Ramayan Singh vs State Of Bihar And Anr. on 25 April, 2000

[Cites 23, Cited by 3]

Patna High Court

Ramayan Singh vs State Of Bihar And Anr. on 25 April, 2000

Equivalent citations: 2001CRILJ3053

1. The petitioner has filed the present writ application in the nature of habeas corpus praying therein to release him from the judicial custody on the sole ground that his remand by the Chief Judicial Magistrate is illegal and without jurisdiction as he has no power to remand the petitioner after submission of the charge-sheet and before taking of the cognizance.

2. The facts necessary for disposal of this writ application are that the petitioner is facing prosecution in Udwantnagar P. S. Case No. 49 of 1999 registered under Sections 147, 148, 149, 302, 307 and 354 of the Indian Penal Code (hereinafter referred to as 'the Code').

3. According to the allegation, the petitioner was outraging the modesty of the Bhabhi of the informant but due to timely intervention of the informant and others, she was saved. Later on the informant and others went to protest at the house of the accused petitioner. Thereafter, the accused petitioner assaulted the informant.

4. The petitioner is the main assailant. He surrendered in the said case on 3-6-1999 and prayer made on his behalf for bail was rejected and he was remanded to judicial custody on the same day with a direction to be produced on 16-6-1999. Therafter, again he was produced and was remanded for a period of 15 days, which was followed by further remands during the course of investigation. On 23-8-1999, the Police submitted a final form (charge-sheet) under Section 170 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'), which was kept on the record. Thereafter, on 26-8-1999, the petitioner filed a petition claiming that he was not present at the time of occurrence and the matter should be properly investigated by the Investigating Officer. The Chief Judicial Magistrate sent the said petition asking for a comment of the Investigating Officer and remanded him to eustody. In the meantime, the petitioner has filed the present application for his release. From the report of the Chief Judicial Magistrate (at Flag 'A'), it appears that the last remand was made on 21 -12-1999 and the petitioner was remanded to custody till 4-1-2000.

5. The only point urged on behalf of the petitioner is that once the charge-sheet was submitted, the power of the Chief Judicial Magistrate to remand under Section 167(2) of the Code came to an end and, thereafter, the only power of remand as provided under the Code is under Section 309(2) of the Code, which authorises the Magistrate to remand after taking of cognizance during enquiry and trial and which stage having not reached as yet in this case as no cognizance has been taken and the ease is not at the stage of enquiry and trial, the remand of the petitioner is unjustified and unwarranted in law.

6. Learned counsel for the petitioner in support of his submission relied upon the judgments rendered by this Court in Sri S.K. Lal v. Lalu Prasad, reported in (1998) 1 Pat LJR 782, Pawan Kumar Jaiswal v. State of Bihar, reported in (1999) 2 BLJ 675 and an unreported judgment in Magni Mahto alias Rajesh Mahto v. State of Bihar (Cr.W.J.C. No. 164 of 1999), disposed of on 24-3-1999.

7. Learned counsel for the State, on the other hand, submitted that once the charge-sheet is submitted and, thereafter, the Magistrate proceeds to take steps for the purpose of commitment in a case triable by the Court of Session, the enquiry begins and the remand is justified under Sections 209(a) and 309(2) of the Code during the stage of commitment and as such the remand of the petitioner in this case is justified under the aforesaid provisions of the Code.

8. No person shall be deprived of his life or personal liberty except according to the procedure established by law as enshrined in Article 21 of the Constitution of India and the Code provides a provision for deprivation of the personal liberty in accordance with law.

