N.M. Kasliwal, J.
1. This bail application under Section 439 Cr. P.C. has not been pressed on merits but has been argued merely on the basis of legal grounds.
2. Brief facts leading to this bail application are that an FIR No. 8/1983 was filed on April 4, 1983 at Police Station G.R.P., Sikar on the basis of which an offence under Section 302 IPC was registered against the petitioners. The petitioners surrendered of their own accord in the Court of Judicial Magistrate (Railway), Jaipur City jaipur, on August 19, 1983 and the learned Magistrate directed them to be sent to judicial custody. During this period of judicial custody police remand was also given on August 26, 1983 at the request of the police. On November 18, 1981 the petitioners submitted an application for grant of bail before the learned Magistrate on the ground that as no charge-sheet had been filed in the case within 90 days as such they were entitled to be released on bail. The learned Magistrate by his order, dated November 19, 1983 dismissed the bail application on the ground that the accused persons has surrendered of their own accord on August 19, 1983 and on that date the following order was passed:
vfHk;qDrx.k us LosPNkiwoZd surrender fd;k gS A vHkh izkFkZuki= J.C. es j[kk tkos] Case, SHO, Sikar ls lacaf/kr gSA dsl Mk;jh ryc dh tkdj fn- 26&8&83 dks iwjk gks mlds ckn gh effective order fn;k tkosxk A
Thereafter on August 26, 1983 after perusing the case diary and the application of S.H.O., G.R.P., Sikar, an order was given to the following effect:
eqfYtekj dks SHO ds lqiqnZ fd;k tkos A
The learned Magistrate further held that a perusal of the above two orders clearly goes to show that the order dated August 19, 1983 was not given under Section 167 Cr. P.C as till then no record was available with the Court of the case is which the accused persons wanted to surrender. In view of these circumstances the accused persons were kept in judicial custody from August 19,1983 to August 26, 1983 at their own request and as such this period cannot be counted in calculating the period of 90 days under Section 167(2) Cr. P. C. The learned Magistrate further mentioned that the SHO., G.R P. Sikar may be informed to submit police report by November 24,1983 otherwise the accused persons would be entitled to be released on bail under Section 167(2) Cr. P.C. Thereafter the challan in the case was filed on November 25, 1983. The accused persons again submitted an application/for the grant of bail on November 25, 1983. The learned Magistrate dismissed this bail application also taking the view that filing of challan and taking of cognizace is the cese were two different matters. As he had already taken cognizance in the case as such the accused persons were not entitled to the benefit of Section 167(2) Cr. P. C. The learned Magistrate further held that the accused persons had already submitted an application for grant of bail in the Court of Sessions and on this ground also he did not consider it proper to release the accused-petitioners on bail. The application for bail then came up for consideration before the learned Sessions Judge, Jaipur City, Jaipur, who by his order, dt. Dec. 12, 1983 dismissed the application taking the view that the learned Magistrate had himself taken cognizance in the case on August 19, 1983 and thereafter the remands could have been passed under Section 309(2) Cr. P. C. and under that provision there was no restriction of 90 days. Learned Sessions Judge therefore, held that the accused persons were not entitled to get the benefit of Section 167(2) Cr. P. C. and as such dismissed the bail application.
3. Mr. Dhankar, learned Counsel for the petitioners, contended that for arguments sake if the order, dated August 19, 1983 passed by the learned Magistrate is construed as an order taking cognizance under Section 100 Cr. PC and the order granting judicial custody is deemed to have been passed under Section 309(2) Cr. PC, then the learned Magistrate had no power to grant police remand on August 26, 1933. It is contended that it has been clearly laid down in Ashok v. State of Rajasthan 1981 Cr. LR (Raj.) 491 that once a remand has been passed under Section 309 Cr. PC, no further remand can be granted to police custody. In these circumstances it was argued that the remand to police custody granted by the learned Magistrate on August 26, 1983 being clearly illegal, the petitioners were entitled to be released on bail as held in Manohari v. State of Rajas than 1983 RLR 155. Reliance was also placed on Kedar v. State 1977 Cr. LJ 1230 and Ram Chandra v. State 1977 Cr. LJ 1783.
