M.L. Jain J.
1. This application has been made under Section 439 Criminal P.C. by four accused persons Ramji Das s/o Chela Ram, Basantilal, Bhajansingh and Dharam Singh. I have heard arguments.
2. The facts appear to be that in the town of Vijaynagar, District Sri Ganganagar, there is a truck Union which allots loads to its members. But Jasbir Singh deceased did not agree to abide by the directions of the union in respect of transporting some cement. Some words were exchanged between Union people and Jasbir Singh towards the evening of 16-11-1975 and Jasbir Singh and party left for home. It is alleged that at about 9.15 p.m. Subhash Jain and 15 others armed with guns, knives, and lathis came to the workshop of Jasbir Singh and attacked them, Jasbir Singh and Faqir Chand died on the spot, while Roop Singh and Hukam Singh father of the deceased were severely wounded.
The case was registered in the police station, Anupgarh against 18 persons but it appears that after some time, the investigation was transferred to the C.I.D. The C.I.D. submitted a challan on 15-1-1976 against 10 persons under Sections 302, 307, 147, 148, and 149, I.P.C. The C.I.D. also requested the court under Section 169, Cr.P.C. to release 8 of the accused persons. But out of these 8 persons, the learned Magistrate, Raisinghnagar by his order dated 19-1-1976 took cognizance against Basantilal, Dharam Singh, Ramjidas and Bhajan Singh and Darshansingh. Their bail application was rejected by him on 21-1-1976. However, the Court of Session, Sri Ganganagar by its order dated 3-2-1976 granted bail to Darshan Singh but refused the bail of other four persons. They have now made this bail appliation in this Court.
3. One of the grounds on which bail was sought, was that after the case was submitted to the court of the Magistrate under Section 173, Criminal P.C. he was required to commit them the same day to the court of session under custody under Section 209(b). Their detention was also not covered by Sub-section (2) of Section 309, Criminal P.C. since their detention was illegal, they are entitled to be released on bail.
4. According to Section 309(2) a magistrate can remand a person to custody for not exceeding 15 days at a time if after taking cognizance of an offence (or commencement of trial) the Court finds it necessary or advisable to postpone the commencement of or adjourn any inquiry or the trial. Much emphasis was laid on the words 'any inquiry'. Since the learned Judicial Magistrate in a case exclusively triable by a court of session does not, after the commencement of 1973 Code, hold any inquiry, he cannot authorise any remand to custody of the accused persons for any reason whatsoever.
Reliance was placed in this connection upon a decision of the Allahabad High Court in Lakshmi Brahman v. State 1976 Cri LJ 118 (All), wherein after considering various sections of the Criminal P.C and the definition of inquiry given in Clause (g) of Section 2 of the Code, it was held that 'inquiry' is the name given to a proceeding conducted under the Code by a Magistrate or a Court other than a trial, for ascertaining or verifying facts with a view to take some action under the Code. Referring to the provisions of Sections 204 and 207 to 209, Criminal P.C. the Allahabad High Court observed as follows:
It follows that in a case instituted on a police report and which is triable exclusively by a court of session, what the Code requires the magistrate taking cognizance of the offence to do is to commit the case to Court of Session as soon as the accused appears or is brought before him and to arrange to supply to him the copies of the documents mentioned in Section 207, without any delay. These sections do not contemplate that before committing the case to Sessions the Magistrates should conduct some proceeding with a view to ascertain or verify facts. Section 209 of the Code merely requires the magistrate, taking cognizance of an offence on the basis of a police report, to look into the report and if he finds that the case is triable exclusively by Court of Session to make an order committing the case to Sessions. Since in such a case the Magistrate taking cognizance of the offence is not required to conduct any proceeding for ascertaining or verifying facts with a view to commit the case to sessions, it cannot be said that the provisions contained in Sections 204, 207 to 209 of the Code contemplate an inquiry under the Code.
(Note--underlining is mine).
