Rajasthan High Court - Jodhpur
Khedaram vs State Of Rajasthan (2023:Rj-Jd:20291) on 7 July, 2023
Author: Farjand Ali
Bench: Farjand Ali
[2023:RJ-JD:20291] (1 of 33) [CRLR-529/2023]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 529/2023
1. Khedaram S/o Bhagwana Ram, Aged About 67 Years, R/o
Magapa Ki Dhani, Jeran Marg, Jujani Police Station
Bhinmal, Jalore (Raj.) (Confined In Sub Jail, Bhinmal)
2. Smt. Ganga Devi W/o Shri Kheda Ram, Aged About 65
Years, R/o Magapa Ki Dhani, Jeran Marg, Jujani Police
Station Bhinmal, Jalore (Raj.) (Confined In Sub Jail,
Bhinmal)
----Petitioners
Versus
1. State Of Rajasthan, Through Pp
2. Bhima Ram S/o Rekha Ram, R/o Vill. Nava Pura Bhinmal,
Dist. Jalore.
----Respondents
For Petitioner(s) : Mr. Dhirendra Singh, Sr. Adv. assisted
by Mr. Jagdish Singh
For Respondent(s) : Mr. Anil Joshi, GA-cum-AAG
Mr. Praveen Vyas for
Mr. Vineet Jain, Sr. Adv.
HON'BLE MR. JUSTICE FARJAND ALI
Order
RESERVED ON ::: 04.07.2023
PRONOUNCED ON ::: 07.07.2023
Reportable
BY THE COURT:-
1. An application under Section 167(2) CrPC was preferred by the petitioners before the learned Additional Chief Judicial Magistrate, Bhinmal seeking default bail which was rejected vide order dated 27.03.2023.
(Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (2 of 33) [CRLR-529/2023]
2. Aggrieved by the order dated 27.03.2023, the petitioners filed another application under Section 167(2) of CrPC before the learned Additional Sessions Judge, Bhinmal which was disposed of vide order dated 03.05.2023 based on the reason that the scope of Section 167 had ceased to exist and thus, the application praying for default bail filed by the petitioners had lost its ground; it was also remarked that it was the exclusive domain of the High Court to decide the question of legality of detention of the applicants from the date of filing of the charge sheet to the date of taking cognizance.
3. Discontented with the order dated 03.05.2023, the present revision petition was filed by the petitioners.
4. Learned counsel for the petitioners submits that the petitioner had moved an application under Section 167(2) CrPC before the learned magistrate seeking default bail where order of cognizance was not passed despite lapse of quite some time after filing of charge-sheet and the matter was kept pending on account of multiple adjournments sought in the context of the application filed under Section 190 CrPC for taking cognizance against another accused who had not been charge-sheeted. He submits that the petitioners were remanded into custody for an extended period without being informed of their right to statutory bail and ultimately, his application seeking default bail was rejected vide order dated 27.03.2023. The resultant extension of period of detention of the petitioners after filing of charge sheet and before taking of cognizance was unwarranted and illegal. (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (3 of 33) [CRLR-529/2023]
5. He further submits that the learned magistrate should have taken cognizance before expiry of 90 days and as he failed to do so, the right to statutory bail under Section 167 CrPC gets accrued in favour of the petitioners automatically. No opportunity was given to the petitioners to oppose the judicial remand as they were not present in court, thus, the mandate of Section 167 was violated on this count too.
6. Lastly, learned counsel prayed for setting aside of the order dated 03.05.2023 passed by learned Additional Sessions Judge, Bhinmal to the extent that if the petitioners are willing to furnish bail bonds as directed by the High Court, then the learned magistrate/sessions judge may be directed to release the petitioners on statutory bail.
7. Contrary to the submissions of learned counsel for the petitioners, learned GA-cum-AAG opposes the prayer sought by learned counsel for the petitioners.
8. Heard learned counsel for the parties. Perused the impugned orders.
9. At the outset, it would be worthwhile to mention that the want of statute for a default bail is for completion of investigation and submission of charge-sheet only and admittedly, in this case, the agency had filed the charge-sheet within the stipulated period of 90 days, therefore, no case for grant of default bail is made out. It has rightly been observed by the learned Additional Sessions Judge, Bhinmal that once charge-sheet has been filed within the stipulated time, there is no scope for default bail and it (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (4 of 33) [CRLR-529/2023] is immaterial whether cognizance has been taken or not, as has also been held by Hon'ble the Supreme Court in Suresh Kumar Bhikamchand Jain Vs. State of Maharashtra and Ors. reported in (2013) 3 SCC 77.
