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Chapalamedugu Bollayya and anr. Vs. the State of A.P. and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1978CriLJ1347
AppellantChapalamedugu Bollayya and anr.
RespondentThe State of A.P. and anr.
Excerpt:
.....not received. 12. before parting with this case we however wish to express our strong disapproval of the manner in which this case has been adjourned from time to time......and three others were arrested and produced before the second respondent on 3-12-1977. in the remand report it was stated that one chandra satyanarayana was attacked by these five accused on 17-11-1977 at about 9 a. m. a-4 beat him with an axe on his head a-l speared him on his left stomach and all the accused beat the deceased indiscriminately. satyanarayana died instantaneously. they also beat chandra narayya who was with satyanarayana and he received injuries. the second respondent remanded all the accused to judicial custody under section 167, cr. p.c. till 15-12-1977. on a memo filed by the police, the remand was extended till 28-12-1977. meanwhile a charge sheet (report under section 190(1)(b), cr. p.c.) was filed on 17-12-1977 charging a-4 of an offence under section 302,.....
Judgment:
ORDER

1. The petitioners herein are accused Nos. 1 and 4 in P.R.C. 14/77 on the file of the Court of the Judicial Magistrate of Second Class Narsaraopet, who is the second respondent in this writ petition. The petitioners and three others were arrested and produced before the second respondent on 3-12-1977. In the remand report it was stated that one Chandra Satyanarayana was attacked by these five accused on 17-11-1977 at about 9 a. m. A-4 beat him with an axe on his head A-l speared him on his left stomach and all the accused beat the deceased indiscriminately. Satyanarayana died instantaneously. They also beat Chandra Narayya who was with Satyanarayana and he received injuries. The second respondent remanded all the accused to judicial custody under Section 167, Cr. P.C. till 15-12-1977. On a memo filed by the police, the remand was extended till 28-12-1977. Meanwhile a charge sheet (report under Section 190(1)(b), Cr. P.C.) was filed on 17-12-1977 charging A-4 of an offence under Section 302, I.P.C. and all the accused under Section 302, I.P.C. read with Section 149 I.P.C. A-2 and A-3 were also charged with an offence under Section 324, I.P.C. and A-5 under Section 323, I.P.C., A-l to A-4 under Section 148, I.P.C. and A-5 under Section 147, I.P.C. The second respondent took the case on file under the above sections and posted the case to 28-12-1977 to which date the accused had been remanded to judicial custody. On 28-12-1977 all the accused were present and remanded and the matter was posted on 4-1-1978. Again, on 4-1-1978, the accused were present but observing that 'C' report was not received (referring obviously to a report of the chemical examiner to whom certain material objects were sent for examination), the second respondent posted the case to 7-1-1978. Again for the same reason the case was adjourned from 7-1-1978 to 12-1-1978. Thereafter the case underwent the following adjournments from 12-1-1978 to 21-1-1978, from 21-1-1978 to 28-1-1978 from 28-1-1978 to 3-2-1978, from 3-2-1978 to 10-2-1978 from 10-2-1978 to 17-2-1978 and from 17-2-1978 to 27-2-1978.

2. Meanwhile all the accused filed a bail application, Crl. M. P. No. 68/78 in this Court. By an order dated 23-1-1978 this Court directed accused 2, 3 and 5 to be released on bail on certain conditions. It however dismissed the application in so far as accused 1 and 4 namely, the petitioners herein were concerned.

3. The petitioners herein have filed this writ petition praying for the issue of a writ of habeas corpus directing the production of the petitioners herein. They also applied in W. P. M. P. No. 983/78 that this Court may grant bail to the petitioners on suitable terms pending disposal of the writ petition.

4. The main contention urged on behalf of the petitioners by Sri T. V. Sarma, is that the Criminal Procedure Code provides for remand under Section 167, Cr. P.C. but the moment the report is filed under Section 173 (1) and (2) the Magistrate is divested of his jurisdiction to remand under Section 167. Once cognizance of offence is taken there is no power to adjourn or remand by Magistrate under Section 209, Criminal P. C. The only course for the Magistrate under Section 209, Cr. P.C. is to commit the accused to session. The Magistrate instead of committing them on the day when he took cognizance of the offence adjourned the case from time to time without any sanction of law and continued to remand the accused to custody. Thus the Magistrate in violation of the procedure established by law exercised jurisdiction not vested in him and deprived the individual liberty of the petitioners from 21-12-1977 onwards when he took cognizance of the case. The petitioners are therefore entitled to the issue of a writ of habeas corpus.

