Judgment:
Vinod Shanker Dave, J.
1. In this bail application only point raised is that the accused-petitioners are entitled to be released under the provisions of Section 167(2) Cr.PC.
2. Admitted facts of the case are that the accused-petitioners were arrested on August 1, 1985, by the police station, Gumanpura, Kota in a case under Section 302 IPC and during the course of investigation last remand order passed by the Judicial Magistrate No. 3, Kota was on October 17, 1985, by which the petitioners were remanded upto October 31, 1985, though the period of 90 days was to expire on October 29, 1985, since after the date of their arrest. It is also admitted that charge-sheet was submitted on October 29, 1985, i.e. before expiry of 90 days. On the date the charge-sheet was submitted the accused were not forwarded to the court along with the police report. It is also admitted that documents under Section 167 Cr.PC were also not given on this date. The short question, therefore, raised is that whether the accused could be remanded upto October 31, 1985, and if remanded was it not obligatory for the Police Officer to forward them to the court along with charge-sheet on October 29, 1985, and whether cognizance could be taken in their absence and whether for this reason the accused-petitioners are entitled to bail.
3. It is submitted by the learned Counsel for the accused-petitioners that according to the proviso (a) to Sub-section (2) of Section 167 Cr.PC no Magistrate can authorise the detention beyond a period of 90 days under Section 167(2) Cr.PC, therefore, the order dated October 17, 1985, authorising the detention beyond a period of 90 days was illegal & the accused-petitioners were entitled to be released on bail when they were prepared to furnish the same. Reliance has been placed on Mantoo Majumdar and Anr. v. The State of Bihar : 1980CriLJ546 .
4. On the other hand learned Counsel for the complainant submitted that as soon as the charge-sheet is submitted the Magistrate took cognizance of the offence and thereafter the petitioner has been remanded to custody as required under Section 309 Cr.PC and even if the detention of the petitioners have been illegal it was cured and the case is squarely covered by Full Bench decision of this Court reported in Mahesh Chand etc. v. State of Rajasthan AIR 1984 Raj 697.
5. I have given my consideration to the rival contentions and have perused the cases cited by other side.
6. I have already given the admitted facts and the question raised above. In Mantoo Majumdar and Anr. v. The State of Bihar (supra.) the accused were in jail for about six years and mechanically remand was being given even after 90 days and in those circumstances their Lordships made the following observations:
Section 167(2) empowers the Magistrate to authorise the detention of an accused in such custody as he thinks fit for a term not exceeding 15 days in the whole. More importantly, there is a precious interdict protective of personal freedom which states that no Magistrate shall authorise the detention of the accused person exceeding 90 days in grave cases and 60 days in less grave cases.
Where the accused had been kept in custody for six years and the Magistrates concerned had been mechanically authorising repeated detentions unconscious of the provisions which obligated them to monitor the proceedings which warranted such detention, the accused were ordered to be released forthwith.
In that case their Lordships were not considering the question of detention prior to filing of challan and subsequent to filing of the charge-sheet separately. Neither the scope of Section 309 Cr.PC was for consideration nor that of taking cognizance in the absence of the accused and, therefore, this cannot be said to be a proposition on the facts of the present case. While in Mahesh Chand's case (supra) the Full Bench of this Court answered seven questions referred to them. In one of the cases dealt by their Lordships in that judgment is Sajjan Singh's case who made an application under Section 439 Cr.PC complaining that he was arrested on September 7, 1983 but the remand was given till December 7, 1983 which was beyond 90 days and, therefore, it was submitted that since the total period of detention authorised exceeded 90 days, he was entitled to be released on that ground under Section 167 Cr.PC. In that case the charge sheet was filed on December 3, 1983, i,e. well within the period of 90 days and the Magistrate took cognizance on the same day. Sajjan Singh was not produced before the court on the day the cognizance was taken and no formal order was passed postponing the commencement of inquiry and remanding him to custody as required under Section 309 Cr.PC. The following questions were therefore, framed which were answered by the Full Bench:
(i) Whether any illegality committed in the order of remand passed under Section 167 Cr.PC is curable by subsequent legal order? If so, whether an accused person is entitled to the grant of bail merely on this account?
(ii) Whether an illegal order of remand passed under Section 309(2) Cr.PC can be cured by a subsequent legal order of remand? If so, whether an accused person is entitled to the grant of bail merely on this account?
(iii) Whether the legality or illegality of detention of an accused person is to be seen on the date of deciding the application for bail, or on the date when such bail application is filed or on the date when any legal remand order was given after the illegal detention?
(iv) Whether cognizance of offence can be taken in the absence of the accused?
(v) Whether Chief Judicial Magistrate is competent to take cognizance of such cases which he has entrusted to other Magistrate by a general order or specific order in a particular case?
(vi) Whether in the case of illegal detention an accused person has a remedy of writ of habeas corpus under Article 226 of the Constitution or by moving a bail application?
(vii) In case of conflict between two Division Benches of a court, which will prevail till the matter is decided by a larger Bench.
While answering a first question No. 4 their Lordships held that even in the case of Magistrate taking cognizance of the offence upon a police report under Section 190(1)(b) Cr.PC such cognizance has quite often to be taken in the absence of the accused if he is not forwarded in the custody at the time of presenting the police report. The Magistrate would thus first take cognizance of the offence upon the police report and thereafter issue process for the attendance of the accused. Hence it was not essential to forward the accused to the court when the cognizance of the offence was to be taken. Regarding the other part whether an illegal order of remand is curable by subsequent legal order, suffice it to that they have been discussed in details from para 17 onwards of the judgment after reviewing various authorities of this Court and the Supreme Court and their Lordships held that bail is no remedy for illegal detention. They further held that there is nothing in the new Code which entitles an accused to be released on bail merely on the ground and without more that his detention in prison is illegal except that his case is either covered by paragraph (a) of Section 167(2) Cr.PC or that he is entitled to it under the provisions of Chapter XXXIII of the new Code but held that illegality in the order remanding a person accused of non-bailable offence to custody under Section 162 or Section 392 of the new Code does not per se entitle the accused to be released on bail and it is in this back ground that the submission of the petitioners has to be considered. The learned Magistrate in the case has taken cognizance of the offence on October 29, 1985 as is borne out from order sheet and directed the papers to be delivered to the accused on 31-8-1985 when he was present in the court.
7. Obviously this case is similar to one that of Sajjan Singh mentioned in the Full Bench judgment which is binding on me. As such I find no force in the bail application and dismiss the same.