J.D. Jain, J.
(1) The petitioner is involved in case under Section 302 Indian Penal Code (F.I.R. No. 40/82, Police Station R. K. Puram), for having committed fratricide on 26th January, 1982. He is seeking bail through this application, his prayer for bail having been rejected by an Additional Sessions Judge vide order dated 12th May, 1982.
(2) The facts germane to the decision of this application are not in controversy. The petitioner was arrested by the police on 2nd February, 1982 and was produced before a Metropolitan Magistrate on 3rd of February, 1982. He was remanded to police custody in the first instance and thereafter he was remanded to judicial custody from time to time uptil 6th April, 1982. However, the petitioner was not produced before the Court on that day. Since it happened to be a holiday the Investigating Officer appeared before the Duty Magistrate and submitted an application for the production of the petitioner on the next following day viz. 7th April, 1982, which was allowed and the petitioner was accordingly produced before the concerned Magistrate on 7th April, 1982. He was then remanded to judicial custody up to 7th April, 1982, on which day he was again remanded to judicial custody up to 2nd May, 1982. The police submitted report under Section 173, Code of Criminal Proceducre (for short the Code) on 1st May, 1982 and an order was made by the Magistrate that he be produced on 3rd May, 1982. However, the petitioner, was not produced before the concerned Magistrate on 2nd May, 1982, on which date the remand accorded on 20th April, 1982, was to expire.
(3) The submission of the learned counsel for the petitioner precisely is that detention of the petitioner became illegal on 6th April, 1982, in the absence of any valid order of remand to judicial custody and as such the learned Magistrate was not competent to grant further judicial remand on 7th April, 1982, which the petitioner was produced before him and the only course open to the Magistrate was to direct release of the petitioner on bail. It is contended that a further remand in direct contravention of Section 167(2) of the Code could not be made and the Court could not validate the illegal detention by making an order of further remand. On a parity of reasoning, it is urged that the detention of the petitioner from 2nd May, 1982 to 3rd May, 1982, was illegal, in the absence of any specific order of remand and as such this afforded a sufficient ground to the petitioner to ask for his release on bail. The contention raised is that Section 309(2) of the Code does not over-ride the mandatory provisions of Section 167(2) and as such the illegal detention could not be validated by an order under Section 309 granting further remand of the petitioner to judicial custody after the challan had been put in. Reliance in this context has been placed by him on Noor Mohd. v. State, (1978) Ii Delhi 442, Izhar Ahmad v. State, (1978) Cr.L.J. 58, Bashir and others v. State of Haryana, : 1978CriLJ173 and Mantoo Majumdar and anothor v. The State of Bihar, : 1980CriLJ546 . Reference in this context has also been made to Article 21 of the Constitution of India which lays down that no person shall be deprieved of his life or personal liberty except according to procedure established by law. However, as shall be presently seen none of those authorities is of any help to the petitioner.
(4) It is well settled that the Courts have no inherent power of remand of an accused to any custody and such power is conferred by Sections 167, 209 and 309 of the Code. Section 167 empowers a Magistrate to remand an accused person to custody, police or judicial as the case may be, during the pendency of the investigation until the police report is filed while Section 309 comes into play after the Court has taken cognizance of the offence. Section 167 reads as follows :
' (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 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 ax 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;................................. ' '
(5) The object of this provision of law evidently is to ensure that persons arrested by the police are brought before a Magistrate with the least possible delay. In order to enable the latter to judge if such person has to be further kept in police custody or judicial custody and also to enable such person to make any representation he may wish to make in the matter, the provision inhibiting detention remand is a very healthy provision which enables the Magistrates to keep check over the police investigation. It is, thereforee, necessary that the Magistrates should try to enforce this requirement and where it is found to be disobeyed, come down heavily upon the police. All the same on its plain reading, there does not appear to be any co-relation between the power of the Magistrate to grant remand to any custody and the legality or otherwise of the detention of the person before he is produced before the Magistrate. That is even if the detention of a person prior to his production before the Magistrate for police or judicial remand is illegal, the Magistrate will not be within his right to refuse remand on that score alone. He, while granting or refusing remand, has to apply his mind judicially to the circumstances of the case and the reasons for which the remand is sought but he is hardly concerned as to whether the accused has been illegally detained by the police prior to his production before him. By way of illustration we can conceive of a case where a person arrested by the police is produced before the Magistrate after the expiry of 24 hours as prescribed by Article 22(2) of the Constitution and Section 57 of the Code. Is it open to the Magistrate in such a situation to decline remand of the custody to police or judicial custody even though on merits his remand to policy/judicial custody may be well warranted on account of their being sufficient material indicating his involvement in the commission of a heinous crime? The answer, to my mind, will be obviously in the negative. This was the view taken by Madhya Bharat High Court in Hidayat Begam v. State, Air 1951 Mad Bha 70. An argument was advanced by counsel for the petitioner therein that the applicant's detention by the police after the expiry of 24 hours after her arrest was illegal and the Magistrate had) thereforee, no jurisdiction to act under Section 167, Code of Criminal Procedure (1898). However, this argument was repelled by the learned Judge with the following observations :
'THEcontinued custody of the applicant after the expiry of twenty-four hours was illegal but all that the applicant was then entitled to was a direction by the High Court under S. 491, Criminal P.O. that she be brought up before the Court to be dealt with according to law. The Police itself took the applicant to a Court to be dealt with according to S. 167, Criminal P.O. The illegal detention by the Police cannot affect the power of the Magistrate to act under S. 167, Criminal P.O.'
