K.S. Sidhu, J.
1. This Full Bench has been constituted to deal with a number of connected references, calling for answers to certain questions of law, arising out of several bail applications pending before different single Benches of this Court. We may state here a few facts which would be helpful in appreciating the background resulting in the making of these references, and defining for ourselves the exact nature of the controversy.
2. Mahesh Chand, Sovaran Singh, Srichand and Sajjan Singh are the petitioners, respectively, in the applications listed at serial numbers 1 to 4 in the title above. Mahesh Chand is one of the accused in a case registered by the police under Sections 394 and 397, I.P.C. He was arrested in this case on Sept. 27, 1983. Sovaran Singh, Srichand and Sajjan Singh were arrested in three separate cases under Section 302, I. P. C. on April 17, Aug. 13 and Sept. 7, 1983 respectively. After the rejection of his application for bail by the Sessions Judge, Mahesh Chand applied to this Court for release on bail on grounds, inter alia, that the Magistrate concerned remanded him to custody under Section 167, Cr. P.C. in contravention of the mandatory provisions of that section inasmuch as he had not been produced before the Magistrate for such remand, and that subsequently, the Magistrate added to the said illegality by extending his custody without there being any application made before him for such extension and without recording any reasons for the extended remand.
3. Soveran Singh and Srichand also made similar applications under Section 439, Cr. P.C. before this Court pleading that their detention in custody during certain periods of time, prior to the making of the said applications, was unauthorised and illegal, and praying that therefore they are entitled to be released on bail on that ground alone. They added in this context that any subsequent order of remand, even if validly made in compliance with the provisions of Section 167, 209 or 309, Cr. P.C., as the case may be, will not cure the earlier illegal detention and that their right to be released on bail springing from such illegal detention is not destroyed or taken away by the orders, subsequently made in compliance with the relevant provisions of law, authorising their detention in custody.
4. Sajjan Singh made his application under Section 439, Cr. P.C. on slightly different grounds. He complains that after his arrest on Sept. 7, 1983 he was continually remanded to custody by the Magistrate at Bayana, having jurisdiction in the local area, till Dec. 7, 1983 and that since the total period of the detention so authorised under Section 167, Cr. P.C. exceeded ninety days, he is entitled to be released on bail on that ground. It is common ground between the parties that on completion of investigation in this case the police presented the charge-sheet under Section 170 read with Section 173, Cr. P.C. against Sajjan Singh in the Court of the Chief Judicial Magistrate of the district concerned (Bharatpur) on Dec. 3, 1983, i.e., well within a period of ninety days from the date of the arrest of the accused and that he took cognizance of the offence on Dec. 3, itself.
The grievance of the accused, however, is that he was not produced before the Chief Judicial Magistrate on Dec. 3 and that even otherwise no formal order was passed by the Chief Judicial Magistrate on the even date, postponing the commencement of the enquiry and remanding him to custody, as required under Section 309, Cr. P.C. He further complains that since the Magistrate at Bayana, having jurisdiction in the local area, had already been seized of the proceedings in the case under Section 167, Cr. P.C. the police could not have lawfully presented the charge-sheet in the Court of the Chief Judicial Magistrate of the district and that in any case the latter had no jurisdiction to take cognizance of the offence on the basis of a charge-sheet which did not legally belong in his Court. In other words the argument is that the Magistrate at Bayana has territorial jurisdiction to take congizance of the offence of the exclusion of all other Magistrates of the district including the Chief Judicial Magistrate himself.
5. These four applications came up for orders before Kasliwal J. who found some difficulty in deciding them by reason of the fact that on some questions of law which, in his Lordship's opinion would govern such decision, there are conflicting judgments of this Court handed down from time to time by different judges sitting singly and also in the Division Bench. Kasliwal J. mentioned in this context the case of Taju Khan v. State of Rajasthan, 1983 Rajasthan LR 100 : (1983 Cri LJ 1518), decided by Division Bench at odhpur on Sept, 23, 1983 (reasons given on Oct. 22, 1983) as representing one view, and the case of Manohari v. State of Rajasthan, 1983 Rajasthan LR 155 : (1983 Cri LJ 1231), decided by another Division Bench at Jaipur on Dec. 21, 1982, as representing the opposite view on the question of law arising for determination in these applications. The questions formulated by Kasliwal J. for the opinion of Full Bench will be found reproduced in a later part of this judgment.
