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2001 DIGILAW 817 (PAT)

Sunil Singh @ Captain Sunil v. State

2001-08-31

B.N.P.SINGH, R.N.PRASAD

body2001
Judgment R.N.Prasad, J. 1. The petitioner has moved this Court under Article 226 of the Constitution of India for issuance of a writ in the nature of habeas corpus commanding the respondents to release the petitioner from illegal custody. 2. The relevant facts of the case are that the petitioner is an accused in a case for the offence under Section 302 and other allied sections of the Indian Penal Code and under Section 27 of the Arms Act in which Ex-Minister, Science and Technology, Government of Bihar, namely, Brij Bihari Prasad and his body guard were killed for which Gardanibagh (Shastrinagar) PS Case No. 336/98 was registered. He was also made accused in Kadamkuan PS Case No. 757/98, Gandhi Maidan PS Case No. 11/99 & 47/99. However, he was released in the aforesaid three cases. The petitioner is in the judicial custody since 19.3.1999 in Shastri Nagar PS Case No. 336/98. In the instant case charge-sheet was submitted and the learned Chief Judicial Magistrate took cognizance. However, the case was handed over to the CBI for further investigation under Section 173(8) of the Code of Criminal Procedure whereupon it was registered as RC Case No. 4 (S) 99 after obtaining permission from the Court. After further investigation CBI found that investigation made by the State police was correct and submitted two charge- sheets, one in the month of November, 2000 against Shashi Kumar Rai, MLA and thereafter final charge-sheet was filed on 25.4.2001 against Raghunath Pandey While submitting final charge-sheet a petition was also filed on behalf of CBI stating therein that entire police paper was ready for supply to the accused persons and efforts were made for handing over police papers to be accused persons who had already appeared but none of them came forward to receive the same. However, against the non-appearing accused , namely, Raghunath Pandey processes have also been issued for his arrest by the Court. The petitioner had earlier moved this Court for bail thrice which were rejected lastly on 29.6.2001. The petitioner had earlier also moved this Court in Cr WJC No. 574/99 on the ground that there was no remand which was heard along with other two writ petitions filed by different accused persons of the case and were dismissed on 17.2.2000, Annexure-1. The petitioner had earlier moved this Court for bail thrice which were rejected lastly on 29.6.2001. The petitioner had earlier also moved this Court in Cr WJC No. 574/99 on the ground that there was no remand which was heard along with other two writ petitions filed by different accused persons of the case and were dismissed on 17.2.2000, Annexure-1. The petitioner now has filed instant writ petition for his release from judicial custody on the ground mainly that the Court has no jurisdiction to remand the accused, as stage of commitment under Section 209 of the Code of Criminal Procedure is not an inquiry and even if he has been remanded the remand is illegal in the eyes of law. 3. In the counter-affidavit the facts have been reiterated and stand has been taken that cognizance has been taken, the matter is pending for commitment, police papers are ready for supply to the accused persons put none of the accused persons is coming forward to receive the police papers. More-over final charge-sheet has been submitted and processes have also been issued against one Raghunath Pandey for his arrest and production. The petitioner is being produced in the Court on the date fixed and is being remanded in judicial custody. On 30.7.2001 the petitioner was produced and he has been remanded to judicial custody the stage in the case is of inquiry and as such remand of the petitioner is valid in the eyes of law. 4. The question for determination involved in this case is whether the petitioner is in judicial custody on the basis of valid remand or not. 5. Before adverting to the question involved in this case it would be apt to deal with the relevant provisions of the Constitution of India as well as relevant provisions of the Code of Criminal Procedure. Article 21 of the Constitution of India deals with the protection of life and personal liberty and it says that "no person shall be deprived of his life or personal liberty except according to procedure established by law". Thus it is manifest that even in a case where a person is an accused his liberty cannot be curtailed except by a procedure established by law. Thus it is manifest that even in a case where a person is an accused his liberty cannot be curtailed except by a procedure established by law. The Code of Criminal Procedure contains three provision in respect of the detention of an accused, one in Section 167 (2) of the Code of Criminal Procedure under which an accused can be remanded during investigation of an offence, it also prescribes limitation on the power of the magistrate to remand an accused during investigation up to 90 days where the offence committed is punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. In case no charge-sheet is submitted during the aforesaid period of 90 days the accused if offered to file bail bonds shall be released. The next is Section 309 (2) of the Code of Criminal Procedure which can be invoked for remand of the accused during inquiry or trial. The third section is 209 of the Code of Criminal Procedure which deals with commitment of the case to the Court of Sessions when offence is triable exclusively by the Court of Sessions and empowers the Court to pass order of remand. 