GYANU MADHU v. STATE OF KARNATAKA — 1976 DIGILAW 178 (KAR)

( 1 ) THIS petition is directed against the order dated 10. 9. 1976 passed by the Principal Munsiff and JMFC, Athani, and In-charge Additional Munsiff and JMFC. . Athani, in CC. No. 650 of 1976 so far as it relates to rejection of the request of the petitioners, who were the accused in the said Criminal case, that they be enlarged on bail. ( 2 ) ON 19. 6. 1976, one Balappa Madappa Chavan and Malkappa Rachappa rotti, both of Telsang, were murdered and the murder was reported to Aigali Police Station. Crime No. 42 of 1976 was registered in the said police Station. Investigation commenced and on 22. 6. 1976 petitioners Nos. 1 2 4 5 7 10 13 and 14 were arrested. They were produced before the Magistrate on 23-6-1976. Petitioners Nos. 9 and 12 were arrested on 24-6-1976 and produced before the Magistrate on 25-6-1976. Petitioners Nos. 3, 6 and 11 were arrested on 4-7-1976 and produced before the Magistrate on 5-7-1976. Petitioners Nos. 8 and 15 were arrested on 8-7-1976 and produced before the magistrate on 9-7-1976. As and when the petitioners were produced before the Magistrate, the Magistrate passed orders of remand in exercise of his powers under S. 167 of the CPC. The last such order is dated 3-9-1976. By that order, 'the Magistrate remanded all the petitioners to judicial custody till 10-9-1976. On 8-9-1976, an application requesting that the petitioners be enlarged on bail mainly on the basis of proviso (a) to S. 167 (2) of the Crl. PC was filed. The Magistrate posted that application to 10-9-1976 and passed a composite order rejecting the request of the petitioners that they be enlarged on bail and committing the case for trial to the Court of Session under S. 209 of the CPC. In the course of the said order the Magistrate has slated that the charge-sheet in this case was filed by the Police on 6t9-1976 and he took cognizance of the offences on 6-9-1976 itself. ( 3 ) SHRI B. G. Naik, the learned Advocate appearing en behalf of the petitioners, attempted to contend on the basis of the different orders parsed by the Magistrate in the order-sheet, that in fact the charge-sheet had not been presented on 6-9-1976. This contention has to fail because of what is narrated by the Magistrate in the course of the order in question. This contention has to fail because of what is narrated by the Magistrate in the course of the order in question. As already pointed out, he has narrated that the charge-sheet was presented before him on 6-9-1976, that he initiated on it and that he took cognizance of the offences in question on 6-9-1976, itself. There is no reason to disbelieve what the Magistrate has stated in this behalf. ( 4 ) SHRI E. G. Najk nextly submitted that under S. 167 of the CPC the magistrate has powers to authorise detention in custody, during the pendency of the investigation for a period not beyond siixty days. The period of sixty days expired on 21-8-1976 in regard to petitioners Nos. 1 2 4 5 7 10 13 and 14; on 23-8-1976 in regard to petitioners Nos. 9 and 12; on 2-9-1976 so- far as petitioners Nos. 3 6 and 11 are concerned and on 6-9-1976 in regard to petitioners Nos. 8 and 15. On this basis, he urged that so far as petitioners nos. 1 to 7 and 9 to 14 are concerned, they were entitled to be enlarged on bail before 6-9-1976 and as such they had a right to claim to be enlarged on bail and therefore the Magistrate was wrong in rejecting their request. He relied on proviso (a) to S. 167 (2) of the Crlpc. On behalf of petitioners Nos. 8 and 15, he contended that even though the Magistrate had taken cognizance of the offences on 6-9-1976, the detention of these petitioners as well as the other petitioners, was illegal for the period between 6-9-76 and 10-9-76 and hence they are entitled to be enlarged on bail. He placed reliance on the decisions in Prem Raj v. The State of Rajasthan 1976 Crllj 455. , Khinvdan v. State of rajasthan 1975 Crllj 1984. and Natabar Panda v. State of Orissa 1975 Crllj 1212. ( 5 ) THE learned State Public Prosecutor contended that on the filing of the charge-sheet on 6-9-1976, the period of remand pending investigation came to an end and hence the provisions of S. 167 (2) proviso (a) of the Crlpc would cease to apply, particularly because the petitioners have filed an application for bail on 8-9-1976. ( 5 ) THE learned State Public Prosecutor contended that on the filing of the charge-sheet on 6-9-1976, the period of remand pending investigation came to an end and hence the provisions of S. 167 (2) proviso (a) of the Crlpc would cease to apply, particularly because the petitioners have filed an application for bail on 8-9-1976. He placed reliance on the decision in Hee- raman v. State of U. P. 1975 Crllj 1508, In regard to the last contention of Shri E. G. Naik that during the period between 6-9-1976 and 10-9-1976 the detention of the petitioners was illegal, the learned State Public Prosecutor urged that the Magistrate, and after taking cognizance of the offences, power to remand the