1980 (3) TMI 275 - HC - Indian Laws

Summary

Issues Involved:
1. Legality of the petitioner's detention beyond 90 days without bail.
2. Application of judicial mind by the Magistrate in remanding the accused to custody.
3. Entitlement of the petitioner to bail based on the co-accused's bail status.
4. Legality of the remand order under Section 309 of the Code of Criminal Procedure.

Issue-wise Detailed Analysis:

1. Legality of the petitioner's detention beyond 90 days without bail:

The petitioner was arrested on 21st November 1979, and the period of remand permissible under Section 167 of the Code of Criminal Procedure (the Code) expired on 19th February 1980. The petitioner contended that he was entitled to bail upon the expiry of this period. According to Section 167, a Magistrate can authorize detention up to a maximum period of 90 days for offences punishable with death, life imprisonment, or imprisonment for not less than 10 years. The Court clarified that the period of 90 days does not include the initial 24 hours during which the accused can be detained by the police under Section 57 of the Code. Therefore, the 90 days started from 22nd November 1979 and expired on 19th February 1980. The police filed a charge sheet on 19th February 1980, and the Magistrate took cognizance and adjourned the case to 27th February 1980, indicating the application of judicial mind.

2. Application of judicial mind by the Magistrate in remanding the accused to custody:

The petitioner argued that the Magistrate did not apply judicial mind while remanding him to custody and that there was no express order of remand under Section 309 of the Code. The Court noted that taking cognizance of an offence means an application of judicial mind for taking further action. The Magistrate's order dated 19th February 1980, which directed the production of the petitioner on 27th February 1980, indicated that she applied her judicial mind and intended to proceed further with the case. Although the order lacked comprehensiveness due to inadvertence, it did not imply the absence of judicial mind application.

3. Entitlement of the petitioner to bail based on the co-accused's bail status:

The petitioner did not raise any argument regarding the release of co-accused Durbeen Singh on bail. However, the Court considered this matter. The Sessions Judge had granted bail to Durbeen Singh on 20th December 1979, under the impression that there was no offence of murder involved. The Court observed that this order might have been based on a misunderstanding and called for reconsideration. The Sessions Judge was directed to reconsider the bail order for Durbeen Singh, considering the correct facts, and the prosecution was given the liberty to apply for bail cancellation.

4. Legality of the remand order under Section 309 of the Code of Criminal Procedure:

The Court discussed the transition from Section 344 of the old Code to Section 309 of the present Code. Section 344 required an express order of adjournment and remand, which was omitted in Section 309. The Court concluded that the legislature no longer required an express order of remand to judicial custody. The Magistrate's order to produce the petitioner on 27th February 1980 implied that the petitioner was to be kept in custody until that date. Therefore, the remand to custody under Section 309 was valid, and the petitioner's right to bail under Section 167 did not accrue.

Conclusion:

The petition for bail was rejected as the detention was legal under Section 309 of the Code, and there were reasonable grounds to believe that the petitioner was involved in offences punishable with death or life imprisonment. The Sessions Judge was instructed to reconsider the bail granted to co-accused Durbeen Singh.