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2002 DIGILAW 940 (JHR)

Mubarak Alam v. State Of Jharkhand

2002-08-29

D.N.PRASAD

body2002
ORDER Deoki Nandan Prasad, J. 1. By this application, the petitioner has prayed for issuance of an appropriate writ/order/direction in the nature of habeas corpus for the release of the petitioner from judicial custody in connection with Gumla PS Case No. 3/2002 correspondent to GR No. 15/2002 registered under Sections 302, 120-B and 34 of the Indian Penal Code and Section 27 of the Arms Act. 2. Gumla PS Case No. 3 of 2002 was registered on the basis of the written report of Ashok Kumar Singh, who alleged that his second son namely Suraya Prakash Singh was a student of Class IX and he was residing in a separate house in Gumla. On 29.12.2001 in between to 1 a.m. his friends Mubarak Alam, Sarfraz Alam @ Dablu and Pradeep Kumar Singh and one unknown after hatching conspiracy committed his murder. The informants brother Surendra Prasad Singh disclosed that four persons were giving him threatening to kill and on being asked he disclosed their names, the petitioner and others. It is further alleged that all the accused-persons including the petitioner committed murder after indulging in deep conspiracy and they were also seen fleeing after committing murder. The FIR was registered accordingly. The police investigated into the matter and submitted charge-sheet and the petitioner is being remanded in the case without taking cognizance, which is illegal and without jurisdiction. 3. It is further alleged that on U.D. case was also lodged on the basis of the fardbeyan of one Pradeep Kumar Singh, wherein he stated that on 29.12.2001 he was sitting in the house of Surya Prakash Singh @ Monu with his friends, namely, Mubarak Alam and Md. Sarfraj @ Dablu and in their presence Surya Prakash @ Monu shot himself by a pistol as result of which Surya Prakash Singh @ Monu sustained injuries on his temple and while he was being carried to hospital on the way he succumbed to his injury and accordingly U.D. Case No. 50/2001 was registered. 4. No counter affidavit has been filed on behalf of the State. 5. Mr. 4. No counter affidavit has been filed on behalf of the State. 5. Mr. A.K. Chaturvdi, the learned counsel appearing on behalf of the petitioner submitted that though the police submitted charge-sheet in the case after completing the investigation but the court has not taken cognizance as yet in the case and the case is being adjourned for hearing on the point of cognizance and the petitioner/accused has been remanded to the custody which is against the provisions of Section 309(2) of the Code of Criminal Procedure and remand is wholly illegal and, therefore, the petitioner is entitled to be released. The learned counsel also placed his reliance of the case of Ajay Kumar Singh v. State of Jharkhand, reported in 2002 (2) JLJR 564 . 6. Obviously, the case relating to the decision cited by the learned counsel for the petitioner was a case under the Prevention of Corruption Act registered under Section 7/13 of the Prevention of Corruption Act, 1988 and in the case of Prevention of Corruption Act, 1988 there is a clear provision under Section 19 of the Prevention of Corruption Act, 1988, which reads thus : "19(1). No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction." A bare reading of the provision aforesaid clearly indicates that the Court has got no power to take cognizance in the case of Prevension of Corruption Act, 1988 unless sanction in available. But, the instant case is registered under Section 302/34, IPC and 27 of the Arms Act. There is no condition precedent for taking cognizance. It is also well settled that cognizance does not require any formal action and when Court applies its mind judicially to the relevant materials on record then it is said to have taken cognizance. 7. Patna High Court in the cae of Ramayan Singh v. State of Bihar and another reported in 2000 (3) PLJR 407 relying upon a Full Bench decision rendered in Rabindra Rai v. State of Bihar. 7. Patna High Court in the cae of Ramayan Singh v. State of Bihar and another reported in 2000 (3) PLJR 407 relying upon a Full Bench decision rendered in Rabindra Rai v. State of Bihar. 1984 PLJR 701, observed : "Thus, the binding precedents are that after submission of charge-sheet and before passing an order under Section 209 committing an accused to the Court of Session in a case triable by the Court of Sessions, the proceeding pending before the Magistrate is an enquiry and during that period he can exercise the power of remand either under Section 309 of the Code or under Section 209(i) of the Code after its amendment by Act 45 of 1978, which clearly provides that during the commitment an accused can be remanded to custody subject to the provision of bail. This amendment in Section 209 of the Code by the aforesaid Act was made to remove the difficulty actually experienced in cases where the Committing Magistrate is unable to commit the accused on the same day." It is further held in Ramayan Singhs case (supra) that the word cognizance does not require any formal action and when the court applies its mind judicially to the relevant material on record then it is said to have taken cognizance. In Full Bench decision of Rabindra Rai v. State of Bihar reported in 1984 PLJR 701 (Pat), the Court after discussing the matter in detail observed that the period when charge-sheet is submitted and before passing an order under Section 209 of the Code committing the accused to the Court of Sessions, 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. 8. Section 309(1) of the Code of Criminal Procedure reads as under : "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 : Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time : Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing. Provided also that no adjournment shall be granted for the purpose only of enabling the accused-person to show cause against the sentence proposed to be imposed on him." 9. In this case, the charge-sheet has already been submitted therefore, the perusal of the charge-sheet will also amount to have taken cognizance by the learned Magistrate. Apart from this, the decision in Ajay Kumar Singhs case (supra) has no application to the facts of the case, as the said case was not a Sessions case but a case triable as a warrant case as well as the facts of the said case is quite distinguishable to the case at hand. In a warrant case, there is no question of commitment and inquiry at any time after Final Form is submitted and this fact has also been dealt with specifically in the case of S.K. Lal v. Lalu Prasad. reported in 1998 (1) PLJR 782. 10. Thus, after submission of charge-sheet and before passing an order under Section 209 committing an accused to the Court of Sessions in a case triable by the Court of Sessions, the proceeding pending before the Magistrate is an inquiry and during that period the Magistrate can exercise the power of remand either under Section 309 of the Code or under Section 209(a) of the Code. 11. At this stage, it may be noted that the learned Magistrate has already taken cognizance in the instant case on 1.7.2002. In such situation, the petitioner cannot be entitled to be released by way of habeas corpus. 12. 11. At this stage, it may be noted that the learned Magistrate has already taken cognizance in the instant case on 1.7.2002. In such situation, the petitioner cannot be entitled to be released by way of habeas corpus. 12. For the reasons aforementioned and in view of the legal proposition noticed above, no interference is required by this Court. Hence the petition being devoid of merit, is dismissed. Petition dismissed.