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2002 DIGILAW 1733 (RAJ)

Kamlesh v. The State of Rajasthan

2002-10-22

F.C.BANSAL

body2002
JUDGMENT 1. - Briefly stated, the facts of the case are that on the basis of a written report submitted by Brijlal S/o Bhonra Ram, by caste-Meena, R/o Maharajsar at RS. Sewar, District Bharatpur on April 20, 2002, a case under Sections 304B and 498A IPC was registered. In the course of investigation accused-petitioner Kamlesh was arrested on April 28, 2002. He was remanded to police custody and thereafter to judicial custody from time to time by learned Additional Chief Judicial Magistrate No. 3. Bharatpur. By order dated 24th July, 2002, the Additional Chief Judicial Magistrate remanded the accused-petitioner to judicial custody till August 7, 2002. In the meanwhile, on July 26, 2002, the SHO, R.S. Sewar filed challan against the accused-petitioner under Sections 498A, 304B and 120B IPC in the Court of Additional Chief Judicial Magistrate No. 3. Bharatpur. On that day the Court of Additional Chief Judicial Magistrate No. 3, Bharatpur was lying vacant as the Presiding Officer had already been transferred and, therefore, the Link Magistrate did not take cognizance on the police report and the case was adjourned for July 30, 2002. On July 29, 2002, accused-petitioner Kamlesh moved an bail application in the Court concerned stating therein that as the charge-sheet has not been filed within 90 days from the date of his arrest, he is entitled to be released on bail under Section 167(2) Cr.RC. This application was rejected by learned Additional Chief Judicial Magistrate No. 3, Bharatpur on July 31, 2002. Thereafter accused-petitioner moved the application for bail under Section 439 Cr.RC. in the Court of learned Sessions Judge, Bharatpur which was transferred to the Court of learned Additional Sessions Judge No. 2, Bharatpur who, after hearing both the parties, dismissed it vide his order dated 16th August, 2002. Thereafter the accused-petitioner Kamlesh has moved this bail application before this Court on August 27, 2002. Learned Additional Chief Judicial Magistrate took cognizance against the accused-petitioner on August 7, 2002 and on the same day he committed the case to the Court of learned Sessions Judge, Bharatpur. At present the case is pending in the Court of learned Additional Sessions Judge (Fast Tract) No. 3, Bharatpur. 2. Mr. Learned Additional Chief Judicial Magistrate took cognizance against the accused-petitioner on August 7, 2002 and on the same day he committed the case to the Court of learned Sessions Judge, Bharatpur. At present the case is pending in the Court of learned Additional Sessions Judge (Fast Tract) No. 3, Bharatpur. 2. Mr. S.K. Gupta learned counsel for the accused - petitioner has submitted that in view of the provisions contained in the proviso to Sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (here-in-after referred to as "the Code"), the detention of the accused-petitioner after the expiry of 90 days from the date of his arrest was without authority of law and since no order of remand u/s. 209 or u/s. 309 of the Code was passed before the expiry of aforesaid period of 90 days from the date of his arrest, the accused-petitioner is entitled to be released on bail under the provisions of proviso to Sub-section (2) of Section 167 of the Code. In this regard learned counsel has pointed out that the accused-petitioner was arrested on April 28, 2002, the period of 90 days expired on July 26, 2002 and, therefore, his detention after July 26, 2002 was unauthorized. It has been contended by learned counsel that on July 24, 2002, learned Magistrate could not remand the accused-petitioner beyond the period of 90 days from the date of arrest of the accused-petitioner which was to expire on July 26, 2002 in view of the provisions contained in Sub-section (2) of Section 167 of the Code and, therefore, the order of remand passed by learned Additional Chief Judicial Magistrate was illegal. Learned counsel has also contended that the power of remand under Sections 209 and 309 of the Code can be invoked only after the competent Magistrate has taken cognizance of the offence u/s. 190 of the Code. In the instant case, cognizance has been taken on August 7, 2002, after the expiry of the period 90 days from the date of arrest of the accused-petitioner. Therefore, the accused-petitioner is entitled to be released on bail in view of the proviso to Sub-section (2) of Section 167 of the Code. In the instant case, cognizance has been taken on August 7, 2002, after the expiry of the period 90 days from the date of arrest of the accused-petitioner. Therefore, the accused-petitioner is entitled to be released on bail in view of the proviso to Sub-section (2) of Section 167 of the Code. It has also been contended by learned counsel that an illegality in the non-compliance with the provisions of the proviso to Sub-section (2) of e Section 167 of the Code cannot be cured by subsequent order of remand u/s. 209(a) or order Sub-section (2) of Section 309 and the accused person would be entitled to be released on bail. Learned counsel has placed reliance on Beni Madhav and Ors. v. The State of Rajasthan-1982 RCC 145. 