6. Maman Singh whose application is listed at serial No. 5 of the title of this judgment is seeking release on bail mainly on merits. He was arrested by the police as an accused in a case registered under Section 302, I.P.C. One of his grievances in the application is that the Magistrate concerned did not take cognizance of the offence within a period of ninety days from the date of his arrest and that therefore he is entitled to be released on bail on that ground. Mehta, J. before whom this application came up for orders on June 1, 1984 directed that it may be listed before the Full Bench along with the reference made by Kasliwal J. The learned Judge has however not formulated any question of law which might have created the difficulty necessitating the reference to the Full Bench.
7. Pramod Kumar v. State, listed at No. 6 above, is another application for bail under Section 439, Cr. P.C. No reference appears to have been made by the learned single Judge (M.C. Jain J.) in this case. The order which his Lordship made on this application on May 22, 1984, is that it may be kept pending till the Full Bench shall have answered the Criminal Reference (No. 4 of 1983) made by the Sessions Judge, Jodhpur under Section 395, Cr. P.C. The latter reference is listed above at serial number 7. It will be seen that the learned Sessions Judge made the said reference on Nov. 30, 1983. The reference is said to be relatable to an application for bail by Pramod Kumar which had already been dismissed by the learned Sessions Judge on Nov. 16, 1983.
8. Before going into the questions raised by Kasliwal J. we may straightway dispose of the other three references, for we find that they do not present any difficulty against such disposal. Let us first take up Criminal Reference No. 4 of 1983 which was registered as such in this Court on an order of reference, dated, Nov. 30, 1983, made by the learned Sessions Judge Jodhpur. As already stated, before making the said reference, the learned Sessions Judge had already dismissed the application under Section 439, Cr. P.C. on Nov. 16, 1983. In other words, the case (i.e. the bail application), involving the question or questions of law raised by the learned Sessions Judge in his order of reference for decision by the High Court, was no longer pending before him on the date when he made this reference. A plain reading of Section 395, Cr. P.C. would at once show that no reference to the High Court is maintainable under that section unless the question referred is necessary to be decided for the disposal of the pending case. Sub-section (2) of Section 395, Cr. P.C., which is material for our present purpose, reads :
A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any case pending before it or him to which the provisions of Sub-section (1) do not apply, refer for the decision of the High Court any question of law arising in the hearing of such case.
It will be seen that in order that a Sessions Judge may make a valid reference under Section 395(2), Cr. P.C. it must be shown that the question of law referred for decision of the High Court arises in a case pending before him. We have already mentioned that the bail application, which is said to have thrown up the question of law referred for the decision of the High Court, had already been disposed of by the learned Sessions Judge, Jodhpur on Nov. 16, 1983. Since the case involving the question referred was no longer pending before the learned Sessions Judge on Nov. 30, 1983, he had no power or jurisdiction to make the reference. On that ground mainly, and also on the ancillary ground that a Court should not engage itself in deciding moot controversies and academic questions, we decline to decide the questions raised in Criminal Reference No. 4 of 1983. The application for bail made by Pramod Kumar which is still pending before the single Bench and which has been kept so pending on account of the reference made by the learned Sessions Judge, Jodhpur relatable to the bail application of the said Pramod Kumar made earlier before the Sessions Judge, may be sent back to the single Bench for disposal according to law.
9. Similarly, we find it difficult to deal with the reference made by Mehta J. in Mamman Singh's bail application Listed at No. 5 above. This is because we have not been able to discover as to what is the question or questions of law which is or are involved in the decision of that application by the learned single Judge, and, so far as the reference order is concerned, it does not give any indication at all as to the nature of the legal controversy which is required to be resolved for a decision on that application. We therefore decline to answer this reference in the manner it has been made. The application of Mamman Singh will also therefore go back to the learned single Bench for disposal according to law.