9. There is no inherent power of remand. The remand has to be made under the provisions of the Code or under any other provision of law if that law is applicable. The Court has no power to remand the accused only on the ground that he is an accused in a criminal case. Section 167(2) of the Code authorises detention during the course of investigation and it provides that during investigation a person can be detained in custody, which may be either Police or jail custody as ordered by the Magistrate for a period prescribed under the said Sub-section dependent upon the extent of the punishment. Section 309(2) of the Code empowers the Court after taking cognizance of an offence, or commencement of trial, to postpone the enquiry and trial for reasons to be recorded and during this period may remand the accused if in custody. While the case is at the stage of commitment, Section 209(a) of the Code provides that the Court can, subject to the provision of bail, remand the accused to custody till the commitment has been made, meaning thereby during the stage of commitment, the Magistrate is authorised to remand an accused in custody. So long as the case remains at the stage of investigation, the power is given to detain an accused subject to the condition of bail under Section 167(2) of the Code and after the case reaches to the subsequent stage i.e. enquiry and trial, the Court is authorised to remand the accused under the aforesaid provisions.

10. The word 'cognizance' has not been defined under the Code, Section 190, which falls under Chapter XIV with the heading "Conditions Requisite For Initiation of Proceedings" only provides that the Magistrate may take cognizance of offences under three Clauses (a), (b) and (c). It is difficult to define the meaning of taking cognizance. Whether in a case cognizance has been taken or not depends upon the facts and circumstances of the case. In Ajit Kumar Palit v. State of West Bengal, reported in AIR 1963 SC 765 : 1963 (1) Cri LJ 797, the Supreme Court held that "The word 'cognizance' has no esoteric or mystic significance in criminal law or procedure. It merely means-become aware of and when used with reference to a Court or Judge, to take notice of judicially. Taking cognizance does not involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence.

11. Thus, 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 the scheme of the Code, it has not been treated a stage like investigation, inquiry or trial. There are only three stages in criminal case, namely, Investigation, Inquiry and trial depending upon the types of cases. The power of detention and remand has bee provided during the aforesaid stages if the accused is not on bail.

12. After going through the Code, the intention of the legislature is this that once the investigation comes to an end and the final form is submitted before the Court, he applies his mind, then an enquiry or trial, as the case may be, is treated to have commenced and the Magistrate and the Court is empowered to remand the accused to judicial custody if he is in custody or appears. If this view will not be taken and the submission advanced on behalf of the petitioner would be accepted, the person accused in a serious case not released on bail during investigation will get. bail immediately after submission of the charge-sheet by postponing the taking of cognizance by one ground or the other. For example, if a charge-sheet is submitted and the Court is closed for any reason or the Bench Clerk does not put up the file before the Chief Judicial Magistrate for taking cognizance on that date or on subsequent date for a week or so, then the accused will be entitled to be released on the ground that the remand was illegal on the ground of lack of jurisdiction in the Court to remand the accused. The Legislature can never be presumed to have intended such an absurd and unjustified situation.

13. A similar question having been raised in this case fell for consideration before the Supreme Court in the case of State of U.P. v. Lakshmi Brahman, reported in AIR 1983 SC 439 : (1983 Cri LJ 839), in which the accused, who was facing prosecution under Section 302 of the Indian Penal Code, was released on bail on the ground that the Magistrate has no jurisdiction, power or authority to remand the accused to custody after the charge-sheet is submitted and before the commitment order is made. The Apex Court held that after the accused is produced or appears before the Magistrate with the report under Section 170 of the Code and the Magistrate proceeds to enquire whether Section 207 has been complied with and then proceeds to commit the accused to the Court of Session, the proceeding before the Magistrate would be an enquiry as contemplated by Section 2(g) of the Code. The proceeding before the Magistrate under Section 209 of the Code is an enquiry as defined under Section 2(g) of the Code and Section 309 would enable the Magistrate to remand the accused to custody during the period of enquiry and, accordingly, the Apex Court set aside the order of the Allahabad High Court.