10. If the agency fails to file the charge-sheet within the periods prescribed under this provision, then the accused has the right to seek default bail. The question that whether Section 167 CrPC would operate if the charge sheet has been filed but cognizance has not been taken has been sufficiently answered by the top Court in multiple judgments. In Sanjay Dutt Vs. State reported in (1994) 5 SCC 410, it was held by Hon'ble the Apex Court that the right of an accused to statutory bail as provided under Section 167 CrPC exists only till the time the charge-sheet is filed meaning thereby that the right accrues in favour of the accused when the investigating agency defaults in filing the charge-sheet within the stipulated time period and terminates when the charge-sheet has been filed. If the accused seeks bail before competent authority when the default has been committed and charge-sheet has not been filed till that moment in time, then he becomes eligible to be released on default bail, howbeit, if the accused seeks bail when though the default had been committed but the charge-sheet was filed eventually till that moment in time, he does not become eligible to be released on default bail and his bail application would be decided on merits like any regular bail application is decided as per the principles governing grant of bail.
(Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (5 of 33) [CRLR-529/2023]
11. One of the most recent rulings on this aspect was given in Serious Fraud Investigation Office Vs. Rahul Modi and Ors. reported in AIR 2022 SC 902 wherein the ratio laid down in Bhikamchand Jain (supra) was referred and it was held that filing of the charge sheet is sufficient compliance of Section 167 of CrPC. No right to statutory bail accrues in favour of the accused if the charge sheet has been filed within prescribed period, after conducting investigation and even if cognizance has not been taken, the accused has the right to move the Court for regular bail on merits. The operation of the right to statutory bail as envisaged under Section 167 ceases once the investigation is complete and final report has been filed as the purpose of this provision was to ensure that investigation is completed within a definite and reasonable period of time if the accused is in custody. Since investigation and taking of cognizance are two separate stages in the criminal procedure and the latter begins once the former has reached its completion, application of default bail in any case has no relation with whether cognizance has been taken or not.
12. The law is very clear on the subject of default bail and there is no scenario in which the petitioners could be released under Section 167(2) of CrPC as charge-sheet had been filed within stipulated time frame. Thus, the prayer for releasing the accused under Section 167(2) of the Cr.P.C. is sans any legal premise and therefore, liable to be rejected and thus, it is hereby rejected. (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (6 of 33) [CRLR-529/2023]
13. Once the charge sheet came to be filed on 17.01.2023 within the stipulated time period of 90 days, the scope of default bail under Section 167 CrPC came to an end but since the magistrate did not take cognizance, the post-cognizance stage did not begin where other provisions of CrPC could operate and when finally cognizance was taken on 28.04.2023, a period of approximately 100 days had passed. This anomalous situation led this Court to consider and elaborate on the question of law as deliberated upon in the succeeding paragraphs.
14. Considering the question pertaining to the legality of detention that an accused undergoes after filing of the charge sheet within the stipulated period and before institution of case/ taking of cognizance/ proceeding to commit or committal of case which emerged in this case and after taking note of what transpired before the learned magistrate and feeling angst over the impugned order passed by him, an explanation was sought from the learned magistrate vide order dated 16.05.2023 as to why the accused should not be compensated for the period of detention that he had undergone if such detention is found to be without the force of law.
15. Upon receipt of the explanation by the officer, it was observed by this Court that the learned magistrate had answered under some misconception and attempted to explain why he had to extend the period of remand of the petitioners under Section 167 CrPC. The law on this point is very lucid as noted in the preceding paragraphs and there is no question left to be answered (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (7 of 33) [CRLR-529/2023] with regard to the scope of default bail as stipulated in Section 167 of CrPC and the scope of remand under Section 167 CrPC is discussed in the forthcoming segment.
16. A need was felt to seek an explanation again from the learned magistrate before passing an order adverse to his interest as it is imperative to give an opportunity to the officer to say his piece and explain his point of view/perspective. Additionally, considering a recent ruling passed by a Division Bench of Hon'ble the Supreme Court in Ashvini Vijay Shiriyannavar Vs. the State of Karnataka & Ors. (Criminal Appeal No. 1616 of 2023) vide order dated 19.05.2023 wherein it was opined that an order making any observation or passing any direction against a defaulting officer cannot be passed without giving an opportunity to the officer whose career and esteem will be effected from it, this Court was of the view that it is appropriate to learn the views of the learned magistrate before passing an order against him, thus, a further explanation was sought from the learned magistrate vide a detailed order dated 23.05.2023.