Similarly in Saptawna v. The State of Assam, : 1971CriLJ679 , the Supreme Court said:
'ITseems to us that even if the petitioner had been under illegal detention between January 10 to January 24, 1968 though we do not decide this point the detention became lawful on January 24, 1968, when he was arrested by the Civil Police and produced before the Magistrate on January 25, 1968. He is now an undertrial prisoner.
(6) Thus, the mere fact that the custody of the petitioner was not strictly speaking lawful from 6th April, 1982 to 7th April, 1982, when he was produced in Court would not, in any manner, detract from the competence of the Magistrate to grant his further remand to judicial custody so long as the overall period of his custody did not exceed 90 days in the instant case as provided in the proviso (a) (i) to Sub-section ('2) of Section 167 where after he could have authorised the detention of the petitioner in any custody. There was, no doubt, serious lapse on the part of the Jail authorities in not producing the petitioner before the Magistrate on 6th April, 1982, which was the last date of the remand but that would hardly afford any ground to the petitioner to claim release on bail as a matter of right. Certainly the Jail authorities ran the risk of facing legal consequences for illegal confinement of the petitioner, if it may be so termed. However, the learned Magistrate issued a direction for production of the petitioner on this lapse being brought to his notice by the Investigating Officer. thereforee, the legality and validity of the subsequent remand to custody of the petitioner by the Magistrate can hardly be called in question.
(7) Noor Mohd's (supra) was a case in which the report envisaged by Section 173 of the Code was not sent to the Magistrate by the police within the prescribed period' of sixty days. On the 61st day of his detention the petitioner applied to the Additional Sessions Judge for bail but his application was rejected on the ground that he (the Additional Sessions Judge) had been informed that 'the investigation has been completed and challan will be filed within a day or two'. Two days later the police report was filed. The petitioner was hereafter remanded to custody from time to time to stand trial. It was under these circumstances that the petitioner had made an application for bail in the High Court and it was held by their Lordships that, 'The Court has no power to remand the accused under Section 309(2) if he has been in custody beyond 60 days. If the police report is filed within 60 days the court may remand the accused if the conditions of Section 309 are satisfied. A remand in direct contravention of Section 167(2) cannot be made. Nor can the court validate the illegal detention by making an order of remand under Section 309(2).'
(8) Obviously these observations were made in the context of the proviso to Sub-section (2) of Section 167 because the detention of the petitioner therein had been rendered illegal on the expiry of sixty days of custody and he was entitled to an order of bail in terms of the statutory mandate itself. It is, however, pertinent to note that an argument was advanced before their Lordships that no valid order of remand could be made under Section 309(2) if the accused was not in lawful custody, but the same was repelled by my learned brother Chawla, J. with the following observation :
'THEcourt is not required or expected to go into the lawfulness of the custody of the accused before a remand under Section 309(2). The only question with which the court is concerned is whether it is necessary to further detain the accused in custody. For purposes of that section it is enough that the accused is physically in custody, as opposed to being free. The legality of the custody is of no moment.'
(9) These observations with which I am in respectful agreement would apply with equal force to a case of remand under Section 167 when an accused is produced in custody and the Magistrate will not be concerned, while considering the question of remand, whether the earlier custody was illegal or it had become illegal. All that was decided in Noor Mohd.'s case was that the statutory right which had vested in the accused to claim bail on the expiry of sixty days of his detention without there being any police report under Section 173 could not be defeated by resorting to power of remand exerciseable under Section 309(2) of the Code. So, this authority, far from being of any assistance to the petitioner, fortifies the view taken by me.
(10) The judgment of the Allahabad High Court in Izhar Ahmad too does not advance the cause of the petitioner any more. In that case, the accused was remanded to judicial custody even though he had not been produced before the Magistrate on four occasions, namely, 14th May, 1977, 21st May, 1977, 2nd June, 1977 and 16th June, 1977, when the orders of remand were passed against him. A contention was raised that the detention of the accused having been rendered illegal they were entitled to be released on bail. However, this argument did not find favor with the learned Judge, who observed that:
'Ido not think that because the detention of the applicants at the stage of S. 167 Cr.P.C. was illegal, they should be released on bail. If their detention at the stage of S. 167 Cr. P.C. was illegal, that will stand cured if proper orders of remand were passed by the Magistrate under S. 209 Cr. P.C. after the charge-sheet had been submitted.'
(11) The other authorities cited by the petitioner at the Bar do not bear on the point in issue and as such I need not advert to the same.
(12) I am, thereforee, of the considered view that the orders of remand made by the learned Magistrate subsequent to 6th April, 1982, were not vitiated or rendered illegal merely because the petitioner's detention between 6th April, 1982 and 7th April, 1982 or for that matter between 2nd May, 1982 and 3rd May, 1982, may besaid to be illegal. Needless to say that challan in this case was filed within the prescribed limit of 90 days of the arrest of the petitioner and as such he is not entitled to the benefit of the proviso to Sub-section (2) of Section 167.
(13) The petitioner has not prayed for his release on bail on merits and the bail is sought only on the ground mentioned above. In the view I have taken of the matter, thereforee, this petition fails and is accordingly dismissed.