Judgment:
ORDER
1. The first accused in Crime No. 60 of 1992 of Muddanur Police Station (P.R.C. No. 7/93) is the petitioner. He along with eight others was alleged to have committed offences under Ss. 148, 307, 302 r/w Section 34, I.P.C. Section 25(1)(b)(a) and Section 27 of the Arms Act and Sections 3 and 5 of the Explosive Substances Act. He states that he was arrested on 29-9-1992 and the charge-sheet was taken on file on 27-1-1993. As more than 90 days period has expired from the date of his arrest and the date of taking cognizance of the offences, he filed an application under section 167, Cr.P.C., Criminal M.P. No. 75/93, in the Court of the II Additional Sessions Judge, Cuddapah. That petition was dismissed on 24-2-1993. He says that his continuance in remand after 90 days without taking cognizance of the offence amounts to illegal detention and prays that he may be released on bail.
2. Sri. M. Sreeramulu Reddy, the learned counsel for the petitioner, submits that as the learned Magistrate did not take cognizance of the offences within 90 days of the arrest of the petitioner, his continued detention is illegal being contrary to the provisions of Section 167, Cr.P.C. and that subsequent order of remand under section 309(2), Cr.P.C. would not make it a valid detention, therefore he is entitled to be released on bail.
3. The learned Public Prosecutor, on the other hand, contends that the petitioner was taken into custody on 15-10-1992 and the charge-sheet was filed on 26-11-1992 which is within the statutory period, therefore, Section 167, Cr.P.C. has no application. He further submits that the bail application was filed on 9-2-1993 after taking cognizance by the Magistrate on 27-1-1993; the remand of the petitioner to judicial custody is under Section 309(2), Cr.P.C. which is legal and valid; the petitioner has earlier filed a bail application which was dismissed on merits so far these he is not entitled to be released on bail.
4. The short question that arises in this case is, whether the petitioner is entitled to be released on bail on the ground that order of remand was passed by the Magistrate before taking cognizance of the offences.
5. The petitioner and the other accused are alleged to have committed the offences under sections 148, 307, 302 read with Section 34, I.P.C., Section 25(1)(b)(a) of Section 27 of the Arms Act and Sections 3 and 5 of the Explosive Substances Act. Since the petitioner applied for bail under sub-section (2) of Section 167, Cr.P.C. it will be apt to set out the said section, so far as it is relevant for our purpose.
'(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;
(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 so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specifically empowered in this behalf by the High Court, shall authorise detention in the custody of the police. .. .. .. ..'
6. Section 167, Cr.P.C. deals with the procedure when investigation cannot be completed in 24 hours. The sub-section extracted above provides that the Magistrate to whom the accused person is forwarded under section 167, Cr.P.C. may 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. This is subject to the following conditions :
(i) The Magistrate has power to 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.
(ii) The detention of the accused in custody cannot exceed 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; and 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, and every person released on bail under the sub-section shall be deemed to be released under the provisions of Chapter XXXIII for the purposes of this Chapter;
(iii) the Magistrate is ordained not to authorise detention in any custody under this section unless the accused is produced before him; and
(iv) a Magistrate of second class who is not specifically empowered in this behalf by the High Court, has no power to order detention in the custody of the Police.
7. Explanation I to this sub-section is declaratory in nature and says that notwithstanding the expiry of the period specified above, the accused shall be detained in custody so long as he does not furnish bail.
8. Explanation II deals with the procedure of production of the accused before the Magistrate and provides that if a question arises as to whether an accused person is produced before a Magistrate as required under paragraph (b) of the proviso, the same can be established by proving his signature on the order authorising detention.
9. Thus it is seen that in a case in which investigation is not completed within a period of a sixty days or ninety days, as the case may be, the accused is entitled to be released on bail if he is prepared to and does furnish bail. This is commonly termed as 'bail by default'.
10. In the instant case, the accused is charged for the offences under Sections 148, 307, 302 read with Section 34, I.P.C., Section 25(1)(b)(a) and Section 27 of the Arms Act and Sections 3 and 5 of the Explosive Substances Act, therefore the total period for which the accused could have been ordered to be remanded in custody pending investigation by police is ninety days. It has been noted above that the accused was arrested on 15-10-1992 and the report of the Police on completion of investigation under Section 173, Cr.P.C. was filed on 26-11-1992. As the investigation was completed within a period of ninety days, sub-section (2) of Section 167, Cr.P.C. has no application and the accused is not entitled to be enlarged on 'bail by default.'