3. Learned counsel for the accused-petitioner has further contended that u/s. 209(a) of the Code, the order of remand can be passed after the institution of a case. A case is said to be instituted on the date on which a Magistrate takes cognizance of an offence on a police report or otherwise. In the instant case cognizance has been taken on August 7, 2002 and, therefore, it cannot be held that the case had already been instituted on July 26, 2002 when the charge sheet was laid in the Court. Reliance has been placed by learned counsel for the petitioner on Jamuna Singh & Ors. v. Bhadai Shah- AIR 1964 SC 1541 . It has been further contended by learned counsel that the Apex Court in Raj Kishore Prasad v. State of Bihar and Anr. AIR 1996 SC 1931 has observed that committal proceedings u/Ss. 207, 208 and 209 of the Code do not fall squarely within the ambit of 'inquiry' as defined in Section 2(g) of the Code. Therefore, no order of remand could be passed by learned Magistrate under Sub-section (2) of Section 309 of the Code. In these circumstances, as contended by learned counsel, it cannot be held that the detention of the petitioner was legal from July 27, 2002 to August 7, 2002, therefore, the application of the petitioner for bail be allowed. 4. Therefore, no order of remand could be passed by learned Magistrate under Sub-section (2) of Section 309 of the Code. In these circumstances, as contended by learned counsel, it cannot be held that the detention of the petitioner was legal from July 27, 2002 to August 7, 2002, therefore, the application of the petitioner for bail be allowed. 4. Learned Public Prosecutor, on the other hand, has submitted that the petitioner is not entitled to be released on bail under the proviso to Sub-section (2) of Section 167 of the Code because before the expiry of period of 90 days from the date of his arrest, the investigation had been : completed and the charge sheet had been filed in the Court of the Magistrate concerned. According to learned P.R, the provisions of the proviso to Sub-Section (2) of Section 167 of the Code can be invoked only in those cases where the investigation is not completed within a period prescribed in the said provisions. Learned P.P. has also submitted that even if the detention of the petitioner after the expiry of the period of 90 days from the date of his arrest, is held to be illegal in view of the proviso to Sub-section (2) of Section 167 of the Code, the legality of the detention has to be examined with reference to the date when the Court examines the matter and if the subsequent detention is not illegal, the earlier illegality in the detention would not entitle the accused to be release on bail. It has been pointed out by learned PR that the case has already been committed to the Court of learned Sessions Judge and it is pending in the Court of learned Additional Sessions Judge (Fast Track) No. 3. Bharatpur and, therefore, it cannot be held that at present the petitioner is in illegal detention. Therefore, the application of the petitioner deserves to be dismissed. 5. I have given my thoughtful considerations to the rival submissions and have also perused the decisions cited by learned counsel for the accused-petitioner. 6. A perusal of the provisions contained in the Code will show that provision is made for detention of accused person in custody before conviction in Sections 57, 167, 209 and 309 of the Code. 5. I have given my thoughtful considerations to the rival submissions and have also perused the decisions cited by learned counsel for the accused-petitioner. 6. A perusal of the provisions contained in the Code will show that provision is made for detention of accused person in custody before conviction in Sections 57, 167, 209 and 309 of the Code. Section 57 lays down that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four house exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. Section 167 lays down the procedure to be followed when investigation cannot be completed in twenty-four hours and sub-Section (1) of Section 167 provides that whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57 and there are ground for believing that the accusation or information is well-founded, the officer-in-charge of the police station or the police officer making the sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary relating to the case, and shall at the same time forward the accused to such Magistrate. Under sub-Section (2) of Section 167 the Magistrate to whom an accused person is forwarded may, whether he has or has not jurisdiction to try the case from time to time authorities 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. Clause (a) of the proviso to sub-section (2) of Section 167 provides that a Magistrate may authorise the detention of an accused person, otherwise than in the 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 paragraph for a total period exceeding ninety days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and for a total period exceeding sixty days, where the investigation relates to any other offence. The said proviso further provides that on the expiry of the said period of ninety days, or sixth days, as the case may be, accused persons shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under sub-section (2) shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter. 7. In the instant case, as already stated, the accused-petitioner was arrested on April 28, 2002 and the charge sheet was filed in the Court of July 26, 2002. Thus, it is clear that the charge sheet against the accused-petitioner had been filed within 90 days from the date