It was urged before the learned Judges that before the Magistrate makes an order committing the case which is triable exclusively by a court of session, he has to see that necessary copies mentioned in Section 207 of the Code are supplied to the accused. In many cases it will not be possible for the Magistrate to see that all the copies are supplied to the accused on the very day when he appears or is brought before him and as such he has to postpone the date for making an order of committing the case to the court of session; In case such proceedings before the Magistrate are not considered to be inquiry and the postponement necessitated because of non-availability of requisite copies as adjournment of inquiry, there would invariably be a hiatus and the Magistrate will not be able to detain a person who is accused of a serious offence. Certainly, the court should not interpret the word 'inquiry' in such a manner so as to create this anomalous situation. The learned Judges were not impressed by this argument and they rejected it. It appears that the learned Judges were further of view that as soon as the accused appears or is brought before the Magistrate, he should commit him immediately to the court of session and remand him under custody under Clause (b) of Section 209 and he can supply the requisite copies of the documents to the accused afterwards.
5. An argument based upon the ruling was made before the court of session, Sriganganagar but it was rejected. It was canvassed before me with still greater force and eloquence. I have examined the matter in several of its aspects which I shall presently be stating. While doing so, I shall also have occasion to refer to State v. Jai Rum 1976 Cri LJ 42 (Delhi). I may also mention that as the news paper reports go, the State of Uttar Pradesh has only a few days ago amended the relevant provisions empowering the magistrate to authorise remand of the accused to custody in such a Situation.
6. Under the Code of Criminal Procedure, the power to remand an accused person to custody is contained in three sections. Section 167 provides for remand during the investigation of a case. Section 209(b) provides for remand during and until the conclusion of the trial Section 309(2) provides for a remand during inquiry and trial to which I will be referring in detail. It will be worthwhile to read the Sections 209 and 309 before I embark upon decision of the precise point involved:
Section 209-. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session;
(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.
Section 309(1) In every inquiry or trial, the proceedings shall be held as ex-peditiously as possible, and in particular when the examination of witnesses has once begun, the same shall be continued from day today 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.
(2) 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 a term exceeding fifteen days at a time:
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing;
Explanation 1 If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.
Explanation 2- The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused.
7. The point for determination is whether the word 'inquiry' occurring in subsection (2) of Section 309 covers the proceedings of the Magistrate acting under Section 209. The word 'inquiry' is defined in Section 2(g) of the Code as follows:
2 (g) Inquiry means every inquiry, other than trial, conducted under this Code by a Magistrate or Court.
I have just scanned through the provisions of the Code and I find that the words 'inquiry' or 'enquire into' have been used in the following sections : 84, 94(1), 116, 137, 139, 145(2), 159, 174, 176, 202, 229(2), 319, 328, 332, 333, 338(2) and 340(1). There are other sections in the Code which did not use the word 'inquiry' but contemplate some sort of inquiry before arriving at any conclusion. These sections are as follows : 83(1), 85(3), 96, 98, 125, 127, 145, 147 and 446.
8. I do not claim that the list which I have given above contains the exhaustive list of the provisions of the Code in this respect. The Allahabad High Court has referred to some of these sections in its aforesaid judgment, vide paras 10 and 11 thereof.
9. It will be noticed that a few of inquiries which are to be conducted by the executive Magistrate or other authorities under the Code do not envisage an 'accused person' and therefore, no question of detaining a person in those cases in the sense of 'remand' will arise.
10. It further appears that an 'Inquiry' to be an inquiry under the Code, need rot be called an 'inquiry' nor does it require to be conducted always by the court or the magistrate.
11. Let us now first see what the significance of the words 'it appears to the Magistrate' occurring in the opening part of Section 209 is. The Delhi High Court in State v. Jai Ram 1976 Cri LJ 42 (Delhi), observed that the Magistrate is only to examine the police report and other documents and find out whether the facts stated in the report make out an offence triable exclusively by a court of session. Once he reaches the conclusion that the facts alleged in the report make out an offence so triable, he is to do no more and commit the case to the court of session. In forming the above opinion, the Magistrate has not to weigh the evidence and the probabilities in the case. He is not required to hear the accused, in other words, he has not to hold an inquiry, The Magistrate is to examine the record only to find out whether the offence is triable exclusively by a court of session.