11. It appears that the Magistrate took cognizance of the report filed under section 173, Cr.P.C. on 27-1-1993. It is pertinent to observe that it is incumbent on the Magistrate to take cognizance of the report filed by the Police after investigation as soon as it is filed before him without any avoidable delay. He is not expected to delay the matter much less to take such a long time as about two months for taking cognizance of the report.
12. It is contended that it is only after the Magistrate takes cognizance of the offence, the provisions of sub-section (2) of Section 309(2), Cr.P.C. are attracted. It would be useful to read Section 309(2), Cr.P.C. here.
'(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 :
Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. 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, that is a reasonable cause for a remand. Explanation II : The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused.
13. Sub-section (1) provides that in every inquiry or trial, the proceedings should be held as expeditiously as possible and when the examination of witnesses has once begun, the same shall continue from day to day until all the witnesses in attendance have been examined, unless the Court considers the adjournment of the case beyond the following day necessary, in which case he has to record the reasons. Sub-section (2) says that after taking cognizance of an offence or commencement of trial, if the Court finds it necessary or advisable to postpone the commencement of or adjourn any inquiry or trial, it may, postpone or adjourn as it may deem fit for such time as it considers reasonable. It also authorises the Court to remand the accused, if in custody, by a warrant. The proviso restricts the period of remand of fifteen days.
14. The question which then arises is whether the Magistrate can remand the accused into custody between the date of filing of the report under section 173, Cr.P.C. but before taking cognizance of it
15. The term 'cognizance' has not been defined in Section 190, Cr.P.C., but in Ajit Kumar v. State of West Bengal, : AIR1963SC765 the Supreme Court explained the meaning of the said expression as follows (at page 770 of AIR) :
'The word 'cognizance' has no estoeric 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 judicially. Taking cognizance does not involve any formal action; or indeed action of any kind, but occurs as soon as Magistrate, as such, applies his mind to the suspected commission of an offence. Where the statute prescribes the materials on which alone the judicial mind shall operate before any step is take, obviously the statutory requirement must be fulfilled. But statutory proviso apart, there is no set material which must exist before the judicial mind can operate.'
16. Section 468, Cr.P.C. prescribes the period of limitation for taking cognizance of certain offences. It must at once be noted that this section is not attracted to the facts of the case.
17. Mr. Sreeramulu Reddy contends that due to delay in taking cognizance of the offence between 20-11-1992, the date of filing the report under section 173, Cr.P.C., and 27-1-1993, date of taking cognizance of the report, the detention of the accused became illegal and the subsequent order of remand passed under Section 309(2), Cr.P.C. will not legalise the detention, therefore the accused is entitled to be released on bail.
18. I am unable to accept this contention for the simple reason that on the date of application for bail the petitioner was in remand by virtue of a valid order and the nature of earlier detention does not vitiate either the subsequent valid order of remand or detention.
19. However, Mr. Sreeramulu Reddy, relies on the judgment of the Karnataka High Court in Gyanu v. State of Karnataka, 1977 Cri LJ 632 in support of his contention. In that case a learned single Judge of the Karnataka High Court has held that if on the filing of the charge-sheet the Magistrate does not apply his mind and take cognizance of the offence for a number of days he cannot during that period exercise powers of remand to judicial custody either under section 167 or under section 309(2), Cr.P.C. The learned Judge agreed with the judgments of the Rajasthan High Court in Prem Raj v. State of Rajasthan, 1976 Cri LJ 455 (Raj) and in Khinvdan v. State of Rajasthan, 1975 Cri LJ 1984 (Raj) taking the view that the words 'if in custody' in sub-section (2) of Section 309(2) of Cr.P.C. mean in 'legal custody' and that when the Magistrate had taken cognizance of the offence beyond the period of sixty days on an incomplete police investigation report and passed order of remand to judicial custody under the said sub-section, the detention of the concerned accused after the period of sixty days was illegal because immediately after the said period the accused filed application to be enlarged on bail. In Khinvdan's case (supra) a learned single Judge of the Rajasthan High Court held that the earlier continued illegal detention of an accused could not be validated by the order of remand passed by the Magistrate after purporting to take cognizance of the offence.
