Judicial Magistrate had taken cognizance and passed the order of remand under Sub-section (2) of Section 309 before the expiry of 90 days from the date of his arrest. 6. The learned Public Prosecutor, on the other hand, has submitted that the accused-petitioners are not entitled to be released on bail under the proviso to Sub-section (2) of Section 167 of the new Code because before the expiry of period of 90 days from the date of their arrest the investigation had been completed and the charge-sheets had been filed in the Court of the concerned Magistrate. According to learned Public Prosecutor the provisions of the proviso to Sub-section (2) of Section 167 of the new Code can be invoked onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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. Section 167 lays down the procedure to be followed when investigation cannot be completed in twenty-four hours and Sub-section (1) of Section 167 provides that whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 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, if he is not below the rank of Sub-Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary relating to the case, and shall at the same time forward the accused to such Magistrate, Under Sub-section (2) of Section 167 the Magistrate to whom an accused person is forwarded may whether he has or has not jurisdiction to try the case from time to time authorise t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power to postpone or adjourn proceedings in every inquiry or trial. Sub-section (2) of Section 309 provides that if the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, 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. The first proviso to Sub-section (2) of Section 309 provides that n0 Magistrate shall remand an accused person to custody under the said section for a term exceeding fifteen days at a time. 8. The aforesaid provisions contained in the new Code show that the power of a police to detain an accused person in custody under Section 57 is confined to twenty-four hours and detention for a period exceeding twenty-four hours is permissible only if authorised by a Magistrate. The Magistrate can authorise detention during the pendency of the investigation under Section 167 and detention during the pendency of the trial after cognizance has been taken by the Magistrate is provided for in Sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate has taken cognizance of the offence under Section 190. Section 193 which lays down that except as otherwise expressly provided by the new Code or any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused had been committed to it by a Magistrate under the new Code, enables the Court of Session to take cognizance of the offence without commitment by a Magistrate in certain circumstances. One such circumstance is envisaged in Section 319 of the new Code which empowers the Court of Session to proceed against a person who has not been committed for trial to the Court of Session if it appears for the Magistrate that such person has committed any offence for which he could be tried together with the accused. The provisions of Section 193 do not, however, restrict the power conferred on the Magistrate under Section 190 to take cognizance of an offence which is triable exclusively by the Court of Session. In other words in every case whether triable by him or triable by Court of Session, a Magistrate of the first class is competent to take cognizance of the offence under the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 190 during the pendency of commitment proceedings under Section 209. 12. We may now come to the proviso to Sub-section (2) of Section 167 which has been inserted for the first time in the new Code. As observed by this Court In State of Rajasthan v. Bhanwaru Khan, the intention of the Legislature in enacting the said proviso appears to be to ensure that every investigation under Chap. XII must be completed without unnecessary delay and for that purpose a time limit is set to the total period of a series of orders of remand under Section 167. In the aforesaid case this Court while dealing with provisions contained in the proviso, as originally enacted has pointed out that before commencement of the new Code there had been a practice of filing incomplete charge-sheet by the police in many cases and on moving the Court for remand under Section 344 of the old Code, i.e. Code of Criminal Procedure, 1898, before the complete challan was forwarded to the Magistrate for taking cognizance of an offence and the said practice of doubtful legality had resulted in causing hardship and misery to the accused in undergoing detention on remand for a considerable long period and a satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State of Delhi 1953CriLJ113 that in habeas corpus proceedings the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings. This Court has laid down that the crucial date when the legality of the remand is to be looked into is the date when the petition comes up for hearing and that an accused person would not be entitled to be released on bail if the detention is legal at the time when the bail petition is filed/or it comes for consideration and that if the detention of the accused is legal at the time when the bail application is preferred his previous illegal detention should not be considered. In the aforesaid case, however, a distinction has been drawn between