of his arrest. As the investigation related to an offence u/s. 304B IPC also which is punishable with imprisonment for life and, therefore, the period prescribed for completion of the investigation under sub-Section (2) of Section 167 of the Code was 90 days. It is an admitted fact that in the instant case, cognizance was taken by the Magistrate after the expiry of 90 days from the date of arrest of the accused-petitioner. Therefore, the point for consideration in the instant case is as to whether the accused-petitioner is entitled to bail under proviso to sub-Section (2) of Section 167 of the Code in this case where the investigation had been completed and the charge sheet had been filed within the prescribed period but cognizance was not taken by the Magistrate within the prescribed period of 90 days, but the same was taken after the expiry of 101 days. 8. 8. The Division Bench of this Court in Nizzu v. State of Rajasthan-1993 RRC 526 has held 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 Cr.RC. are not attracted and the accused does not entitled to bail. 9. In Dorai and another v. State of Karnataka-1994 Cr.L.J. 2987, the Karnataka High Court while taking the similar view has observed that an accused is entitled as of right to bail under the proviso to Section 167(2) only if the charge sheet is not filed within 90 days or 60 days as the case may be, from the date the Magistrate first authorised detention of the accused and that once the charge sheet is filed within the period Section 167 ceases to apply and the accused cannot seek bail by virtue of proviso to Section 167(2) Cr.RC. In a case in which charge sheet has been filed within the period of 90 days but the Magistrate has not passed an order taking cognizance within that period, does not entitle the accused to seek bail under the proviso to Section 167(2) Cr.RC. without reference to the merits of the case. 10. In Ada alias Adeita Bahera v. The State 1996 Cr.L.J. 3130, the Orissa High Court has also expressed the similar view. It has been observed that Thus from the instrinsic materials appearing from the record, it is apparent that charge sheet was filed within the stipulated period, or, at any rate, before the bail application was filed. In such view of the matter, the contention of the learned counsel for the petitioner that the accused is entitled to be released on bail under the proviso to Section 167(2) of the Code, is not acceptable. 11. In view of the aforementioned decisions, I am of the opinion that the accused-petitioner Kamlesh is not entitled to bail under the proviso to sub-Section (2) of Section 167 Cr.RC. as the charge sheet against him had been filed before the expiry of the prescribed period of 90 days. Before the expiry of the prescribed period of 90 days, right to be released on bail under the proviso to sub-Section (2) of Section 167 Cr.RC. did not accrue to him. as the charge sheet against him had been filed before the expiry of the prescribed period of 90 days. Before the expiry of the prescribed period of 90 days, right to be released on bail under the proviso to sub-Section (2) of Section 167 Cr.RC. did not accrue to him. It would be pertinent to mention here that the accused-petitioner moved his bail application under the proviso to sub-Section (2) of Section 167 Cr.RC. in the Court of Addl. Chief Judicial Magistrate on July 29, 2002 whereas charge sheet against him had already been filed in that Court on July 26, 2002. A wrong fact that till date no charge sheet has been filed in the Court, was mentioned in the application for bail. 12. So far as the contention of learned counsel for the accused-petitioner that the detention of the accused-petitioner was not legal from July 27, 2002 to August 7, 2002 is concerned sub-Section (a) of Section 209 which deals with commitment of the case to a Court of Sessions when offence is triable exclusively by it, lays down that when 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 Session, he shall commit after complying with the provisions of Section 207 or 208, as the case may be, the case to the Court of Session, and subject to the provisions of the Code relating to bail, remand the accused to custody until such commitment has been made. Sub-Section (2) of Section 209 provides that subject to the provisions of the Code relating to bail, the Magistrate shall remand the accused to custody during, and until the conclusion of the trial. Section 309 deals with the power of postpone or adjourn proceedings in every inquiry or trial Sub-Section (2) of Section 309 provides that 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. The first proviso to sub-Section (2) of Section 309 provides that no Magistrate shall remand an accused person to custody under the said Section for a term exceeding fifteen days at a time. 13. The Hon'ble Apex Court in Jamuna Singh & Ors. v. Bhadai Shah (supra) has observed that "The code does not contain any definition of the words "institution of a case". It is clear however and indeed not disputed that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. 