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TMI Blog2005 (6) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... he charge-sheet had been filed and the magistrate has taken cognizance and not passed an express order of remand under section 309 If the answer to the previous question is that the custody would be unlawful then, would an order of remand passed on a subsequent date be valid and legal? As will be clear from the discussion below, there are ancillary issues also. 2. The chronology of the relevant events is as follows:- 22.02.2005 First Information Report (FIR) No. 117/05 under section 363 IPC registered at Police Station: Sameypur Badli, Delhi on the basis of information by Shri Sapan Bhagat, father of the prosecutrix Miss Pinki. 26.02.2005 The petitioner is arrested and remanded to judicial custody. Subsequent remand orders under section 167(2) CrPC passed from time to time. 20.04.2005 The Metropolitan Magistrate passes an order under section 167(2) CrPC, continuing the petitioner's judicial custody till 26.04.2005. 25.04.2005. The charge-sheet is submitted before the Metropolitan Magistrate who took cognizance of the offences under section 363/376/34 IPC. As the accused (who was in judicial custody as aforesaid) was not produced, production warrant for 26.4.2005 is direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to Mr Vikas Sharma, the petitioner was in unlawful custody for one day i.e., from 25.4.2005 to 26.04.2005. The subsequent order remand on 26.04.2005 would not also validate the illegal custody and, Therefore, the petitioner is liable to be released on bail forthwith. In support of these submissions, Mr Vikas Sharma relied upon the following decisions:- (i) Devindrappa and anr v. State of Karnataka ILR2004KAR909 (ii) Manohari v. State of Rajasthan (iii) Gyanu Madhu Jamkhandi and ors v. The State of Karnataka 4. The learned counsel for the petitioner also contended that the remand order of 26.04.2005 is also ex facie illegal. He submitted that under section 309 CrPC the remand could be for a maximum period of fifteen (15) days at a time. However, the petitioner was remanded to judicial custody on 26.04.2005 till 11.05.2005. According to the learned counsel for the petitioner the remand would be of sixteen (16) days as the day of the remand order is to be included. Hence, it was submitted that this would be in violation of section 309(2) and the petitioner's custody pursuant to such an order would be unlawful. And, the subsequent order of remand under which the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii)sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety 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) * * * 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. 309. Power to postpone or adjourn proceedings.-- (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iry of the prescribed period, which right, if availed of as indicated above, does not get extinguished by the filing of the challan or charge-sheet. But, such right gets extinguished on the filing of the challan if the accused had not availed of the same till then. In he former case, which is what has happened in the present case, there is no question of any indefeasible right to bail having accrued as, till the filing of the challan, the accused was under detention consequent upon a valid order passed under section 17(2) CrPC. While it is true that once the challan is filed the magistrate does not have any power to pass an order of remand under section 167(2) CrPC, it does not mean that a valid order passed earlier (i.e., prior to the filing of the challan) would case to operate merely upon the filing of the charge-sheet or upon the taking of cognizance of the alleged offences. In my view, such an order under section 167(2) CrPC would continue to operate till it lapses by efflux of time or it is replaced by an order of remand passed under section 309 CrPC, whichever is earlier in point of time. Where filing of the charge-sheet is immediately followed by the Magistrate taking cogni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rPC. This application was rejected on 10.9.1976 and an order of remand under section 309 CrPC was also passed. The court held that the petitioners' custody from 6.9.1976 (when the charge-sheet was filed) and 10.9.1976 (when the remand order was passed under section 309 CrPC) was illegal. It would be appropriate to set out the relevant portion of the findings: It is Therefore, clear to my mind that after a Magistrate takes cognizance of an offence or offences on the filing of the final report by the police under Section 173, of the Code of Criminal Procedure, his powers of remanding the accused who is in custody to custody, flow from the provisions of Section 309 and not from the provisions of Section 167 of the Code. In Heeraman's case a further view has been expressed to the effect that as soon as the charge-sheet is submitted, the period of remand pending investigation comes to an end and the provisions of Section 167(2)(a), would cease to apply to such a case. I respectively agree with this view also. It is neatly expressed that in such a case, bail can be granted only on merits. I am unable to see any warrant in support of this view. The period of remand granted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1976 and 10-9-76 without any valid and legal orders of detention in custody passed by a Magistrate. With respect, I am unable to subscribe to the view that a soon as the charge-sheet is filed the period of remand under section 167(2) CrPC comes to an end. There is no doubt that once the charge-sheet is filed the magistrate cannot thereafter exercise any powers under section 167(2) CrPC in the sense that after the filing of the charge-sheet, as the period of investigation terminates, the magistrate cannot pass an order of remand under section 167 CrPC. A remand order can now only be passed under section 309 CrPC. But, this does not mean that an order passed under section 167 CrPC when the investigation was pending would automatically be rendered inoperative the moment the charge-sheet is filed and cognizance is taken. As mentioned above, in my view, it would operate till it runs itself out or it is replaced by an order under section 309 CrPC, whichever is earlier in point of time. The decision in Gyanu (supra) also held that the words in custody appearing in section 309) CrPc implied and meant in legal custody . This is an aspect with which I have dealt at some length in para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Metropolitan Magistrate who remanded him to judicial custody up to 27th February 1980. On 19th February 1980 the police file the chargesheet against the Petitioner and the Metropolitan Magistrate passed the following order: Challan filed today. It be registered. Accused is in J. C. in Tihar jail. Issue PW for 27.2.1980, already fixed. A