5. In the counter-affidavit sworn to by the Sub-Inspector of Police, Chilkalurpet it is stated that the accused have been committed to judicial custody by a competent court and hence the petitioners cannot pray for the issue of a writ of habeas corpus and if there is any delay in the progress of the case at any stage, the remedy of the petitioners is to move the trial court against such delay.

6. The learned Public Prosecutor contends that as the petitioner was remanded to custody by a competent court, a writ of habeas corpus cannot be granted. In support of this contention he relied upon a decision of the Supreme Court in Kanu Sanyal v. Dist. Magistrate, Darjeeling : 1974CriLJ465 , where following an earlier decision in B.R. Rao v. State of Orissa : AIR1971SC2197 it was held that a writ of habeas corpus cannot be' granted when a person Is committed to jail-custody by a competent court by an order which prima facie does not appear to be without jurisdiction or wholly illegal. This argument proceeds on the footing that the remand to custody of the petitioner by the Magistrate was by a lawful order whereas the very contention of the petitioner is that after a report is made and the accused appears it is only if the Magistrate makes an order of committal to the Sessions court under Section 209, Cr. P.C. that he is entitled to remand the accused to custody and the Magistrate has no jurisdiction to remand the accused to custody while adjourning the proceedings without an order of committal. We have therefore necessarily to consider the above contention of the petitioner.

7. The decision in B. Mondal v. State of West Bengal : 1972CriLJ1175 is also of no assistance to the learned Public Prosecutor as all that it lays down is that a mere delay in the completion of investigation and the trial is no ground for issuing a writ of habeas corpus and the remedy of the accused is to move the trial court or the High Court against such a delay or to apply for a bail to the appropriate Court. The contention of the petitioner is not based on delay but on the absence of jurisdiction.

8. Now turning to the main contention it cannot be denied that the court has no inherent power to remand an accused to custody. The liberty of a person is regarded as so sacred that it cannot be interfered with except under a specific provision of a statute made in accordance with the Constitution authorising such interference. The three provisions in the Criminal P. C. which empower the Magistrate to remand an accused to custody are Sections 167, 209 and 309. Section 167 deals with a situation before the court takes cognizance of an offence. In this case as the Magistrate has taken cognizance we are not concerned with Section 167. Under Section 209, Cr. P.C. 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 the case to the court of Session;

(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.

It is seen from these provisions that when a case is instituted on a police report or otherwise and the accused appears or is brought before the Magistrate, the Magistrate is bound to commit the accused to the court of Sessions, if it appears to him that the offence is triable exclusively by that court. The power to remand the accused to custody is contained in Section 209. It follows therefore that this power can be exercised only at the time or immediately after the court passes an order committing the accused to the sessions court. This is also made clear by the latter part of Section 209 which says that the remand is during and until the conclusion of the trial. The expression 'trial' in that provision can only refer to the trial by the Sessions Court. As in this case the Magistrate has not till now passed an order committing the case to the court of Session we are of the view that the remand order cannot be supported as one made under Section 204 (209, Cr. P.C. It is however contended by the learned Public Prosecutor that the remand order is one made in exercise of the powers granted under Section 309, Cr. P.C. Section 309, Cr. P, C. enables the court to adjourn an enquiry or trial if it finds the adjournment of the same to be necessary for reasons to be recorded. Section 309 is in the following terms:

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 e term exceeding fifteen days at a time. XX XX

These provisions make it clear that after taking cognizance of an offence, the court is entitled to postpone commencement or adjourn any enquiry or trial from time to time. It is also empowered to remand the accused if in custody. Sri Sarma submits that this provision cannot apply to a case covered by Section 209, Cr. P.C. He argues that in such a case the Magistrate is bound to commit the case to the court of session, the only requirement being that it must appear to the Magistrate that the offence is triable exclusively by the Sessions court. The Magistrate has merely to read the police report or in cases not covered by a Police report, any material placed before him and come to a conclusion on the face of such material whether the offence is one triable exclusively by the Sessions Court. The section does not contemplate nor does it authorise the Magistrate to conduct any enquiry at that stage. He therefore submitted that the power to postpone or adjourn any enquiry or trial conferred by Section 309 and the consequent power to remand in case of such postponement or adjournment has no application to a case covered by Section 209, Cr. P.C.