petitioners to custody as provided in S. 309 of the CPC and as such the detention during this period cannot be considered as illegal. ( 6 ) S. 167 (2) of the CPC, to the extent material for the purposes of this case, reads as follows :"167. . . . . . . (2) The Magistrate to whom an accused person is forwarded under this Section may, whether he has or has not 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 not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction : provided that : (a) the Magistrate may authorise detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days and on the expiry of the said period cf sixty days, 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 section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;. . . . . . . "s. 437 and onwards dealing with the provisions of bail are in Chapter xxxiii of the CPC. . . . . . . "s. 437 and onwards dealing with the provisions of bail are in Chapter xxxiii of the CPC. ( 7 ) APART from the different dates on which expiry of the period of sixty days occurred in regard to the different petitioners, the facts to be borne in mind are that the charge-sheet was filed on 6-9-1976 and the Magistrate took cognizance of the offences on 6-9-1976 itself and that the petitioners filed an application for bail on 8-9-1976. One more fact to be borne in mind is that on 3-9-1976 the Magistrate authorised detention of these petitioners till 10-9-1976 ir. exercise of his powers under S. 167 of the CPC. ( 8 ) IN view of what is narrated in the preceding paragraphs, it is necessary to consider the scope and ambit of the proviso (a) to sub-sec, (2) of S. 167 of the CPC. When the proviso is split up, the ingredients that emerge are as follows : (1) The Magistrate has power to authorise detention of the accused person beyond the period of 15 days if he is satisfied that adequate grounds exist for doing so; (2) but the Magistrate has no power to authorise detention of the accused person in custody for a total period exceeding sixty days; (3) on the expiry of the period of sixty days, the accused person shall be released on bail if the accused person is prepared to and does furnish bail; and (4) when the accused person is so released on bail, it should be deemed that he has been released on bail under the provisions of Chapter XXXIII of the Crlpc. The aforementioned ingredients of the said proviso make. it manifest that when the investigation is continuing, if the period of sixty days from the date of arrest of the concerned accused person expires, the concerned accused secures a right to claim that he should be enlarged on bail and he can exercise that right. If such an accused does claim accordingly and furnishes bail as ordered by the Magistrate, he should be enlarged on Vail. Therefore, it cannot at all be said that on the expiry of such period of sixty days, the accused secures the right to be enlarged on bail and as such he can just walk out of custody. If such an accused does claim accordingly and furnishes bail as ordered by the Magistrate, he should be enlarged on Vail. Therefore, it cannot at all be said that on the expiry of such period of sixty days, the accused secures the right to be enlarged on bail and as such he can just walk out of custody. He has got to exercise that right by expressing to the Magistrate that he is prepared to be enlarged on bail and to furnish bail, and then only the Magistrate has got to enlarge him on bail. It follows that if the concerned accused does not exercise the right, the power of the magistrate to authorise detention of the concerned accused beyond the period of sixty days, can be exercised, provided that the Magistrate is satisfied that adequate grounds exist for doing so, and the Magistrate would be right in remanding the concerned accused to judicial custody. This is one of the views expressed in Heeraman's case, and I respectfully agree with this view. Therefore, the contention of Shri E. G. Naik that even though the application for bail was filed on 8-9-76, i. e. , after the filing of the charge- sheet on 6-9-76, the petitioners are, under the provisions in proviso (a) to sub-sec (2)of S. 167 of the Crlpc, entitled to be enlarged on bail and the magistrate was wrong in rejecting the application for bail, cannot be accepted. ( 9 ) IT is already seen as to what are the powers of a Magistrate to authorise detention of an accused in custody as per the provisions of S. 167 of the crlpc. Filing of a charge-sheet by itself does not at all come in the way of the right that an accused has under proviso (a) to 8. 