10. This brings us to the main reference made by Kasliwal J. The questions referred to the Full Bench for its decision are as under :
(i) Whether any illegality committed in the order of remand passed under Section 167, Cr. P.C. 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. P.C. 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 Magistrates 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?
11. We would first take up the questions which, in our opinion, admit of simple and straight answers. Let us take up question 4 which is : Whether cognizance of an offence can be taken in the absence of the accused? This question must straightway be answered in the affirmative, and we answer it accordingly. A plain reading of Section 190, Cr. P.C. will provide reasons for this opinion. Section 190 deals with cognizance of offences by Magistrates. It lays down that any Magistrate of the first class 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 and (c) upon information received from any person other than a police officer, or upon his own knowledge that such an offence has been committed. It will be seen that the accused is nowhere in the picture in the context of taking cognizance of an offence under Section 190, Cr. P.C. The Magistrate takes cognizance of an offence and not against any particular accused. It may happen, and indeed does happen quite frequently that, when a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence, he may not even be knowing as to who is the accused who allegedly committed such offence.
It is only after taking cognizance of the offence under Section 190(1)(a) Cr. P.C. that the Magistrate embarks upon the enquiry under Sections 200 and 202, Cr. P.C.; and he may as a result thereof discover as to who is the accused. If he is able to make such discovery, which in the language of the Code means if he is of opinion that, 'there is sufficient ground for proceeding', it is only then that he is required under Section 204, to issue process for the attendance of the accused in his Court. If the Magistrate is of opinion that there is no sufficient ground for proceeding, he has no option but to dismiss the complaint upon which he had taken cognizance of the offence before embarking on such enquiry. Thus, Section 190(1)(a), read with Sections 200, 202, 203 and 204, Cr. P.C., leaves no manner of doubt that cognizance of an offence is taken at a stage when the accused is nowhere in the picture before the Magistrate and that therefore there is no question of taking cognizance of the offence in the presence of the accused. In other words, cognizance of an offence is not just a question of 'can be', but it 'has to be' taken in the absence of the accused.
12. Similarly, if the Magistrate takes cognizance of an offence under Section 190(1)(a), Cr. P.C., he would quite often be doing so obviously in the absence of the accused. We can think of only exceptional cases where it may be possible for the Magistrate to take cognizance of the offence in the presence of the accused. For example, if the accused commits the offence in the presence of the Magistrate and the latter takes cognizance of the offence under Section 190(1)(c) before the accused leaves the scene of the crime it may be said that the Magistrate has taken cognizance of the offence in the presence of the accused. Even the presence of the accused in such a situation would demonstrably show that such presence is happen-chance and not the requirement of law.
13. Even in the case of a Magistrate taking cognizance of the offence upon a police report under Section 190(1)(b), Cr. P.C., such cognizance has quite often to be taken in the absence of the accused if he is not forwarded in 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.
14. Question 4 is therefore answered in the affirmative.
15. Turning now to question 5, a plain reading of the question itself will suggest the answer. Like all other Judicial Magistrates of the first class in his district, the Chief Judicial Magistrate is also a Judicial Magistrate of the first class. In the absence of any definition by the Chief Judicial Magistrate of the local limits of the area of such Magistrates under Section 14, Cr.P.C., the territorial jurisdiction of each Magistrate shall extend throughout the district. It is implicit from a reading of Section 14 that whereas the local limits of the area in a district, within which any Judicial Magistrate of the first class may exercise his jurisdiction and powers may be defined and constricted by the Chief Judicial Magistrate, there is no scope of the powers and jurisdiction of the Chief Judicial Magistrate, which extend throughout the territory of the district, being constricted and confined to a portion of the territory of that district.