20. In State of U.P. v. Lakshmi Brahman, : 1983CriLJ839 , the accused were suspected of having committed an offence under section 302, I.P.C. They surrendered before the Magistrate on Nov. 3, 1974 and were taken into custody. The Investigating Officer failed to submit the charge-sheet against them within the period of sixty days as contemplated by sub-section (2) of Section 167, Cr.P.C. prior to its amendment which enlarges the period from 60 to 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years. The charge-sheet was filed on Feb. 5, 1975. The accused moved the application under section 439, Cr.P.C. before the High Court for bail. A Division Bench of the Allahabad High Court took the view that after charge-sheet was submitted under section 170, Cr.P.C. the Magistrate had no jurisdiction to authorise the detention of the accused in custody under section 167, Cr.P.C. and, therefore, the authority to remand the accused to custody after the charge-sheet was submitted had to be gathered from other provisions of the Code. However, the High Court took the view that the proceedings before the Magistrate under Chapter XVI of the Code would not be an enquiry within the meaning of the expression in Section 2(g) and, therefore, Section 309(2), would not confer power on the Magistrate to commit the accused to custody and further held that the Magistrate had to commit the accused forthwith to the Court of Sessions and it was only after the order of commitment was made that the Magistrate would have power to remand the accused to the custody during and until the conclusion of the trial. It accordingly held that the Magistrate has no power to remand the accused to custody after the charge-sheet was filed and before the commitment order was made, and therefore the accused were entitled to be released on bail. On appeal to the Supreme Court it was observed that the High Court was right in holding that on the expiry of 60 days from the date of arrest of the accused, his further detention did not become ipso facto illegal or void, but if the charge-sheet was not submitted within the period of 60 days, then notwithstanding anything to the contrary in Section 437(1), the accused would be entitled to be released on bail. In that case as the accused did not apply for bail on the expiry of 60 days, their continued detention was held to be not illegal or without authority of law. The Supreme Court further held that the proceedings before the Magistrate would be an inquiry as contemplated by Section 2(g) of the Code, and obviously Section 209 would enable the Magistrate to remand the accused to the custody till the inquiry to be made complete.
21. In Rabindra Rai v. State of Bihar, 1984 Cri LJ 1412 a Full Bench of the Patna High Court held the accused was not entitled to be released on bail on the ground that the Magistrate before whom the charge-sheet was submitted did not take cognizance of the offence on the date the charge-sheet was submitted. There the accused was remanded to judicial custody up to 24-1-1983 by order dt. 12-1-1983. The charge-sheet was filed on 14-1-1983 and the cognizance was taken on 17-1-1983. The contention that the Magistrate had no authority to keep the accused under detention between 14-1-1983 and 17-1-1983 was rejected by the Full Bench. Following the judgment of the Supreme Court in Lakshmi Brahman's case (supra), it was held that an enquiry within the meaning of Section 2(g) should be declared to have commenced since the submission of the police report and that it was difficult to hold that such enquiry should commence only after a formal order was passed by the Magistrate taking cognizance of the offence.
22. In Mahesh Chand v. State of Rajasthan, 1985 Cri LJ 301 a Full Bench of Rajasthan High Court took the view that the illegality of an order remanding a person accused of non-bailable offence to custody under section 167 or Section 309(2) of the Criminal P.C. does not per se entitle the accused to be released on bail. The Full Bench observed that the observations of the learned single Judge in Khinvdan's case (supra) referred to above were obiter.
23. In Shambhu Nath Singh v. State of Bihar, 1987 Cri LJ 510 a Division Bench of the Patna High Court has held that if Police report is submitted within the period specified under the proviso (a) to Section 167, but cognizance of the offence is not taken by the Magistrate, it cannot be said unless cognizance is taken power of remand under section 309(2) cannot be exercised. I respectfully agree with the view expressed by the Full Bench and the Division Bench of the Patna High Court.
24. From the above discussion it follows that earlier illegal detention of an accused would not vitiate the order of remand under Section 309(2), Cr.P.C. A valid order of remand passed after taking cognizance of the offence will not be vitiated by an earlier order of remand passed without taking cognizance of the offence, even assuming that the said order was without any authority. Delay in taking cognizance of the offence after filing of police report under section 173, Cr.P.C. will not per se give right to the accused to be enlarged on bail.
25. It may be noticed here that during the period, filing of report under section 173, Cr.P.C. on 26-11-1992 and taking cognizance of offence on 27-1-1993, no application for bail was moved the application was moved only on 11-2-1993 after cognizance of the offence was taken. On the date of the application for bail was moved the accused was in custody pursuant to the order of remand under sub-section (2) of Section 309(2), Cr.P.C.
26. For the above reasons the accused is not entitled to be released on bail on the ground of not taking cognizance of offence within ninety days.
27. The criminal petition is, therefore, dismissed.
28. Petition dismissed.