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Ved Kumar Seth and anr. Vs. the State of Assam - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantVed Kumar Seth and anr.
RespondentThe State of Assam
Excerpt:
.....being the position, the remand orders under section 309(2) cannot be passed before submission of police report under section 173(2) on the basis of which alone in such cases the magistrate may take cognizance under section 190(1)(b). therefore, the learned chief judicial magistrate, in the instant case, is not correct when he says that he has jurisdiction to take the cognizance before submission of police report under section 173(2). if after submission of the report under section 173(2), the prosecution finds that furher investigation in respect of the offence is necessary, it may easily resort to sub-section (8) of section 173 which is a new provision in the criminal p. 10,000/- (rupees ten thousand) only with one surety of the like amount in each case to the satisfaction of ths..........rajdhani automobiles, a. t. road, gauhati) driving his own car at about 7-30 p.m. some unknown person/persons fired at him causing serious injury to his person. he was immediately removed to chatribari mission hospital where he succumbed to the injury. it was suspected that he had been murdered by some of his family members for the interest of property.2. on receipt of the first information report the police registered case no. 149 (6) of 1974 under section 302, indian penal code.3. in connection with the aforesaid case under section 302, indian penal code, the police arrested ajit kumar singh, ved kumar seth and harnam singh on 25-6-1974, sita rani bedi on 28-6-1974, avtar sinsh on 9-7-1974 and sardar ajit singh walia on 12-8-1974.4. accused ved kumar seth is the petitioner in.....
Judgment:

M.C. Pathak, C.J.

1. The facts leading to these applications for bail under Section 439 read with Section 401 of the Criminal P. C. 1973 are as follows:

One Ramesh Kumar Arora lodged a First Information Report with the Gauhati Police Station on 24th June, 1974, alleging that while his uncle Kalwant Singh Bedi alias Kanti Bedi was returning home from his Automobile Shop (M/s. Rajdhani Automobiles, A. T. Road, Gauhati) driving his own car at about 7-30 p.m. some unknown person/persons fired at him causing serious injury to his person. He was immediately removed to Chatribari Mission Hospital where he succumbed to the injury. It was suspected that he had been murdered by some of his family members for the interest of property.

2. On receipt of the First Information Report the Police registered case No. 149 (6) of 1974 under Section 302, Indian Penal Code.

3. In connection with the aforesaid case under Section 302, Indian Penal Code, the Police arrested Ajit Kumar Singh, Ved Kumar Seth and Harnam Singh on 25-6-1974, Sita Rani Bedi on 28-6-1974, Avtar Sinsh on 9-7-1974 and Sardar Ajit Singh Walia on 12-8-1974.

4. Accused Ved Kumar Seth is the petitioner in Criminal Revision No. 180 of 1974, accused Sardar Ajit Singh Walia, and Avtar Singh and also Sita Rani Bedi and Ajit Singh Bedi by a separate petition are the Petitioners in Criminal Revision No. 184/74. After arrest the accused-petitioners were produced before the Chief Judicial Magistrate, who remanded the accused-petitioners for some time in Police custody and thereafter to jail custody. Bail petitions were moved on behalf of the accused petitioners which were rejected. On behalf of the accused Ved Kumar Seth bail application was moved on 11-9-74 claiming to be enlarged on bail as of right after expiry of sixty days from the date of his arrest. The petition was rejected by the learned Chief Judicial Magistrate by his order dated 15-10-1974. On behalf of the other petitioners also bail petitions were moved on similar grounds and the learned Chief Judicial Magistrate rejected them.

5. By these applications the petitioners have challenged the orders dated 15-10-1974 and 16-10-1974 passed by the learned Chief Judicial Magistrate by which all the accused-petitioners have been remanded to custody.

6. We have heard Mr. B. C. Barua and Mr, J. P. Bhattacharjee the learned counsel for the Petitioners at length. The learned counsel for the petitioners submit that under Section 167(2) of the Criminal P. C. 1973, the petitioners are entitled to be released on bail as of right after the expiry of the total period of sixty days in custody since they are prepared to furnish bail and that the learned Chief Judicial Magistrate has no jurisdiction to remand the accused-petitioners to custody after the total period of sixty days in custody has expired.

