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TMI Blog2016 (5) TMI 1580X X X X Extracts X X X X X X X X Extracts X X X X ..... ow') on 12.3.2016. The court below granted two days police custody remand though no FIR was registered till passing of the order. On 14.3.2016, he was sent in judicial custody for 14 days though FIR was not registered even till then. In view of above, arrest of the accused-petitioner and also the orders for police custody so as the judicial custody were without registration of the FIR. It was per se illegal as hit by the provisions of the Code of Criminal Procedure (for short 'the Cr.P.C.'). A person cannot be arrested without registration of FIR and, at the same time, no order can be passed under section 167 Cr.P.C. unless the FIR is registered. The provision aforesaid applies on registration of the FIR as the investigation can be conducted by the police thereupon only. If the investigation is not completed within 24 hours of registration of FIR, authorisation of custody can be sought under section 167 Cr.P.C., subject to maximum period provided therein. 4. Learned counsel further states that as per section 167 Cr.P.C., custody remand at a time can be given for maximum 15 days in the whole subject to maximum period of 60 days or 90 days, as the case may be. To seek re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for petitioner is in the case of "Sanjay Dutt versus State through CBI, Bombay (II)", (1994) 5 SCC 410. The aforesaid judgment is of Constitutional Bench. Therein, Apex Court, referring to section 167 Cr.P.C., held that after the challan, provision aforesaid cannot be invoked for remand of the custody of the accused. The moment challan is filed, section 167 Cr.P.C. ceases to apply. It is, however, held that a writ of habeas corpus on the ground of absence of valid order for remand or detention of an accused has to be dismissed if on the day of return of the rule, the custody or detention is based on valid order. In view of above, crucial date to make a scrutiny about alleged illegal detention can be at the initial stage or return of rule. 12. The other judgment referred by learned counsel is in the case of "Uday Mohanlal Acharya versus State of Maharashtra", (2001) 5 SCC 453. Therein, interpretation of section 167 Cr.P.C. and section 209 Cr.P.C. has been given. 13. The last judgment is in the case of "Sundeep Kumar Bafna versus State of Maharashtra & Anr.", (2014) 16 SCC 623. Therein, issue of doctrine of per incuriam has been considered. It has been referred to hold that the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, he shall not investigate the case. Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality. (2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements to that sub-section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated. 167 - Procedure when investigation cannot be completed in twenty-four hours.-(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 production of the accused person through the medium of electronic video linkage, as the case may be. Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution. (2A) Notwithstanding anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the offence subject to such directions with regard to bail and other matters as he may specify." 17. As per the provisions quoted above, custody of the accused can be after a report. 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 first question is accordingly answered in favour of the petitioner. 18. The second question is as to whether remand for custody of the accused can be given without producing before the court below either physically or through video linkages. To answer the question aforesaid, reference of section 167 Cr.P.C. would be relevant. As per the provision aforesaid, an accused is required to be forwarded to the Magistrate for remand if the investigation is not completed within a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: Provided further that when witnesses are in attendance no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing: Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. Provided also that-(a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party; (b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment; (c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f custody can be given by the Magistrate if the power is conferred for it. In the case of Uday Mohanlal Acharya (supra), the Apex Court has given interpretation of sections 167 and 209 Cr.P.C.. The fact, however, remains that in a subsequent judgment of the Apex Court in the case of Suresh Kumar Bhikamchand Jain (supra), three Judges of the Apex Court have considered and decided the issue raised herein. The Apex Court held that as per the scheme of the Code of Criminal Procedure, once investigation is complete, the court proceed to the next stage i.e. for taking cognizance of offence and trial. An accused has to remain in custody. In the event an investigating authority fails to file charge sheet within stipulated period, the accused becomes entitled for release on statutory bail. It is, however, to be noted that in other judgment, such a bail is made admissible, if it is filed before submission of the charge sheet and not otherwise. It is further held that till the Magistrate takes cognizance of the offence for trying the offence, said court assume the custody of the accused for the purpose of remand and to be governed in terms of section 309 Cr.P.C.. The judgment was summed-up wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof. The learned Magistrate has, however, continued to pass remand orders, without apparently having proceeded to the stage contemplated under Section 309 Code of Criminal Procedure. In order to appreciate the issues which have cropped up during the hearing of the instant case, it is necessary to briefly set out the facts giving rise to the said questions, which have fallen for determination. 18. None of the said cases detract from the position that once a charge-sheet is filed within the stipulated time, the question of grant of default bail or statutory bail does not arise. As indicated hereinabove, in our view, the filing of charge-sheet is sufficient compliance with the provisions of Section 167(2)(a)(ii) in this case. Whether cognizance is taken or not is not material as far as Section 167 Code of Criminal Procedure is concerned. The right which may have accrued to the petitioner, had charge-sheet not been filed, is not attracted to the facts of this case. Merely because sanction had not been obtained to prosecute the accused and to proceed to the stage of Section 309 Code of Criminal Procedure, it cannot be said that the accused is entitled to grant of statutory bail, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used was not produced before the court. The release of the accused can be permitted only if the custody is found to be illegal on the date when the issue is considered by the court or with the return of the rule, as has been held by the Apex Court in the case of Sanjay Dutt (supra). Relevant para 48 of the judgment in the case of Sanjay Dutt (supra) reads as under- "48. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4)(bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Cr.P.C.. If t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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