Patna High Court
Babu Lal Yadav And Ors. vs State Of Bihar on 2 May, 1980
Equivalent citations: 1981(29)BLJR20
JUDGMENT C.N. Tiwary, J.
1. This is an application under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as "the Code") for grant of bail to the nine petitioners who along with others are accused in a case under Section 396 of the Indian Penal Code.
2. Prosecution case is as follows:
On 17-8-1979 at about 7.15 P.M. 30 to 35 dacoits armed with country made guns, pistols, garasas etc. committed dacoity in the house of the informant, Md. Reazuddin, and killed his son, Kalim Akhtar. It was the month of 'Ramzan' and having broken fast the informant was taking tea at his Darwaza. His son Mansoor Alam was taking tea in the Eastern room of his house. His another son, Kalim Akhtar, (deceased) was taking tea on the Southern Varandah of the Angan. Lantern was burning at the Darwaza and also in the Angan. Females were cooking food in the Angan. The first informant first saw only 6 unknown persons near the main gate of his house. He asked them as to who they were. They warned him to keep quiet otherwise he would be killed. They lifted him from Darwaza and took him to the Southern Varandah of the Angan. There the informant saw 30 or 35 dacoits surrounding his son, Kalim Akhtar. The dacoits were armed with country made guns, pistols, garasas etc. It is said that the petitioner Babu Lal asked the informant to produce his licensed gun and cash otherwise his son (Kalim Akhtar) would be killed. The informant and Kalim Akhtar could not speak a word out of fear. In the meantime accused Ramdeo said that the informant and his son would not produce the licensed gun and cash unless they were assaulted. Thereupon, petitioner Babu Lal fired at the chest of Kalim Akhtar with country made pistol. Being badly injured Kalim Akhtar fell down. The dacoits terrorised the women of the family also. Petitioner Ram Pravesh aimed Garasa on the informant saying that he would not show his gun without being assaulted. The informant caught the garasa with his left hand with the result that he received injuries on his left hand. Thereupon the informant, out of fear, pointed out his licensed gun and catridges, which were kept at a safe place in the room of Kalim Akhtar, to petitioner Babu Lal and accused Ram Yadav. Dacoits took away informant's licensed gun and 40 cartridges besides ornaments, transistor, sewing machine, clothes etc. worth more than Rs. 15,000/- Kalim Akhtar succumbed to his injuries. Mansoor Alam could some how manage to escape through northern gate. The dacoits ransacked the house for about half an hour. While returning with the looted properties they fired at some of the villagers, namely, Sukhlu Yadav, Rafiur Rahman and Rambilas Rabidas who had surrounded them. It rained at night and, therefore, no information could be sent to the Police Station on that night. The A.S.I. visited the place of occurrence at about 1. 30 P.M. on the following day when the informant gave his fardbeyan.
3. On completion of investigation the Police submitted charge-sheet dated 16-11-1979 (Annexure 2) against nine petitioners besides 8 others. The charge-sheet appears to have been put up before the Additional Chief Judicial Magistrate on 21-12-1979. In the charge-sheet it is stated that the investigation in respect of 3 of the accused (not the petitioners) was not complete and, therefore, charge-sheet, if any, in respect of those 3 accused persons would be submitted later on. So far as the remaining accused persons including the 9 petitioners are concerned, the investigation was complete and full fledged charge-sheet was submitted against them.
4. The submission of Mr. A.K. Saran, learned Counsel for the petitioners is that the investigation against the petitioners is complete and that the charge-sheet submitted by the Police against the petitioners is a report (charge-sheet) within the meaning of Section 173(2) of the Code. This is not disputed by Mr. U.P. Chainpuri, learned Counsel appearing on behalf of the State. Therefore, I shall proceed on the assumption that the charge-sheet submitted by the Police as against the petitioners is a complete report within the meaning of Section 173(2) of the Code.
5. Mr. Saran contends that the Magistrate has no power to remand the petitioners to jail custody after receipt of charge-sheet till he takes cognizance and as the Magistrate has not taken cognizance his order remanding the petitioners to jail custody is not warranted by law, and, therefore, the detention of the petitioners is illegal and the petitioners are entitled to be released on bail.
6. Mr. Chainpuri submits that the detention of the petitioners is not illegal and even if it be assumed that the detention is illegal and application for bail under Section 439 of the Code will not lie in case of such illegal detention.
7. It is true that Section 167(2) of the Code confers on the Magistrate power of remand to jail custody during the investigation only. According to Mr. Saran Section 309 of the Code confers power of remand after cognizance has been taken and that there is no provision in the Code conferring power of remand after receipt of charge-sheet and before taking cognizance. I do not find substance in this argument. There is no provision in the Code making it obligatory for the Magistrate to take cognizance on the same date on which the charge-sheet is received. For some reason or the other it may not be possible for the Magistrate to take cognizance for some days after receipt of the charge-sheet. It could never be the intention of the Legislature that from after the receipt of charge-sheet till the taking of cognizance, accused persons, who may have committed serious offences could not be remanded and could not be legally kept in jail custody. It has, therefore, to be seen if there is any provision in Sections 309 or 209 of the Code wnich directly or impliedly confers power of remand after receipt of charge-sheet and before taking cognizance.
