Akhouri Dhananjay Kumr Sinha v. State of Jharkhand
2016-04-06
RAVI NATH VERMA
body2016
DigiLaw.ai
ORDER : Invoking the inherent power of this Court under Section 482 of the Code of Criminal Procedure (in short “the Code”), the petitioner has prayed for modification/clarification of order dated 26.06.2015 passed by this Court in W.P.(Cr.) no. 140 of 2014 whereby and whereunder a direction was given to the court concerned to set the petitioner at liberty forthwith. 2. The factual aspect of the case, which is necessary for the proper adjudication of this petition, in short, is that the petitioner was arrested on 07.05.2014 at 5.00 p.m. in connection with Kotwali (Pandra) P.S. Case no. 391 of 2014 instituted under Section 364(A) of the Indian Penal Code but he was produced before the Magistrate on 09.05.2014, which is much beyond the period of 24 hours prescribed in Section 57 of the Code. After considering Section 57 of the Code and Article 22(2) of the Constitution of India, the detention of the petitioner was held to be illegal and was directed as indicted above. Thereafter, the informant filed a petition in the court below that the detention of the accused was held to be illegal and was directed to be released forthwith but the accused was never released on bail after filing of charge-sheet and he is attending the court every day without taking any bail from any court and even he is filing Haziri in the court concerned though even after release from illegal detention, he ought to have filed an application for bail in the case concerned. The accused appeared and filed his rejoinder alleging the petition filed at the instance of the informant as uncalled for, unwarranted and misconceived and pleaded that only after release from judicial custody, he has been attending the court on each and every date. 3. The learned court of Additional Judicial Commissioner (XII), Ranchi by order dated 23.11.2015 while disposing of the petition filed by the informant held as follows: “After receiving the order immediately sent release order to Jail Superintendent, Birsa Munda Central Jail, Hotwar, Ranchi and the accused was released on 30.06.2015.
3. The learned court of Additional Judicial Commissioner (XII), Ranchi by order dated 23.11.2015 while disposing of the petition filed by the informant held as follows: “After receiving the order immediately sent release order to Jail Superintendent, Birsa Munda Central Jail, Hotwar, Ranchi and the accused was released on 30.06.2015. This Court is of the view that unless and until the circumstances changes or the Hon’ble High Court directs to this Court, the accused Janak Prasad cannot be taken into custody merely on application filed by prosecution dated 21.09.2015.” The Court further held – “it appears that charge was framed on 28.11.2014 and the prosecution is continuously watching the proceeding but not securing the attendance of witnesses. Therefore, the prosecution is directed to produce witnesses positively on 16.12.2015.” 4. After the said order, the present petition has been filed. 5. Learned senior counsel Mr. Mazumdar appearing for the petitioner, who is the informant in court below, seriously contended that the accused without obtaining any bail from a competent court has been attending the court though under the provisions of the Code in all cases where cognizable offence has been committed by an accused, the accused has to pray for grant of bail but in the instant case, the accused was directed to be released against his illegal detention but no bail bond was furnished in the court below. It was also submitted that it is a clear violation of the mandates of the Code and after taking cognizance of the offence, the Court should have followed the procedure prescribed in the Code and ought to have issued summons or warrant of arrest but no such procedure has been followed by the court and even the matter has been committed to the court of sessions and charges have been framed. Hence, a direction/clarification of the earlier order of this Court is required in the interest of justice. 6. Contrary to the aforesaid submissions, the learned counsel for the respondent no.2-accused submitted that the application filed by the petitioner in the court below was misconceived and unwarranted and as the detention of the accused was held illegal, he was directed to be released and, accordingly, he was released. As such, there is no need to pray for grant of bail in the concerned court. 7.
As such, there is no need to pray for grant of bail in the concerned court. 7. Before I enter into the veils of submissions of the learned counsels, a reference of Section 57 of the Code is necessary for the proper adjudication of the matter. Section 57 reads as follows:- “Section 57.- Person arrested not to be detained more than twenty-four hours.- 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 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.” 8. The constitutional and legal requirements as incorporated in Article 20(2) of the Constitution of India and in the above Section 57 of the Code to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest was mandatory but as the accused-respondent no.2 was not produced before the Judicial Magistrate within the prescribed period, his detention was held illegal by this Court and he was directed to be released forthwith vide order dated 26.06.2015. Undisputedly, the Code of Criminal Procedure deals with two stages i.e. (i) the pre-cognizance stage and (ii) the stage after taking cognizance. Apparently, the detention of the accused was held to be illegal during pre-cognizance stage and after filing of the charge-sheet, the court concerned took cognizance of the offence and, thereafter, it was obligatory on the part of the Court to proceed in accordance with law. After taking cognizance, the case was committed to the court of sessions and it appears that even the charges have been framed and the case is pending for prosecution evidence. 9. The petitioner in the instant case has invoked the inherent power of this Court and this Court at this stage cannot either modify or clarify the position under the inherent power of the Court. 10. In view of the discussions made above, the Court is directed to proceed in accordance with law. 11. With the aforesaid observation, this Criminal Miscellaneous Petition is, hereby, disposed of.