17. Now, this court is in receipt of the affidavit submitted by the learned magistrate in compliance with the order dated 23.05.2023. The officer has answered the questions put to him in a point-wise manner. Firstly, he has answered in the negative to the question that whether cognizance was taken as well as the case was not instituted after expiry of 90 days and he passed the order of extension of remand. He has also stated that cognizance was not taken soon after expiry of 90 days. Secondly, he has (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (8 of 33) [CRLR-529/2023] explained that the order of remand was passed under Section 209 CrPC. Thirdly, he has clarified that he adopted a process called "not taking cognizance immediately after submission of the partial charge-sheet/ pending application u/s 190 CrPC in committal cases". Though he has admitted that he had another option to take cognizance of the offence immediately and then, postpone the matter for deciding the application filed under Section 190 CrPC as cognizance of an offence is taken and not of the offender but has referred to the judgment passed in Sunita Devi and Ors. Vs. The State of Bihar and Ors. (Criminal Writ jurisdiction Case No. 937 of 2008) to assist this Court in deciding the legality/illegality of the remand of the detainee. Lastly, it is evincing from the affidavit that an unconditional apology has been tendered for failure in following the procedure as established by law.
18. At this juncture, it is deemed appropriate to clarify the position of law on the subject of remand. The question that is emerging in this matter falls under a twilight zone, therefore, it is apposite to enunciate upon the same.
19. In the considered opinion of this Court, an order of remand can be passed only in three situations/conditions as per the code of criminal procedure and except these three conditions, there are no options prescribed in any other provisions of the Code to further or extend the period of remand. These three conditions are encompassed in the following three provisions:
a) Section 167 CrPC (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (9 of 33) [CRLR-529/2023]
b) Section 209 CrPC
c) Section 309 CrPC
a) Section 167 CrPC: Procedure when investigation cannot be completed in twenty-four hours.
20. Section 167 CrPC governs the grant of remand in this regard and it is reproduced below for easy reference:
167. Procedure when investigation cannot be completed in twenty-four hours.-(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-
founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that-
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;(Downloaded on 12/11/2023 at 02:12:27 AM)
[2023:RJ-JD:20291] (10 of 33) [CRLR-529/2023]
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be to released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.
Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.
Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.
(2A) Notwithstanding anything contained in sub- section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub- inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (11 of 33) [CRLR-529/2023] Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.
(3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (12 of 33) [CRLR-529/2023] further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.
21. It is manifesting from the bare perusal of the afore- mentioned provision that the magistrate, to whom the accused is forwarded under this provision by the officer in charge of the police station or the police officer making the investigation (not below the rank of sub-inspector) upon there being grounds to believe that accusation/intel is well-founded, may authorise the detention of the accused in police custody/judicial custody for a stretch of 15 days in the whole; provided that the magistrate may authorise the detention of the accused otherwise than in the custody of the police beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so. The Magistrate may authorise such detention in small pockets spanning 15 days at a time uptil a total of 90 days where an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years is being investigated and uptil a total of 60 days where any other offence is being investigated but the detention does not exceed fifteen days at a time/ at one go and the accused has to be produced every time his remand is extended. After expiry of 90 or 60 days, as the case may be, if the investigation is not completed and charge-sheet has not been filed, the accused shall be released on bail on this count alone, which is called statutory bail in common parlance.
22. In the present matter as well, an order of remand cannot be passed under Section 167 CrPC beyond the stipulated period of 90 (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (13 of 33) [CRLR-529/2023] days. The authority to further the remand under this Section ended on the last date of the 90 days period.
Commencement of Judicial Proceeding:
23. When the function of the investigating agency comes to an end, the function of judiciary begins; end of investigation or the last date of investigation is reached when report is forwarded under Section 173 CrPC and the judicial function begins on the first date when the file moves into judicial hands. The stage of forwarding of report by police officer under Section 173 CrPC upon completion of investigation to the Magistrate empowered to take cognizance under Section 190 CrPC, after it has reached in judicial hands and if the matter is formally seen by the magistrate, is called as a cognizance on police report. The receiving of the said report by the Magistrate so empowered is the gateway for commencement of judicial proceeding.
24. This Court is au fait with the provisions contained in Sections 91, 156, 157, 164, 169 and 170 of the Code of Criminal Procedure but this Court is of the opinion that the proceedings, as envisaged under above-mentioned provisions of the Code, require the interference of the magistrate in more of a facilitating/supervisory role or in the form of a judicial check upon the Agency in order to avoid arbitrary function rather than to perform an actual judicial function. The magistrate takes the first actual judicial step in the process of trial after receiving the report by the police under Section 173. These specific provisions were given place in the Code only with a view to keep a supervisory eye over the function (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (14 of 33) [CRLR-529/2023] of stakeholders of criminal justice system like investigating agencies and to bestow an effective sense of legitimacy upon the acts as stipulated in these provisions and it is just a judicial check so as to thwart perversity of the agency, curb any actions that are against the law and provide assistance in investigatory function. The Magistrate plays a role behind the curtain during the stage of investigation right from filing of the FIR so as to make sure that there is fair play and to see that the procedure of law is followed stricto sensu. This is why the word 'gateway' has been used for this stage in the journey of a criminal matter as the judicial process in its true sense cannot begin till the file of a criminal case has passed the check-points which have been cleverly drafted before the stage of taking cognizance.