We are unable to accept this contention. The expression 'enquiry' is defined in Section 2(g) of the Code as meaning 'every enquiry, other than a trial, conducted under 'the Code by a Magistrate of Court', The expression 'enquiry' thus is of wide import and takes in every proceeding other than a trial. It is true that under Section 209 all that the Magistrate has to do is to see whether the offence is triable exclusively by the Court of Session and if it appears to him that the offence is so triable he should commit the case to the court of session. It does not contemplate taking of evidence or any elaborate investigation. But even so we are of the view that the proceedings pending before the Magistrate from the time when a police report is filed before him or the matter is brought before him otherwise than by a police report, till the Magistrate passes the order committing the caste to the court of session, would constitute an 'enquiry' before him within the meaning of Section 309, Cr. P.C. read with Section 2(g). If the argument of Sri Sarma is accepted it will lead to an absurd result, namely, that the Magistrate has immediately to make up his mind and commit the case to the court of session. He has no power to adjourn the matter at all whatever may be the circumstance of the case and even if he has any justifiable ground for doing so. It is possible, that the Magistrate may require time for satisfying himself whether even on the face of the police report the offence is one triable exclusively by the court of session. In a case where it is brought before him other than by police report, he may like to consider all the material placed before him. There may be physical reasons for the Magistrate not being able to immediately pass an order committing the case to the Sessions Court. Further, it is also seen that the Magistrate has to send to the Sessions Court the record of the case and the documents and articles if any, which are to be produced in evidence. Section 207, Cr. P.C. requires that the accused should be furnished free of cost copies of the police report, F.I.R. statements recorded under Section 161(3) of all persons whom the prosecution proposes to examine as its witnesses, confessions and statements under Section 164 and other documents forwarded to the Magistrate with the police report under Section 173(5). Similarly under Section 208, Cr. P.C. in a case instituted otherwise than a police report the Magistrate has to furnish to the accused free of cost a copy of the statement recorded under Section 200 or Section 202, statements and confessions under Section 161(3) or 164 and documents on which the prosecution proposes to rely. Supply of copies of these documents will inevitably take time. These provisions are intended for the benefit of the accused. If the Magistrate does not adjourn the case and is compelled to commit the case to the sessions court immediately after the report is received in every case, such a course is likely to cause great prejudice to the accused.

It could not have been the intention of the framers of the Code that the Magistrate should not have power of adjournment till at least the various documents are ready for supply of copies to the accused. Section 209, Cr. P.C. was no doubt enacted as it was found that preliminary enquiries by the Magistrate in cases exclusively triable by the court of session served no useful purpose and on the contrary involved a great deal of infructuous work causing delay in the trial of serious oases. In the statement of objects and reasons it was stated as follows:

However, to perform certain preliminary functions like granting copies, preparing the records, notifying the public prosecutor etc., provision is being made that the Magistrate taking cognizance of the case will perform these preliminary functions and formally commit the case to the court of session.

It is clear from the above that it was intended that the order committing the case to the court of session would normally be made after the Magistrate performed the preliminary functions referred to above including the granting of copies of the necessary documents to the accused. We are therefore of the view that the Magistrate is entitled to adjourn the case from time to time under Section 309, Cr. P.C. even in a case covered by Section 209, Cr. P.C. provided that the conditions mentioned in Section 309 are satisfied. Section 309 specifically empowers the Magistrate to remand the accused while adjourning the case. The orders passed in the present case remanding the accused while adjourning the case from time to time pending receipt of the report of chemical examiner were in our opinion fully justified. This view of ours receives support from the observations of the Supreme Court in Natabar Parida v. State of Orissa : AIR1975SC1465 after referring to Section 309 the Supreme Court observed:

It is also clear that after taking of the cognizance the power of remand is to be exercised under Section 309 of the new Code.

