Rabindra Rai v. The State Of Bihar Opposite Party.

Nagendra Prasad Singh, J.:— Whether even in a case where the charge sheet has been submitted within the statutory period of ninety days, an accused is entitled to be released on bail if the cognizance is not taken on the day the chargesheet is submitted, is the question which has to be answered.

2. The petitioner is an accused of an offence under section 302 and some other sections of the Indian Penal Code. He surrendered before the Sub-divisional Judicial Magistrate, Danapur on 19.10.1982 As final form was not received, he was remanded to jail custody from time to time. One of such orders of remand was passed on 12.1.1983 remanding the petitioner to jail custody upto 24.1.1983 On 14.1.1983, police report, generally known as charge sheet, was submitted saying that on investigation a case under section 302 of the Indian Panal Code had been established against the petitioner. An order was passed on 17.1.1983 saying that cognizance was being taken. It is an admitted position that as the chargesheet was submitted within the statutory period of ninety days, the petitioner was not entitled to the benefit of proviso (a) to sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’). The application for bail on behalf of the petitioner has been pressed on the ground that as in the instant case chargesheet was submitted on 14.1.1983 and the cognizance was taken on 17.1.1983, the petitioner could not have been remanded to jail custody between the period 14.1.1983 and 17.1.1983, and, as such, he is entitled for bail. According to the petitioner, after sub-mission of the chargesheet and before taking of cognizance, a Magistrate cannot pass an order of remand either under section 167(2) or under section 309(2) of the Code. Article 21 of the Constitution guarantees to every person that he shall not be deprived of his personal liberty “except according to the procedure established by law”. Similarly, Article 22(2) confers a fundamental right on every person who is arrested and detained in custody that he shall not be detained in custody beyond a period of 24 hours without the authority of a Magistrate. In view of the aforesaid constitutional provisions in respect of an accused who is in custody, the detention has to be authorised by a Magistrate from time to time in accordance with the procedure established by law. The Code contains three provisions in respect of detention of such an accused when he has not been released on bail. One is under section 167(2) which is applicable during investigation of an offence the other being section 309(2) which can be invoked during inquiry or trial other than sessions trial, the third being section 209(b) which is attracted during the pendency of a sessions trial. On a plain reading the aforesaid three provisions vest power in the Magistrate to order detention of an accused from time to time since the beginning of the investigation till conclusion of the trial. It cannot be disputed that unless there is a valid order for detention in respect of an accused person, his detention in custody contravenes Articles 21 and 22(2) of the Constitution, and, as such, illegal, and in appropriate cases he is entitled even to a writ of Habeas Corpus directing his release forthwith.

3. Proviso (a) to sub-section (2) of section 167 of the Code puts a limitation on the power of a Magistrate to remand an accused during investigation, inasmuch as that power can be exercised for a period upto 90 days in respect of a person accused of offences punishable with death or imprisonment for life. After expiry of that period such accused becomes entitled for bail. The scope of this proviso has been considered in the case of Natabar Parida v. State of Orissa ((1975) 2 SCC 220 : AIR 1975 SC 1465) where it has been pointed out that after the expiry of the statutory period an accused has got to be released on bail if he is prepared to and does furnish bail. If chargesheet, however, is submitted before the expiry of the said period, this right cannot be availed by the accused concerned. In the instant case, as I have already pointed out, the chargesheet has been submitted within the period of ninety days from the date the petitioner was taken in custody. As such, there was no question of releasing the petitioner on bail under proviso (a) to sub-section (2) of section 167. According to the petitioner, the learned Magistrate could have passed an order of remand under section 309(2) of the Code only after taking cognizance, and having not done so on the day the chargesheet was submitted, he had no authority to keep the petitioner under detention during the period, between sub-mission of the chargesheet and taking of cognizance. As such, the petitioner was entitled for bail.

4. It cannot be disputed that after sub-mission of the chargesheet Magistrate can remand an accused person to custody only under section (2) of section 309. That sub-section on plain reading applies at the stage of inquiry or trial. This leads to the question as to when an inquiry within the meaning of sub-section (2) of section 309 commences? According to the counsel for the petitioner any such inquiry shall commence only after taking cognizance on the basis of chargesheet/Police report. sub-section (2) of section 309 of the Code is as follows:—

“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.”