In other words, notwithstanding the fact that the Chief Judicial Magistrate has by a general or special order under Section 15(2) read with Section 14, Cr.P.C. defined the local limits of the area of jurisdiction of each Magistrate, and made rules or given special orders as to the distribution of business among the Judicial Magistrates subordinate to him, he does not thereby lose his own jurisdiction to exercise the powers of Judicial Magistrate of the first class throughout the district. That being so, the Chief Judicial Magistrate is competent to take cognizance of any offence, committed anywhere in his district, notwithstanding the fact that the area in which the offence was committed happens to fall within the local limits of the area assigned by the Chief Judicial Magistrate to some other Judicial Magistrate, subordinate to him, in accordance with the provisions of Sections Hand 15, Cr. P.C. Of course, taking of such cognizance by the Chief Judicial Magistrate would be possible only if the complaint or police report, as the case may be, is presented in his court instead of being presented in the Court of the Judicial Magistrate within the local limits of whose jurisdiction the crime might have been committed.
16. Question 5 is therefore answered in the affirmative as explained above.
17. Turning now to the questions 1, 2, 3, 6 and 7, which can be discussed together, we may first refer to a few rulings cited at the Bar in which conflicting opinions have been expressed by some of the Hon'ble Judges of this Court while construing the provisions of Sections 167 and 309 of the Criminal P.C., 1973 (hereinafter called the new Code) in the context of the newly created right of the accused to be released on bail under Section 167(2) of the new Code. In Khinvdan v. State of Rajasthan, 1975 WLN 132 : (1975 Cri LJ 1984), a learned single Judge of this Court (K.D. Sharma, J., as he then was) allowed the bail application of Khinvdan, a person accused of the commission of the crime of murder and arrested by the police of Dec. 2, 1974, on the ground that although the accused had applied for bail on Jan. 23, 1975, the learned Magistrate passed no order on that application till Feb. 24, 1975, when the police presented the charge sheet under Section 173 of the new Code. The Magistrate had of course been passing orders from time to time remanding the accused to judicial lock-up under Section 167(2).
After taking cognizance of the offence on Feb. 24, 1975, the Magistrate passed another order of remand under Section 309(2) instead of Section 167(2) of the new Code. The learned single Judge allowed the bail application on the ground that since the accused was prepared to furnish bail, as is evident from his application filed on Jan. 23, 1975, the Magistrate had no power to authorise his detention beyond a total period exceeding 60 days (as prescribed before the amendment of Section 167 by Act 45 of 1978), and the accused was entitled to be released on bail under proviso (a) to Sub-section (2) of Section 167 of the new Code. Now, if we may say so with respect, the decision of the learned Judge directing the release of the accused on bail and his reasons for grant of such bail to the extent stated above are absolutely correct. We may leave this judgment at that, for we feel the rest of the judgment contains several observations in the nature of obiter dicta with which one may or may not agree.
18. In Kana v. State, 1979 Raj LW 538 : (1980 Cri LJ 344), Mahendra Bhushan Sharma J. considered the case of Khinvdan v. State (1975 Cri LJ 1984) (Raj) (supra) and pointed out, and rightly so in our opinion, that the ratio of Khinvdan's case is only this much that under Section 167 of the new Code the detention of the accused during the investigation cannot extend beyond a total period of 60 days and 90 days, as the case may be, and that, if the investigation is not complete within that period, the accused is entitled to be released on bail, if he is prepared to and does furnish bail. The learned judge was not prepared to rely on the obiter dicta of Khinvdan's judgment to the effect that if the accused was in custody at the time when the Magistrate took cognizance of the offence and thereafter it was discovered that such custody had not been validly authorised under Section 167 of the new Code, the Magistrate must proceed on the footing as if the accused was not in custody, and any valid order of remand granted under Section 309(2) of the new Code would not validate the earlier illegal detention of the accused till the time of taking cognizance of the offence by the Magistrate and the grant of remand by him under Section 309(2).
