Delhi District Court
Sh. Deepak vs The State on 7 February, 2022
IN THE COURT OF SH REETESH SINGH: ADDITIONAL SESSIONS
JUDGE-2 (EAST), KARKARDOOMA COURTS, DELHI
Crl Revision No.16 /2022
In the matter of
Sh. Deepak
S/o Sh. Rishi Pal
R/o L-3, Khichripur, T-Camp,
Patparganj, East Delhi-110091
............... Revisionist
Vs.
The State
(Govt of NCT of Delhi)
.............. Respondent
Date of institution : 31.01.2022
Final arguments : 07.02.2022
Date of order : 07.02.2022
ORDER
1. This revision petition has been filed by Deepak (original accused) against the impugned order dated 24.01.2022 by which the Ld. CMM East Distt. KKD, Courts dismissed the application of the petitioner for grant of default bail under section 167(2) of the CrPC.
Crl Revision No.16/2022 Deepak Vs. State Page 1/82. Brief facts giving rise to the revision petition are that on 07.10.2021 FIR No.554/2021 was registered in PS Kalyanpuri for the offences under sections 363/376 IPC against the petitioner/accused Deepak. The petitioner was arrested on 18.11.2021. Chargesheet was filed for the offences under sections 363/376 IPC in the court of Ld. CMM East Distt on 19.01.2022 which was posted for consideration on 02.02.2022. No formal order regarding taking of cognizance of the offences is on record. The petitioner /accused filed an application praying for grant of statutory bail under section 167(2) of the CrPC. The application was based on the ground that after filing of chargesheet, the Ld. CMM failed to take cognizance of the alleged offences. It was submitted that a person can be remanded to judicial custody only under section 167(2) of the CrPC, section 309(2) of the CrPC and Section 209 of the CrPC. It was contended that upon chargesheet being filed, power to extend judicial custody under section 167 of the CrPC stands extinguished and further custody can be extended only under Section 309(2) of the CrPC for which taking of cognizance of the offence was a pre-condition. It was contended that as the chargesheet had been filed and Ld. CMM did not take cognizance of the offences, the Ld. Court could not have further extended judicial remand of the accused. In such circumstances accused was entitled to be released on default bail.
3. The said application was rejected by the Ld. CMM East Distt by the impugned order 24.01.2022. The Ld. CMM East Distt relied on the judgment of the Hon'ble Surpeme Court in the case of Suresh Kumar Bikam Chand Jain Vs State of Maharastra and observed that not taking cognizance of the offence is not a ground for grant of statutory bail under section 167 of the CrPC.
Crl Revision No.16/2022 Deepak Vs. State Page 2/84. Before this court Sh. Aditya Agarwal and Ms. Pooja Roy, Ld. Counsels for the petitioner have argued that once chargesheet is filed, the provisions of section 167 of the CrPC cease to apply. It was submitted that remand under section 309(2) of the CrPC can be extended only if cognizance of the offence is taken. It was submitted that in the present case, the Ld. CMM East Distt simply posted the chargesheet for consideration on 02.02.2022 without taking cognizance. It was submitted that it is settled law that the Ld. Magistrate does not have inherent power to extend judicial remand of a person accused of an offence. Further judicial custody can be extended only under section 167, and once charge-sheet is filed under section 309(2) of the CrPC after taking cognizance of the offence. It is submitted that in the present case the accused was at a stage between filing of chargesheet and taking of cognizance i.e. Section 167 (2) and Section 309 (2) of the CrPC and in the absence of any specific power conferred on the court of Ld. Magistrate in respect of this stage, the accused could not have been further remanded to judicial custody. Reliance is placed by Sh. Aditya Agarwal and Ms. Pooja Roy, Ld. Counsels for the petitioner on the following case law :-
(i) Sunil Kumar Sharma VS. State of NCT of Delhi, decided by the Hon'ble High Court on 27.06.2005;
(ii) Nitin Nagpal Vs. State, Bail Application No. 559/2006, decided by the Hon'ble High Court on 03.07.2006;
5. On the other hand, Ld. Addl. PP for the State has opposed the prayer made in the revision petition. He submitted that taking of cognizance is not a pre- requisite for extension of judicial custody remand after filing of the chargesheet. He submitted that in the present case chargesheet had been filed on the 62 nd day of Crl Revision No.16/2022 Deepak Vs. State Page 3/8 arrest of the accused whereas one of the offences involved is under section 376 of the IPC which is punishable for imprisonment upto life. He submitted right to grant of default bail cannot arise prior to expiry of 90 days from the date of arrest.