4. It was also argued by learned Counsel for the petitions that the order, dated August 19, 1983, cannot be construed to be an order taking cognizance under Section 190 Cr. PC. In this regard it is submitted that the order passed by the learned Magistrate on August 19, 1983 was merely remanding the petitioners to judicial custody at the request of the petitioners and no material or papers of the case were available for applying his mind to take cognizance in the case. The learned Magistrate himself on the other hand mentioned that he was not passing any effective order & the same would be passed after calling the case diary on August 26, 1983. It is thus contended that there was no question of taking cognizance by the Magistrate on Ausust 1(sic)3, 1983 and the earliest date for arrest to be taken as August 26, 1983 then the charge sheet having been filed on November 25, 1983 was beyond 90 days and as such the petitioners were entitled to be released on bail. In this regard it was also submitted that the learned Magistrate himself in his mentioned that if the charge-sheet will not be filed in the case by November 24, 1983, the petitioners would be entitled to be released on bail under Section 167(2) Cr. PC. It is thus submitted that the learned Magistrate had passed the order taking cognizance under Section 190 Cr. PC only on November 25, 1983 when the charge sheet was filed in the case. It is contended that in a case investigated by the police, no cognizance could have been taken by the learned Magistrate before filing of the charge sheet under Section 173 Cr. PC, Reliance in this regard is placed on Ved Kumar Seth v. State of Assam 1975 Cr. LJ 647 and Beni Madhav v. State of Rajasthan 1983 Cr. LJ 633.
5. On other hand it was argued by Mr. S.B. Mathur, learned Public Prosecutor, that the learned Sessions Judge has rightly held that cognizance in the case was taken by the learned Magistrate on August 19, 1983 and thereafter the remand to judicial custody passed under Section 309 Cr. PC and there was no question of applying Section 167 Cr. PC in the case. As regards the police remand granted by the learned Magistrate on August 26, 1983, it was submitted that such remand would also be considered as judicial custody remand and even if there was any irregularity in such remand, it cannot entitle the petitioners for the grant of bail. Reliance in this regard was placed on Taju Khan v. State of Rajasthan; 1983 RLR 100. It was also contended that there was no specific mode for taking cognizance in a case and it would depend on the facts and circumstances of each individual case whether cognizance has been taken by the Magistrate or not within the meaning of Section 190 Cr. PC. It was further submitted that the FIR in the present case was lodged at the police station on April 4, 1983 and the same had been sent to the Railway Magistrate. The accused parsons had themselves surrenders before the Railway Magistrate on August 19, 1983 and the Magistrate had sent the accused persons to judicial custody on being satisfied prima facie from the FIR that the accused persons had committed the offences with which they were charged. Reliance is placed on Mown v. Special Jail, Nowgong Assam and Ors. 1971 UJ (SC) 111.
6. I have given my careful consideration to the arguments advanced learned Counsel for the both parties and have throughly perused the record.
7. The facts in the present case are almost undisputed and there is no controversy that in case it is held that cognizance in the case was taken on November 25, 1983 when the charge-sheet was filed, then it was beyond 90 days of arrest. I do not want to decide the controversy regarding the validity of the police remand granted by the learned Magistrate on August 26, 1983 and its result for entitling the accused persons to be released on bail as there is a difference of opinion between the two Division Benches of this Court. In Taju Khan v. State of Raj (supra) S K. Mal Lodha & M.C. Jain, JJ. have held that the accused will not be entitled to be released on bail even though at some anterior period his detention was illegal. In such a case if there is a last valid order of remand, the application for grant of bail under Section 439 Cr. PC is to be considered in the light of the provisions contained in Sections 417(1) and 439(1) Cr. PC. In another Division Bench to which I was a party in Manohari v. State of Rajasthan (supra) it has been held that in cases of grant of bail, the validity of the earlier orders of remand can certainly be taken into consideration. In such cases if there was illegility in the earlier orders of remand, it cannot be validated by a subsequent valid order of remand. In view of the above conflicting decisions of the two Division Benches of this Court, it would not be proper to decide this case on the basis of the validity of otherwise of the police remand granted on August 26, 1983 till this question is resolved by a larger Bench.
8. However, the petitioners become entitled to be released on bail on another point on which, in my view the facts are abundantly clear. Cognizance in a case can be taken by Magistrates under Section 190 Cr. PC. Section 190 Cr. PC reads as under:
Section 190--Cognizance of offences by Magistrates
(1) Subject to the provisions of the Chapter, 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;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-Section (1) of such offence as are within his competence to inquire into or try.