25. To be more specific, Section 91 of CrPC empowers the court to issue summons to produce any document or thing that is necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under this Code by or before such Court. The magistrate may exercise his power under this provision to summon certain documents but the same is only done with a view to compel the person, in whose possession or power such a document or thing is believed to be, to produce the same as such summons carry official authority and involves no exercise of judicial mind to proceed further in the matter. The same power that rests with the magistrate to issue summons under Section 91 also rests with any officer who is in charge of a police station thereby strengthening the theory that the function of the (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (15 of 33) [CRLR-529/2023] magistrate under this provision is not one involving exercise of mind to proceed.
26. Section 156 CrPC provides that any magistrate who is empowered to take cognizance under Section 190 CrPC may order investigation of any cognizable offence as mentioned in this provision and similar to Section 91, the same power has been conferred on a police station-in-charge.
27. The role of the magistrate under section 157 CrPC is also limited to the point that an officer in-charge of a police station shall forthwith send a report to such magistrate who is empowered to take cognizance in the matter if he has reason to suspect that a cognizable offence (which he is empowered to investigate under Section 156) has been committed. This provision has been made just with a view to ensure equitableness so that the police or any other investigating agency may not make any undue interference and the exact time of FIR as well as the wordings used in respect of nature of accusation, name of accused, place of incident etc. remains unchanged. It leaves no crevice open for adulteration to creep in and here, the Magistrate has nothing to do as such.
28. Coming to the contents of Section 164 CrPC, it can be comprehended from a bare reading of the provision that a magistrate may record any confession or statement made to him in the course of an investigation or at any time afterwards before the commencement of the inquiry or trial. The words '...in the course of an investigation...' and '...before the commencement of (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (16 of 33) [CRLR-529/2023] the inquiry or trial' in sub-clause (1) and the words '...shall forward it to the magistrate by whom the case is to be inquired into or tried' in sub-clause (6) clearly indicate that the role of the magistrate as per this provision is limited to the point of making of memorandum and ascertaining that the accused knows about his rights before commencement of the trial while the investigation is still underway. His memorandum made at the foot of the record of the statement/confession enhances the sanctity of the document and it is ensured that due care and caution was taken while recording of such statement/confession.
29. Similarly, if it appears to the officer in charge of the police station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a magistrate under Section 169 CrPC, the said officer can release such person if in custody with the direction to appear before a magistrate who is empowered to take cognizance of the offence on a police report; to try the accused or commit him for trial. Here, too, the magistrate is not required to do anything about trial rather the officer directs the accused to be present when it is required by the magistrate who is empowered to further proceed with the judicial process involving taking of cognizance, committal of case to Court of Session and trying the accused.
30. Lastly, sub-clause (1) of Section 170 CrPC provides that if the officer in charge of the police station feels that there is sufficient evidence or reasonable ground as afore-said in Section 169, such officer shall forward the accused under custody to a (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (17 of 33) [CRLR-529/2023] magistrate empowered i) to take cognizance of the offence upon a police report, ii) to try the accused or iii) commit the accused for trial. The very purpose for which an accused is forwarded to a magistrate along with the charge sheet is for the magistrate to take cognizance, try the accused or commit him for trial to Court of Session and begin the judicial process.
31. After investigation is concluded under Section 167 CrPC and report of such completion is filed under Section 173 CrPC, then, the judicial function of a Magistrate begins where he has to apply his mind to take cognizance of the offence and to proceed further in the matter or to commit the case for trial by Session Judge if the case is triable by a Session Court. All further proceedings that involve application of a judicial mind to proceed further in the criminal matter like taking of cognizance, committal of case to Session court, framing of charge against the accused, taking evidence including examination of accused, hearing et cetera commence (in cases instituted upon a police report) from this point onwards. It is clear from a bare reading of Section 173 CrPC that as soon as investigation is completed, the officer in charge of the police station shall forward the report including the names of the parties; the nature of the information; the names of the persons who appear to be acquainted with the circumstances of the case; whether any offence appears to have been committed and if yes, then by whom; whether such person/accused has been arrested; whether such person/accused has been released on his bond with/without sureties; whether he has been forwarded in (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (18 of 33) [CRLR-529/2023] custody under Section 170 and if the offence pertains to certain specific sections that contain offences committed against women, then whether report of medical examination of the woman was attached to the magistrate who is empowered to take cognizance of the offence on a police report. Any simple minded person let alone a reasonably prudent individual can also decipher that the report containing the afore-mentioned information is forwarded to the magistrate so that he/she/they can take cognizance of the offence after application of his judicial mind and proceed further in the matter. The report under Section 173 is called a police report, reference of which is given under Section 190(1)(b) as '...upon a police report of such facts;'. The usage of words like '..as soon as..' signifies that right after completion of investigation, the report is forwarded to the magistrate who is empowered to take cognizance of the offence(s). Though it is obvious that the magistrate would go through the report but to derive the same meaning from the provision of Section 173, sub-clause (4) can be looked at as one of the instances that is testament to the same. It is stated therein that 'Whenever it appears from a report forwarded that....' which means that the magistrate has to go through the report to see whether the accused had been released on bond or not before making an order of discharge of such bond or other order that he thinks fit.