7. The admitted position is that all the accused-petitioners are in custody for more than sixty days when the applications for bail were moved before the learned Chief Judicial Magistrate.

8. It is submitted on behalf of the petitioners that they were arrested on 25-6-1974, 28-6-1974, 9-7-1974 and 12-8-1974 as stated hereinbefore. On behalf of the petitioners applications for bail were moved before the learned Chief Judicial Magistrate after expiry of 60 days in custody in each case. The investigation has not yet been completed and no police report has been submitted to the Magistrate under Sub-section (2) of Section 173, Criminal P. C. and therefore the Magistrate could not take cognisance of the offence and in the circumstances the accused-petitioners were entitled to be released on bail under Section 167(2), Criminal P. C. as of right.

9. Sub-section (1) of Section 167, Criminal P. C. lays down that 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, Criminal P. C, 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, not below the rank of sub-inspector, making the investigation shall forthwith forward the accused to the nearest Judicial Magistrate and also a copy of the entries in the diary relating to the case.

10. Section 57, Criminal Procedure Code lays down that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable and such period shall not in the absence of a special order of a Magistrate under Section 167, Criminal Procedure Code, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.

11. Hence when a person is arrested and detained in custody and if it appears to the investigating officer that investigation cannot be completed within twenty-four hours and he finds that there are grounds for believing that the accusation or the information is well founded, then the Police officer concerned shall forthwith forward the accused to the nearest Judicial Magistrate with a copy of the entries in the diary relating to the case against the accused.

12. Sub-section (2) of Section 167, Criminal Procedure Code lays down that the Judicial Magistrate to whom an accused person is forwarded under Sub-section (1) whether such Magistrate has or has not jurisdiction to try the case, may authorise from time to time the detention of the accused either in police custody or judicial custody as such Magistrate thinks fit for a term not exceeding fifteen days in the whole. If the Magistrate has no jurisdiction to try the case or commit it for trial and if he considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.

13. Thus it is found that the Judicial Magistrate before whom the accused is produced may order detention of the accused either in police custody or in Judicial custody for a period not exceeding fifteen days in all.

14. There are three provisos to subsection (2) of Section 167, Criminal Procedure Code, of which proviso (a) is as follows:

Provided that—

(1) the Magistrate may authorise detention of the accused person, otherwise than in 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 section for a total period exceeding sixty days, and on the expiry of the said period of sixty days, 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 section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.

15. Sub-section (2) as discussed here-inabove, authorises the Magistrate to detain the accused in custody (police or judicial) for a. maximum period of fifteen days. Proviso (a) to Sub-section (2) lays down that if the Magistrate is satisfied that adequate grounds exist for detaining the accused person in judicial custody beyond the period of fifteen days, he may do so, but the Magistrate under this section shall not authorise the detention of the accused in custody for a total period exceeding sixty days and on the expiry of the said period of sixty days in custody, the accused person shall be released on bail if he is prepared to and_ does furnish bail. It is further laid down in the said proviso that every person released on bail under this section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.

16. Thus after the accused is kept in custody for fifteen days the Magistrate may order for detention of the accused person in judicial custody for another forty-five days, but the period ordered for detention must not exceed each time fifteen days. For passing such detention order also the Magistrate has to be satisfied that there are adequate grounds for such detention. If the accused person is thus detained for sixty days in all in custody under Sub-section (2) then after the expiry of the sixty days the mandate of the proviso (a) comes into operation which categorically lays down that on the expiry of the period of sixty days the accused person shall be released on bail if he is prepared to, and does furnish bail. From the language of proviso (a) to Sub-section (2) it is quite clear that after the expiry of sixty days in total, the Magistrate is not authorised to detain the accused person in custody and further if the accused person is prepared to and does furnish bail he shall be released on bail.

17. The question therefore arises whether the Magistrate has any authority to pass orders for detention of the accused person after he is kept in custody for the total period of sixty days and if the accused person is prepared to and does furnish bail.