6. In the instant case admitted position is that charge-sheet has been submitted, cognizance has also been taken and the matter is periing for commitment. Police papers are ready for supply to the accused persons but the accused persons who appeared are not coming forward to receive the police papers inspite of efforts made by CBI. However, processes have also been issued against one non-appearing accused Raghunath Pandey and the matter is pending for commitment. For better appreciation Section 209 of the Code Criminal Procedure is quoted here-in-below : "209. However, processes have also been issued against one non-appearing accused Raghunath Pandey and the matter is pending for commitment. For better appreciation Section 209 of the Code Criminal Procedure is quoted here-in-below : "209. Commitment of case to Court of Session when offence is triable exclusively by itWhen in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall (a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the public Prosecutor of the commitment of the case to the Court of Session." 7. It deals with commitment of the case to the Court of Session if the offence is triable exclusively by the Court of Session. It is obvious from the aforesaid provision that before committing the case to the Court of Sessions the Magistrate has to search out/make an enquiry as to whether offence is exclusively triable by the Court of Session or not and if he comes to a conclusion that it is exclusively triable by the Court of Session he shall commit the case to the Court of Session after complying with the provisions of Sections 207 or 208 of the Code of Criminal Procedure. Section 207 of the Code of Criminal Procedure deals with respect to supply of police report and other documents in any case the proceeding has been initiated on police report to the accused. Sections 208 of the Code of Criminal Procedure deals with respect to supply of copies of statements and documents to accused in other cases instituted otherwise than a police report. Obviously before commitment of the case Magistrate has to be satisfied that provisions of Sections 207 or 208 has been complied with. Sections 208 of the Code of Criminal Procedure deals with respect to supply of copies of statements and documents to accused in other cases instituted otherwise than a police report. Obviously before commitment of the case Magistrate has to be satisfied that provisions of Sections 207 or 208 has been complied with. In this regard it would be pertinent to consider the inquiry as defined in theCode of Criminal Procedure. Section 2 (g) of the Code of Criminal Procedure defines inquiry and it says inquiry means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. Meaning of inquiry as has been given in the Chambers English Dictionery is, the Act of inquiry, search for knowledge, investigation. Therefore, it is obvious that the Magistrate/Court at the stage of commitment is required to make an inquiry/search out as to whether offence is exclusively triable by the Court of Sessions or not and for the said purpose application of judicial mind is necessary and in case he comes to a conclusion that the offence is exclusively triable by the Court of Session he will commit the case to the Court of Session after complying with the provisions of Sections 207 or 208 of the Code of Criminal Procedure as the case may be subject to the provisions of bail, remand the accused till commitment is made/till the concusion of trial. Obviously, in my opinion, the stage is of the inquiry for the purpose of commitment. 8. The aforesaid aspect of the matter was considered by the Apex Court in the case of State of Uttar Pradesh v. Lakshmi Brahman and another, AIR 1983 SC 439 , wherein it has been held 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 Code and Section 309 would enable the Magistrate to remand the accused to the custody till the inquiry to be made is complete. 9. 9. A Full Bench of, this Court in the case of Rabindra Rai v.The State of Bihar, 1984 BBCJ 1 : 1985 East Cr G 192 (FB) while considering similar question relying upon the judgment of Supreme Court in the case of Lakshmi Brahman and another, (Supra) held that : "In view of the aforesaid judgment of the Supreme Court in the case of State of U.P. (Supra) that an enquiry commences since the filing of the police report it has to be held that the decision 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 is passed the day the charge sheet 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 charge sheet 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." 10. Recently a Division Bench of this Court in the case of Ramayan Singh v.State of Bihar and another, 2000(3) PLJR : 2000(3) East Cr C 1783 while considering similar question has held that when a investigation comes to an end a final form is submitted, inquiry commences and the magistrate/ Court is empowered to remand the accused to judicial custody. The proceeding under Section 209 of the Code of Criminal Procedure before the magistrate is an inquiry as defined under Section 2(g) of the Code of Criminal Procedure and Section 309 of the Code of Criminal Procedure enables the magistrate to remand the accused during the period of inquiry. 