These observations which, in our opinion, are in the nature of obiter, were made by K.D. Sharma, J. in the context of his opinion that remand of an accused to judicial custody under Section 309(2) is legally permissible only if he had been forwarded to him in custody under Section 170 of the new Code. This case was cited before M.B. Sharma, J. in Kana v. State (ibid) in support of the argument that if once the custody is illegal, then any subsequent remand of the accused to judicial custody cannot be ordered, and, if ordered, the same would be illegal, as only an accused who is 'in custody', which will mean legal custody, can be remanded to custody, M.B. Sharma, J. rejected this argument and concluded :
It can, therefore, be said that except in a case where Section 167, Cr. P. C. applies, and there the detention of the accused cannot be authorised, exceeding period of 90 days, and on this account the accused becomes entitled for being released on bail, if he is prepared to and does furnish bail, there is no warrant to hold that in all cases, in which at some anterior date the detention of the accused was illegal, the accused is entitled to be released on bail, if the detention is legal at the time when the bail application is filed/or it comes for consideration. If the detention of the accused is legal, when the bail application is preferred, his previous illegal detention should not be considered.
19. We may also usefully refer here to another Single Bench judgment of this Court reported in Beni Madhava v. State, 1982 Raj Cri.C. 145: (1983 Cri LJ 633). After a thorough examination of the provisions of Sections 167, 209, and 309 of the New Code and discussion of the case law on the subject including Khinvdan v. State (1975 Cri LJ 1984) (Raj) and Kana v. State, (1980 Cri LJ 344) (Raj) (supra) S.C. Agrawal J. concluded, that:
(i) The provisions of Section 167, including the provisions of the proviso to Sub-section (2) of the said section, govern the detention of an accused person in custody till the completion of the investigation;
(ii) Sub-section (2) of Section 309 authorises the detention of an accused person during the course of inquiry or trial after the Court has taken cognizance of the offence. In respect of the offence which are triable exclusively by the Court of Session the committing Magistrate can authorise the detention of the accused in custody during the pendency of the commitment proceeding.
(iii) An illegality in the detention of an accused person on account of absence of/or any illegality in the order of remand under Sub-section (2) of Section 309 would not enable an accused person to be released on bail if there is valid order of remand at the time when the bail application has been filed or it comes for consideration;
(iv) An illegality, in the detention of an accused person arising on account of non-compliance with the provisions of the proviso to Sub-section (2) of Section 167 cannot be cured by a subsequent order of remand under Sub-section (2) of Section 309 and the accused person would be entitled to be released on bail in spite of the fact that there is an order of remand under Section 309. These conclusions except No. (iv) are more or less in line with the conclusion, arrived at in Kana v. State, (1980 Cri LJ 344) (Raj) (supra) and reproduced in the immediately preceding paragraph of this judgment.
20. In Rati Ram v. State of Rajasthan, 1982 Rajasthan LR 443, Kudal J, allowed a bail application under Section 439 on the short ground that since no order of remand was 'specifically passed' by the Magistrate on a few dates earlier, the detention of the accused became illegal and any subsequent order of remand though validly made, would not cure the patent illegality committed earlier.
21. A similar view was taken by one of us (G.K. Sharma J.) in Mohan v. State of Rajasthan, (1983) 2 Crimes 616, holding that once it is discovered that the accused was detained in custody without a valid order by the Magistrate authorising such custody, the accused is entitled to bail even if the maximum period prescribed in clauses (i) and (ii) of proviso (a) to Sub-section (2) of Section 167 of the New Code has not yet expired.
22. We may now move on to the two conflicting Division Bench judgments of this Court which led Kasliwal J. to make this reference to the Full Bench for resolving the conflict and for a more authoritative pronouncement on the question, stated in the reference, for the guidance of all the Courts in our State. Taju Khan v. State of Rajasthan, 1983 Rajasthan LR 100 : (1983 Cri LJ 1518) was decided by a Division Bench at Jodhpur on Sept. 23, 1982, and reasons for that decision were announced on Oct. 22, 1982. After discussing the case law on the subject including all the Single Bench cases, except of course Mohan v. State of Rajasthan, (1988-2 Crimes 616) mentioned above, which was decided long after in 1983, the Division Bench approved of the view taken by M.B. Sharma J. in Kana v. State, (1980 Cri LJ 344) (Raj) (supra) and further held that the contrary view which found favour with Kudal J. in Rati Ram v. State, (1982 Rajasthan LR 443) (supra) is not correct.
