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2016 (5) TMI 1580 - HC - Indian LawsSeeking release of detained petitioner - remand order - absence of cognizance of offence - section 167 of Cr.P.C. - Whether detention can be ordered by the court/Magistrate under section 167 Cr.P.C. without a report being filed before the court/Magistrate in terms of section 157 Cr.P.C.? - HELD THAT - In the instant case, accused petitioner seems to have remained in custody for almost six days even prior to the report. After his arrest on 11.3.2016, he was produced for taking remand by the police on 12.3.2016 before the learned Magistrate. Initially, remand was given for two days followed by other order of remand for 14 days on 14.3.2016. The arrest as well as initial order of remand were without registration of an FIR. In our opinion, initial two orders for remand prior to registration of FIR are hit by section 167 Cr.P.C. - the question is accordingly answered in favour of the petitioner. Whether remand for custody of the accused can be given without producing before the court below either physically or through video linkages? - HELD THAT - An accused is required to be forwarded to the Magistrate for remand if the investigation is not completed within a period of 24 hours given under section 57 Cr.P.C. In that case, police officer making investigation shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary prescribed relating to the case and shall at the same time forward the accused to such Magistrate. Sub-section (2) of section 167 Cr.P.C. provides that if an accused is forwarded to a Magistrate, whether he has or has no jurisdiction to try the case, may authorise detention of the accused for a term not exceeding 15 days in the whole and if such Magistrate has no jurisdiction to try the case or to commit it for trial, he may order to forward the accused to a Magistrate having jurisdiction. As per the provision aforesaid, for remand of the case, accused needs to be forwarded to the Magistrate. The order for remand of custody of the accused is without even forwarding the accused to the Magistrate whether having or not having jurisdiction to try the offence. Thus the orders for remand of the accused petitioner without forwarding him to the Magistrate physically or through video linkages is illegal. The court below should not have passed an order under section 167 Cr.P.C. unless the accused is forwarded to him - the question is answered in favour of the petitioner. Whether section 167 Cr.P.C. would apply after filing of the charge sheet and custody would be authorised subsequent to it without taking cognizance of the offence? - HELD THAT - Section 309 Cr.P.C., no doubt, comes in operation on cognizance of offence or commencement of trial. The custody is authorised on cognizance of offence. We are not making reference of section 209 Cr.P.C. as it is not applicable in the case in hand. If sections 167 and 309 Cr.P.C. are read together and arranged in seriatim of events, it would become clear that section 167 Cr.P.C. would apply during the course of investigation and till filing of the charge sheet. The operation of section 167 Cr.P.C. would cease to exist after filing of the charge sheet. It is as per section 167 Cr.P.C. - Thus, it can safely be concluded that after the charge sheet/challan, section 167 Cr.P.C. ceases to apply. Under what provision, custody can be authorised after filing of the charge sheet? - HELD THAT - Reference of section 309 Cr.P.C. would be relevant. The custody after filing of the charge sheet is authorised under section 309 Cr.P.C.. It is, however, on taking cognizance of offence or commencement of trial. The provision of section 309 Cr.P.C. was made by the Legislature presuming that immediately on filing of the charge sheet, cognizance of offence would be taken or may be denied thus remand of custody should be allowed on cognizance of offence. The Legislature did not visualise the situation where there may be delay in taking cognizance of offence as it has happened in the present case in absence of sanction for prosecution. The custody of the accused cannot be said to be illegal after filing of the charge sheet till cognizance of offence is taken. It is more so when it cannot be said that intervening period after filing of the charge sheet and till cognizance is taken, is due to lapse of the court or the police. The cognizance of offence could not be taken in absence of sanction for prosecution mandated by section 19 of the Act of 1988 - the question is accordingly answered against the accused petitioner. An order for release of the accused petitioner cannot be made - petition dismissed.
Issues Involved:
1. Legality of detention without filing a report under Section 157 Cr.P.C. 2. Remand of the accused without physical or video linkage presence. 3. Remand for custody post-investigation without taking cognizance. Detailed Analysis: 1. Legality of Detention Without Filing a Report Under Section 157 Cr.P.C.: The court addressed the issue of arrest and remand of the accused before the registration of the FIR. The accused was arrested on 11.3.2016, but the FIR was registered only on 17.3.2016. The court referred to Sections 157 and 167 Cr.P.C., emphasizing that custody can only follow a report. The initial orders for remand before the FIR registration were deemed illegal under Section 167 Cr.P.C. The court concluded that both the arrest and the initial remand orders were invalid as they were not supported by an FIR, thus answering the first question in favor of the petitioner. 2. Remand of the Accused Without Physical or Video Linkage Presence: The court examined whether remand orders could be passed without the accused being presented physically or through video linkage. Section 167 Cr.P.C. mandates that an accused must be forwarded to the Magistrate for remand. The court found that the remand orders were issued without the accused being forwarded to the Magistrate, either physically or via video linkages, rendering these orders illegal. Consequently, the second question was also answered in favor of the petitioner. 3. Remand for Custody Post-Investigation Without Taking Cognizance: The court analyzed the applicability of Section 167 Cr.P.C. post-filing of the charge sheet and the authorization of custody without taking cognizance. It referred to Section 309 Cr.P.C., which governs custody after cognizance of the offense. The court noted that Section 167 Cr.P.C. ceases to apply after the charge sheet is filed, and custody thereafter is governed by Section 309 Cr.P.C., which presumes immediate cognizance of the offense. The court acknowledged the peculiar situation where cognizance could not be taken due to the absence of prosecution sanction, as mandated by Section 19 of the Prevention of Corruption Act, 1988. The court referred to the Apex Court's judgment in "Suresh Kumar Bhikamchand Jain vs. State of Maharashtra & Anr." and concluded that the custody remains valid until cognizance is taken, thus answering the third question against the petitioner. Conclusion: The court dismissed the writ petitions, stating that the initial custody and remand orders were illegal but the custody post-filing of the charge sheet was valid. The court emphasized that a writ of habeas corpus should be dismissed if the custody is based on a valid order at the time of the court's consideration, as held in "Sanjay Dutt vs. State through CBI, Bombay (II)." Therefore, the petitioner's request for release was denied, and both writ petitions were dismissed.
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