32. First things first, it is pertinent to understand what does the word 'cognizance' actually mean. No definite definition has been prescribed for this word in the Code of Criminal Procedure but from the series of judicial pronouncements passed by Hon'ble the (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (19 of 33) [CRLR-529/2023] Supreme Court discussing 'cognizance', this Court derives that it can be described as 'formal application of judicial mind to proceed further in the matter.'
33. Next, it would be logical to understand what 'formal application of judicial mind to proceed further in the matter' means. It simply means that after receiving any complaint, if the magistrate makes up his mind to initiate inquiry and to examine the complainant under Section 200 CrPC and his/her/their witnesses under Section 202 CrPC, then the moment he decides to proceed further in this direction, he has taken cognizance.
34. Upon receiving a police report, as per Section 190 CrPC, magistrate may take cognizance of any offence so constituted by the facts contained in such police report. After receiving the police report, the magistrate, if finds the case to be triable by Court of Session; would take the subsequent step towards committal after complying with the provision contained under Section 207 CrPC. Section 207 CrPC provides that the magistrate shall see to it that a copy of a list of documents as enumerated in the provision is supplied to the accused without delay or imposition of cost in any case where the proceeding has been instituted on a police report. The first proviso of this section formulates that with respect to request made by police officer for exclusion of any part from the statements of the proposed individuals that the prosecution wishes to examine as witnesses recorded u/s 161(3), the magistrate may, after perusing any such part of such statement as referred above & specified in sub-clause (iii) and post (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (20 of 33) [CRLR-529/2023] considering the reasons proffered by the police officer, direct that a copy containing such part be supplied to the accused. The second proviso of this Section further supplements that if the Magistrate is satisfied that any document adverted to in sub- clause (v) is voluminous, he shall direct the accused and allow him to inspect such document either in person or through pleader in court while doing away with the requirement of furnishing a copy of the same to the accused. The idiolect of the Code suggests that both the riders make it abundantly clear that the stage as prescribed under Section 207 CrPC comes only after cognizance of the offence has been taken and the same is very evident from the words used by the legislature, specifically '...after perusing any such part of such statement...' and '...if the Magistrate is satisfied...'. In consequence, it can be interpreted that magistrate has to see the police report as well as the FIR recorded u/s 154 CrPC; examine the statements of the proposed prosecution witnesses recorded under Section 161(3) CrPC, confessions and statements recorded u/s 164 CrPC and peruse other material or relevant extract of any such other material forwarded to the magistrate under sub-clause (5) of Section 173 CrPC. Further, it can be said that examination of the police report and thereafter, finding the case to be triable by Court of Session means that the magistrate has applied his/her/their mind as to what offence is alleged to have been committed.
35. As discussed above, a plain, straightforward reading of Section 173 CrPC makes it abundantly clear that police forwards a report containing information as formulated in sub-clauses (2)(i) (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (21 of 33) [CRLR-529/2023]
(a) to (h) to a Magistrate and from perusal and afore-said discussion of Section 207, it is clear that the magistrate goes through all the documents mentioned in the provision. Sections 173 and 207 are corresponding or reciprocal provisions to each other in the sense that the police/any other investigating agency forwards the police report including specific details to the Magistrate empowered to take cognizance under the former and the Magistrate receives the forwarded police report containing those specific details along with other documents and he/she/they see(s) the report, go(es) through it and examine(s) it before proceeding further in the matter. This very process of considering and going through the report would mean taking cognizance as envisaged under Section 190 CrPC. Having a look at information stated in sub-clauses (2)(i)(a) to (h) of Section 170 CrPC and sub- clauses (i) to (v) of Section 207 CrPC is enough to tantamount to the word "cognizance".
36. What requires to be comprehended here is that how would magistrate come to know that the case is triable by Session Court. If magistrate comes to the conclusion that a case is triable by the Court of Session, then, it means that he has had to apply his mind, even though cursorily when he perused or went through the police report, the FIR, the statements under Sections 161 and 164 CrPC.
b) Section 209 CrPC: Commitment of case to Court of Session when offence is triable exclusively by it. (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (22 of 33) [CRLR-529/2023]
37. What follows next is that if the case is exclusively triable by the Court of Sessions, then, uptil reaching the stage of Section 209 CrPC, it is certain that the Court has taken cognizance of the offence, more so because in sub-clause (a) of Section 209, it is explicitly stated that a magistrate may commit a case to the Court of Session after complying with the provisions of Sections 207 or 208 depending on the institution of the case. Before embarking on the journey to dissect Section 209 CrPC, it is deemed appropriate to replicate its contents herein below:
209. Commitment of case to Court of Session when offence is triable exclusively by it.-- When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall -
(a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.