detention which becomes illegal on account of illegality in the order of remand under Sub-section (2) of Section 309 and illegality in the detention arising on account of the proviso to Sub-section (2) of Section 167 and in view of the decision in Khinvdan v. State of Rajasthan (supra) it has been held that in cases where Section 167 applies and where the detention of the accused cannot, be authorised exceeding period o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directed that the application for cancellation of the bail should be heard and disposed of by the Sessions Judge, indicates that the Supreme Court did not consider it a fit case to interfere with the order releasing the accused persons on bail on the view that the bail should not have been granted under the provisions of the proviso to Sub-section (2) of Section 167. 16. From the provisions contained in Sections 167, 209 and 309 of the new Code, when considered in the light of the decisions referred to above, the following principles can be deduced: (i) The provisions of Section 167, including the provisions of the proviso to Sub-section (2) of the said section, govern the detention of an accused person in custody till the completion of the investigation; (ii) Sub-section (2) of Section 309 authorises the detention of an accused person during the course of inquiry or trial after the Court has taken cognizance of the offence. In respect of the offences which are triable exclusively by the Court of Session the committing Magistrate can authorise the detention of the accused in custody during the pendency of the commitment proceedings; (iii) An illegality in the detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 209 provides for detention during the pendency of the commitment proceedings and Section 309(2) provides for detention of an accused person during the pendency of the trial or inquiry. The Legislature could not have contemplated that there would be hiatus between detention under Section 167 and detention under Section 309 or 209. The intention of the Legislature was that the authority to detain an accused person under Section 167 should extend till the said detention can be authorised under Section 309 or 209. The acceptance of the argument of the learned Public Prosecutor would mean that in cases where the Magistrate, due to some reason, is not able to consider the challan that is filed by the police before him and does not take cognizance of the offences disclosed in the challan under Section 190 on the day it is filed there would be no valid authority for the detention of the accused person during the period subsequent to the date of the filing of the challan by the police till the date the Magistrate examines the said challan and takes cognizance of the offence under Section 190. Such an anomalous situation would be avoided if it is held that the process of investigation is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases it may be observed that there is no dispute that the charge-sheet had been filed before the expiry of period of 90 days from the date of the arrest of the accused person in both the bail applications. The only question which requires determination is whether the concerned Magistrate had applied his mind to the report and had taken cognizance of the offences disclosed in the report under Section 190. 21. In Bail Application No. 721/81 I have perused the order dated April 18, 1981 passed by the Judicial Magistrate, Weir and I find that in the said order the Magistrate has recorded the fact that the S.H.O. Weir had filed a challan under Sections 395, 397, 398 and 307, I.P.C. against the accused-petitioners, Beni Madhava, Brij Lal, Subedar, Lala-ram and Shivram and accused Sikander, Patiram, Nahar Singh, parpaie, Sachlanand and Heera who were absconding. In the said order the Magistrate has directed that a case under the aforesaid offences be registered against the accused persons. The Magistrate has further recorded that the case is already fixed for appearance of the accused on April 27, 1981 and that the matter be listed on April 27. 1981 for the purpose of handing over the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order that a copy of the challan be given to Shri Prem Bahadur, counsel for the accused, and it was directed that the papers be placed on the date already fixed. The aforesaid order, dated July 3, 1981, shows that after filing of the charge-sheet the Judicial Magistrate had, on July 3, 1981, after examining the papers, taken cognizance of the offences disclosed in the charge-sheet and since the aforesaid order, dated July 3, 1981 was passed before the expiry of period of 90 days from the date of the arrest of the accused-petitioners, Shriram and Bangali, it cannot be said that there is non-compliance with the provisions of the proviso to Sub-section (2) of Section 167 and the said accused persons cannot, therefore, ask for bail on the basis of non-compliance of the provisions of the said proviso. All that can be said is that on July 3, 1981. the Magistrate did not pass an order for remand under Sub-section (2) of Section 309 and there was no valid authority for the detention of the accused-petitioners after July 3, 1981. There is however, no dispute that on July 5, 1981, order of remand was passed under Sub-section (2) of Section 309 and, therefore, the fact that the detention of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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