14. The Apex Court in Raj Kishore Prasad v. State of Bihar and Anr. (supra)has held that committal proceedings u/Ss. 207, 208 and 209 of the Code do not fall squarely within the ambit of 'inquiry' as defined in Section 2(g) of the Code. 15. It is also clear from Sub-Section (2) of Section 309 of the Code that an order of remand under this Section can be passed by the Court after the cognizance of the offence is taken. In view of the decisions of Jamuna Singh & Ors. v. Bhadai Shah (supra) and Raj Kishore Prasad v. State of Bihar and Anr. (supra) and having perused Sections 209 and 309 of the Code, I am of the opinion that no order of remand can be passed under Section 209 and 309 of the Code before cognizance of the offence is taken by the Court. Therefore, in my view, the order of remand of the accused-petitioner for the period from July 28, 2002 (on expiry of 90 days from the date on which the accused-petitioner was produced before the Magistrate for first remand on April 29, 2002) to August 6, 2002 was not legal. Now the question arises as to whether the accused-petitioner is entitled for being released on bail on this ground. 16. In Sri Noorul Huda alias Nanka v. The Superintendent Central Jail, Naini, Allahabad and others-1984(2) Crimes 44, the Allahabad High Court has held as under: "In other words, the petitioner does not find any irregularity, illegality or invalidity in those subsequently remand orders in spite of the fact that he challenges the remand order dated 22.8.1983. 16. In Sri Noorul Huda alias Nanka v. The Superintendent Central Jail, Naini, Allahabad and others-1984(2) Crimes 44, the Allahabad High Court has held as under: "In other words, the petitioner does not find any irregularity, illegality or invalidity in those subsequently remand orders in spite of the fact that he challenges the remand order dated 22.8.1983. This in a way would suggest and imply that subsequent orders remanding the petitioner to custody are valid then any irregularity, illegality or invalidity in the previous order remanding the petitioner to custody would be of not consequence. To put it otherwise, the previous illegal order remanding the petitioner to judicial custody would stand cured by subsequent valid remand order authorising the custody of the petitioner." 17. In Sunil Singh alias Captain Sunil and others v. State of Bihar and others-2001 Cr.L.J. 3681, the Patna High Court has held as under: "We have no doubt that in the absence of a valid order of remand such detention in jail was not justified and this court may have been justified in ordering their release holding that the detention was illegal, in the absence of an order of remand. In the instant case we find that as to today there is an order of remand dated 27.1.2000. The detention of the petitioners, therefore, under such order of remand cannot be termed as illegal and, therefore, we shall not be justified in directing their release on the ground that their detention in the past was illegal. The illegality of the detention has to be established on the date on which the court passes the order. The detention may have been illegal at its inception in the absence of a valid order of remand, may be legalised by passing of a valid order of remand subsequently." 18. The Full Bench of this Court in Mahesh Chand and etc. The detention may have been illegal at its inception in the absence of a valid order of remand, may be legalised by passing of a valid order of remand subsequently." 18. The Full Bench of this Court in Mahesh Chand and etc. v. State of Rajasthan and etc.-1985 Cr.L.J. 301, held as under; "We have briefly surveyed above the various provisions of the New Code relating to grant and cancellation of bail at all stages of the proceedings arising out of the arrest of a person accused of the commission of bailable or non-bailable offence with view to showing that Legislature has made detailed and exhaustive provisions and left no scope for any court to direct the release of an accused person on a ground not provided for by the Legislature in the New Code. There is no provision in the New Code which, even if it were to be liberally construed, may be said to were be conferring a right on the accused to be released on bail by reason of the mere fact that his custody was for some period either unauthorised or not validly authorised by the Magistrate. If the Magistrate is guilty of any act of omission or commission in the exercise of his powers of remanding an accused to custody under Section 167, 209 or 309 of the New Code, the accused may be justified in complaining that his detention was illegal during the relevant period and he may have his legal remedies including the remedy of habeas corpus, against such illegal detention, but is no ground for bail and has not been recognised as such by the New : Code. Even Section 167(2), which provides for bail dehors the provisions of Chapter XXXIII of the New Code, does not lay down that detention of the accused in custody beyond the period of 60 days or 90 days, as the case may be, during the investigation is illegal and therefore a ground for bail. All that Section 167(2) enacts in effect is that though the Magistrate may authorise the detention of the accused in custody extending beyond the aforesaid maxim if the accused is during that period prepared to and does furnish bail, he shall be released on bail, and he shall be deemed to be so released under the provisions of Chap. XXXIII for purposes of that chapter. XXXIII for purposes of that chapter. We have already explained that such a bail granted by the Magistrate under Section 167(2) is liable to be cancelled by the Magistrate under Section 437(5) and by the court of session or the High Court under Section 439(2) of the New Code. If the accused is not