Khedaram vs State Of Rajasthan on 23 May, 2023

[Cites 7, Cited by 0]

Rajasthan High Court - Jodhpur

Khedaram vs State Of Rajasthan on 23 May, 2023

1. An explanation was sought from the learned magistrate in form of an affidavit with two specific questions to be answered by him vide order dated 16.05.2023 wherein this Court wanted to know that if the cognizance was not taken, then, under which provision of law, remand was granted and if the custody that he was so remanded to was not legal, then shouldn't he be compensated for the illegal detention that he had to undergo.

2. A perusal of the affidavit submitted by the concerned Judicial Magistrate before this Court reveals that the explanation is an attempt in answering a question regarding whether extension of judicial custody was justified or not and relates to default bail which is not the issue for which the explanation was sought in the instant revision petition. The question, in fact, pertained to the fact that if the detention of the accused is found to be illegal then (Downloaded on 24/05/2023 at 09:15:15 PM) (2 of 6) [CRLR-529/2023] why shouldn't the detainee-accused be awarded compensation for the same and since the state authorities had submitted the charge sheet within the statutory period in the present matter yet no cognizance was taken, why shouldn't the erring officer be made to compensate the detainee so detained.

3. It is admitted by the judicial officer in the affidavit that cognizance was not taken after expiry of the statutory time period of ninety days. The charge-sheet had been filed but the case was not instituted/registered yet the accused was detained for some days owing to pendency of application filed under Section 190 CrPC and repeated adjournments. The learned officer has taken refuge in being misled by the judgment passed by Hon'ble the Supreme Court in Suresh Kumar Bhikamchand Jain Vs. State of Maharashtra and Ors. reported in (2013) 3 SCC 77. At the cost of repetition, it is specified again that the explanation does not demand that it should be explained as to how default bail was to be granted and even the endeavour to take aid from the fact of frequent adjournments does not sit well with this Court as the explanation demands answer to the questions relating to compensating the accused if it is found that he was detained illegally. This Court is cognizant and is no stranger to the judgment passed in Suresh Kumar Bhikamchand Jain (supra) by the top Court and the same is not relevant to the conversation transpiring between this Court and the learned officer as the explanation has been sought in respect of a completely different aspect of law; and the aspect that the affidavit speaks of is not an issue presently.

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4. The intention of this Court in seeking an explanation is not ill-founded or founded in a habit of stroking its own ego rather its genesis lies in the profound anguish felt over subjection of the detainee to groundless remand which the officer was not empowered to grant or extend in absence of any provision supporting the same.

5. A plain reading of Section 209 CrPC reveals that it is a post- registration/institution-of-case and post-cognizance stage and a Magistrate is empowered to make an order of remand uptil committal as well as during and until conclusion of trial. It is important to shed light on how a judicial officer would know whether a case is triable by Court of Sessions or not. The answer is that he knows if the case is triable by Court of Sessions or not, of course, after becoming cognizant of the offence(s) alleged and having a cursory look over the material viz. FIR, report under Section 173 CrPC, i.e. charge-sheet. This very process of 'becoming cognizant' as to what are the charges, is, in fact, what we call in legal terminology as 'cognizance'. It simply means that the magistrate has applied its judicial mind to proceed further in the matter. Admittedly, neither that stage had been reached nor had the learned magistrate proceeded further following this line of action.

6. Now, at the cost of repetition, the question is being posed again to make the learned Magistrate understand clearly. Section 167 of CrPC authorises a Magistrate/judicial officer to pass an order of Police Remand/ Judicial Remand which in total should not and in fact, can not exceed beyond the respective periods of 60, (Downloaded on 24/05/2023 at 09:15:15 PM) (4 of 6) [CRLR-529/2023] 90 and 180 days, as the case may be. The instant case pertains to offence under Section 302 IPC, thus, the period of 90 days is applicable in the case at hand. Now, the question remains as to what is/are the other provision(s) in criminal procedure which authorise a Magistrate to extend or further the period of Judicial Remand/ Police Remand after the period of 90 days has come to an end.

7. The provision of Section 209 comes into play when the case has been instituted/ registered and the court has taken cognizance of the offence and thereafter, begins to proceed for passing an order of committal. The above stage had not reached in the instant matter till then, however, it is evident that the accused was further remanded to judicial custody. Whether such an order of remand could be passed or not is the precise issue that this Court was seeking an answer to by way of asking for an explanation. Learned Magistrate is not supposed to/expected to distract from the issue; the Magistrate is expected to convince this Court whether a remand order can be passed after the expiry of period as discussed above and if not, then, whether the order of remand and custody would tantamount to illegal detention or not and if the answer is in the affirmative, then how the victim of such detention can be compensated. Section 209 CrPC operates only after institution of a case or if the magistrate is making his mind regarding a case being a case triable by Court of Sessions or not, then till its committal; which has not been done in the present matter. After expiry of the time period of 90 days as provided in Section 167 of CrPC, neither the case was registered nor was (Downloaded on 24/05/2023 at 09:15:15 PM) (5 of 6) [CRLR-529/2023] cognizance taken, implicitly or explicitly, thus, the primary concern of this Court is to ascertain in what manner and by way of which provision was the accused in the present matter remanded to custody by the learned magistrate.

8. It is felt by this Court that the learned magistrate has answered with a misconception in his mind with regard to the reason for furnishing the explanation as it is evincing that an answer to whether the case is covered under Section 167(2) or not / the accused is liable to be released on default bail or not has been provided whereas an answer as to how to remedy the wrong done by subjecting the accused to illegal detention was actually sought, thus, keeping in mind that the learned magistrate did not act with any malice/bad intention, it is deemed appropriate to afford another opportunity to the Judicial Officer to furnish a fresh affidavit in respect of the questions formulated and specifically stated in the order dated 16.05.2023. In the opinion of this Court, it is imperative to know the answers to the following questions which are being broken down and specified herein under again for more clarity as it is necessary to understand the perspective of the learned magistrate before passing any remarks:

a) After expiry of 90 days and before passing the order of remand, whether cognizance was taken or not/ case had been instituted or registered or not;

b) If the cognizance was not taken, then under which provision of law was the order of remand passed;

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c) If there is no provision backing/ providing for such an order of remand, then whether the custody of the detainee was legal or illegal; and

d) lastly, if the custody/ detention was illegal, then whether/how should the detainee be compensated for the period that he spent in illegal detention.

9. It is further made clear that there is nothing to be asked regarding the issue of default bail as the same shall be dealt with by this Court at a subsequent stage. However, as the matter pertains to personal liberty of an individual, therefore, the proceeding is being conducted expeditiously.

10. Shri Vineet Jain, learned Senior Advocate, has expressed his willingness to render his assistance in this case on the next date of hearing.

11. List on 29.05.2023.

12. The Registrar (Judicial) is directed to communicate regarding this order and send a copy of the same via e-mail forthwith to the concerned judicial officer.

(FARJAND ALI),J 287-AnilKC/-

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Rajasthan High Court - Jodhpur