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Rajasthan High Court · body

1993 DIGILAW 382 (RAJ)

Nizzu v. State of Rajasthan

1993-07-09

M.B.SHARMA, M.R.CALLA

body1993
JUDGMENT 1. - The learned Single Judge under his order dated 22nd April, 1993 requested the Hon'ble Chief Justice to constitute a larger bench for determination of the point of law which, according to him, arises in the present case. The point of law referred by the learned Single Judge reads as under:- "Whether the accused is entitled to bail under proviso to sub-Section (2) of Section 167 Criminal Procedure Code. even in those cases where the investigation is complete and charge-sheet has been filed within the prescribed period, but cognizance could not be taken by the Magistrate for any reason whatsoever." This court in Jailal v. The State of Rajasthan (1979 R.L.W. 205) and Narayan and Co. v. The State of Rajasthan (1982 R.C.C. 315) had taken the view that if cognizance for an offence is not taken by the Magistrate within the period of 90 days of the arrest of the accused, the accused is entitled to bail and his detention becomes illegal which cannot be valid dated by an order of remand by the learned Magistrate. Even in the case of Beni Madhav and others v. The State of Rajasthan (1982 RCC 145) a similar view had been taken. In the case of Dauia Ram and others v. State of Rajasthan (1984 R.L.R. 300) , a learned Single Judge of this Court had taken a different view and held that if the investigation is over within the prescribed period proviso to Section 167(2) Criminal Procedure Code. in respect of grant of bail would not apply. 2. In view of the aforesaid conflict in the decisions of this Court, the learned Single Judge has made the reference to us. 3. It was contended by the learned counsel for the petitioner in support of the view taken by this Court in the cases, including the case of Beni Madhav (supra) that the process of investigation within the of Section 167 Criminal Procedure Code can be said to have been 4 completed only when not only the report under Section 173 Criminal Procedure Code is submitted by the Investigating Officer but has also been examined by the Magistrate and the Magistrate has passed appropriate order on the said report. The learned Judge said that the power to authorise the detention of an accused person under Section 167 Criminal Procedure Code is available not only till the filing of the report by the police but till the time the Magistrate examines the said report and has passed appropriate order on the same under Section 190 and the proviso to sub-Section (2) of Section 167 Criminal Procedure Code would be attracted and the accused would be entitled to be released on bail if the Magistrate has failed to take cognizance of the offence under Section 190 within the period prescribed in the said proviso irrespective of the fact that the police had filed the challan in the court before the expiry of the period prescribed in the proviso. 4. The question is as to whether the view taken in the aforesaid case is correct or whether the view taken by this court in Daula Rams case (supra) is correct. 5. A bare reading of Section 167 Criminal Procedure Code will show that its various sub-Sections deal with different situations. But one thing is clear that the procedure mentioned in the said section is attracted only when the investigation cannot be completed within the period prescribed. Sub-Section (1) of Section 167 Criminal Procedure Code will be attracted to a situation when any person is arrested and detained in custody and it appears to the investigating officer that the investigation cannot be completed within 24 hours. In such a situation, it is incumbent on the Officer Incharge of the police station or the police officer making the investigation, to forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary relating to the case but also to forward the accused to such Magistrate. Sub-Section (2) of Section 167 Criminal Procedure Code. thereafter comes into picture and it authorise any Magistrate, whether having jurisdiction in the matter or not, to order detention of the accused in such custody as he thinks fit, but in any case, the detention cannot exceed fifteen days. Then, proviso to sub-Section (2) of Section 167 Criminal Procedure Code. comes into play and it prescribes different period of detention of the accused to be ordered by the Magistrate, depending on the sentence(s) which for the offences, with which the accused is charged, can be ultimately passed under the various Sections of the Indian, Penal Code. Then, proviso to sub-Section (2) of Section 167 Criminal Procedure Code. comes into play and it prescribes different period of detention of the accused to be ordered by the Magistrate, depending on the sentence(s) which for the offences, with which the accused is charged, can be ultimately passed under the various Sections of the Indian, Penal Code. A reading of the aforesaid Section 167 Criminal Procedure Code. would show that the said section will only apply to the investigation of the case and detention of the accused can be authorised only during the investigation of the case and not thereafter. It is the mandate of the Legislature as contained in sub-Section (1) of Section 173 Criminal Procedure Code that every investigation under this Chapter 12 shall be completed without unnecessary delay and under sub-Section (2) of Section 173 Criminal Procedure Code as soon as the investigation is completed, the Officer Incharge of the Police Station shall forward to the Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government stating various facts, name of the accused etc. as contained in clauses (a) to (g) of sub-Section (2) of Section 173 Criminal Procedure Code. Therefore, from a joint reading of Sections 167 and 173 Criminal Procedure Code it is clear that the stage of investigation comes to an end no sooner the report is forwarded by the Officer Incharge of the Police Station to the Magistrate. The learned Single Judge in the case of Beni Madhav (supra) had extended the investigation even after the filing of the police report under section 167, on the ground that even after the submission of the report under Section 173 Criminal Procedure Code. it is open to the Magistrate to direct further investigation under sub-Section (2) of Section 156 Criminal Procedure Code. With due respect to the learned Judge, we are unable to agree with him. it is open to the Magistrate to direct further investigation under sub-Section (2) of Section 156 Criminal Procedure Code. With due respect to the learned Judge, we are unable to agree with him. No doubt, Section 173(8) Criminal Procedure Code does not preclude further investigation in respect of offence after a report under sub-Section (2) of Section 173 Criminal Procedure Code has been forwarded to the Magistrate and the Officer Incharge of the police station obtains further evidence, oral or documentary, and forwards it to the Magistrate, a further report or reports regarding such evidence in the form prescribed but we are of the opinion that it