prepared to or is unable to furnish bail, as ordered, his detention in custody during the investigation, if authorised by the Magistrate even if it exceeds the maxima prescribed in cls. (i) and (ii) of proviso (a) to Section 167(2), cannot by any means be described as illegal. To remove the possibility of any doubt in that behalf, the Legislature added Explanation I to Section 162(2) in 1978 and thereby enacted that notwithstanding the expiry of the period specified in para (a) the accused shall be detained in custody so long as he does not furnish bail. It is therefore abundantly clear that provision of bail, as contained in proviso (a) of sub-section (2)of Section 167, has been made to discourse slackness in investigation and to forewarn the investigation agency that any delay in that behalf would entitle the accused to be released on bail. If eventually the accused is released on bail under Section 167(2)(a) it is not because his detention was illegal, but because he became entitled to bail by reason of the failure of the investigation agency to complete the investigation within the period specified in para (a). If an accused person is illegally detained in prison, the least that a court of law is expected to do for him is to quash the illegal detention and set him at liberty forthwith. Bail is no remedy for illegal detention. Bail is a form of detention by other means. Instead of being detained in prison, the accused is transferred to the custody of his bail who are his jailers of his own choosing, and the court still retains its inherent power to deal with him (See 8 Corpus the authorise of Halbury's Laws of England, Third Edn. Vol. 10, page 373, state that the effect of granting bail is not to set the accused free, but to release him from the custody of the law and the entrust him to the custody of his sureties, and the sureties may discharge themselves by handing him over to the custody of the law. Vol. 10, page 373, state that the effect of granting bail is not to set the accused free, but to release him from the custody of the law and the entrust him to the custody of his sureties, and the sureties may discharge themselves by handing him over to the custody of the law. Earl Jowitt in Jiwitt's Dictionary or English Law (Second End.) is of the same opinion (page 173) that the accused is said to be admitted to bail when he is released from the custody of officers of the law and is entrusted to the custody of persons known as his sureties. Our own law is no different. A person released on bail is considered in our law, to be detained in the constructive custody of the court through his sureties. A Division Bench of the Patna High Court held in Krishan Singh V. State of Bihar 1967 Cri.L.J. 1118, that a person released on bail remains in the constructive custody of the court through surety and his liberty is thus subject to restraint. Section 444 of the New Code lays down that the sureties may apply to the Magistrate to discharge the bond, and, on such application being made the Magistrate shall cause the accused to be arrested and brought before him. It may therefore be safely held that bail is no remedy, and has never been conceived or intended in law to be a remedy, for illegal detention. An accused person shall be admitted to bail in accordance with the enacted provisions of law, as interpreted by superior courts from time to time, and not otherwise, not even if the court discovers some illegality vitiating his detention in prison. In the latter situation, the bail court should leave the matter to be dealt with the court which may be competent to set the accused at liberty without any restraint on such liberty. To sum up, the illegality of an order remanding a person accused of non-bailable offence to custody under Section 167(2) or Section 309(2) of the New Code does not per se, entitle the accused to be released on bail." 19. In the instant case cognizance had already been taken by the Magistrate on August 7, 2002 and on the same day the case was committed to the Court of Sessions Judge, Bharatpur. In the instant case cognizance had already been taken by the Magistrate on August 7, 2002 and on the same day the case was committed to the Court of Sessions Judge, Bharatpur. Learned Additional Chief Judicial Magistrate passed an order of remand u/S. 209 of the Code on the same day and the accused-petitioner was remanded to judicial custody till August 21, 2002. Thereafter the accused-petitioner has been remanded to judicial custody from time to time by the concerning Court u/S. 309 of the Code. Thus, it is clear that from August 7, 2002 onwards the detention of the accused-petitioner is legal. In my considered view, the illegality or invalidity in the order of remand of the accused-petitioner for the period from July 27, 2002 to August 6, 2002 stood cured by passing of a valid order of remand subsequently. In these circumstances, looking to the view expressed in the aforementioned decisions of Allahabad, Patna and Full Bench of this Court, the accused-petitioner cannot be held to be entitled for being released on bail on this ground also. 20. For the aforesaid reasons, the accused-petitioner Kamlesh is not entitled to be released on bail and his application deserves to be rejected. 21. Consequently, the application of the petitioner is dismissed. He is free to move fresh application for bail on other grounds, if available to him.Application Dismissed. *******