Their Lordships held on the basis of Section 167(2) of the New Code that no Magistrate shall authorise the detention of the accused in custody for a total period exceeding 90 days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a period of not less than 10 years, and 60 days, where the investigation relates to any other offence, and that on the expiry of the said period of 90 days or 60 days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail. Taking note of cases like Rati Ram v. State, (1982 Rajasthan LR 443) (supra) and other similar cases, their Lordships observed as under:
If these decisions purport to lay down that even after taking cognizance of offence, the accused is validly remanded to judicial custody and thereafter during inquiry or trial the accused is not remanded by a competent authority and the custody during that period becomes illegal, a right will accrue to the accused to be released on bail in spite of the fact that the accused was subsequently remanded by the competent Magistrate or Court, then we respectfully differ from this view.
23. A contrary view is expressed in the other Division Bench case reported in Manohari v. State of Rajasthan, 1983 Rajasthan LR 155 : (1983 Cri LJ 1231). Their Lordships agreed with the ratio in Rati Ram v. State, (supra) and held that an illegality once committed in the granting of remand will continue and that any subsequent order of remand, though validly granted, will not wash out the said illegality with the result that notwithstanding the existence of a valid order of remand at the time of deciding the application for bail, the accused will be entitled to be released on bail on the basis of the earlier illegality.
24. Now, if we refer to Chapter XXXIII (Sections 436 to 439) of the New Code which contains provisions as to release of an accused person on bail, it will be seen that under Section 436, right to bail is absolute in a bailable offence and that in a non-bailable offence, Section 437 makes bail a matter of discretion of the Magistrate except when the offence is punishable with death or imprisonment for life, but even in such a case the Magistrate may grant bail if the accused is a woman, or a minor under the age of 16 years, or a sick or infirm person. A Court of Session and a High Court have special powers regarding bail under Section 439. These, being superior Courts, have wider discretion inasmuch as they may grant bail even in respect of offences punishable with death or imprisonment for life. In practice, however, even these superior Courts would not ordinarily grant bail if the offence is punishable with death or imprisonment for life.
Section 438 which deals with anticipatory bail enables the High Court or the Court of Session to grant such bail. Apart from Chap. XXXIII, Section 167(2) of the New Code also provides for bail to an accused, but the power to grant bail under Section 167(2) can be exercised during the investigation only. If the investigation is not completed and the charge sheet is not presented before the Magistrate within 90 days or 60 days, depending on the nature of the offence (Clause (i) of proviso (a) to Section 167(2) provides for 90 days and Clause (ii) for 60 days). Section 167(2) mandates that '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 purposes of that chapter.' In other words, release of an accused person on bail under Section 167(2) of the New Code vests him with the same rights which would have vested in him and subjects to the same liabilities to which he would have been subjected if he had been released on bail under Chap. XXXIII of the New Code.
One of the liabilities of the person granted bail under Chap. XXXIII is that the High Court or the Court of Session may direct that such person be again arrested and committed to custody. So, the bail of an accused released under Section 167(2) may be cancelled by the High Court or the Court of Session under Section 439(2). Bail granted under Section 167(2) will continue to remain in force even during the enquiry before the Magistrate preparatory to the commitment of the accused to the Court of Session for trial. Of course, such bail is liable to be cancelled by the Magistrate under Section 437(5) if it had been granted by him and it may also be cancelled by the Court of Session and the High Court under Section 439(2), read with the deeming provision of Clause (ii) of proviso (a) of Section 167(2), referred to above. The power conferred on these courts to cancel the bail under Sections 437(5) and 439(2) as the case may be, is discretionary, and like any other discretion vested in a Court of law, the Court concerned may exercise its discretion on good grounds and not arbitrarily. If the Magistrate decides to commit the accused to the Court of Session under Section 209, he may cancel the bail, if granted by himself under Section 167(2) or Section 437, and make the order of commitment simultaneously remanding the accused to custody during and until the conclusion of trial.