Sri Sarma however strongly relied upon the decision of the Allahabad High Court in Lakshmi v. State 1976 Cri LJ 118. In that case it was held that the power to remand the accused to custody under Section 309 can be exercised only when a court after taking cognizance of offence or commencement of trial finds it necessary or advisable to postpone the commencement of or adjourn any enquiry or trial. In a case which is exclusively triable by a court of session, the Magistrate will proceed to commit the case under Section 209 of the Code and does not conduct an enquiry as contemplated under Section 309 of the Code. Accordingly in a case where for some reason the Magistrate defers making an order committing the accused to the court of session he does not postpone the commencement of or adjourn any enquiry as contemplated by Section 309 of the Code and the order remanding the accused to custody after the police submitted the charge sheet cannot be justified under Section 309 of the Code. The learned Judges observed that in a case triable exclusively by a court of Session, the Magistrate taking cognizance of the offence is not required to conduct any proceeding for ascertaining or verifying the fact with a view to commit the case to sessions court, and it cannot therefore be said that the Magistrate while proceeding to commit a case under Section 209, Cr. P.C. conducts an enquiry. With great respect to the learned Judges we are not willing to take the same view as to the meaning of the expression 'enquiry' in Section 309 and that the Magistrate cannot be said to postpone or adjourn an enquiry when he is adjourning a matter brought before passing an order of committal. The learned Judges observed in paragraph 12 that if Section 2(g) is interpreted in the light of the different provisions of the Code it would become obvious that 'enquiry' is the name given to a proceeding conducted under the Code by . the Magistrate or a court other than a trial for ascertaining or verifying acts with a view to take some action under the Code. They then proceeded to observe that Sections 207 to 209 do not contemplate that before committing the case to the sessions court the Magistrate should conduct some proceeding with a view to ascertain or verify the facts and hence it cannot be said that these proceedings constitute an enquiry under the Code Dealing with the submission of the Government Advocate that the Magistrate has to supply copies under Sections 207 and 208 and postponement may be necessitated because of non-availability of requisite copies, the learned Judges observed that the making of an order committing the case to the court of session is not dependent upon supply of copies. The Magistrate is not debarred from complying with the provisions of Section 207, Cr. P.C. even after the order committing the case to the sessions has been made and if there is a practice prevailing in the lower Courts whereby the making of an order under Section 209 committing the case to the court of session is deferred so as to enable the Magistrate to get the necessary copies under Section 207 prepared and supplied to the accused, that practice is not in accordance with law. If he defers making an order committing the case to sessions because necessary copies have not been prepared and supplied to the accused, he does not do so with a view to proceed with an inquiry on a future date. He does so for getting the copies prepared and supplied, and this has nothing to do with the conduct of an enquiry and hence in such a case the question of enquiry or trial does not arise. With great respect we are unable to agree with the view expressed by the Allahabad High Court that the practice prevailing in lower courts of deferring the committal order until the necessary copies under Section 207 are prepared and supplied to the accused is not in accordance with law. It is true as pointed out by the Supreme Court in Gurbachan Singh v. State of Punjab : 1957CriLJ1009 and Narayan Rao v. State of Andhra Pradesh : 1957CriLJ1320 that the provisions of Sections 207 and 208 requiring the Magistrate to furnish copies of the various documents mentioned therein are not mandatory notwithstanding the use of the expression 'shall'. All these provisions are intended solely for the benefit of the accused. As copies which were being supplied before were hurriedly prepared by the Police who were not adequately equipped for the purpose it was felt that it would be better that the duty was shifted from the police to the Magistrate taking cognizance of the case. It is also provided that if the document is voluminous instead of furnishing copies, the accused will be allowed to inspect the document personally or through pleader in court. All this is bound to take time and if the committal is made immediately on receipt of the report, it is the accused that will suffer. The practice of deferring the committal order until the copies are furnished to the accused is, in our view, one not to be deprecated and cannot in any event be said to be not in accordance with the law. For the reasons given by us earlier we are of the view that even while acting under Section 209 the Magistrate is empowered to adjourn the case under Section 309 and to remand the accused to custody in the meanwhile. The learned Counsel for the petitioner relied upon a decision of the Supreme Court in what is popularly known as 'Kissa kursi ka' case, extracts from which were reported in 'The Hindu' dated 15-2-1978. It is not safe and desirable that this Court should in the absence of the law reports containing the full decision of the court, proceed merely upon some extracts contained in a newspaper. But even on a perusal of those extracts we do not see anything in the decision which justifies the statement that there is no power in the Magistrate to adjourn the case after taking cognizance under Section 209, Cr. P.C. and that he should pass the order of committal immediately after he receives the report. The Supreme Court has observed that the committal court should not launch on a process of satisfying itself that a prima facie case has been made out on the merits. Expedition was intended by the change and this will be defeated if there was a dress rehearsal of a trial before the Magistrate. The Supreme Court is said to have further stated that the narrow inspection hole through which the committing Magistrate has to look at the case limits him merely to ascertain whether the case as disclosed by the police report, appears to be exclusively triable by the court of session. It is significant to note that the Supreme Court have directions to dispose of the committal proceedings with despatch and allowed the Magistrate four days more time beyond the date fixed earlier by the Supreme Court for committal of the case. Thus, this decision, far from supporting the contention of the petitioner, indicates that the Magistrate is not bound to commit the case to the sessions court immediately on receipt of the report but may adjourn the case, though of course the Magistrate must take care to see that the order of committal is passed expeditiously.