6. I have heard the Ld. Counsel for the petitioner and Ld.Addl. PP for the State and have perused the record of the Ld. Trial Court.
7. The only question which arises for consideration is whether in the event of filing of chargesheet within the statutory period but failure on account of Ld. CMM to take cognizance of the offences, further custody of the accused could have been extended or whether the accused was entitled to grant of default bail?
8. On behalf of the petitioner, reliance was placed on two judgments of the Hon'ble High Court of Delhi. In the case of Sunil Kumar Sharma Vs. State of NCT of Delhi, the Hon'ble High Court was pleased to hold that no court has any inherent power of remand of an accused to any custody and the same must be traced to some provision in the statute which were sections 167(2) and 309 (2) of the CrPC. It was held that after filing of charge-sheet, investigation comes to an end and then further remand of an accused to custody can only be under section 309(2) of the CrPC but, only after taking cognizance of the alleged offence. Further in the case of Nitin Nagpal Vs. State, the Hon'ble High Court placing reliance on the judgment in the case of Sunil Kumar Sharma Vs. State of NCT of Delhi (supra) was pleased to hold that true test is that the report (charge-sheet) filed by the police must be such that the Magistrate can straight away proceed to take cognizance under section 190(1) (b) of the CrPC. In the said case charge-sheet was filed on 20.09.2005 which was the 89th day after arrest but cognizance was taken Crl Revision No.16/2022 Deepak Vs. State Page 4/8 on 18.10.2005, beyond the period of 90 days and the Hon'ble High Court held that further remand of the accused beyond 90 days without taking cognizance could not have been granted as the period of remand under section 167(2) of the CrPC had come to an end on 21.09.2005 and the stage under section 309(2) of the CrPC had not arrived as cognizance of the offence had not been taken. It was held that the detention of the person accused after 21.09.2005 and upto 18.10.2005 was illegal and the accused was thus entitled to grant of statutory bail. However, the Hon'ble High Court declined the prayer for statutory bail as cognizance was taken on 18.10.2005 and the accused was in judicial custody thereafter under a valid order of remand.
9. A similar question had arisen for determination before the Hon'ble Supreme Court in the case of Suresh Kumar Bhikamchand Jain v. State of Maharashtra reported in (2013) 3 SCC 77. In the said judgment at para (2), the Hon'ble Supreme Court was pleased to frame the following question for determination: -
"2. This case has thrown into focus certain important issues regarding the right of an accused to be released on bail under Section 167(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC"). One of such issues concerns the power of the Magistrate to pass orders of remand even beyond the period envisaged under Section 167(2) CrPC. In the instant case, despite charge-sheet having been filed, no cognizance has been taken on the basis thereof. The learned Magistrate has, however, continued to pass remand orders, without apparently having proceeded to the stage contemplated under Section 309 CrPC. In order to appreciate the issues which have cropped up during the hearing of the instant case, it is necessary to briefly set out the facts giving rise to the said questions, which have fallen for determination."
10. After considering the law in this regard, the Hon'ble Supreme Court was pleased to answer the question as under: -
Crl Revision No.16/2022 Deepak Vs. State Page 5/8"17. In our view, grant of sanction is nowhere contemplated under Section 167 CrPC. What the said section contemplates is the completion of investigation in respect of different types of cases within a stipulated period and the right of an accused to be released on bail on the failure of the investigating authorities to do so. The scheme of the provisions relating to remand of an accused, first during the stage of investigation and, thereafter, after cognizance is taken, indicates that the legislature intended investigation of certain crimes to be completed within 60 days and offences punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, within 90 days. In the event, the investigation is not completed by the investigating authorities, the accused acquires an indefeasible right to be granted bail, if he offers to furnish bail. Accordingly, if on either the 61st day or the 91st day, an accused makes an application for being released on bail in default of charge-sheet having been filed, the court has no option but to release the accused on bail. The said provision has been considered and interpreted in various cases, such as the ones referred to hereinbefore. Both the decisions in Natabar Parida case4 and in Sanjay Dutt case3 were instances where the charge-sheet was not filed within the period stipulated in Section 167(2) CrPC and an application having been made for grant of bail prior to the filing of the charge-sheet, this Court held that the accused enjoyed an indefeasible right to grant of bail, if such an application was made before the filing of the charge-sheet, but once the charge-sheet was filed, such right came to an end and the accused would be entitled to pray for regular bail on merits.
