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TMI Blog1996 (5) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... emand. 2. On 8-3-1996, the investigating officer filed a report before the Magistrate including offences under the Official Secrets Act, 1923 in the crime. Even before the expiry of 60 days, the petitioners sought their release on bail under Section 167(2) of the Code of Criminal Procedure (the Code). Subsequently, the investigation was made over to the Central Bureau of Investigation (CBI) as per the notification dated 15-3-1996. In the re-registered case, offences under Sections 11 and 12 of the Maritime Zones Act, Section 14 of the Foreigners Act fine Act) and Section 4(1) of the Foreigners Order, 1948 (the Order) have been included. On 10-4-1906, the CBI filed a 'charge report' before the Chief Judicial Magistrate Court. Ernakulam against the petitioners under Sections 7(4)(c) and 7(5) of the Maritime Zones Act and Section 120-B of the Indian Penal Code (IPC) read with Sections 11 and 12 of the Maritime Zones Act and the case was renumbered as C. C. No. 354 of 1996 of the Chief Judicial Magistrate Court. Ernakulam. The report dated 8-3-1996 contained offences under Section 3 of the Official Secrets Act, 1923, Section 4(1) of the Act and Section 109 of the IPC. But in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons - Crl. M. P. Nos. 3529 and 3613 of 1996 - filed before the Chief Judicial Magistrate Court also ended in dismissal on the ground that the accused were remanded to judicial custody in exercise of the powers conferred on him under Section 309 of the Code and, therefore, Section 167(2) of the Code is not applicable and the accused are not entitled to be released on bail. The Magistrate also found that the investigation in respect of offences under the Official Secrets Act had not been completed and on completion, the CBI would be justified in filing a charge under Section 173(8) of the Code. It is against the said order, Crl. R. P. No. 422 of 1996 is filed. 5. When the matter came up before this Court, a learned Judge of this Court referred the matter to a Division Bench, as per the order dated 26-4-1996. Elaborate arguments were addressed by counsel on both sides. 6. The meaningful questions which have been canvassed before us are: (i) whether the petitioners are entitled to get bail under Section 167 (2) of the Code; (ii) whether the charge report filed by the CBI on 10-4-96 in respect of the offences alleged to have been committed by the petitioners under the Maritime Zon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and on the expiry of the said period of 90 days or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; (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 para (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 para (b), the production of the accused person may be proved by his signature on the order authorising detention. Section 309 of the Code reads as under: 309. Power to postpone or adjourn proceedings :- (1) In every inquiry or trial, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n made in Section 167(2) and particularly the proviso to enable the Magistrate to extend the period of detention beyond 15 days pending investigation. But that is subject to the limitation that detention without bail shall not be beyond 60 days or 90 days as the case may be. If the investigation is not completed within 60 or 90 days, as the case may be, the accused is, as of right, entitled to bail, as is discernible from Section 167(2) of the Code. Therefore, going by the above dictum, it must be held that the Magistrate has no power either under Section 167 or under Section 309 to remand the petitioners to custody for a further period without laying charge against them. 9. The other question is, whether the CBI was right in filing a 'charge report' without making a final report in respect of the offences alleged to have been committed by the petitioners under the Official Secrets Act, 1923 and other enactments. Standing counsel for the CBI pointed out that since the investigation in respect of the offences other than the one under the Official Secrets Act has already been completed, the CBI is entitled to file a final report under Section 173 of the Code so far as thos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er became necessary, for which they required more time. Therefore, it is clear that investigation in respect of the offences under the Official Secrets Act, IPC, Act and Order against the petitioners has not so far been completed and it is in progress. The investigating officer has not made up his mind whether the accused have committed any such offences under the above enactments and in the absence of arriving at such a conclusion, the report filed by the CBI before the Magistrate on 10-4-1996 against the accused in respect of offences under the Maritime Zones Act alone cannot be deemed to be one under Section 173(2) of the Code. 10. The investigation under Section 167 of the Code can be one involving one or more offences against the accused persons. The investigation of a case cannot be split up in such a way to file piece-meal reports before Court. Section 173 of the Code does not stipulate a piece-meal investigation and filing of incomplete charge sheet before Court. It contemplates filing of a charge/refer report after completion of the entire investigation of the case in respect of all offences and where several offences are involved in a case, a charge report could be lai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement with the said finding arrived at by U. L. Bhat, J., as he than was. Viewed in that light. it must be held that the 'charge report' stated to have been filed by the CBI on 10-4-1996 cannot be said to be a final report as contemplated under Section 173 of the Code and we must say that the prosecution was not justified in making piece-meal charge report in respect of various offences alleged to have been committed by the petitioners. In the absence of completion of the investigation of the case against the petitioners, we hold that the Magistrate cannot take cognizance of the case as contemplated under Section 309 of the Code. 12. A Magistrate can lake cognizance of an offence only on filing of a report under Section 173(2) of the Code. Unless power is conferred by law, there is no inherent power to remand an accused to custody. Holding so, in the decision reported in Natabar Parida v. State of Orissa, AIR 1975 SC 1465 : 1975 Cri LJ 1212, the Supreme Court proceeded to say that under Section 167(2) proviso and under Section 309(2) of the new Code, the power of remand to jail custody conferred on the Magistrate during the pendency of the investigation is only under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od mentioned in Section 167(2) to detain the accused in custody is. over, by invoking Section 309 of the Code, the custody of the accused cannot be extended and are to be released on bail. 17. Counsel for the accused, brought to our notice that the decision relied on by the Magistrate in the order dated 19-4-1996 to remand the accused again to judicial custody has no application to the facts and circumstances of this case. We have carefully gone through the decision of the Supreme Court reported in Devinderpal Singh v. Govt. of National Capital Territory 1996 SCC 5 wherein there is a specific provision by which the investigating agency could request the Court to extend the period of remand. Before the expiry of the statutory period of 180 days contemplated under the TADA Act, 1987, necessary requisition was made by the investigating agency to the designated Court and the designated Court, in exercise of the powers conferred on it under Section 20(4) and (bb) of the TADA Act, as amended by Act 1993, granted a further period of 60 days. In that context, the Supreme Court considered whether the detention of the accused beyond the statutory period was justified or not and the extens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Maritime Zones Act. Therefore, we find no legal grounds for refusing bail to the petitioners. 18. For the above reasons, we have no hesitation in setting aside the order passed by the Chief Judicial Magistrate, Ernakulam in Cri. M. P. Nos. 3529 and 3613 of 1996 dated 19-4-1996 challenged in Crl. R. P. No. 422 of 1996. We do so. In the result, Crl. R. P. No. 422 of 1996 is allowed. The petitioners in Crl. M. C. Nos. 917 and 918 of 1996 are ordered to be released on bail on each of them executing a bond for ₹ 1,00,000/- to the satisfaction of the Chief Judicial Magistrate, Ernakulam with two solvent sureties each for the like sum or deposit of an amount of ₹ 2,00,000/- by each accused before the said Court. We also make it clear that the petitioners shall reside in the City of Cochin and report their place of residence to the investigating officer till the investigation and trial of the case are over. The petitioners are further directed to report before the investigating officer or the officer in charge of the CB1 Office at Cochin everyday between 8.00 a.m. and 10.00 a.m. until further orders from this Court. The petitioners shall not in any way attempt to inter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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