G.R. Luthra, J.
(1) The present petition under Section 439 of the Code of Criminal Procedure (in short the Code) is for grant of bail to Raghunandan Ghauhan, who according to the prosecution, had Along with Durbeen Singh committed offences punishable under Sections 302, 380 and 460 read with Section 34 Indian Penal Code.
(2) One Dharam Singh was residing Along with his family members at Mehandiratta Engineering Corporation, village Kirakunda, Delhi. He was employed in the said factory. It is alleged by the prosecution that on the night between 13th and 14th November 1979 at about 2 or 2.30 A. M. when the said Dharam Singh and his family members were asleep the present petitioner and Durbeen Singh, entered the house. The were armed with knife and saria. One of them dragged the wife (Smt. Rani) of Dharam Singh and removed her ornaments. They also took away Rs. 200.00 in cash. They gave saria blow on the head of each of Dharam Singh and his wife and pushed them into a room which they bolted from outside. They further dragged Ramesh son of Dharam Singh. Ramesh, however, resisted on account of which he was inflicted injuries to which he succumbed later on in the hospital. Case was registered at 8.05 A.M. on 14th November 1979.
(3) The petitioner was arrested on 21st November at Delhi. He was produced before a Magistrate on 22nd November 1979 and remand for his custody from time to time was taken from a Magistrate. Lastly, it was on 12th February 1980 that he was produced before Smt. Urmila Rani, Metropolitan Magistrate, Delhi, who remanded him to judicial custody up to 27th February 1980. On 19th February 1980 the Police filed charge sheet against the present petitioner and Durbeen Singh. Smt. Urmila Rani, Metropolitan Magistrate, passed the following order :
'CHALLANfiled today. It be registered. Accused is in J G in Tihar Jail. Issue P. W. for 27.2.1980, already fixed.'
(4) The petitioner brought an application under Section 439 of the Code before the learned Sessions Judge, Delhi, for grant of bail. That application was dismissed on 5th March 1980. The present application was filed on 6th March 1980 before this Court. Durbeen Singh was directed to be released on bail by the learned Sessions Judge by order dated 20th December 1979.
(5) To understand the case and contentions of the petitioner it is neces- sary to examine relevant provisions of law as to how and for what period an accused can be kept in custody during investigation or pending decision of a case against him. Section 57 of the Code reads as under :
'NOpolice 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, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrates court.'
It is apparent from Section 57 of the Code that, for purposes of investigation it is only if custody of an accused is for more than 24 hours that remand for his custody must be taken under Section 167 of the Code. Proviso (a)(i) to Sub-section (2) of Section 167 of the Code (as amended by the Code of Criminal Procedure (Amendment) Act No. 45 of 1978) says that a Magistrate can give remand up to a maximum period of 90 days in case where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years (as in the present case) that no Magistrate shall authorise detention beyond that period and that on the expiry of said period the accused, person shall be released on bail if he is prepared to and does furnish bail. That means that during the investigation of a case it is only up to 90 days that a remand of custody can be allowed by a Magistrate. Then comes the stage when a Magistrate takes cognizance of the offence. In that event Section 309 of the Code applies which says that after a court has taken cognizance of an offence, trial or inquiry, whatever the case may be, can be adjourned from time to time and the accused can be remanded to custody by a warrant. The maximum period of remand under this provision which can be given at a time by a magistrate is fifteen days. Section 190 of the Code enumerates contingencies when cognizance of an offence can be taken. Relevant portion of that provision reads as under :
'190.(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) (e) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.'
(6) The learned counsel for the petitioner contends that the petitioner is entitled to grant of bail on the following grounds :
(I)As the petitioner had been arrested on November 21 1979, 90 days expired on 18th February 1980 on account of which petitioner was entitled to the grant of bail on that date itself. There was no necessity of even an application for grant of bail as held by a Full Bench of this Court in Noor Mohd. v. State (1978) Ii Del 442.
(II)Even if 24 hours, which is same as one day, for which accused can be kept in custody by the Police, under Section 57 of the Code are excluded for the purpose of computing 90 days of remand permissible under Section 167 of the Code, 90 days expired on 19th February 1980. thereforee, Metroolitan Magistrate could not have given remand beyond 19th February 1980 while she had illegally given remand up to 27th February 1980 vide order dated 12th February 1980 and it was incumbent upon her to have granted bail on 19th February 1980.
(III)The learned Metropolitan Magistrate could have given remand under Section 309 of the Code but that was subject to taking cognizance of the offence on the charge sheet of the Police and there should have been an express order under that provision remanding the accused to custody up to 27th February 1980 but that there was neither cognizance of the offence in the eye of law nor express order of remand entitling the petitioner to grant of bail. The word 'cognizance' is not defined in the Code itself. Supreme Court in Deverapalli Lakshminarayana Reddy & Others v. V. Narayana Reddy and others, : 1976CriLJ1361 , and Tula Ram and others v. Kishme Singh, : 1978CriLJ8 , laid down that taking cognizance of an offence means an application of judicial mind for taking further action. In the present case there was no application of judicial mind inasmuch as the learned Magistrate in the order dated 19th February 1980 did not make any mention regarding the other accused Durbeen Singh, who in on bail which is indicative of the fact that it was as a routine that the order dated 19th February 1980, reproduced above, was made. Allahabad High Court in Vasu Deo Ojhad & others v.State of Uttar Pradesh, : AIR1958All578 laid down a proposition that there should be an express order of a Magistrate remanding the accused to custody after the offence has been taken cognizance of, otherwise custody of an accused is illegal and he shall be releasd forthwith.
