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2003 DIGILAW 750 (PAT)

Jhappu Singh @ Sanjeev Kumar v. State Of Bihar

2003-07-23

ASHOK KUMAR VERMA, SACHCHIDANAND JHA

body2003
Judgment SACHCHIDANAND JHA and A.K.VERMA JJ. 1. The petitioner has approached this Court for declaration that his custody in connection with Warisaliganj Police Station Case No. 130/2000 is illegal and he may be set free in that case. The controversy has arisen in the context of rejection of the petitioners prayer for bail under Section 167(2) of the Code of Criminal Procedure. 2. The short facts of the case are that while the petitioner was in custody in connection with Warisaliganj Police Station Case No. 186/2001 since 7.12.2001 application was filed by the Investigating Officer of Warisaliganj Police Station Case No. 130/2000 to remand him in the case on 5.2.2002. The Chief Judicial Magistrate, Nawadah directed the Investigating Officer to submit memo of evidence against the petitioner. Nothing appears to have happened in the matter. Meanwhile on 18.5.2002 chargesheet was submitted in Warisaliganj Police Station Case No. 130/2000 against the accused including the petitioner showing him in judicial custody. On 5.9.2002 the petitioner filed application for bail in terms of Section 167(2) of the Code of Criminal Procedure, which was rejected on the same day on the ground that chargesheet had already been submitted against him. 3. The case of the petitioner is that he should be deemed to be in custody is Warisaliganj Police Station Case No. 130/ 2000 since 5.2.2002 and as chargesheet was not submitted within the statutory period of 90 days he became entitled to be released on bail in terms of proviso to Section 167(2) of the Code of Criminal Procedure. The plea of the petitioner is wholly frivolous and fit to be rejected on more than one ground. 4. It is true that application was filed by the Investigating Officer of Warisaliganj Police Station Case No. 130/2000 to remand the petitioner in the case but no remand order was passed. The Magistrate undoubedly was entitled to call for memo of evidence in order to satisfy himself that adequate grounds existed for his remand. The order dated 5.2.2002 (supra) does not seem to have been followed up. From the order sheet it rather appears that on 24.5.2002 application was filed by the petitioner himself to remand him in the case. On that application the CJM ordered for his production on 6.6.2002. On 6.6.2002 he was produced and order was passed for production on 19.6.2002. The order dated 5.2.2002 (supra) does not seem to have been followed up. From the order sheet it rather appears that on 24.5.2002 application was filed by the petitioner himself to remand him in the case. On that application the CJM ordered for his production on 6.6.2002. On 6.6.2002 he was produced and order was passed for production on 19.6.2002. In view of these orders and his own application to remand him in the case on 24.5.2002 the petitioner cannot contend that his custody should be reckoned from 5.2.2002. 5. In the facts and circumstances the petitioners custody in Warisaliganj Police Station Case No. 130/2000 would be deemed to commence from 6.6.2002 when he was produced in Court in connection with that case and sent back with a direction to produce him again on 19.6.2002. It is not in dispute that chargesheet had already been submitted in the case against the petitioner on 18.5.2002 which disentitled him to release on bail in terms of Section 167(2) of the Criminal Procedure Code. 6. It was submitted that in the ehargesheet the petitioner has been shown to be in judicial custody and therefroe if the Court holds that the petitioner was not in custody prior to 18.5.2002, the chargesheet to that extent should be held to be illegal. This submission has been noticed only to be rejected, for, the custody of an accused is not essential for submission of chargesheet against him and therefore, his subsequent remand would not affect the validity of chargesheet. 7. Another aspect of the petitioners plea for his release under Section 167(2) of the Criminal Procedure Code is that he did not exercise his right in terms of the said provision before submission of the chargesheet - even if his case is accepted that he should be treated to be in custody since 5.2.2002. Chargesheet no doubt was submitted after 90 days from that date but admittedly the petitioner filed application for his release under Section 167(2) of the Code of Criminal Procedure much after submission of chargesheet on 5.9.2002. 8. In the above premisses, I find no merit in this writ petition which is accordingly dismissed.