12. In Lakshmi Brahman v. State 1976 Cri LJ 118 (All), the High Court of Allahabad more or less was also of the similar view that Section 209 of the Code merely requires the Magistrate taking cognizance of an offence on the basis of a police report, to look into the report.
13. It will be found by the observations of the Delhi and Allahabad High Courts quoted above that before committing the case to the court of session, the magistrate is required to look into and examine the police report and other papers obviously to find out whether facts stated therein make out an offence triable exclusively by a court of session or not and in doing so, even though the magistrate does not (under the new Code) record any evidence, yet the very act of examining the papers produced before him to undertake some kind of inquiry necessitating ascertainment or verification of the fact whether the record makes out a case triable by the court of session. The words 'it appears' occurring in Section 209 do not indicate a mere mechanical act but that section makes it obligatory upon the magistrate to commit a case only if he finds that it is such a case. Conversely, if he finds it otherwise, he can refuse to commit and try the case himself or in case of no evidence just drop the proceedings. The words 'it appears] to the magistrate' shall therefore mean that the magistrate may embark upon an inquiry short of receiving any kind of evidence.
14. While deliberating upon the question whether the word 'inquiry' occurring in Section 309(2) should be given such a restricted meaning that it will not cover the proceedings under Sections 207 to 209, one has to remember that the definition given in the Code applies as long as the context does not require otherwise. The word 'inquiry' occurring in Section 309(2) should be read subject to the context and not be restricted to the meaning given in Section 2(g) as interpreted in the Allahabad decision. 14 the word 'inquiry' in Section 309(2) does not refer to the proceedings under Section 209, then to which inquiry do they refer?. Should we think that the word 'inquiry' occurring in Section 309(2) is superfluous. I do not consider that the Legislature has used the word without any purpose or as a mere superfluity. The duty of the Court is to give meaning and content to the provisions of a statute, if it can do so without doing any violence to the other provisions of the Act and other generally accepted principles of law. To my mind, the 'inquiry' after the Magistrate has taken cognizance of an offence, has reference to the proceedings of the magistrate under Section 209, Cr.P.C.
15. A reference to Section 322(1) will strengthen this conclusion all the more, Under this provision when the magistrate finds during the course of any inquiry into an offence, that he has no Jurisdiction to commit, he shall refer the case to Chief Judicial Magistrate. These provisions will acquire no meaning unless it is held that the proceedings under Section 209, Criminal P.C. are inquiries.
16. This position shall further he brought out upon a perusal of the provisions of Chapter XXV of the Code where the word Inquiry' has been used. This chapter applies after the cognizance of the offence is taken; as is indicated by the use of the word 'accused' persons in the heading itself. It cannot refer to the inquiry under Section 202 because that is conducted before the appearance of the accused. The inquiry in this chapter must therefore refer to the proceedings under Section 209.
17. The Allahabad High Court was of the view that the order of commitment must be passed on the same day because the Magistrate has no power to postpone or adjourn the proceedings, those not being either an inquiry or a trial. He need not give copies of the papers under Sections 207 and 208 to the accused on that very d&y.; But the law enjoins that the copies of documents must be supplied without delay before an order of commitment is passed. Under the old Code, as well as under the New, the duty was cast upon the magistrate to see that the copies of papers are supplied to the accused and no duty was cast upon the sessions judge to ascertain whether the accused has got the copies of the documents or not. If such documents are not supplied before commitment, then it will not be possible to supply them again by the magistrate because by then the record would have gone to the court of session.
Another difficulty that has been experienced is that articles have to be forwarded along with the case but sometimes these articles are not returned for a long time by agencies such as, Chemical Examiner, Serologist, and the Ballistic Expert. Other circumstances can easily be. imagined when adjournment may become necessary before an order of commitment is made. If an accused could not be remanded to custody during all this interval, then how shall the situation be dealt with unless we refuse to adopt a literal construction and extend the meaning of 'inquiry' to cover the proceedings of commitment?