25. We have briefly surveyed above the various provisions of the New Code relating to grant and cancellation of bail at all stages of the proceedings arising out of the arrest of a person accused of the commission of a bailable or non-bailable offence with a view to showing that Legislature has made detailed and exhaustive provisions and left no scope for any Court to direct the release of an accused person on a ground not provided for by the Legislature in the New Code. There is no provision in the New Code which, even if it were to be liberally construed, may be said to be conferring a right on the accused to be released on bail by reason of the mere fact that his custody was for some period either unauthorised or not validly authorised by the Magistrate. If the Magistrate is guilty of any act of omission or commission in the exercise of his powers of remanding an accused to custody under Section 167, 209 or 309 of the New Code, the accused may be justified in complaining that his detention was illegal during the relevant period and he may have his legal remedies including the remedy of habeas corpus, against such illegal detention, but illegal detention, by itself and taken alone, is no ground for bail and has not been recognised as such by the New Code. Even Section 167(2), which provides for bail dehors the provisions of Chapter XXXIII of the New Code, does not lay down that detention of the accused in custody beyond the period of 60 days or 90 days, as the case may be, during the investigation is illegal and therefore a ground for bail. All that Section 167(2) enacts in effect is that though the Magistrate may authorise the detention of the accused in custody extending beyond the aforesaid maxima, if the accused is during that period prepared to and does furnish bail, he shall be released on bail, and he shall be deemed to be so released under the provisions of Chap. XXXIII for purposes of that chapter.
We have already explained that such a bail granted by the Magistrate under Section 167(2) is liable to be cancelled by the Magistrate under Section 437(5) and by the Court of Session or the High Court under Section 439(2) of the New Code. If the accused is not prepared to or is unable to furnish bail, as ordered, his detention in custody during the investigation, if authorised by the Magistrate even if it exceeds the maxima prescribed in Clauses (i) and (ii) of proviso (a) to Section 167(2), cannot by any means be described as illegal. To remove the possibility of any doubt in that behalf, the Legislature added Explanation I to Section 167(2) in 1978 and thereby enacted that notwithstanding the expiry of the period specified in para (a) the accused shall be detained in custody so long as he does not furnish bail. It is therefore abundantly clear that provision of bail, as contained in proviso (a) of Sub-section (2) of Section 167, has been made to discourage slackness in investigation and to forewarn the investigating agency that any delay, in that behalf would entitle the accused to be released on bail. If eventually the accused is released on bail under Section 167(2)(a) it is not because his detention was illegal, but because he became entitled to bail by reason of the failure of the investigating agency to complete the investigation within the period specified in para (a).
26. If an accused person is illegally detained in prison, the least that a Court of law is expected to do for him is to quash the illegal detention and set him at liberty forthwith. Bail is no remedy for illegal detention. Bail is a form of detention by other means. Instead of being detained in prison, the accused is transferred to the custody of his bail who are his jailers of his own choosing, and the Court still retains its inherent power to deal with him (See 8 Corpus Juris Secundum Bail Section 31). Similarly, the authors of Halsbury's Laws of England, Third Edn. Vol. 10, page 373 state that the effect of granting bait is not to set the accused free, but to release him from the custody of the law and to entrust him to the custody of his sureties, and the sureties may discharge themselves by handing him over to the custody of the law.
Earl Jowitt in Jowitt's Dictionary of English Law (Second Edn.) is of the same opinion (page 173) that the accused is said to be admitted to bail when he is released from the custody of officers of the law and is entrusted to the custody _of persons known as his sureties. Our own law is no different. A person released on bail is considered in our law, to be detained in the constructive custody of the Court through his sureties. A Division Bench of the Patna High Court held in Krishna Singh v. State of Bihar 1967Cri LJ 1118, that a person released on bail remains in the constructive custody of the Court through surety and his liberty is thus subject to restraint. Section 444 of the New Code lays down that the sureties may apply to the Magistrate to discharge the bond, and, on such application being made the Magistrate shall cause the accused to be arrested and brought before him.