38. Some parts of the afore-reproduced provision have been underlined and struck through only for the ease and purpose of explaining and putting across some specific aspects in the discussion ensuing in the forthcoming paragraphs as well as to facilitate reading in the intended context.
(Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (23 of 33) [CRLR-529/2023]
39. i) In the very beginning of this provision, the word 'instituted' has been used which signifies that the case has been instituted by the court upon a police report or otherwise. Instituting a case simply means that registering it as a Criminal Regular Case and assigning a particular number to it for its identification. Admittedly, in the present case, the same had not been done when the magistrate extended the period of remand of the accused beyond the stipulated period without taking cognizance/moving towards committal.
ii) Moving on, it is prescribed in the provision that 'if it appears to the Magistrate that the offence is triable exclusively by the Court of Session', then, he shall - commit the accused after complying with the clauses embodied under Section 207 or Section 208 CrPC and remand him to custody until such commitment has been made or during and until the conclusion of the trial; send the record of the case and the documents and articles which are to be produced as evidence, if any, to Court of Session and notify the Public prosecutor about the commitment of the case to Court of Session. The words "...it appears to the Magistrate..." are worth taking note of; how will it appear to the magistrate that a case is Session triable? It will happen when the Magistrate would have applied his mind in the manner enumerated above, thus, the words "...it appears to the Magistrate..." point to the fact that the procedural journey of the case has entered the post-cognizance stage when order for remand is being passed alongside process of committal as per Section 209 CrPC. It is imperative to expatiate the process of (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (24 of 33) [CRLR-529/2023] committal. Committal would be deemed to have taken place or completed when the file of the case and the accused (if he is in custody) has reached the Court of Session and the date for hearing is fixed before the Session Judge. For instance, if the magistrate committed the matter to court of Session on 04.07.2023 and it reaches the Court of Session on 24.07.2023, then committal would be deemed to be completed when the Session Judge takes up the matter on 24.07.2023. Sub-clause (b) of Section 209 CrPC provides that the magistrate can pass remand order that shall remain in currency during the trial and until the entire lifetime of the Sessions case uptil the finding of acquittal/conviction is reached by the Session Judge. Therefore, section 209 empowers the magistrate to pass an order of remand so absolute that it shall continue till the end of trial, be it a matter of one year, three years, five years and so on. It is a one-time remand that has different characteristics and attributes than an order of remand passed under Section 167 CrPC which can only be passed for a period of 15 days' at a time and then extended for consecutive brackets of 15 days' uptil a fixed time period of 60 or 90 days (180 days as per special statute). At times, sub-clause (a) of Section 209 can be difficult to comprehend as it encompasses multiple aspects in one compact sentence, thus, to make it crystal clear and lay it down in an unambiguous manner, it can be read as follows for the present matter: "...he shall commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session and remand the accused to custody until such commitment has been made;" Thus, (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (25 of 33) [CRLR-529/2023] it is safe to infer that after going through the stage of Section 207 and complying with the stipulations stated therein, the magistrate applies his mind and comes to know whether the case is triable by court of session meaning thereby that resultantly, he takes cognizance and decides if he has to proceed for committal and move towards the provision of Section 209.
40. As explained in the foregoing paragraphs, Section 209 CrPC envisions passing of an order of remand in the post-cognizance stage but it can not operate in the instant matter as neither cognizance was taken in this matter nor was any further step taken for committal of the case to the Court of Sessions. A single glance at the provision of section 209 reveals that an order remanding the accused can be passed only uptil the stage of committal as well as during and till conclusion of trial but the same can be done after taking cognizance, proceeding towards the process of committal and naturally, after instituting the matter as a regular case.
41. A perusal of the order dated 27.03.2023 reveals that though the learned magistrate acknowledged that the offence under Section 302 IPC is of serious nature and is to be tried by Sessions Court but no step was taken by the learned magistrate in this regard to proceed further as per the law. As far as the question of default bail was concerned, the learned magistrate has reasoned that the same cannot be granted as when the charge sheet was filed by the investigating agency against the accused persons, on the very same day, an application under Section 190 CrPC also (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (26 of 33) [CRLR-529/2023] came to be filed by the complainant side before the magistrate. Thereafter, he has further supplied reasoning that since the application filed under Section 190 CrPC was pending for want of filing of reply and the advocates were on strike, thus, cognizance could not be taken in the matter. Thus, in the opinion of this Court, there was absolutely nothing that was stopping the learned magistrate from proceeding with the case in accordance with the criminal procedure code still no judicial process was initiated in any manner whatsoever and the order of extension of remand got passed without institution of the case or any formal order of cognizance. In the considered view of this Court, the order of remand passed after 90 days in the given circumstances of the instant matter does not have authority or sanction of Section 209 CrPC and cannot be understood to be covered under the gamut of Section 209 CrPC by any stretch of imagination.
c) Section 309 CrPC: Power to postpone or adjourn proceedings.