does not mean that the investigation can be said to be still pending. It can therefore, be concluded that proviso to Sub-Section (2) of Section 167 Criminal Procedure Code will not apply to a case where after the completion of the investigation, the Officer Incharge of the Police Station has forwarded to the Magistrate, report under Section sub-Section (2) of Section 173 Criminal Procedure Code and therefore merely because after the investigation report or the charge-sheet has been filed within the prescribed period by the Officer Incharge of the Police Station but cognizance of the offence has not been taken by the Magistrate, it cannot be said that under proviso to sub-Section (2) of Section 167 Criminal Procedure Code the accused will be entitled for being released on bail. 6. There is no dispute and no quarrel that if the investigation is not completed within the prescribed period as prescribed under proviso to sub-Section (2) of See 167 Criminal Procedure Code a right will be conferred on the accused who is under arrest, for being enlarged on bail. The only question is as to whether if within the prescribed period, after the investigation, a charge-sheet has been filed or a police report has been submitted by the Officer Incharge of the police station to the Magistrate having jurisdiction the matter and the cognizance has not been taken within a period of ninety day? the accused will have a right to be released on bail. There is no limitation fixed taking cognizance of offence which is punishable for more than three years. See, Criminal Procedure Code. the accused will have a right to be released on bail. There is no limitation fixed taking cognizance of offence which is punishable for more than three years. See, Criminal Procedure Code. relates to bar to taking cognizance after lapse of the period of limitation intention of the legislature was very clear that the cognizance of the offence could not been taken in a case, of which cognizance was not barred within the provisions of See. 468 Criminal Procedure Code. It was contended by the learned counsel for the petitioner, in support of the view taken in the case of Beni Madhav (supra) that the remand is under Section 167(2) or Section 309(2) Criminal Procedure Code. A bare reading of Section 309(2) Criminal Procedure Code will show that no power to remand an accused is vested after filing of the charge-sheet or the police report. It was contended by the learned counsel for the petitioner that even if proviso to sub-Section (2) of Section 167 Criminal Procedure Code is not applicable, there being no formal remand, the accused is entitled for being released on bail. We, as already stated above, are in dis-agreement with the view taken in the case of Beni Madhav (supra) and are of the opinion that the Magistrate, after a police report is filed before him, even before cognizance is taken, has power to remand the accused to judicial custody. In Rabindra Rai v. State of Bihar (1984 Cr.LJ. 1412) a full bench of the Patna High Court has dealt with an identical question. The question examined by the full bench in the aforesaid case was as to 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 charge-sheet is submitted. The full bench of the Patna High Court also examined the question as to when an enquiry within the meaning of Section 309(2) Criminal Procedure Code commences. The full bench referring to the two decisions of the Apex Court said that it cannot be held that unless a formal order is passed by the Magistrate saying that cognizance has been taken, the enquiry will not commence. The full bench referring to the two decisions of the Apex Court said that it cannot be held that unless a formal order is passed by the Magistrate saying that cognizance has been taken, the enquiry will not commence. It further held that once it is held that enquiry commences since the submission of the police report there should not be any difficulty in holding that the Magistrate has during that period power to remand the accused in exercise of power under sub-Section (2) of Section 309 Criminal Procedure Code Section 309(2) of the present Criminal Procedure Code is and to Section 344 of the Criminal Procedure Code 1898. In State of UP v. Lakshmi Brahman and another AIR 1983 SC 439 ) which case has been referred in the aforesaid full bench decision of the Patna High Court in Rabindra Rai (supra), in para 13, the Apex Court said that if the Magistrate is performing a judicial function of ascertaining whether copies have been supplied or not, it would undoubtedly be an enquiry for the purpose of satisfying himself that Section 207 has been complied with in letter and spirit and this satisfaction has to be judicial satisfaction. The Apex Court further said that from the time the accused appears or is produced before the Magistrate with the police report under Section 170 and the Magistrate proceeds to enquire whether Section 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 Section 2(g) of the Criminal Procedure Code. The Apex Court also said that if the Magistrate is holding the enquiry obviously Section 309 Criminal Procedure Code would enable the Magistrate to remand the accused to the custody till the enquiry to be made is complete. It may be and it appears to us that in a case where Section 309(2) is applicable and there is no other section which is applicable like Section 209 Criminal Procedure Code remand can only be ordered after the cognizance of the offence is taken or the trial has commenced and such a view has been taken even by the Apex Court in the case of Natabar Parida and others v. State of Orissa (1975 Cr.LJ 1212) (1216) column 2. We have already referred in the earlier part of this judgment the case of Lakshmi Brahman (supra) and a reading of Section 209 Criminal Procedure Code will show that the power of remand is vested in the Magistrate until he commits the case to the Sessions. Under the said Section 209 Criminal Procedure Code when in a case instituted on a police report or otherwise the aforesaid appears or is brought before the Magistrate and it appears to the Magistrate the offence is triable exclusively by the court of Sessions, he shall commit, after and complying with the provisions of Section 207 or 208 as the case may be, the case to the Sick of Sessions and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment had been made. 7. We are of the opinion that in a case which is exclusively triable by the Court of Sessions, the Magistrate is required to make an enquiry within the meaning of Section 2(g) and to see as to whether the provisions of Section 207 or 208 as the case may be, have been complied with or not and till he makes such an enquiry and commits the accused, he can remand the accused to custody. We also hold that in a case where the charge-sheet is filed within the prescribed period, the provisions of the proviso to sub-Section (2) of Section 167 Criminal Procedure Code are not attracted and the accused does not become entitled to bail.This case will now go before the learned Single Judge for decision.Reference answered. *******