8. There is force in the argument of Mr. Chainpuri that after the receipt of the charge-sheet and before the Magistrate takes cognizance in the case, the matter is pending inquiry before him. Before taking cognizance on receipt of charge-sheet the Magistrate has to apply his judicial mind to the facts alleged in order to ascertain what offence is made out. For this purpose the Magistrate may have to call for Police case diary and peruse the same, to find out materials on the record. A scrutiny of the case diary and materials on the record is not a mere mechanical Act but an inquiry. Thus the proceeding before the magistrate after receipt of the charge-sheet and before taking cognizance falls within the ambit of "inquiry" which is defined in Section 2(g) of the Code thus; "inquiry means every inquiry other than the trial conducted under this Code by a Magistrate or Court."
9. Section 309 of the Code lays down:
(1) In every inquiry or trial, the proceedings shall be held as expedi-tiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.
(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may, by a warrant, remand the accused if in custody:
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted without examining them, except for special reasons to be recorded in writing.
Explanation I.--If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this a reasonable cause for a remand.
Thus Sub-section (1) of Section 309 provides inter alia that in every inquiry, the proceeding shall be heard as expeditiously as possible. It is evident that Sub-section (1) of Section 309 relates to trial as well as inquiry. Explanation I to Section 309 relates to inquiry only because it is during inquiry that a question may arise whether sufficient evidence has been obtained to raise a suspicion that the accused may have committed the offence. Thus Explanation I confers power of remand during inquiry and, as pointed out above, the proceeding before the Magistrate after receipt of charge-sheet and before taking cognizance is inquiry. Thus Explanation I impliedly confers power of remand after receipt of charge-sheet and before taking cognizance.
10. The question for consideration before the Full Bench in Tuneshwar Pd. Singh v. State of Bihar 1978 B.B.C.J. 111, relied upon by Mr. Chainpuri was whether in a case exclusively triable by a Court of session a Magistrate can exercise power of remand during the period after the taking of cognizance and before committing the case to the Court of session. It has been held that during this period the Magistrate can exercise power of remand under Section 209 read with Section 309(2) of the Code. S.P. Singh, J. - one of Hon'ble Judges constituting the Full Bench observed:
During the period when the Magistrate receives charge-sheet from the police and takes cognizance and till he passes an order under Section 209 of the Code, the matter is pending inquiry before him.
This observation lends support to the view that I have taken.
11. Tuneshwar Singh's case (supra) was decided by the Full Bench on 20-1-1978. Prior to that a Division Bench of this Court in a Criminal Writ Jurisdiction Case No. 30 of 1977 - Ramdeo Mahto alias Sukhdeo Mahto v. The State of Bihar, decided on 18-4-1977,had held that there is no provision in the Code enabling the Magistrate to pass an order of remand after the submission of final form and before taking cognizance. The case has been referred to in the judgment in Tuneshwar Pd. Singh's case (supra). In view of the aforesaid observation in Tuneshwar Pd. Singh's case (supra) the unreported decision in Ramdeo Mahto's case (supra) may not be followed.
12. Mr. Saran has relied on a Bench decision of this Court in Suresh Singh v. State and Ors. 1977 B.B.C.J. 374, in support of his contention that the detention of the petitioners is illegal. In that case an application had been filed before this Court by the information for cancellation of bail granted to the accused by the Sessions Judge under the provisions of Section 167(2) of the Code. The Police had submitted interim charge-sheet. It was argued before the Sessions Judge that the interim charge-sheet was unwarranted in law, and could not defeat the provisions of Section 167(2) of the Code. The Sessions Judge accepted the argument and granted bail to two of the accused. The informant moved this Court against the order of the Sessions Judge granting bail to the accused. The points that arose for consideration before this Court were (i) whether the interim charge sheet was permissible under the provision of the Code, (ii) if not, whether the order of the Sessions Judge granting bail under the provisions of Section 167(2) of the Code was liable to be cancelled. It was held that interim charge-sheet was unwarranted by law and investigation was still continuing and as accused persons were in custody for more than 63 days the Sessions Judge had rightly granted bail to them. There was no question for consideration whether the Magistrate has power of remand after the receipt of charge-sheet and before taking of cognizance, P.S. Sahay, J. who delivered the judgment of the Bench, however, observed;
There may be cases in which charge-sheet is submitted but no cognizance is taken, for some reason or the other and, therefore, remand of an accused person under Section 309 Sub-clause (2) will be wholly illegal and he may demand his release without furnishing any bond.
Provisions contained in Explanation I to Section 309 of the Code were not considered in that case. That case was decided on 21-12-1976 i.e., long before the decision in Tuneshwar Pd. Singh's case (supra). Moreover even the aforesaid observation of P.S. Sahay, J. is not of any avail to the petitioners because according to this observation a person illegally detained may demand his release without furnishing bail and in such a situation an application for a writ in the nature of habeas corpus under Article 226 of the Constitution of India and not an application for bail under Section 439 of the Code would lie.