14. The Apex Court in the case of Rajendra Kumar Jain v. State, reported in AIR 1980 SC 1510 : (1980 Cri LJ 1084), while dealing with a matter whether an application for withdrawal can be made at the stage of commitment or not, held that the Committing Magistrate exercises a judicial function under Section 209 of the Code. It was also held that Section 209 of the Code of 1973 obliges the Magistrate to commit the case to the Court of Session when it appears to the Magistrate that the offence is triable exclusively by a Court of Session. Therefore, the Magistrate has to be satisfied that an offence is prima facie disclosed and the offence so disclosed is triable exclusively by the Court of session. It no offence is disclosed the Magistrate may refuse to take cognizance of the case or if the offence is disclosed is one not triable exclusively by the Court of Session he may proceed to deal with it under the other provisions of the Code. To that extent, the Court or the Committing Court does discharge a judicial function.

15. Thus, the Apex Court in the aforesaid two cases decided by a bench of two Hon'ble Judges has held that the power exercised by a Magistrate under Section 209 of the Code is a judicial function and the commitment proceeding is an enquiry under Section 2(g) of the Code.

16. A Full Bench of this Court has also considered the question involved in this case in the case of Rabindra Rai v. State of Bihar, reported in 1984 Pat LJR 701 : (1984 Cri LJ 1412). The question for consideration was whether in a case where the charge-sheet has been submitted within a statutory period of 90 days and the accused is facing prosecution under Section 302 of the Indian Penal Code, he is entitled to be released on bail if the cognizance is not taken on the day the charge-sheet is submitted. The said Full Bench relying upon the judgment of the Supreme Court in Lakshmi Brahman's case (1983 Cri LJ 839) (supra) held as follows :
In view of the aforesaid judgment of the Supreme Court in the case of State of U.P. (supra) that an enquiry commences since the filing of the police report it has to be held that the decisions of this Court do not lay down the correct legal position. I am of the opinion that it cannot be held that unless a formal order saying that cognizance has been taken is passed the day the charge sheet is received Sub-section (2) of Section 309 of the Code is not attracted. I am also of the view that since the submission of the charge sheet and before passing an order under Section 209 committing the accused to Court of Session an enquiry is pending before the Magistrate during which period he can exercise the power under Sub-section (2) of Section 309 of the Code.

17. Thus, the binding precedents are that after submission of the 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 Session, the proceeding pending before the Magistrate is an enquiry and during that period he can exercise the power of remand either under Section 319 (Section 309?) of the Code or under Section 209(a) 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.

18. At this stage, I would like to state that the Apex Court subsequently in the case of Raj Kishore Prasad v. State of Bihar, reported in (1996) 1 Pat LJR 123 : (1996 CriLJ 2523) while dealing with the question as to whether a Magistrate can summon an additional accused in exercise of power under Section 319 of the Code at the state of Section 209, held that the commitment proceeding is not an enquiry as the function of the Court is of a facilitator towards the placement of the case before the Court of Session rather than being of an adjudicator. It was held in paragraph No. 11 as follows :
The present Section 209 is thus the product of the aforesaid expert deliberation followed by legislative exercise. It is thus to be seen prominently that preliminary inquiries then known as "committal proceedings" have been abolished in cases triable by a Court of Session. The functions left to be performed by the Magistrate, such as granting copies, preparing the records, notifying the Public Prosecutor etc. are thus preliminary or ministerial in nature. It is of course true that the Magistrate at that juncture takes cognizance of a sort, but that is solely to perform those preliminary functions as a facilitator, towards placement of the case before the Court of Session, rather than being the adjudicator. It is thus manifest that in the sphere of the limited functioning of the Magistrate no application of mind is required in order to determine any issue raised, or to adjudge anyone guilty or not, or otherwise to pronounce upon the truthfulness of any version. The role of the Magistrate thus is only to see that the package sent to the Court of Session is in order, so that it can proceed straightaway with the trial and that nothing is lacking in content, as per requirements of Sections 207 and 208 of the Code of Criminal Procedure. Such proceedings thus, in our opinion do not fall squarely within the ambit of "inquiry" as defined in Section 2(g) of the Code of Criminal Procedure, which defines that "inquiry means every inquiry, other than a trial conucted under this Code by a Magistrate or a Court", because of the prelude of its being "subject to the context otherwise requiring. As said before, the context requires the proceedings before a Magistrate to be formal barely committal in that sense and that any notion based upon the old state of law of its being an inquiry to which Section 319 could get attracted, has been done away with. Therefore, it would be legitimate for us to conclude that the Magistrate at the state of Section 209, Cr. P.C. is forbidden to apply his mind to the merit of the matter and determine as to whether any accused need be added or substracted to face trial before the Court of Session.