question arose as to whether this order constituted an order of remand. The Court held:- Therefore, in the present case it was not necessary in the part of the learned Magistrate to have made an express order of remand of the accused to judicial custody and her order to the effect that the present petitioner who was in jail be produced on 27th every 1980, clearly indicates that the accused was to be kept in custody till February 27, 1980 on which date he was to be produced before her. Thus after the power of remand to custody under section 167 of the code was exhausted on account of expiry of 90 days on 19th February 1980 petitioner was remanded to judicial custody in exercise of the power under section 309 of the code. In that way, not only that the custody of the Petitioner was absolutely legal, his right to grant of bail under provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so will be of no help to the petitioner. As regards the observation that habeas corpus matters and bail matters stood on different footings, it would be instructive to note the observations of the supreme court in Uday Mohanlal Acharya v. State of Maharashtra: 2001CriLJ1832 as to how an indefeasible right for bail accruing to an accused under section 167(2) CrPC would continue to be enforceable even after the filing of the charge-sheet provided, of course, the accused had availed of the right prior to the filing of the charge-sheet. The Supreme Court's observations in this context, while considering its earlier decision in Ram Narayan Singh v State of Delhi: 1953CriLJ113 are as under: The next decision is the case of Ram Narayan Singh v. State of Delhi. In this case on a habeas corpus petition being filed under Article 32, the Court was examining the legality of the detention on the date the Court was considering the matter. From the facts of the case, it transpires that there was no material to establish that there was a valid order of remand of the accused. The Court, Therefore, held that even if the earlier order of remand may be held to be a valid one, but the same havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. This case pertains to a situation where the charge-sheet had been filed after the expiry of the applicable ninety (90) day period stipulated under section 167 CrPC. As such, it would not be applicable to the case at hand. 12. I shall now take up the question of whether the expression in custody appearing in section 309 CrPC can be taken to mean legal custody only [as held in Gyanu (supra)] or would it include within its sweep even illegal custody . My answer is that in custody as appearing in section 309(2) CrPC would mean custody both legal and illegal. This conclusion is based upon two Supreme Court decisions, one decision of a Division Bench of this Court and one decision of a Full Bench of he High Court at Allahabad. The Supreme Court decisions interpreted the word custody in the context of section 439 CrPC. The other two decisions were more direct in as much as they were concerned with the word custody as it appears in section 309 CrPC. In Niranjan Singh v. Prabhakar Rajaram Kharote: 1980CriLJ426 , the Supreme Court observed:- 7. When is a person in custody, within the meaning of Section 439 CrPC? When he is in duress either because he is held by the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 439, has not been defined in the Code, it has to be understood in the setting in which it is used and the provisions contained in Section 437 which relate to jurisdiction of the Magistrate to release an accused on bail under certain circumstances which can be characterised as in custody in a generic sense. The expression custody as used in Section 439, must be taken to be a compendious expression referring to the events on the happening of which the Magistrate can entertain a bail petition of an accused. Section 437 envisages, inter alia, that the Magistrate may release an accused on bail, if such accused appears before the Magistrate. These cannot be any doubt that such appearance before the Magistrate must be physical appearance and the consequential surrender to the jurisdiction of the Court of the Magistrate. 18. In Black's Law Dictionary by Henry Campbell Black, MA (6th Edn.), the expression custody has been explained in the following manner: The term is very elastic and may mean actual imprisonment or physical detention ... Within statute requiring that petitioner be in custody to be entitled to federal habeas corpus relief does not necessarily mean a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand could be made under section three and nine (2), as it had not yet been found that the custody of the accused was lawful . There is no other section giving power to remand in a situation such as this. And, the Supreme Court has categorically ruled that there is no inherent power to remand: see Natabar Parida and others v. State of Orissa AIR1975SC1465 . 16. These considerations convince me that the court is not required or expected to go into the lawfulness of the custody of the accused before remand under section 309. The only question with which the court is concerned is whether it is necessary to further detain the accused in custody. It must heed the future and not the past. For purposes of that Section it is enough that the accused is physically in custody, as opposed to being free. The legality of the custody is of no moment. Lastly, the decision of the Allahabad High Court in Surjeet Singh v. State of U.P. : 1984 All. L. J. 375 requires some discussion. The question before the Full Bench of that court was whether the word custody used in Section 309, CrPC, means imprisonment both legal and illegal? This was answered in the affirmative. The Full Bench held: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under section 309 CrPC have legitimized the custody of the petitioner as of today. 13. In view of the above discussion it is clear that the submissions of the learned counsel are not tenable. The remand order dated 20.4.2005 was to continue till 26.04.2005. During this period a fresh remand order under section 309 was passed on 25.4.2005 (though not expressly) and at any rate on 26.4.2005. There is no dispute that the order dated 20.4.2005 was a valid order under section 167. As indicated above, it did not cease to operate on the mere filing of the charge-sheet and upon cognizance being taken. It ceased to operate possibly on 25.4.2005 (if the production order is taken to be an implied remand order) and definitely on 26.4.2005, both, because of lapse of time and because the fresh remand order under section 309) CrPC came to be passed. 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. In these circumstances the petitioner is not entitled to be released on bail on the grounds urged by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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