167 (2) of the Code because that is not so provided in that provision or in any other provision of the Crlpc. As per the provisions of S. 190 of the Crlpc, the Magistrate is empowered to take cognizance of the offence or offences reported by the police in their final report under S. 173 of the Code after due investigation. As per the provisions of S. 190 of the Crlpc, the Magistrate is empowered to take cognizance of the offence or offences reported by the police in their final report under S. 173 of the Code after due investigation. Therefore, on the filing of the charge-sheet, the, concerned Magistrate has to apply his mind to the facts narrated in the report and the material found in the documents accompanying the report, to find out whether the material before him would be prima facie sufficient to enable him to take cognizance, and then proceed to take cognizance. The powers of the Magistrate to authorise detention of an accused in custody after he takes cognizances of the offence or offences reported in the final 'report submitted by the police. are governed by S. 309 of the Crlpc. It reads as follows :" 309. Power to postpone or adjourn proceedings- (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same 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. (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 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. . . . . "it is seen from the above that under 8. 309 (2)of the Crlpc, the Magistrate who has taken cognizance of an offence or offences, has power to authorise detention of an accused person or to remand an accused to custody if he is in custody, if the Magistrate finds it necessary or advisable to postpone the commencement of the inquiry or trial. The Supreme Court has, in. Natabar Parida's case (3), dealt with S. 309 and 167 (2) proviso (a) of the crlpc. After considering the said provisions, the Supreme Court has held as follows :". . . . . The Supreme Court has, in. Natabar Parida's case (3), dealt with S. 309 and 167 (2) proviso (a) of the crlpc. After considering the said provisions, the Supreme Court has held as follows :". . . . . The law as engrafted in proviso (a) to S. 167 (2) and S. 309 of the New Code confers the powers of remand to jail custody during the pendency of the investigation only for the former and not under the latter. S. 309 (2) is attracted only after cognizance of an offence has been taken or commencement cf trial has proceeded. In such a situation what is the purpose of Explanation-I in S. 309 is not quite clear. But then the command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. In serious offences of criminal conspiracy, murders, dacoities. robberies by inter-State gangs or the like, it may not be possible for the police, in the circumstances as they do exist in the various parts of our country, to complete the investigation within the period of 60 days. Yet the intention of the legislature seems to be to grant no discretion to the court and to make it obligatory for it to release the accused on bail. Of course, it has been provided in proviso (a) that the accused released on bail under S. 167 will be deemed to be so released under the provisions of Chapter xxxiii and for the purposes of that Chapter. That may empower the court releasing him on bail, if it considers necessary so to do, to direct that such person be arrested and committed to custody as provided in sub-sec (5) of S. 437 occurring in Chap. XXXIII. It is also clear that after the taking of the cognizance the power of remand is to be exercised under S. 309 of the New Code. But if it is not possible to complete the investigation within a period of 60 days then even in serious and ghastly types of crime the accused will be entitled to be released on bail. But if it is not possible to complete the investigation within a period of 60 days then even in serious and ghastly types of crime the accused will be entitled to be released on bail. Such a law may be a 'paradise for the criminals', but surely it would not be so, as sometimes it is supposed to be because of the courts. It would be so under the command of the Legislature. "it is therefore, clear to my mind that after a Magistrate takes cognizance of an offence or offences on the filing of the final report by the police under S. 173 of the Crlpc, his powers of remanding the accused who is in custody to custody, flow from the provisions of 8. 309 (2) and not from the provisions of S. 167 of the Code. In Heeraman's (4) case a further view has been expressed to the effect that as soon as the charge-sheet is submitted, the period of remand pending investigation comes to an end and the provisions of 8. 167 (2) (a), would cease to apply to such a case. I respectfully agree with this view also. It is nextly expressed that in such a case, bail can be granted only on merits. I am unable to see any warrant in support of this view. The period of remand granted by a Magistrate in exercise of his powers under S. 167 comes to an end on the filing of the charge-sheet and that means that if a,t all further remand to custody is found to be necessary in regard to an accused who is already in custody, the Magistrate has to draw on the powers vested in him by S. 309 of the Crlpc and he has no other power of remand. If, on the filing of the charge-sheet, a Magistrate does not, for a number of days proceed to apply his mind and take cognizance of the offence or offences made out, he cannot for those number of days exercise powers of