19. Thereafter, their Lordships considered the case of Lakshmi Brahman (1983 Cri LJ 839) (SC) (supra) and held in paragraph No. 12 as follows :
From the text of the judgment it is clear that the statement of "Objects and Reasons" reflecting legislative policy as to the quality of 'enquiry' was not laid before this Court as the report of the 41st Law Commission recommending abolishing of "enquiry" before the Magistrate, which was responsible for the change. Had the Bench been apprised of the historical perspective, we have no doubt in our mind that the comprehension of the word "enquiry" as meant for Section 209, Cr. P.C. would have been the same as gathered by us on becoming cognizant of the legislative scheme for early disposal of cases triable by a Court of Session.

20. On the basis of the said observations learned counsel for the petitioner vehemently submitted that the proceeding at the stage of Section 209 before the Magistrate is not an enquiry in view of the aforesaid judgment and as such the Magistrate has no power to remand either under Section 209(a) or under Section 319 of the Code and the earlier judgments rendered by the Apex Court as well as by the Full Bench are no longer the good law.

21. I am unable to agree with the aforesaid submission advanced by the learned counsel for the petitioner. In the earlier two judgments in R. K. Jain's case (1980 Cri LJ1084) (SC) (supra) and Lakshmi Brahman's (1983 Cri LJ 839) (SC) (supra), the Apex Court by a Bench consisting of two Hon'ble Judges has held that the commitment proceeding is an enquiry, Only because no elaborate procedure is taken, the commitment proceeding cannot be treated other than an enquiry. At the stage of commitment, the Magistrate is not powerless as has been held in the said judgments, on the other hand, he can refuse to commit the case if no case triable by a Court of Session is made out. The subsequent judgment rendered by the Apex Court in the case of Raj Kishore Prasad (1996 Cri LJ 2523) (supra) though in different context and decided by the two Hon'ble Judges of the Supreme Court, has taken a different view.

22. The law must develop and grow but it should be certain and consistent and any inconsistent development will not make the law certain. The Apex Court has held in catena of cases that if Judges of co-ordinate jurisdiction start overruling one another's decision, there would be a complete chaos and confusion. Neither the Advocate will be in a position to advise to his clients nor the subordinate Courts will be in a position to decide as to which dissentient judgments is to be followed.

23. In the case of Union of India v. Godfrey Philips India Ltd., reported in AIR 1986 SC 806, which was decided by a Bench of three Hon'ble Judges, it was held that when a Bench of two Judges of the Supreme Court found themselves unable to agree with the law laid down by a Bench of two Judges of the Supreme Court, they should refer the matter to a larger Bench and it is not right on the part of the subsequent Bench of the two Judges to express disagreement with the enunciation of the law by a co-ordinate Bench of the same Court.

24. With all humility and with respect to the Hon'ble Judges, who have rendered judgment in the case of Raj Kishore Prasad( 1996 Cri LJ 2523) (SC) (supra). I follow the judgments rendered by the Apex Court in the earlier two cases and which have been followed by a Full Bench of this Court in the case of Rabindra Rai (1984 Cri LJ 1412) (supra) and hold that a proceeding before the Magistrate after submission of the charge-sheet and before commitment of the case in a case where the commitment is to be made, Is an enquiry under Section 2(g) of the Code and during that period the Magistrate has power to remand either under Section 209(a) or under Section 309(2) of the Code.

