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TMI Blog2013 (2) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... used has to remain in custody of some court. X X X X Extracts X X X X X X X X Extracts X X X X ..... Lalit submitted that the Petitioner was, therefore, entitled to be released on bail forthwith, since the orders of remand passed by the learned Magistrate after a period of 90 days were without jurisdiction and, therefore, invalid in the facts and circumstances of the case. 7. Mr. Lalit also submitted that Section 309 Cr.P.C., which also deals with remand of the accused under certain circumstances, does not apply to the allegations relating to the provisions of the PC Act, inasmuch as, there is no committal proceeding contemplated in the proceeding before the learned Special Judge. However, as far as Section 309 Cr.P.C. is concerned, Mr. Lalit submitted that the same would be applicable only after cognizance of the offence had been taken or upon the commencement of the trial before the Special Court. In the absence of cognizance being taken by the Special Court, it could not be said that the trial had commenced and, therefore, further detention of the Petitioner was wholly illegal and not authorised in law and he was, therefore, entitled to be released on bail forthwith on the basis of the "indefeasible right" acquired by him on the failure of the Investigating Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Advocate, supported the decision of the High Court and urged that with the filing of the charge-sheet under Section 167(2) Cr.P.C., the conditions of the said Section stood satisfied and even if sanction had not been obtained for prosecuting the Accused, the Trial Court was entitled to proceed further in the matter. Mr. Kharde submitted that the orders of remand passed by the Trial Court were not vitiated since charge-sheet had already been filed within 90 days of the arrest of the Petitioner. 12. Also referring to the decision in Sanjay Dutt's case (supra), Mr. Kharde submitted that the "indefeasible right" of the accused to be released on bail under Section 167(2) Cr.P.C., in default of completion of the investigation and filing of charge-sheet within the time allowed, is a right which accrued to and is enforceable by the accused only from the time of default till the filing of the charge-sheet and it does not survive or remain enforceable on the charge-sheet being filed. Accordingly, if in a given case, the accused applies for bail, under the aforesaid provision, on expiry of the period of 180 days or the extended period, as the case may be, then he has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorize detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. Explanation I. - For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. Explanation II. - If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 309 Cr.P.C. may not have any application to the facts of this case, in order to appreciate the view that we have taken, the same are reproduced hereinbelow: "309. Power to postpone or adjourn proceedings.-(1) In every inquiry or trial the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. Provided that when the inquiry or trial relates to an offence under Sections 376 to Section 376 D of the Indian Penal Code (45 of 1860), the inquiry or trial shall, as far as possible, be completed within a period of two months from the date of commencement of the examination of witnesses. (2) If the court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et as also the supplementary charge-sheet were filed within 90 days from the date of the Petitioner's arrest and remand to police custody. It is true that cognizance was not taken by the Special Court on account of failure of the prosecution to obtain sanction to prosecute the accused under the provisions of the PC Act, but does such failure amount to non- compliance of the provisions of Section 167(2) Cr.P.C. is the question with which we are confronted. In our view, grant of sanction is nowhere contemplated under Section 167 Cr.P.C. What the said Section contemplates is the completion of investigation in respect of different types of cases within a stipulated period and the right of an accused to be released on bail on the failure of the investigating authorities to do so. The scheme of the provisions relating to remand of an accused, first during the stage of investigation and, thereafter, after cognizance is taken, indicates that the Legislature intended investigation of certain crimes to be completed within 60 days and offences punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, within 90 days. In the event, the investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mum period of 60 days in cases of offences punishable for less than 10 years and 90 days where the offences are punishable for over 10 years or even death sentence. In the event, an investigating authority fails to file the charge-sheet within the stipulated period, the accused is entitled to be released on statutory bail. In such a situation, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the Court trying the offence, when the said Court assumes custody of the accused for purposes of remand during the trial in terms of Section 309 Cr.P.C. The two stages are different, but one follows the other so as to maintain a continuity of the custody of the accused with a court. 19. Having regard to the above, we have no hesitation in holding that notwithstanding the fact that the prosecution had not been able to obtain sanction to prosecute the accused, the accused was not entitled to grant of statutory bail since the charge-sheet had been filed well within the period contemplated under Section 167(2)(a)(ii) Cr.P.C. Sanction is an enabling provision to prosecute, which is totally separate from the concept of investigation which is c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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