Research › Search › Judgment

Jharkhand High Court · body

2002 DIGILAW 515 (JHR)

Ajay Kumar Singh v. State of Jharkhand

2002-04-23

D.N.PRASAD

body2002
Order All the above three WP (Cr) writ petitions have been heard together as the common questions are involved for consideration and are being disposed of by this common order. 2. It is alleged that the petitioners have been remanded in judicial custody without taking cognizance though charge sheet have been submitted in the case. The first information report was lodged under section 7/13 of the Prevention of Corruption Act, 1988. 3. Learned counsel appearing on behalf of the petitioners submitted that they have been falsely implicated in this case and actually even after submission of the charge sheet, no cognizance have been taken in the cases which will also be evident from the order dated 22.3.2002 passed in Spl. Case No. 13 of 2002 that the cognizance was not taken only because previous sanction has not been obtained and it is also submitted that the remand in the case without taking cognizance which is a pre-condition, is illegal. On this score, the learned counsel for the petitioners also relied upon a case of Shri S. K. Lal VS. Laloo Prasad reported in 1998 Vol I P.L.J.R. page 782 and also in 1999(1) Eastern Criminal Cases page 1188. 4. It is also submitted that it has been consistently held by the Division Bench that the remand of the accused without taking cognizance is not permissible under the law. 5. On the other hand, the learned Junior Counsel to Spl. P.P. contended before me at the very out set that there is no illegality even if the cognizance was not taken and she drew my attention to Section 209 of the Cr.P.C. and submitted that the Special Judge has to consider and come to a conclusion after receipt of the charge sheet as to whether the case is triable by the Court of Sessions or not. He is empowered to remand the accused as per section 209 of the Cr.P.C. 6. Counsel for the opposite parties also drew my attention to Section 5(3) of the Prevention of Corruption Act and states that so far as they are not inconsistent with this Act, apply to the proceedings before a Special Judge: and for the purposes of the said provisions, the Court of the Special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Judge shall be deemed to be a Public Prosecutor. 7. Section 209 of the Code of Criminal Procedure deals about the case triable exclusively by the Court of Sessions which is relating to Chapter XVI dealing with about "commencement of proceedings before the Magistrate" whereas the offence as made out in the instant case are relating to Section 7/13 of the Prevention of Corruption Act which are not Sessions Triable Cases though they are tried by the Special Judge specifically empowered under the Act. Moreover the Division case (sic-Bench?) in the case of S.K. Lal vs. Laloo Prasad (supra) dealt with and considered all these facts meticulously and came to the conclusion that after a police report under section 170 of the Cr.P.C. is received by the Special Judge under section 173 of the Code, no case can be said to be instituted before him on a police report unless he takes a cognizance of the offence mentioned in such report, if he is unable to take cognizance under section 190 of the Code for any reason whatsoever, or refuses to take cognizance, he will have no authority to remand the accused, if in custody, in view of the clear language of Section 309(2) of the Code which makes the taking of cognizance, condition precedent for the exercise of power of remand in a pending inquiry or trial. 8. The same view was taken by the Division Bench in the case of Pawan Kumar Jaiswal reported in 1999 Vol 1 Eastern Criminal Case page 1188 and it was held that the remand of accused to custody without taking cognizance is not permissible under section 309(2) of the Code of Criminal Procedure. 9. It is also submitted on behalf of the petitioners that other co-accused on similar facts and circumstance has been released on bail vide WP (Cr) 165 of 2001, WP (Cr) 73 of 2002 and WP(Cr) 191 of 2001. 10. Having regard to the above facts and circumstance and considering the ratio of the decision of Laloo Prasad (supra) apparently cognizance has not been taken by the court below even after receipt of the charge sheet and as such it can safely be held that the Special Judge is not proper to remand the accused without taking cognizance. 11. Thus, I find merit in these applications which are accordingly allowed and the petitioners. 11. Thus, I find merit in these applications which are accordingly allowed and the petitioners. namely, (1) Ajay Kumar Singh (2) Lalan Prasad Singh and (3) Sant Prasad Gupta are directed to be released on bail on furnishing bail bonds of Rs. 10,000/-(Ten thousand) with two sureties of the like amount each to the satisfaction of the Special Judge, Vigilance at Ranchi in connection with Vigilance Case No. 11 of 2002 (Special Case No. 12 of 2002), Special Case No. 13 of 2002 (Ranchi Vigilance P.S.Case No. 12 of 2002) and Vigilance Case No. 14 of 2002(Special Case No. 15 of 2002) respectively.