5. What is meant by taking cognizance has been explained from time to time by different Court, including the Supreme Court. In a not shell the expressions ‘taking cognizance’ mean application of mind. In one of the earliest cases on the point in the case of Dalu Gour v. Moheswar Mahato (AIR 1948 Patna 25) it was pointed out that “the expression ‘cognizance’ has not been defined in the Code. There are several decisions to the effect that taking cognizance does not involve any formal action or indeed action of any kind, but occurs as soon as a Magistrate, as such applies his mind to the suspected commission of an offence.” There, has been a common practice that Magistrates before whom police report/chargesheet is submitted they mention on the ordersheet that cognizance had been taken. But to establish in a particular case that cognizance has been taken any such order saying that cognizance has been taken is not a must. As such, an inquiry within the meaning of section 390(2) may commence before the Magistrate no sooner chargesheet is submitted so as to vest him power of remand under sub-section (2) of section 309 of the Code. This aspect of the matter has recently been considered by the Supreme Court in the case of State of U.P v. Lakshmi Brahman ((1983) 2 SCC 372 : AIR 1983 SC 439). From the judgment of that case it will appear that the accused concerned had surrendered before the Magistrate on November 2, 1974, charge sheet was submitted on February 5, 1974 (sic) i.e, beyond the statutory period of sixty days as it was under original Code prior to amendment of section 167(2) by the Criminal Procedure (Amendment) Act, 1978. There is nothing in the judgment to show that in that particular case cognizance had been taken on the date of the sub-mission of the chargesheet. A question arose whether an order of remand could have been passed under section 309(2) of the Code between the period commencing from the date of submission of the charge sheet and passing of an order of commitment under section 209 of the Code. In that connection it was held as follows:

“Thus, from the time the accused appears or is produced before the Magistrate with the police report under Sec. 170 and the Magistrate proceeds to enquire whether Sec. 207 has been complied with and then proceeds to commit the accused to the Court of Session, the proceeding before the Magistrate would be an inquiry as contemplated by Sec. 2(g) of the Code.”

6. After making a reference to sub-section (2) of section 309, it was further observed:—

“If, therefore, the proceeding before the Magistrate since the submission of the police report under Sec. 170 and till the order of commitment is made under Sec. 209 would be an inquiry and if it is an inquiry, during the period, the inquiry is completed, Sec. 309(2) would enable the Magistrate to remand the accused to the custody.”

7. In view of the clear enunciation of the position that an inquiry within the meaning of section 2(g) of the Code shall deem to have commenced since the submission of the police report, and shall continue till an order of commitment is made under section 209, it is difficult for this Court to hold that such inquiry shall commence only after a formal order is passed by the Magistrate saying that cognizance has been taken. Once it is held that inquiry commences since the sub-mission of the police report/Chargesheet there should not be any difficulty in holding that the Magistrate has during that period power to remand the accused in terms of sub-section (2) of section 309 of the Code.

8. Faced with the aforesaid decision of the Supreme Court, learned counsel appearing for the petitioner tried to distinguish the said decision saying that in the judgment it is not mentioned whether the cognizance had been taken on the day the chargesheet was submitted or at a later stage. According to the learned counsel, the Supreme Court was considering in the aforesaid case only the question as to whether after taking cognizance under section 190 of the Code and before passing of an order of commitment under section 209 of the Code there is an inquiry before the Magistrate. In view of the unambiguous and clear statement that an inquiry shall deem to have commenced since the submission of the police report, it is difficult to accept the aforesaid contention of the counsel for the petitioner. In a Full Bench decision of this Court in the case of Tuneshwar Pd. Singh v. Ram Pravesh Yadav (1978 Bihar Bar Council Journal 111) (1978 P.L.J.R 403) one of the learned Judges Mr. Justice Shambhu Prasad Singh observed:—

“During the period when the Magistrate receives chargesheet from the police and takes cognizance and till he passes an order under section 209 of the Code, the matter is pending inquiry before him for ascertaining whether the offence made out on the evidence recorded by the police is exclusively triable by the court of session or not.”

9. Even under the old Code while applying section 344 which was a parallel provision to section 309 of the present Code, a similar controversy had arisen. That section vested power in Magistrate to remand as accused during inquiry or trial. A question arose whether section 344 was applicable at the stage of investigation. In that connection it was held by the Supreme Court in the case of A. Lakshmanrao v. Judicial Magistrate, First Parvatipuram ((1970) 3 SCC 501 : AIR 1971 SC 186):—

“The second limb of the challenge is based on the contention that section 344 falls in Chapter 24, Criminal P.C which contains general provisions as to inquiries and trials. According to this submission this section cannot apply to a case which is at the stage of investigation and collection of evidence only. This argument appears to us to be negatived by the express language both of sub-section (1-A) and the explanation. Under sub-section (1-A) the commencement of the inquiry or trial can also be postponed. This clearly seems to refer to the stage prior to the commencement of the inquiry. The explanation makes it clear beyond doubt that reasonable cause as mentioned in Sub-s. (1A) includes the likelihood of obtaining further evidence during investigation by securing a remand.”