18. In our considered opinion the language of the proviso (a) clearly states that after an accused is kept in custody for the total period of sixty days, the Magistrate has no jurisdiction to pass orders for his detention in custody provided the accused person is prepared to and does furnish bail. Of course if a person is released on bail under this section he shall be deemed to be so released under the provisions of Chap. XXXIII for the purposes of that Chapter.

19. It is submitted on behalf of the State that proviso (a) should be read as subject to the provisions of Chapter XXXITI. In other words, the submission of the State Counsel is that the release on bail of the accused person after detention in custody for sixty days shall be subject to the provisions of Chapter XXXIII (Provisions as to Bail and Bonds) including Sub-section (1) of Section 437, Criminal P. C. which reads as follows—

Section 437(1) When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.

Provided that the Court may direct that any person unci;r the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail:

Provided further that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.

20. Considering the language of proviso (a) of Section 167(2) and the language of Section 437(1), Criminal P. C, we find that the mandatory provision in proviso (a) to Sub-section (2) of Section 167 to the effect that on the expiry of the period of sixty days in custody, the accused person shall be released on bail if he is prepared to and does furnish bail, is not controlled by provisions of Sub-section (1) of Section 437 to the effect that the accused person shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imptrison-ment for life. In other words, the said provision of Sub-section (1) of Section 437 is applicable only in the case of an accused person whose period of detention in custody has not completed sixty days.

21. The provision in proviso (a) to Section 167(2), Criminal P. C. to the effect that 'every person released on bail under this section shall be deemed to be so released under the provisions of Chapter XXXIII,' for the purposes of that Chapter means that if a person is released on bail under Section 167, Criminal P. C., the other relevant provisions regarding the bail and bail bonds as laid down in Chapter XXXIII will be applicable. That is to say, if an order for bail is passed under the mandatory provision in proviso (a) in Section 167(2) then the other relevant provisions regarding bail and bail bonds in Chap. XXXIII will be attracted.

22. We are clearly of the opinion that the provision that an accused person shall be released on bail after the expiry of sixty days in custody, if he is prepared to and does furnish bail, is not controlled by the latter portion of Section 437(1). Had it been so the language of the proviso (a) would have been necessarily otherwise which is clear from the language used in Sections 44(1), 56, 81(1) second proviso and 209 (b) regarding bail and custody which are quoted below :

Sub-section (1) of Section 44 reads as follows:

When any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody.

23. Section 56 reads as follows : 'A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.'

24. Section 81(1) second proviso reads as follows :

Provided further that if the offence is a non-bailable one, it shall be lawful for the chief Judicial Magistrate (subject to the provisions of Section 437), or the Sessions Judge, of the district in which the arrest is made on consideration of the information and the documents referred to in Sub-section (2) of Section 78, to release such person on bail.

25. Section 209(b) reads as follows: 'S. 209. 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) * * * * *

(b) Subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;

(a) * * * * *

26. In the instant case, as pointed out earlier, all the accused-petitioners have been kept in custody for more than sixty days. We have found that after an accused person is kept in custody for sixty days in all, the Magistrate must release him on bail if he is prepared to and does furnish bail and there is no jurisdiction of the Magistrate under Section 167, Criminal P. C, to pass remand orders or to pass orders for detention of the accused persons after he has already been in custody for sixty days.

27. In the impugned order of the learned Chief Judicial Magistrate he has observed that the remand orders in the instant case have been passed under Section 309(2) of the Criminal P. C, 1973.

28. Sub-section (2) of Section 309 may be set out:

Section 309(2). If the Court, after taking ognizance 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 1.— 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 is a reasonable cause for a remand.

Explanation 2.— The terms on which an adjournment or potponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused.

29. From the language of Sub-section (2) of Section 309 it is quite clear that an accused person if in custody may be remanded to custody only after taking cognizance of an offence or after commencement of trial and if the other conditions laid down in subsection (2) are satisfied. Hence in order to pass an order of remand under Sub-section (2) of Section 309, the Magistrate must first take cognizance of the offence. If the Magistrate has not taken cognizance of the offence, no remand order can be passed under Sub-section (2). The learned Chief Judicial Magistrate has observed that he has passed the order of remand in the instant case under Section 309(2) and he has also observed that he has taken cognizance of the offence.