18. Reference may here also be made to Clause (c) of Sub-section (1) of Section 190 which empowers a magistrate to take cognizance on his own. In that case it is the requirement of Section 191 that he must ask 'the accused' if he wants to have the case inquired into or tried by any other magistrate, and if the accused so desires, the case will have to be transferred necessitating an adojurnment, In that case the power to remand him to custody can be found only in Section 309(2).
19. Again under Section 319, when it appears to a magistrate in the course of 'an inquiry' or trial that any other person has committed an offence who can be tried jointly with the accused, the court can proceed against that person and secure his attendance. Suppose if the police challans an accused under Section 302, I.P.C and submits a report under Section 169 respecting yet another person. When the Magistrate takes cognizance against the accused so challaned and finds that the other person is also involved in the commission of the offence along with the accused, then, the Magistrate will have to issue a warrant against that person and until he appears he cannot commit the case. This must result in an adjournment and postponement of an order of commitment in respect of the accused actually challaned. Adjournment before commitment will also be necessary under Section 322, Criminal P.C. if a magistrate after taking cognizance of a sessions case finds that it should be committed by some other magistrate or that he has no jurisdiction to commit the case. He is bound to stay the proceedings and send the case to the Chief Judicial Magistrate. These provisions appear to be mandatory and the Magistrate has no escape but to make an adjournment.
20. All these provisions do not appear to have been brought to the notice of their Lordships of the Allahabad High Court. The previous Code contained provisions regarding committal inquiry in Sections 207A, 208 to 214. Those provisions required that before commitment the Magistrate will record evidence. The only difference in the old and new provisions is that the magistrate will do everything else except mere recording of evidence. Mere recording of evidence or absence thereof does not affect the concept of inquiry because to hold otherwise will be to render several sections of the Code meaningless, which situation must be avoided if judicial interpretation can help to do so.
21. There is one more way of looking at Section 309. I see no difficulty in interpreting it in the following manner. To my mind, it means that, after taking cognizance of an offence, the court may do the following things:
(a) the court may postpone the commencement of, or adjourn an inquiry or trial if it finds it necessary or advisable for reasons to be recorded, for such time as it considers reasonable; even in cases where further evidence may be obtained.
(b) the court may by a warrant remand the accused if in custody and if the court is that of a magistrate such remand shall not exceed 15 days at a time.
22. If one leads the section in the aforesaid light, then, it appears to me that the Magistrate shall be authorised to send the accused to custody as and when he thinks it proper; the only condition being that the period of remand shall not exceed 15 days at a time and the discretion shall not be exercised otherwise than in a judicial manner.
23. Thus, considering all the aspects of the matter, I regret, in all humility and with profound respect that I am taking a view different from the view which has prevailed in the Allahabad case. I hold that the word 'inquiry' in Section 309(2) means the committal proceedings under Section 209 and the magistrate can remand the accused to custody pending an order of commitment.
24. I, therefore, reject the contention that the accused applicants are entitled to bail on the ground that the magistrate was not authorised to remand them to custody (pending the order of commitment and thus 'making their detention illegal.
25. The other ground urged by the learned Counsel far the applicants for grant of bail is that no prima facie case was made out against them. I have gone through the evidence and it shows that some of the witnesses namely Dharam Chand, Roop Singh, Hukam Singh and Ram Das, said that when the fatal blow was being administered to Jasbir Singh, accused Ramjidas and Basantilal caught hold of him. In respect of the other two applicants there is no specific allegations except that they were standing armed with lathis. In these circumstances, I find that the accused Bhajan Singh and Dharam Singh may be released on bail but Ramjidas and Basantilal do not appear to be so entitled.
26. I. therefore, reject the bail application of Ramjidas and Basantilal but accept that of Bhajan Singh and Dharam Singh and direct that they shall be released provided each one of them furnishes personal bond in the amount of Rs. 5,000/- and a surety in the like amount to the satisfaction of the learned Sessions Judge, Sri Ganganagar for their appearance on all dates of hearing and as and when they are called upon to do so.