10. On behalf of the petitioner reliance was placed to the Bench decisions of this Court in the cases of Niwan Singh v. State of Bihar (1977 Bihar Bar Council Journal 173), Suresh Singh v. The State (1977 Bihar Bar Council Journal 374) : (1977 P.L.J.R 523) and Ramdeo Mahto v. State of Bihar (1978 Cr. L.J 1074) where it has been pointed out that Magistrate has no power to remand after sub-mission of the Police report and before taking cognizance. In view of the aforesaid judgment of the Supreme Court in the case of State of U.P (supra) that an inquiry commences since the filing of the police report it has to be held that the decisions of this Court do not lay down the correct legal position. I am of the opinion that it cannot be held that unless a formal order saying that cognizance has been taken it passed the day the chargesheet is received, sub-section (2) of section 309 of the Code is not attracted. I am also of the view that since the submission of the chargesheet and before passing an order under section 209 committing the accused to court of session, an inquiry is pending before the Magistrate during which period he can exercise the power under sub-section (2) of section 309 of the Code.

11. Apart from that, I have not been able to appreciate as to how the petitioner can claim today that he is entitled to be released on bail on the ground of alleged illegal detention between 14.1.1983 and 17.1.1983 Now the petitioner is in jail custody on basis of orders of remand passed from time to time in terms of section 309(2) of the Code. There is no dispute that for the present sub-section (2) of section 309 is applicable and the Magistrate has power under that sub-section to remand the petitioner to custody from time to time till the order of commitment is passed. There is an impression in some section that if an accused was entitled to bail under proviso (a) to sub-section (2) of section 167 of the Code at one stage, or if for sometime his detention was not under a valid order of remand, then he can enforce his right to be released on bail even at a later stage of the proceeding. In my view, this is a misconceived stand. When proviso (a) to sub-section (2) of section 167 says that after expiry of the period of ninety days or sixty days, as the case may be, an accused, who is in custody, shall be released on bail, it does not mean to say that, thereafter, his detention in custody is illegal or without an authority of law. If detention of an accused after the statutory period is held to be illegal or without authority of law, then there is no question of his releasing on bail on furnishing security to the satisfaction of the court concerned. He has to be released outright. Does proviso (a) to sub-section (2) of section 167 contemplates release of an accused after the statutory period of detention where the accused concerned fails to furnish security to the satisfaction of the court? The answer is in negative. This aspect has also been examined by the Supreme Court in the aforesaid case of State of U.P (supra) and it has been observed:—

“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 Section 437(1), the accused would be entitled to an order for being released on bail if he is prepared to and does furnish bail.”

12. It is well known that even in an application for writ of Habeas Corpus where challenge on behalf of the petitioner is that his detention in custody is without any authority of law, that question has to be examined with reference to the date fixed for return of rule. Reference in this connection may be made to one of the decisions of the Supreme Court in the case of Talib Hussain v. State of Jammu and Kashmir ((1971) 3 SCC 118 : AIR 1971 SC 62) where it has been pointed out:—

“In regard to the submission that the petitioner was arrested and deprived of his personal liberty long before the order of his arrest and this invalidated his detention, it is sufficient to point out that in habeas corpus proceedings the Court has to consider the legality of the detention on the date of hearing. If on the date of hearing it cannot be said that the aggrieved party has been wrongfully deprived of his personal liberty and his detention is contrary to law, a writ of habeas corpus cannot issue.”

13. Something has been pointed out in the Full Bench decision of this Court in the case of Babu Nandan Mallah v. The State (1971 P.L.J.R 605). The detention of any such person may be illegal at the initial stage, but if this Court finds on the date fixed for the return of the rule, that such detention is legal and in accordance with law, then such application for writ of Habeas Corpus has to be dismissed. If an accused having shown to this Court that at one stage he was under illegal detention, is not entitled to be released, because later a valid order of remand has been passed, then I fail to understand, how the right to be released or to be released on bail, which might have accrued to an accused person during investigation or before commencement of inquiry/trial can be enforced at a later stage when he is under custody on basis of a proper order of remand. In my view, to entertain an application for bail on the plea that a valuable right of an accused to be released on bail has been denied to him at an earlier stage will amount to stretching the scope of sub-section (2) of section 167 too far and without any purpose. On a plain reading, proviso (a) to sub-section (2) of section 167 is a check on the investigation so that it should be concluded as early as possible. It never purported to introduce “a stage of a compulsory bail not envisaged by the Code” as observed by the Supreme Court in the aforesaid case of State of U.P (supra). Taking all the facts and circumstances into consideration and the issues involved in this application, I am of the opinion that there is no question of directing release of the petitioner on bail on the ground that the learned Magistrate before whom charge sheet was submitted did not take cognizance of the offence on the day the charge sheet was submitted. Accordingly, this application fails and it is dismissed.