13. In Cr.W.J.C. No. 115 of 1978 Jiwan Singh v. State of Bihar 1977 B.B.C.J. 173., relied upon by Mr. Saran the learned Judge who delivered the judgment of the Bench formulated two points for consideration; (i) there being no order of remand after the petitioners were lodged in the Bhagalpur Jail between the 23rd June, 1976 and 24th September, 1976 their detention was illegal and (ii) there is no prescribed authority which could remand an accused after the investigation is over, but cognizance had not been taken in the case. Having decided the first point in the affirmative the learned Judge observed that the second reason urged by the petitioners need not be considered. Therefore, this decision is also of no avail to the petitioners.
14. In view of the above discussions I am of opinion that Explanation I to Section 309 of the Code read with Sub-section (1) thereof confers power of remand after the receipt of the charge-sheet till the Magistrate takes cognizance.
15. Mr. Chainpuri submits that if the detention of the petitioners is illegal as contended by Mr. Saran, an application for a writ in the nature of habeas corpus and not an application for bail under Section 439 of the Code would lie. Section 439 lays down inter alia:
(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that Sub-section.
(b) * * * * * The word "custody" occurring in Section 439(1)(a) means legal and proper custody and, therefore, an application for bail under Section 439 lies in a case where the accused person is in legal custody. Section 491 of the Old Code of Criminal Procedure conferred power on High Court to direct that a person illegally or improperly detained in public or private custody be set at liberty. High Court is now vested with the power to issue writ in the nature of habeas corpus under Article 226 of the Constitution of India. It is for this reason that New Code of Criminal Procedure does not contain provisions like those contained in Section 491 of the Old Code. Hence, now in a case of illegal detention an application for a writ in the nature of habeas corpus under Article 226 of the Constitution will lie. This view finds support from a Bench decision of this Court in Aziz Pasa and Ors. v. The State of Bihar 1978 B.B.C.J. 84. Their Lordships have observed:
The result is that the petitioners are not under legal detention. Consequently they are entitled to relief which in this case would be by way of issue of a writ in the nature of habeas corpus....
16. Mr. Saran has relied on an unreported decision of a learned Single Judge in Jageshwar Singh and Ors. v. The State of Bihar Cr. Misc. No. 2166 of 1979., decided on 11-7-1979 to show that bail under Section 439 of the Code has been granted even in case of illegal detention. In that case the accused had been remanded to custody on the 18th June, 1979 for production on the 2nd July, 1979. The accused was not produced before the Magistrate on the 2nd July, 1979. Thus on the 11th July, 1979 the detention of the accused was found to be illegal. The learned Judge observed;
It is true that the proper course should have been for the petitioner to apply for a writ in the nature of habeas corpus, but when he is prepared to offer bail for release, in my opinion, he should be enlarged after taking bail bond from him, so that he may remain under better control of the Court concerned than otherwise.
Thus even according to this decision the proper course in case of illegal detention would be to apply for a writ in the nature of habeas corpus. The absence of the provisions of Section 491 of the Old Code of Criminal Procedure from the new Code was not noticed in that case.
17. If an accused person is set free on an application for a writ in the nature of habeas corpus under Article 226 of the Constitution of India on the ground that his detention is illegal, he may subsequently be arrested and his detention may be legalised. This may be done in those cases in which such accused committed heinous offences like those punishable under Section 396 or Section 302 of the Indian Penal Code. But if he is granted bail under Section 439 of the Code, his bail can be cancelled only on the ground of misuse of the privilege of bail.
18. Next case on which Mr. Saran placed reliance is Jitendra Mishra and Ors. v. The State of Bihar 1976 B.B.C.J. 744. In that case the accused had not been produced before the Magistrate for more than 15 days and, therefore, the detention of the accused was held to be illegal. The accused was ordered to be released on bail. The question whether an application for a writ in the nature of habeas corpus or an application for bail under Section 439 of the Code lies in such a case was neither raised nor considered by the learned Single Judge in that case.
19. Thus, in none of the cases cited by Mr. Saran the point raised in the instant case by Mr. Chainpuri was specifically raised or decided.
20. If the detention of the petitioners is illegal as contended by Mr. Saran, an application for writ in the nature of habeas corpus and not an application for bail under Section 439 of the Code will lie. Therefore, the application for bail under Section 439 of the Code must be dismissed as not maintainable.
21. On merits also the petitioners do not deserve to be enlarged on bail. All the nine petitioners are named in the first information report. They were identified by four witnesses, namely, the informant, Md. Reazuddin, informant's son Mansoor Alam, Rambilas Rabidas and Rafiur Rahman. The last two witnesses, Rambilas Rabidas and Rafiur Rahman, were injured by shots fired by dacoits. Petitioner No. 1 Babu Lal is said to have fired at informant's son Kalim Akhtar resulting in his death. Petitioner Ram Pravesh is said to have assaulted the informant with Garasa. All the petitioners are said to have participated in the commission of dacoity.
22. In the circumstances set forth above, the application is dismissed.