TMI Blog2016 (5) TMI 1580X X X X Extracts X X X X X X X X Extracts X X X X ..... rded to the Magistrate for remand if the investigation is not completed within a period of 24 hours given under section 57 Cr.P.C. In that case, police officer making investigation shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary prescribed relating to the case and shall at the same time forward the accused to such Magistrate. Sub-section (2) of section 167 Cr.P.C. provides that if an accused is forwarded to a Magistrate, whether he has or has no jurisdiction to try the case, may authorise detention of the accused for a term not exceeding 15 days in the whole and if such Magistrate has no jurisdiction to try the case or to commit it for trial, he may order to forward the accused to a Magistrate having jurisdiction. As per the provision aforesaid, for remand of the case, accused needs to be forwarded to the Magistrate. The order for remand of custody of the accused is without even forwarding the accused to the Magistrate whether having or not having jurisdiction to try the offence. Thus the orders for remand of the accused petitioner without forwarding him to the Magistrate physically or through video linkages is illegal. The court be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RPUS) NOS. 120 AND 121/2016 - - - Dated:- 26-5-2016 - M.N. BHANDARI AND J.K. RANKA, JJ. For the Appellant : Swadeep Singh Hora and T.C. Sharma JUDGMENT 1. By these writ petitions of habeas corpus, a prayer is made for release of the petitioner-Rahul Pareek alleging his detention and custody to be illegal. 2. Learned counsel submits that these writ petitions are involving various questions of law and also focus working of the police and the courts act in derogation to the provisions of law. 3. An FIR No. 50/2016 was registered on 17.3.2016 with Police Station - Anti Corruption Bureau, Jaipur (for short 'the ACB') for offence under sections 7, 13(1)(D), 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act of 1988') read with section 120B of the Indian Penal Code (for short 'the IPC'). The petitioner was, however, arrested on 11.3.2016 and was produced before the learned Special Judge No. 1, Anti Corruption Cases, Jaipur (for short 'the court below') on 12.3.2016. The court below granted two days police custody remand though no FIR was registered till passing of the order. On 14.3.2016, he was sent in judicial custod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorised in the hands of the Magistrate on cognizance of offence. 8. In the instant case, cognizance of offence has not yet been taken thus subsequent to filing of the charge sheet, section 167 Cr.P.C. becomes inapplicable. The custody thereupon is governed under section 309 Cr.P.C. but in absence of cognizance of offence, it does not apply. In view of above, custody subsequent to filing of charge sheet also becomes illegal thus petitioner is entitled to be released. 9. To support the arguments, learned counsel has made reference of the judgment of the Apex Court in the case of Natabar Parida, Bisnu Charan Parida, Batakrushna Parida and Babaji Parida versus The State of Orissa , (1975) 2 SCC 220. Therein, it is held that court will have no inherent powers for remand of custody of the accused unless conferred by law. 10. In the instant case, order for remand of the accused for custody is without support of any provision of law after filing of the charge sheet. 11. The other judgment referred by learned counsel for petitioner is in the case of Sanjay Dutt versus State through CBI, Bombay (II) , (1994) 5 SCC 410. The aforesaid judgment is of Constitutional Bench. Therei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender: Provided that-- (a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot; (b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. Provided further that in relation to an offence of rape, the recording of statement of the victim sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence 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 to released under the provisions of Chapter XXXIII for the purposes of that Chapter;] (b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;] (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. Explanation I.-For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention in the custody of the police shall record his reasons for so doing. (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate. (5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded 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 continuation of the investigation beyond the period of six months is necessary. (6) 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. 17. As per the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is as to whether section 167 Cr.P.C. would apply after filing of the charge sheet and custody would be authorised subsequent to it without taking cognizance of the offence. To answer the aforesaid question, reference of section 309 Cr.P.C. needs to be given as has been referred by learned counsel for the petitioner. The provision aforesaid is quoted hereasunder- Section 309-Power to postpone or adjourn proceedings.-(1) In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded: Provided that when the inquiry or trial relates to an offence under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code (45 of 1860), the inquiry or trial shall, as far as possible be completed within a period of two months from the date of filing of the charge sheet.] (2) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Bench of the Apex Court in the case of Sanjay Dutt (supra). Thus, we can safely conclude that after the charge sheet/challan, section 167 Cr.P.C. ceases to apply. 22. The question now remains as to under what provision, custody can be authorised after filing of the charge sheet. For it, reference of section 309 Cr.P.C. would be relevant. The custody after filing of the charge sheet is authorised under section 309 Cr.P.C.. It is, however, on taking cognizance of offence or commencement of trial. The provision of section 309 Cr.P.C. was made by the Legislature presuming that immediately on filing of the charge sheet, cognizance of offence would be taken or may be denied thus remand of custody should be allowed on cognizance of offence. The Legislature did not visualise the situation where there may be delay in taking cognizance of offence as it has happened in the present case in absence of sanction for prosecution. 23. In the aforesaid background, if we go by strict mandate, then judgment in the case of Natabar Parida (supra) would apply, wherein, it is held that authorisation of custody can be given by the Magistrate if the power is conferred for it. In the case of Uday Moh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra). 28. We find that the judgment in the case of Natabar Parida (supra) was given by the Bench of two Judges, whereas, judgment in the case of Suresh Kumar Bhikamchand Jain (supra) has been given by the Bench of three Judges. We further find that the issue involved in the case of Natabar Parida (supra) was different than before the Apex Court in subsequent judgment in the case of Suresh Kumar Bhikamchand Jain (supra). Thus the judgments cannot be said to be in conflict. The relevant paras 2, 18 and 19 of the judgment in the case of Suresh Kumar Bhikamchand Jain (supra) are quoted hereunder- 2. This case has thrown into focus certain important issues regarding the right of an accused to be released on bail under Section 167(2) of the Code of Criminal Procedure, 1973, hereinafter referred to as Code of Criminal Procedure . One of such issues concerns the power of the Magistrate to pass orders of remand even beyond the period envisaged under Section 167(2) Code of Criminal Procedure. In the instant case, despite charge-sheet having been filed, no cognizance has been taken on the basis thereof. The learned Magistrate has, however, continued to pass remand orders, without a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent, but one follows the other so as to maintain a continuity of the custody of the accused with a court. 19. Having regard to the above, we have no hesitation in holding that notwithstanding the fact that the prosecution had not been able to obtain sanction to prosecute the accused, the accused was not entitled to grant of statutory bail since the charge-sheet had been filed well within the period contemplated under Section 167(2)(a)(ii) Code of Criminal Procedure. Sanction is an enabling provision to prosecute, which is totally separate from the concept of investigation which is concluded by the filing of the charge-sheet. The two are on separate footings. In that view of the matter, the special leave petition deserves to be and is hereby dismissed. 29. The third question is accordingly answered against the accused petitioner. The custody of the accused petitioner cannot be said to be illegal in the facts and circumstances of the case. He is thus not entitled to get an order of release even if his initial custody was illegal so as the remand during the period of investigation when the accused was not produced before the court. The release of the accused can be permitted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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