30. The point now falls for determination is whether the learned Chief Judicial Magistrate is correct in his observation that he has taken cognizance of the offence even though admittedly Police report under Section 173 (2) has not yet been submitted.

31. Chapter XIV of the Code of Criminal Procedure 1973 deals with Conditions Requisite for Initiation of Proceedings.

Section 190 reads as follows:

Section 190. Cognizance of offences by Magistrates— (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2) may take cognizance of any offence—

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-section (1) of such offences as are within his competence to inquire into or try.

32. In the instant case on the first information report lodged the Police has registered a case and has been investigating the same. The Magistrate, therefore, may take cognizance of the offence in the instant case under Section 190(1)(b) upon a police report of facts which constitute the offence.

33. The relevant portions of Section 173 may be considered.

Section 173(1). Every investigation under this Chapter shall be completed without unnecessary delay.

(2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating—

(a) the name of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody under Section 170.

(ii) * * * * *

(3) Where a superior officer of police has been appointed under Section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.

(4) * * * * *

(5) * * * * *

(6) * * * * *

(7) * * * * *

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward tt, the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2).

Section 2 (r) defines police report—

2 (r) 'Police report' means a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173.

34. Thus Section 190(1)(b) provides that the Magistrate may take cognizance pf any offence upon a police report of facts which constitute such offence. It is quite reasonable to hold that the Magistrate will take cognizance only on the police report as submitted under Section 173(2), Criminal P. C, and then only the police report mentioned in Section 190(1)(b) will comply with the definition of police report in Section 2(r). That being so, it is difficult to hold that the Magistrate may take cognizance of an offence in a case investigated by police before police report is submitted under Section 173(2), Criminal P. C.

35. Considering the above provisions we are clearly of the opinion that remand orders under Section 309(2) may be made only after taking cognizance of an offence which may be taken in a case investigated by Police only after submission of the charge-sheet under Section 173(2). That being the position, the remand orders under Section 309(2) cannot be passed before submission of police report under Section 173(2) on the basis of which alone in such cases the Magistrate may take cognizance under Section 190(1)(b). Therefore, the learned Chief Judicial Magistrate, in the instant case, is not correct when he says that he has jurisdiction to take the cognizance before submission of police report under Section 173(2). If after submission of the report under Section 173(2), the prosecution finds that furher investigation in respect of the offence is necessary, it may easily resort to Sub-section (8) of Section 173 which is a new provision in the Criminal P. C. of 1973 and also to relevant provisions of Sub-section (2) of Section 309, But these provisions will come into play only after submission of police report under Section 173(2) on the basis of which alone the Magistrate is competent to take cognizance of such an offence.

36. In the circumstances we hold that the observation of the learned Chief Judicial Magistrate that he could take cognizance of the offence in the instant case, even though no report under Section 173(2) has been filed, is not correct and that being so, the remand orders purported to be under Section 309(2) cannot be held to be in accordance with law. Hence, we quash the impugned remand orders passed by the learned Chief Judicial Magistrate.

37. In the instant case, as observed earlier, police report under Section 173(2) has not been submitted. The accused persons are in custody for more than sixty days, and hence they are entitled to be released on bail if they are prepared to and do furnish bail.

38. In exercise of the powers under Section 439(1), Criminal P. C, we therefore direct that the accused-petitioners shall be released on bail of Rs. 10,000/- (Rupees Ten thousand) only with one surety of the like amount in each case to the satisfaction of ths Chief Judicial Magistrate, Kamrup at Gauhati. It is further ordered that the accused-petitioners except Sita Rani Bedi shall report to the Police Station once a week till the submission of the Police report under Section 173(2) of the Criminal P. C. 1973.

39. In the result the petitions are allowed.

D.M. Sen, J.

40. I agree.


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