25. So far as the case of S. K. Lal (1998 (1) Pat LJR 782) (supra) relied upon by the petitioner is concerned, that was a warrant case and not a sessions case and two questions were referred to before this Court under Section 395 of the Code for opinion. The said questions were as follows :-

(1) Whether the proceeding in between filing of chargesheet and commencement of trial in a warrant case is an enquiry?

(2) Whether the undertrial can be remanded to custody after submission of chargesheet even before taking cognizance during such enquiry.

26. With regard to Question No. (1), it was held by a Division Bench that the proceeding under Section 190 of the Code is a judicial proceeding, but is not an enquiry within the meaning of that expression in the Code and after a police report under Section 170 of the Code is received by the Special Judge under Section 173 of the Code, he must proceed under Section 190 of the Code and take cognizance, having regard to the provisions of Sections 195 to 199 of the Code. If he decides not to take cognizance, no case is instituted before him on a police report. If he decides to take cognizance and the accused appears before him, or is produced before him, the stage of commencement of trial is reached. With regard to Question No. (2), it was held that after a police report under Section 170 of the Code 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 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 enquiry or trial.

27. The decision in the case of S. K. Lal (1998 (1) Pat LJR 782) (supra) has no applicant to the facts of this case and the same is evident from the observations made by the Division Bench in paragraph No. 22 of the judgment, wherein it has been clearly stated. "The case with which we are concerned, is not a sessions case, but a case triable as a warrant case." In that case, the decisions rendered by the Supreme Court in the case of Lakshmi Brahman (1983 Cri LJ 839) (SC) (supra) and by the Full Bench in the case of Rabindra Rai (1984 Cri LJ 1412) (Patna) (supra) were also cited but they were distinguished and their Lordships relying upon the judgment in the case of Raj Kishore Prasad (1996 Cri LJ 2523) (SC) (supra) came to the aforesaid conclusion. As stated above, that was a warrant case and there is no question of commitment or enquiry at any time after final form is submitted and after the cognizance is taken the trial begins. This apart, even assuming that this question has been decided by the Division Bench and has been held that taking of cognizance is a condition precedent for exercise of power of remand in a case pending for trial, I am of the view that the said judgment cannot be relied upon in preference to the law laid down by the Supreme Court and the Full Bench of this Court. It is settled by a catena of decisions of the Apex Court that if the matter is pending before a Division Bench and it is submitted that the earlier Full Bench judgment on the said point was erroneous by virtue of a subsequent judgment of the Supreme Court, the proper course for the Division Bench to follow, if it found any merit in the submission, was to refer the said matter to a Full Bench. In the words of the Supreme Court "the judicial discipline requires that a Division Bench should not examine de novo an issue that is concluded by the decision of a Full Bench of that High Court". (See (1997) 5 SCC 1 : (AIR 1997 SC 2431)). So far as the cases of Pawan Kumar Jaiswal (1999 (2) BLJ 675) (supra) and Magni Mahto (supra) are concerned, the same were decided relying upon the judgment rendered in the case of S. K. Lal (1998 (1) Pat LJR 782) (supra) and the remand was held to be illegal.

28. Thus, for the aforesaid reasons, the judgments of the Division Bench of this Court in the aforesaid three cases are of no help to the petitioners as the point concluded by a decision of the earlier Full Bench should not have been examined by the subsequent Division Bench and in case of difference, the same should have been referred to the Full Bench.

29. The law as settled by the Apex Court and followed by a Full Bench of this Court is binding on me and according to the law laid down in those cases, when the police report is submitted under Section 170 of the Code and an accused appears or brought before the Magistrate and the Magistrate proceeds to enquire whether Section 207 has been complied with and then proceeds to commit the case to the Court of session proceeding before the Magistrate is an enquiry as contemplated under Section 2(g) of the Code and the Magistrate has power to remand the accused during the stage of commitment under Section 209(a) or 309 of the Code.

30. Thus, the only point urged on behalf of the petitioner is without any substance and, accordingly, this application is dismissed.

Ashok Kumar Verma, J.

31. I agree.

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