11. It would not be out of the place to mention herein that Section 209 of the Code of Criminal Procedure does not intend to commit the case as soon as charge sheet is filed in the case as the Magistrate has to make an inquiry as to whether offence is exclusively triable by the Court of Sessions and also has to be satisfied that provisions of Sections 207 or 208 has been complied with before passing the order of commitment. In my opinion the Legislature had no intention that the period after submission of charge sheet and before commitment be left out in vacuum and the criminals be allowed to be released. Therefore, in my opinion, on consideration and discussion made above, the stage of Section 209 of the Code Criminal Procedure is an inquiry for the purpose of commitment as mentioned in the aforesaid section itself. 12. Learned counsel for the petitioner, however, in support of its contention relied upon a decision in the case of Raj Kishore Prasad v.State of Bihar and another, 1996 (1) PLJR 123 : 1996(2) East Cr C 269 (SC) wherein the question involved for consideration was whether the magistrate at the stage of Section 209 of the Code of Criminal Procedure could summon additional accused/other person who was not an accused in the case. The Apex Court while considering the scope of Sections 209 and 319 of the Code of Criminal Procedure has come to a conclusion that stage of Section 209 of the Code of Criminal Procedure is not an inquiry to summon the additional accused. The magistrate/Court has only to place case before the Court of Session and cannot be adjudicator of the case. The Apex Court for ariving to the aforesaid conclusion has considered that in the old Code there was a provision for inquiry at the stage of commitment which has been deleted while enacting Code of Criminal Procedure 1973 on the recommendation of Law Commission as the said inquiry/proceeding was creating delay in trial of the serious cases and accordingly held in para-11 which reads as follows : "The present Section 209 is thus the product of the aforesaid expert deliberation followed by legislative exercise. It is thus to be seen prominently that preliminary inquiries then known as "committal proceedings" have been abolished in case triable by a Court of Session. The functions left to be performed by the Magistrate, such as granting copies, preparing the records, notifying the public Prosecutor etc. are thus preliminary or ministerial in nature. It is of course true that the Magistrate at that juncture takes cognizance of a sort, but that is solely to perform those preliminary functions as a facilitator, towards placement of the case before the Court of Session, rather than being the adjudicator. are thus preliminary or ministerial in nature. It is of course true that the Magistrate at that juncture takes cognizance of a sort, but that is solely to perform those preliminary functions as a facilitator, towards placement of the case before the Court of Session, rather than being the adjudicator. It is thus manifest that in the sphere of the limited functioning of the magistrate no application of mind is required in order to determine any issue raised, or to adjudge any one guilty or not, or otherwise to pronounce upon the truthfulness of any. version. The role of the Magistrate thus is only to see that the package sent to the Court of Session is in order, so that it can proceed straight away with the trial and that nothing is lacking in content,as per requirements of Sections 207 and 208 of the Code of Criminal Procedure. Such proceeding thus, in our opinion do not fall squarely within the abmit of "inquiry" as defined in Section 2(g) of the Code of Criminal Procedure, which defines that "inquiry means every inquiry, other than a trial conducted under this Code by a Magistrate or a Court", because of the prelude of it being "subject to the context otherwise requiring". As said before, the context requires the proceedings before a Magistrate to be formal, barely committal in that senses and that any notion based upon the old state of law of its being an inquiry to which Section 319 could get attracted, has been done away with. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Section 209 Cr PC is forbidden to apply his mind to the merit of the matter and determine as to whether any accused need be added or subtracted to face trial before the Court of Session." 13. The Apex Court also considered the case of Lakshmi Brahman and another, (supra) in the 6ontext and held in para 12 which reads as follows : "From the text of the judgment it is clear that the statement of "Objects and Reasons" reflecting legislative policy as to the quality of inquiry was not laid before this Court as well as the report of 14th Law Commission recommending abolishing of "enquiry" before the magistrate, which was responsible for the charge. Had the Bench been apprised of the historical perspective, we have no doubt in our mind that the comprehension of the word "inquiry" as meant for Section 209 Cr PC would have been the same as gathered by us on becoming cognizant of the legislative Scheme for early disposal of cases triable by a Court of Session." 