42. Sub-clause (2) of Section 309 CrPC clearly stipulates that the court may issue a warrant for remanding the accused if he/she/they is/are in custody after taking cognizance of an offence or post commencement of trial and it is re-emphasized that this provision operates only in post-cognizance stage which has clearly not been reached in the case at hand. Let alone cognizance, the matter has not even been registered as a regular case. The summation of the discussion above is that this Court has tracked the word 'cognizance' in the Code of Criminal Procedure (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (27 of 33) [CRLR-529/2023] moving from one provision to another like skipping a stone on water in order to assign an explicit meaning to the same. The definition of cognizance is not derivable from any single provision rather it is to be understood by reading the Code in its entirety and it is clear that no cognizance was taken by the magistrate in the present case and thus, no order of remand u/s 309 CrPC can be passed in the instant case.
43. As envisaged in Sections 167, 209 and 309 of the Code of Criminal Procedure and as per the enouncement of these provisions by this Court made above, it is clear that the order of extension of remand passed by the Magistrate after passing of 90 days in the present case was bad in law or in other words, the procedure adopted was not in absolute conformance with the statutory provisions.
44. The scheme of the Code of Criminal Procedure is such that once the investigation stage is completed, the Court proceeds to the next stage, which is taking of cognizance and then further moves to the next stages of trial. An accused has to remain in custody of some court if not released on bail. 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) Code of Criminal Procedure, 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 imprisonment upto 10 years and 90 days where the (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (28 of 33) [CRLR-529/2023] offences are punishable for 10 years and above 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. On the other hand, when 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 Court assumes custody of the accused for purposes of remand during the trial in terms of Section 309 Code of Criminal Procedure. 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.
45. It is understandable that during the period of investigation, the accused is under the custody of the magistrate he was first produced to and such a magistrate is empowered to send the accused to judicial/police custody for a period of 15 days at a time not exceeding the period of 60 days and 90 days as per the quantum of sentence for the offence committed by the accused. If the charge sheet is not filed withing 60 or 90 days, then the accused is liable to get released on statutory bail. But, if the charge sheet is filed within the prescribed time limit, then, as held in Suresh Kumar Bhikamchand Jain Vs. State of Maharashtra and Ors. reported in (2013) 3 SCC 77, the accused remains in the custody of the magistrate till cognizance is taken by the appropriate court and such court passes an order of remand of the accused for the purpose of Section 309 of CrPC. If the case if triable by Court of Session, then the order would be passed under Section 209 CrPC. It is also held in Bhikamchand (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (29 of 33) [CRLR-529/2023] (supra) that no order of remand can be passed without power being conferred upon the court passing the order of remand by the statute. Thus, though when the stage of investigation comes to an end and the subsequent stage of taking cognizance and proceeding with the conduct of trial begins, to maintain the continuity in the procedure, the custody of the accused may be kept with the Magistrate till cognizance is taken and an order of remand under Section 209 or 309 CrPC can be passed but the same does not have the sanction of law and refuge of the same cannot be taken while remanding the accused in custody and deferring taking of cognizance without there being any legitimate reason for the same. Such custody of the accused during the intervening period between the filing of charge sheet and taking of cognizance/institution of case cannot be deemed to be a regular practice as not only does it not have any sanction or foundation rooted in law but it also goes against the rights of the accused otherwise guaranteed under the umbrella of rights envisioned under Article 21 of the Constitution of India.
46. Article 21 of the Constitution of India guarantees that no person shall be deprived of his right to life and liberty except in accordance with procedure established by the law and the procedural law established for criminal adjudication is the Code of Criminal Procedure which does not prescribe any such remand or any such remand is not envisaged by the Criminal Procedural Law.