(7) But none of the contentions of the learned counsel has any force. In the present case period of 90 days of remand to custody granted by the Magistrate under Section 167 of the Code could not and does not include 24 hours during which the accused person can be kept in detention under the provisions of Section 57 of the Code. It is clear from Section 67, reproduced above, that the Police is under a duty to obtain remand from a Magistrate only if the accused is to be kept beyond period of 24 hours which clearly indicates that the period of remand granted by the Magistrate starts after the expiry of those 24 hours. So, after excluding first 24 hours, period of remand custody granted by Magistrate started from 22nd November 1979, in the present case. In that way the period of 90 days of remand to custody which was permissible to be granted by a Magistrate under Section 167 of the Code expired on 19th February 1980. On that date itself i. e. 19th February 1980 report was filed by the Police before Smt. Urmila Rani, Metropolitan Magistrate, Delhi, who took cognizance of the same and adjourned the case to 27th February 1980 with the direction that the present petitioner (who was then injail) be produced before her on 27th February 1980. It is clear that she had applied her judicial mind in respect of the case and she wanted to proceed further with the case. That is why she. had directed production of the present petitioner on 27th February 1980. It could be after production of the petitioner that she could proceed further in view of Section 273 of the Code which required that all evidence taken in the course of trial and other proceedings shall be taken in presence of the accused or when his personal attendance is dispensed with in the presence of his pleader. It is true that there should have been some order by the learned Magistrate for securing the presence of the other accused Durbeen Singh for 27th February 1980. but it appears that the same was not done inadvertently, but that does not mean that there was no application of judicial mind. There was application of judicial mind so as to constitute taking cognizance of the offence but that application of mind was not complete. The learned Magistrate wanted to proceed further and take action in the matter but on account of inadvertence action taken lacked comprehensiveness.
(8) Judgment of Allahabad High Court relied upon by the learned counsel for the petitioner was on the provisions of Sub-section 344 of the Code of Criminal Procedure, 1898. Section 344 of the old Code reads as under:
'POWERto postpone or adjourn proceedings (1) In every inquiry or trial the proceedings shall be held as expeditiously as possible and in particular, when the examination of witness has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded; (IA) If, from the absence of witness or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the court, may, if it thinks fit, by order in writing staling the reasons thereforee from time to time postpone or adjourn the name 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; Remand-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 postponment shall be granted, without examining them, except for special reasons to be recorded in writing. (2) Every order made under this section by a court other than a High Court shall be in writing signed by the Presi)'ing Judge on Magis trate.
It is apparent that it was Sub-section (2) of Section 344 of the Code which required that there should be an express order of adjournment as well as remand of accused to judicial custody by a Magistrate or Judge other than judge of a High Court. That Sub-section (2) of Section 344 of the Code was omitted when a parallel provision in the shape of Section 309 of the present Code was enacted which clearly means that the legislature no longer thought it necessary that there should be express order of remand to Judicial custody. Hence, judgment of Allahabad High Court, which was on the interpretation of Sub-section (1) of Section 344 of the Old Code, is no longer good law. thereforee, in the present case it was not necessary on the part of the learned Magistrate to have made express order of remand of the accused to Judicial custody and her order to the effect that the present petitioner who was in Jail be produced on 27th February 1980, clearly indicates that the accused was to be kept in custody till February 27, 1980 on which date he was to be produced before her. Thus after the power of remand to custody under Section 167 of the Code was exhausted on account of expiry of 90 days on 19th February 1980 petitioner was remanded to Judicial custody in exercise of power under Section 309 of the Code. In that way, not only that the custody of the petitioner was absolutely legal, his right to grant of bail under proviso (a) of Sub-se.ction (2) of Section 167 never accrured to him. (9) On merits, the petitioner is not entitled to bail because there are reasonable grounds to believe, arising out of the evidence, including statements of Dharam Singh and his wife, that the petitioner had committed offences punishable with death or life imprisonment under Section 302 read with Section 34 1. P. G as well as punishable with life imprisonment under Section 460 read wi'h Section 34 Indian Penal Code.
(10) The other co-accused Durbeen Singh had been released on bail by means of an order dated 20th December 1979 of the learned Sessions Judge, Delhi copy of which is on the record of the file of learned Metropolitan Magistrate. That order reads as under :
'the petitioner is in judicial lock up. No recovery has to be made from him. Grounds are sufficient. The petitioner is directed to be released on bail on his furnishing a bail bond in the sum of Rs. 5000.00 with one surety in the like amount to the satisfaction of the Metropolitan Magistrate) concerned.'
The learned counsel for the petitioner did not raise any argument to the effect that when Durbeen Singh had been released on bail why the petitioner be not granted bail. But I have to consider that matter. It appears to me that there has been some mis-understanding on the part of the learned Sessions Judge while granting bail to Durbeen Singh. The offence is mentioned as one punishable under Section 380 and 460 1. P. G. It appears that the learned Sessions Judge was under the impression that there was no offence of murder. That is why he did not take into consideration that fact. thereforee, indications are that the aforesaid order proceeds on the wrong basis. In my opinion, the case calls for reconsideration and if need be cancellation of bail under Sub-section (2) of Section 439 of the Code by the learned Sessions Judge. The learned Sessions Judge shall reconsider after giving notice to Durbeen Singh as well as prosecution. The prosecution 'will also be at liberty to make application for cancellation of bail before this Court or the Sessions Judge.
(11) I, thereforee, reject the present petition. A copy of this order be sent to the learned Sessions Judge pin-pointing observation of this Court as contained in the proceeding paragraph.