Before a Magistrate can be said to have taken cognizance of an offence, he must have not only applied his mind to the contents of the complaint or the police report or the information presented before him, but must have done so for the purpose of proceeding under the provisions subsequent to Section 190 Cr. PC for bringing the offender to trial. When cognizance is taken of an offence will depend-on the facts and circumstances of each case 'Cognizance has no esoteric or mystic significance in criminal law or procedure. It is further necessary that the Magistrate should take notice judiciously of the facts of the case and should apply his mind to show that he wanted to proceed further in the case as contemplated under Chapter XV of the Code. Applying the above test in the facts of the present case there remains no manner of doubt that cognizance in the case was not taken on August 49, 1983 or August 26, 1983 and was only taken on November 25, 1983. The order of the learned Magistrate, dated August 19, 1983 merely shows that he had taken note of the facts that the accused persons had surrendered of their own accord and had requested for sending them to judicial custody. The case was concerned with the SHO, GRP Sikar and as such the case diary was summoned and it was directed to place the case on August 26, 1983 for passing effective order. On August 26 1983 on a request made by SHO, GRP, Sikar it was directed that the accused persons be given to the custody of the police. Therefore, while dismissing the bail application of the petitioners by order, on November 19, 1983 it was clearly mentioned that the police had not filed the charge sheet in the case and the arrest of the accused persons would be counted from August 26 1983 and the charge sheet should be filed before November 24, 1983 otherwise the accused persons would be entitled to be released on bail under Section 167(2) Cr. PC. Admittedly the charge sheet was filed on November 25 1983 and even if the date of arrest is counted from August 26, 1983, the date of filing charge sheet and taking cognizance being November 25 1983 it is beyond 90 days and the accused persons become entitled to be 'released on bail under Section 167(2) Cr. PC. It is a case instituted on police report and merely because an FIR had come on record of the learned Magistrate prior to August 19, 1983, it cannot be said that the learned Magistrate had taken cognizance in the case on August 19, 1983. The order of the learned Magistrate, dated August 19, 1983 as mentioned above, clearly goes to show that he had not applied his mind at all to the facts of the case or any record was available with him so as to infer that he had taken cognizance in the case. The case Mawu v. Special Jail Nowgong Assam & Ors (supra) relied upon by the learned Public Prosecutor has no applicability in the present case. In the above case on December 22, 1969, the Magistrate received a complaint through the Chief Secretary and ordered that the complaint should be sent to the Superintendent of Police Kohima for registering the case. The police on the next day drew up an FIR and registered the case as Kohima Police Station case No 11(12)/69 under Sections 121, 121A and various other Sections of the Penal Code and other Acts. This having been done, the police appeared before the Magistrate produced the FIR and applied for a warrant for the production of the petitioner before him as the petitioner at that time was lodged in the jail at Delhi under the Preventive Detention Act, 1950. There was not a question that the District Magistrate, Kohima was a competent Magistrate to take cognizance of the offences, with which the petitioner and others were charged, under Section 190 of the Code. The Supreme Court in these facts observed as under:
Taking cognizance of an offence within the meaning of Section 190 only means that the Magistrate must apply his mind to contents of the complaint before him for the purpose of proceeding under Section 200 and the other provisions of the Code following it. It is true that in his orders dated the 22nd & 23rd of December, 1969 he directed the Kohima police to register the case and to expedite their report. Nonetheless, the order of December 23, 1963 also states that he was prima facie satisfied from the first information report produced before him that the accused therein mentioned had committed the offences with which they were charged. The issuance of the warrants by him thereafter, to ensure the, production of the petitioner and others from different jails where they were then lodged was after he had taken cognizance of the said offences. Therefore, there is no difficulty in holding that Magistrate had taken cognizance of the offence either upon the complaint filed by Lt. Col. Sethi or upon the first information report produced the police the next day before him. If he can be said to have taken cognizance on the said complaint, there was no necessity for him to examine the complaint as the complaint was in writing and as by a public officer who was directed by the State Government to prosecute the petitioner and others.
The above authority thus renders no assistance at all to the learned Public Prosecutor in the facts and circumstances of this case.
9. In the result, this petition is allowed and the petitioners Shishpal and Rajan are directed to he released on bail provided each one of them furnishes a persona] bond in the sum of Rs. 10,000/- with two surities of Rs. 5,000/- each to the satisfaction of the learned Sessions Judge, Jaipur for their appearance before that Court on all dates of hearing or whenever and wherever they are called upon to do so.