1981 (9) TMI 304 - HC - Indian Laws

Summary

Issues Involved:
1. Legality of detention under Section 167(2) Cr. P.C.
2. Completion of investigation and its impact on detention.
3. Competence of Magistrates to take cognizance of offences triable by the Court of Sessions.
4. Validity of remand orders under Section 309 Cr. P.C.
5. Applicability of the proviso to Section 167(2) Cr. P.C. after commitment to the Court of Sessions.

Detailed Analysis:

1. Legality of Detention under Section 167(2) Cr. P.C.
The Court examined whether the detention of the accused-petitioners after the expiry of 90 days from their arrest was lawful. The counsel for the accused-petitioners argued that their detention was unauthorized as no order of remand under Section 309 was passed before the expiry of 90 days. They relied on the Supreme Court's decision in Natabar Parjda v. State of Orissa and other precedents. The Court noted that the power of remand under Section 309 can be invoked only after the Magistrate has taken cognizance of the offences under Section 190.

2. Completion of Investigation and Its Impact on Detention
The Court delved into the question of when an investigation can be considered complete. The Public Prosecutor argued that the investigation is completed when the charge-sheet is filed. However, the Court held that the investigation is not complete until the Magistrate examines the police report and takes cognizance of the offence under Section 190. The Court emphasized that the provisions of Section 167, including the proviso, govern the detention of an accused person until the completion of the investigation.

3. Competence of Magistrates to Take Cognizance of Offences Triable by the Court of Sessions
The Court discussed whether a Magistrate is competent to take cognizance of offences triable exclusively by the Court of Sessions. It was held that a Magistrate of the first class is competent to take cognizance of such offences under Section 190 and conduct commitment proceedings under Section 209. The Court clarified that the provisions of Section 193 do not restrict the Magistrate's power under Section 190.

4. Validity of Remand Orders under Section 309 Cr. P.C.
The Court addressed the issue of whether an illegality in the detention due to the absence of or illegality in the order of remand under Section 309 could be cured by a subsequent valid order of remand. It was held that an illegality in detention arising from non-compliance with the proviso to Section 167(2) cannot be cured by a subsequent order of remand under Section 309. The accused would be entitled to bail if the Magistrate failed to take cognizance within the prescribed period.

5. Applicability of the Proviso to Section 167(2) Cr. P.C. After Commitment to the Court of Sessions
The Court examined the applicability of the proviso to Section 167(2) after the accused are committed to the Court of Sessions. It was held that the provisions of Section 167, including the proviso, are confined to the stage of investigation. Once the accused are committed to the Court of Sessions, the stage of investigation is over, and the provisions of Section 167 cease to apply.

Conclusion:
The Court rejected both bail applications. It held that in Bail Application No. 721/81, the Judicial Magistrate had taken cognizance of the offences before the expiry of 90 days, and thus, there was no non-compliance with the proviso to Section 167(2). Similarly, in Bail Application No. 802/81, the Magistrate had taken cognizance before the expiry of 90 days. The Court clarified that any subsequent illegality in detention due to the absence of a remand order under Section 309 does not entitle the accused to bail if there is a valid remand order at the time the bail application is considered.