9. For all the above reasons we are unable to accept the contention that the Magistrate should have passed the committal order immediately on receipt of the report from the police and he had no power to adjourn the case from time to time and remand the accused to custody in the meanwhile.

10. The next submission is that even assuming that the Magistrate has power to adjourn the case, he did not exercise that power in accordance with the provisions of Section 309. Under Section 309 if the court after taking cognizance of an offence finds it necessary or advisable to postpone commencement of or adjourn any enquiry 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. Thus the postponement or adjournment can be done (a) if the Magistrate finds it necessary or advisable to postpone or adjourn the case; (b) he has to record the reasons for such postponement or adjournment; (c) he can impose such terms as he thinks fit; (d) he can adjourn it for such time as he considers reasonable. In this case the accused was produced before the Magistrate on 3-12-1977 and he was remanded till 15-12-1977 and the period was extended to 28-12-1977. On 17-12-1977 a charge-sheet was filed. The Magistrate took cognizance and adjourned the case to 28-12-1977 to which date the accused was remanded. It appears from the proceedings that a mud pot containing bloodstained earth seized from the place where the deceased was found dead, together with bloodstained clothes were sent for the report of the chemical examiner and the report had not been received. It is for this reason that the matter was being adjourned from time to time. Though in the order dated 28-12-1977 no specific mention is made about this reason in the order dated 4-1-1978 and 7-1-1978 it is clearly stated that the report was not received. Again, the reason was not stated in the subsequent orders of adjournment. But it is proper to infer that the adjournment was for the same reason. We cannot therefore say that the Magistrate had no adequate reason for adjourning the matter from time to time or that reasons were not recorded as required by Section 309.

11. In the result we see no reason to hold that the remand of the accused to custody was illegal and for that reason he is entitled to a writ of habeas corpus. The petition is dismissed.

12. Before parting with this case we however wish to express our strong disapproval of the manner in which this case has been adjourned from time to time. As pointed out by us, no reasons were recorded in the various orders of adjournment from 12-1-1978 to 17-2-1978 and the matter was left for inference by this Court having regard to the reason given in the previous orders. As has been pointed out by the Supreme Court the object of the procedure under the new Code is prompt trial and the power to adjourn must be used only in proper cases. The Magistrate must take care to see that he exercises his discretion to grant adjournment, reasonably and records his reasons in compliance with Section 309. Indefinite adjournment awaiting the report of the chemical examiner is not desirable as that would encourage the prosecution or the chemical examiner to take their own time in submitting the report and may justifiably make the accused suspect that the prosecution is trying to manipulate the report to their advantage. In the circumstances we consider it proper to give a direction (in the same manner as the Supreme Court did in the 'Kissa Kursee' case) that the committal order should be passed within 15 days from the date of receipt of this order by the Magistrate irrespective of whether the chemical examiner's report is obtained in the meanwhile or not.

13. Sri Sarma requested us to treat this petition as a bail application and grant bail to the accused. Even treating the application as one for bail we do not consider this a fit case for granting bail. A-4 is charged with an offence under Section 302, I.P.C. All the accused are charged with an offence under Section 302 read with Section 149 and A-l to A-4 under Section 148. In the charge-sheet it is stated that A-4 beat the deceased on his head with an axe and A-l speared the deceased on his left stomach and the deceased died instantaneously. In view of these overt acts alleged against the two petitioners and the seriousness of the offence we do not consider it desirable to grant bail at this stage, especially when the bail application Crl. M. P. No. 68/78 in so far as these accused are concerned was dismissed by this Court.

14. Subject to the direction referred to earlier the writ petition is dismissed. Advocate's fee Rs. 250/-.


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