2005 (6) TMI 576 - HC - Indian Laws

Summary

Issues Involved:
1. Legality of custody between the magistrate taking cognizance and passing the remand order under section 309(2) CrPC.
2. Validity of remand order passed for a period exceeding fifteen days under section 309(2) CrPC.
3. Whether subsequent valid remand orders cure defects in earlier remand orders.

Detailed Analysis:

1. Legality of Custody Between Cognizance and Remand Order:
The court examined whether the custody of the accused under the previous order under section 167 CrPC becomes unlawful merely because the charge-sheet had been filed and the magistrate has taken cognizance but not passed an express order of remand under section 309 CrPC. The court held that the custody under section 167 CrPC does not automatically become unlawful upon the filing of the charge-sheet and taking of cognizance. The order under section 167(2) CrPC continues to operate until it lapses by efflux of time or is replaced by an order of remand under section 309 CrPC. The court stated, "Such an order would be valid till the duration for which it is made does not expire or till it is replaced by a remand order under section 309 CrPC, whichever is earlier in point of time."

2. Validity of Remand Order for a Period Exceeding Fifteen Days:
The petitioner argued that the remand order dated 26.04.2005 was illegal as it remanded the petitioner to judicial custody for sixteen days, contrary to the provisions of section 309(2) CrPC. The court noted that the subsequent valid remand orders passed under section 309 CrPC have legitimized the custody of the petitioner as of today. Therefore, the alleged defect in the remand order dated 26.04.2005 does not entitle the petitioner to be released on bail. The court stated, "It is also not necessary to go into the second ground urged by the learned counsel for the petitioner with regard to the remand order of 26.4.2005 being ex facie illegal on account of it being allegedly for a period of 16 days."

3. Subsequent Valid Remand Orders Curing Defects:
The court addressed whether subsequent valid remand orders can cure defects in earlier remand orders. The court relied on the decision in Rakesh Kumar v. State, where it was held that if the detention is valid at the time of hearing, earlier invalid detention does not entitle the petitioner to any redress. The court applied this principle, stating, "The remand order of 26.04.2005 was passed after cognizance had been taken and when the petitioner was in custody in the sense explained above. At present also, the petitioner is in judicial custody on the basis of a subsequent valid remand order."

Conclusion:
The court concluded that the submissions of the learned counsel for the petitioner were not tenable. The remand order dated 20.04.2005 continued to be valid until replaced by the remand order under section 309 CrPC on 26.04.2005. The subsequent valid remand orders legitimized the custody of the petitioner. The application for bail was dismissed, but it was clarified that the petitioner could still move an application for regular bail under section 439 CrPC, which would be disposed of on merits.