27. It may therefore be safely held that bail is no remedy, and has never been conceived or intended in law to be a remedy, for illegal detention. An accused person shall be admitted to bail in accordance with the enacted provisions of law, as interpreted by superior Courts from time to time, and not otherwise, not even if the Court discovers some illegality vitiating his detention in prison. In the latter situation, the bail Court should leave the matter to be dealt with by the Court which may be competent to set the accused at liberty without any restraint on such liberty.
28. Our approach to the legal problem in hand, as enunciated above, finds support from a recent authority of the Supreme Court reported in State of U.P. v. Lakshmi Brahman, AIR 1983 SC 439 : (1983 Cri LJ 839). The accused in the cited case were suspected of having committed an offence punishable under Section 302, I.P.C. They surrendered before the Magistrate and were taken into custody on Nov. 2, 1974. The investigation was then in progress. The investigating officer failed to submit the charge sheet against them within a period of 60 days from the date of their arrest, as specified in Section 167(2)(a) prior to its amendment in 1978. The accused were remanded to custody even after the expiry of the aforementioned period of 60 days and the charge sheet was not submitted till Feb. 5, 1975. It was an admitted position in the case that the accused had not applied to the Magistrate for being released on bail on the expiry of 60 days from the date of their arrest. Their Lordships held in clear terms on these facts that the continued detention of the accused in custody during the investigation after the expiry of 60 days from the date of their arrest could not be treated as illegal or without authority of law.
29. Their Lordships assumed that the accused in the cited case had been fowarded under custody to the Magistrate along with a charge sheet against them under Sections 170 and 173 of the New Code and then proceeded to decide on this assumption the issue as to whether, after taking cognisance, the Magistrate had power to remand them to custody under Section 309(2) till he made the order of commitment under Section 209 of the New Code. This issue arose for decision by the Supreme Court because the Allahabad High Court had held that the Magistrate had no jurisdiction, power or authority to remand the accused to custody after the submission of the charge-sheet and before the making of the commitment order, and had, on that view, further held that the accused were entitled to bail and they were directed to be released on bail pending trial by the Court of Session. The Supreme Court reversed this opinion as erroneous and consequently quashed the order of bail granted by the High Court. Their Lordships made in this context observations which, if we may say so with respect, are very meaningful and significant for our present purpose. Their Lordships noticed the view of the High Court that the accused were entitled to bail on the ground of their alleged illegal detention and rejected it with the remarks as under : --
The view taken by the High Court introduces a stage of compulsory bail not envisaged by the Code, and therefore, also the view of the High Court cannot be upheld.
We have already endeavoured to show that the New Code does not contain any provision entitling an accused to be released on bail merely on the ground, and without more, that his detention in prison is illegal. In order to obtain his release on bail, the accused must show that his case is either covered by para (a) of Section 167(2), or that he is entitled to it under the provisions of Chapter XXXIII of the New Code. As their Lordships of the Supreme Court pointed out, it is not legally permissible to introduce 'a stage of compulsory bail not envisaged by the Code.'
30. To sum up, the illegality of an order remanding a person accused of non-bailable offence to custody under Section 167(2) or Section 309(2) of the New Code does not, per se, entitle the accused to be released on bail. Questions 1, 2, 3 and 6, to the extent we consider it necessary to answer them, are answered accordingly.
Question 7 is thus reduced to the category of an academic question. We would not therefore like to express any opinion on it. The reference made by Kasliwal J. is answered accordingly.
31. For the reasons given above, we decline to answer the references listed at Nos. 5, 6 and 7 in the tide of this judgment. The references listed at Nos. 1 to 4 made by Kasliwal, J. by a common order are partly answered to the extent indicated in the earlier part of this judgment.