18. None of the said cases detract from the position that once a charge-sheet is filed within the stipulated time, the question of grant of default bail or statutory bail does not arise. As indicated hereinabove, in our view, the filing of charge-sheet is sufficient compliance with the provisions of Section 167(2)(a)
(ii) in this case. Whether cognizance is taken or not is not material as far as Section 167 CrPC is concerned. The right which may have accrued to the petitioner, had charge-sheet not been filed, is not attracted to the facts of this case. Merely because sanction had not been obtained to prosecute the accused and to proceed to the stage of Section 309 CrPC, it cannot be said that the accused is entitled to grant of statutory bail, as envisaged in Section 167 CrPC.
The scheme of CrPC is such that once the investigation stage is completed, the court proceeds to the next stage, which is the taking of cognizance and trial. An accused has to remain in custody of some court. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced. During that stage, under Section 167(2) CrPC, the Magistrate is vested with authority to remand the accused to custody, both police custody and/or judicial custody, for 15 days at a time, up to a maximum period of 60 days in cases of offences punishable for less than 10 years and 90 days where the offences are punishable for over 10 years or even death sentence. In the event, an investigating authority fails to file the charge-sheet within the stipulated period, the accused is entitled to be released on statutory bail. In such a situation, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court trying the offence, when the said Crl Revision No.16/2022 Deepak Vs. State Page 6/8 court assumes custody of the accused for purposes of remand during the trial in terms of Section 309 CrPC. The two stages are different, but one follows the other so as to maintain a continuity of the custody of the accused with a court.
19. Having regard to the above, we have no hesitation in holding that notwithstanding the fact that the prosecution had not been able to obtain sanction to prosecute the accused, the accused was not entitled to grant of statutory bail since the charge-sheet had been filed well within the period contemplated under Section 167(2)(a)(ii) CrPC. Sanction is an enabling provision to prosecute, which is totally separate from the concept of investigation which is concluded by the filing of the charge-sheet. The two are on separate footings. In that view of the matter, the special leave petition deserves to be and is hereby dismissed."
(emphasis supplied)
11. The Hon'ble Supreme Court in the case of Suresh Kumar Bhikamchand Jain v. State of Maharashtra (supra) has held that once charge-sheet stands filed within the statutory period, the question of grant of default bail does not arise as filing of charge-sheet was sufficient compliance of Section 167(2) CrPC. It was held that taking of cognizance is not material for the purposes of Section 167 CrPC and that where the stage of remand under section 309 (2) of the CrPC was yet to be reached, the person accused would remain in the custody of the Ld. Magistrate till such time cognizance is taken.
12. In the present case, the charge sheet has been filed on 19.01.2022, being the 62nd day from the date of arrest of the petitioner / accused i.e. 18.11.2021. The period of 90 days from the date of arrest of the petitioner / accused is yet to expire even as on date.
13. In view of the ratio laid down in the case of Suresh Kumar Bhikamchand Jain v. State of Maharashtra (supra) that upon filing of charge-sheet within the stipulated time question of grant of default bail does not arise; that Crl Revision No.16/2022 Deepak Vs. State Page 7/8 taking of cognizance is not material for the purposes of Section 167 CrPC; and that where the stage under section 309 (2) of the CrPC was yet to be reached, the person accused would remain in the custody of the Ld. Magistrate till such time cognizance is taken, there is no merit in this revision petition and the same is Digitally signed dismissed. by REETESH SINGH REETESH Date:
SINGH 2022.02.07
14:36:35
+0530
(Reetesh Singh)
ASJ-2/KKD/East/07.02.2022
Announced in open
court on 07.02.2022
Crl Revision No.16/2022 Deepak Vs. State Page 8/8