47. More importantly, even if such a situation arises that the accused has to remain in custody for a brief period before (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (30 of 33) [CRLR-529/2023] cognizance is taken, an order of remand could not have been passed by the learned magistrate as there can be no remand without it being sanctioned by the statute, i.e., the Code of Criminal Procedure. The basic difference between a rule of law and a rule of King/Dictator is that in the concept of the latter, the King is assumed to be individually correct as the King can do no wrong and is immune from fallibility; he can do anything as he thinks appropriate; it may be in accordance with his desire, whims & fancies or on personal perception. It does not require any sanction of rule, institution, consensus, practice or "general will". India adopted the rule of law/ concept of doctrine of law and according to this concept, every action of a judicial/public officer requires a sanction of law. Any practice devoid of backing of law or any deviation from the same is not possible. There are definite stages in criminal procedural law and the statute has provided options at three different requisite stages to pass an order of remand, therefore, an order of remand which is ideally to be passed in a subsequent stage cannot be held to be valid for a period preceding that stage. The scenario which happened in the present case pertains to a period which is just suspended between the two stages, not intersecting with any of them and thus, it becomes all the more important to be vigilant of this fact and not make the accused suffer detention which has no approval of law whatsoever. The pretexts supplied by the magistrate for not taking cognizance are not so compelling so as to allow for or accommodate the abuse of criminal procedural law. If there was a prayer for arraigning an additional accused who was not charge-sheeted, (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (31 of 33) [CRLR-529/2023] even then, there was no legal bar for the magistrate to take cognizance of the offence and then, to hear the application for arraigning of an additional accused. It is made clear that the court takes cognizance of the offence and not of the offender. He should not have been afraid of taking the cognizance on two occasions - one for some of the accused and then, for the remaining accused; After taking cognizance of the offence, if the trial court proceeds and any application is moved for arraigning or adding any additional accused, it can entertain the same and if sufficient material is found against the person not charge-sheeted, an order of adding that additional accused can be passed. The adjournments granted at various occasions could have been curtailed and an order taking cognizance could easily have been passed as the present is not even a case where any kind of prosecution sanction was required as has been the case in many precedents passed on this subject of consideration. Moreover, Code attributes due importance to taking of cognizance under Section 190(1)(a)/190(1)(b) CrPC as it is provided under Section 460 CrPC that if cognizance under these clauses has been taken in good faith though the Magistrate was not empowered to do the same, the proceedings conducted by him shall not be set aside as per Section 460 CrPC. This protection granted u/s 460 CrPC ensures that if the magistrate has taken cognizance of offence erroneously but in good faith, then the proceedings so conducted shall not be set aside.
48. As such, there was no hurdle in the form of any statutory stipulation which could've prevented the erring officer from (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (32 of 33) [CRLR-529/2023] proceeding and the process should have continued as per the prescriptions in the Criminal Procedural Code, thus, there was no occasion to delay taking of cognizance or proceeding towards committal of case. The detention in the present matter is not approved and does not have sanction of law; no order can be passed on an individual's desire and understanding without having any underlying basis in law.
49. As there are no other provisions in the Code that enable grant/extension of remand to an accused person, the continuous extension of remand of the petitioners by the learned Magistrate after filing of charge sheet and before taking of cognizance was unwarranted and disconfirmed by law but in light of the endeavour of the magistrate to learn the correct procedure and tendering of unconditional apology for his conduct of the instant matter with the promise to be more vigilant as well as looking at the fact that the procedural law was also not clear on this aspect that what should be done or under which provision should the accused be remanded for a further extended period or what is to be done in the medieval period of time after filing of charge sheet and before institution of case/ taking of cognizance/ committal or initiation of process of committal, this court feels that there is no need for seeking an indemnification from the officer or passing of an order averse to the interest of the erring officer yet he is to remain observant and attentive in the future.
50. Though it is true that subsequent legal action per se does not legalise the perfunctory order passed at an earlier occasion, (Downloaded on 12/11/2023 at 02:12:27 AM) [2023:RJ-JD:20291] (33 of 33) [CRLR-529/2023] however, at the minute, the case has been registered and cognizance has been taken so it is water under the bridge now.
51. Accordingly, the instant revision petition is disposed of in above terms.
52. All pending applications, if any, also stand disposed of.
53. This Court is au courant with the cavity that exists in criminal procedural law with regard to the question of legality of detention after filing of the charge sheet by the investigating agency and before institution of case/ taking of cognizance/ progression towards committal of case, however, as the trial in the instant matter has proceeded towards the subsequent stages, it is not deemed appropriate to adjudicate upon the issue at this stage.
54. Seeing as the erroneous order has not been made or error has not been committed intentionally rather the judicial officer was acting in the bonafide and under the misconception of law, and it was an action taken in good faith, therefore, this court does not deem it appropriate to proceed against him, however, he is sensitized to be cognizant of the law and careful while conducting a trial so as not to prejudice the rights of any of the parties. Though there is lack of clarity on the legal issue as discussed in the preceding paragraphs of the judgment yet he shall keep himself Argus-eyed in future to prevent trampling on the rights of the parties pleading for relief before him.
(FARJAND ALI),J 148-/-
(Downloaded on 12/11/2023 at 02:12:27 AM) Powered by TCPDF (www.tcpdf.org)