remand to judicial custody either under S. 167 or under S. 309 (2) of the Crlpc. If, on the filing of the charge-sheet, a Magistrate does not, for a number of days proceed to apply his mind and take cognizance of the offence or offences made out, he cannot for those number of days exercise powers of remand to judicial custody either under S. 167 or under S. 309 (2) of the Crlpc. This situation can be solved by a Magistrate applying his mind to the facts and material available in the final report and the documents produced along with it in no time after the filing of the final report and deciding whether cognizance of the offence or offences made out should be taken or not; if he decides to take cognizance of the offence or offences, then he can, under S. 309 (2) of the Crlpc, proceed to exercise his power of remand. ( 10 ) IN the case on hand, the charge-sheet was filed on 6-9-76 and the magistrate took cognizance of the offences on 6-9-76 itself. He did not exercise his powers of remand under S. 309 (2)of the Crlpc on or after 6-9-76. He had remanded the Petrs to judicial custody by his order passed on 3-9-76. The period of remand was upto 10-9-76. The said order passed on 3-9-76 was in exercise of the powers of the Magistrate under S. 167 of the Crlpc. But the period of remand fixed by the order dated 3-9-76 came to an end on 6-9-76 when the charge-sheet was filed. The Magistrate having not passed any order of remand on 6-9-76 in exercise of his powers under S. 309 (2) of the crlpc, the period of detention of the petitioners from 6-9-76 till 10-9-76, which is the date of the order in question, cannot be considered as the period of remand fixed by the Magistrate in exercise of his powers either under s. 167 or under S. 309 (2) of the Crlpc. In this view of the matter, it will have to be held that the petitioners were detained in custody during this period, viz, between 6-9-76 and 10-9-76 without any valid and legal orders of detention in custody passed by a Magistrate. ( 11 ) WHEN the matters stand as aforesaid, I hold that the petitioners are entitled to be enlarged on bail. ( 11 ) WHEN the matters stand as aforesaid, I hold that the petitioners are entitled to be enlarged on bail. ( 12 ) IN Prem Raj v. State of Rajasthan (1), the accused were arrested on 30-9-1975 on charges under Ss. 302, 307 etc. IPC but actually the charge- sheet was filed on 1-12-75. In the meanwhile, the accused filed an application for bail under S. 439 of the Crlpc before the Sessions Judge prior to 10-11-75, and the Sessions Judge rejected the application on 10-11-75. The accused filed an application in the High Court on 17-11-75, presumably under s. 439 of the Crlpc. It was when the said application was pending before the High Court, that the charge-sheet was filed on 1-12-75. The learned judge placed reliance on the decision in Natabar Panda's ease (3) and held that the accused-applicants having been detained beyond the period of sixty days provided in 8. 167 (2) Proviso (a) of the Crlpc, they were entitled to be enlarged on bail, and directed that they be enlarged on bail. What is to be particularly noticed in the said decision is that the order directing the accused-applicants to be enlarged on bail on the said ground, was passed apparently alter the charge-sheet was tiled on 1-12-75 because the High court of xiajasthan decided the application on 11-12-75. In Khinvdan's case (2) it was found by the Rajasthan High Court that the Magistrate had taken cognizance beyond the period of sixty days provided in proviso (a) to s. 167 (2) of the Crlpc on an incomplete police investigation and passed an order of remand to judicial custody in exercise of his powers under S. 309 (2) of the Crlpc. On finding these facts, the learned Judge held that after the expiry of the period of sixty days, the detention of the concerned accused in judicial custody was illegal because they had, immediately after the expiry of the period of sixty days, filed an application requesting that they be enlarged on bail and as such those accused were not in legal custody on the date when the Magistrate took cognizance of the offences and passed an ordei of remand under S. 309 (2) of the Crlpc. The words "if in custody" occurring at the end of sub-sec (2) of S. 309 of the Crlpc were interpreted to mean ''in legal custody". The words "if in custody" occurring at the end of sub-sec (2) of S. 309 of the Crlpc were interpreted to mean ''in legal custody". I respectfully agree with the views expressed in the aforementioned two decisions of the Rajasthan High Court. ( 13 ) IN the result, this petition is allowed. It is directed that the petitioners be enlarged on bail on each one of them furnishing two sureties each for a sum of Rs. 5,000 and executing personal bonds for like sum to the satisfaction of the Sessions Judge, Belgaum. It is further directed that the accused-petitioners should, during the pendency of the Sessions case, stay in the village Telsang and report on alternate days to the Police Station at aigali. --- *** --- .