14. In my opinion the entire consideration was in the context whether a magistrate/Court had power to summon the additional accused person/ persons who was not accused in the case at the stage of Section 209 of the Code of Criminal Procedure and the Apex Court facing the situation involved in the case has come to a conclusion that it is not an inquiry for the purpose of summoning additional accused/person who is not accused in the case as there is specific provision under the Code of Criminal Procedure i.e. Section 319 of the Code of Criminal Procedure which empowers the Court to summon the additional accused persons if the evidence brought in the Court justifies summoning additional accused person. The reason is obvious as at the stage of Section 209 of the Code of Criminal Procedure in fact no evidence is recorded by the Court as inquiry prescribed under the old Code has been deleted by the amending Act and as such there was no scope for summoning the additional accused at the stage of Section 209 of the Code of Criminal Procedure. 15. The law laid down by the Apex Court is binding on all the Courts within the territory of India but in the facts and circumstances of the case with all respect I feel that the case aforesaid as reiled upon by the learned counsel for the petitioner is not applicable in the facts and circumstances of the case in hand. 16. Learned counsel for the petitioner next contended that initially the case was investigated by the State police and submitted charge-sheet before the Chief Judicial Magistrate who took cognizance and as such the proceeding before the Special Judicial Magistrate is bad in law as it would amount to two proceedings before two different Courts for the same offence. 16. Learned counsel for the petitioner next contended that initially the case was investigated by the State police and submitted charge-sheet before the Chief Judicial Magistrate who took cognizance and as such the proceeding before the Special Judicial Magistrate is bad in law as it would amount to two proceedings before two different Courts for the same offence. He in support of his contention relied upon a decision of a single Bench of Allahabad High Court in the case of Surendra Nath Singh v. State of U.P. and another, 2001 Cr LJ 1745 wherein it has been held that submission of report by the CBI before the Special Court cannot be treated as fresh investigation or fresh report since two proceedings at two different Courts for the same offence are not permissible. The offence has to be tired by the Chief Judicial Magistrate who had taken cognizance first. It was also observed that in such a case CBI should have sent the report after conclusion of the investigation to the State Government. In this regard it would not be out of place to mention that State police or the CBI is the only agency of investigation. The case can be investigated by any investigating agency. More-over, Section 173(8) of the Code of Criminal Procedure provides for further investigation meaning thereby even after submission of charge-sheet further investigation can be made. In case after submission of charge-sheet by the State agency if investigation is entrusted to CBI by proper notification and CBI proceeds with the further investigation after obtaining permission of the Court it shall proceed with the further investigation as there is no bar under the Code of Criminal Procedure. As soon as investigation is taken up by the CBI the Special Judicial Magistrate assumes charge of the case and the record of the case is sent to the Special Judicial Magistrate for further action in the matter. In such a situation, it cannot be said that there were two proceedings before two different Courts for the same offence. The aforesaid view has also been taken in Cr WJC No. 574,688 & 701 of 1999 which wre disposed of on 21.12.1999, Annexure-A to the counter-affidavit. In such a situation, it cannot be said that there were two proceedings before two different Courts for the same offence. The aforesaid view has also been taken in Cr WJC No. 574,688 & 701 of 1999 which wre disposed of on 21.12.1999, Annexure-A to the counter-affidavit. It would also be pertinent to mention herein that when the proceeding is pending in the Court there is no provision under the Code of Criminal Procedure that investigating agency/CBI who took charge of the investigation under Section 173 (8) of the Code of Criminal Procedure would submit its report on completion of the investigation before the State Government. In the instant case obviously charge-sheet was submitted by the State Police before the Chief Judicial Magistrate. Further investigation was entrusted to the CBI under proper notification by the competent authority. The CBI also took permission of the Court. The record was also sent by the Chief Judicial Magistrate to the Special Judicial Magistrate for further action. The CBI after further investigation submitted its report the Special Judicial Magistrate who took cognizance after submission of the report and the matter is pending for commitment under Section 209 of the Code of Criminal Procedure. 17. Thus in no way it can be said that for the same offence two different proceedings are pending before two different Courts. More-over, in my view, the decision in the case of Surendra Nath Singh, (supra), relied upon by the learned counsel for the petitioner does not depict correct position of law. Thus on consideration, I find no merit in the submission of learned counsel for the petitioner. 18. Thus on consideration as discussed above, I find no merit in the writ petition. Accordingly it is dismissed. B.N.P.Singh, J. 19 I agree.