Sunday, 9 April 2017

Whether accused can be remanded in custody prior to registration of offence?

 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.
IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
DB Civil Writ Petition (Habeas Corpus) Nos. 120 and 121/2016
Decided On: 26.05.2016
 Rahul Pareek
Vs.
 State of Rajasthan and Ors.

Hon'ble Judges/Coram:
M.N. Bhandari and J.K. Ranka, JJ.

Citation: 2017 CRLJ 721 Raj

1. By these writ petitions of habeas corpus, a prayer is made for release of the petitioner-Rahul Pareek alleging his detention and custody to be illegal.
2. Learned counsel submits that these writ petitions are involving various questions of law and also focus working of the police and the courts act in derogation to the provisions of law.
3. An FIR No. 50/2016 was registered on 17.3.2016 with Police Station - Anti Corruption Bureau, Jaipur (for short 'the ACB') for offence under sections 7, 13(1)(D), 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act of 1988') read with section 120B of the Indian Penal Code (for short 'the IPC'). The petitioner was, however, arrested on 11.3.2016 and was produced before the learned Special Judge No. 1, Anti Corruption Cases, Jaipur (for short 'the court below') 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 remand, the accused is to be presented before the court concerned either physically or through video linkage.
5. In the instant case, the accused petitioner was presented before the court on 11.4.2016 but thereafter orders for remand were passed mechanically without securing presence of the accused petitioner by either of the modes. In view of above, all the orders for custody remand after 11.4.2016 become illegal so as the custody.
6. It is not only that custody of the accused petitioner was illegal on 11.3.2016 but even subsequent to registration of FIR when orders for remand were passed. On both the counts, petitioner deserves to be released by issuing a writ of habeas corpus.
7. Learned counsel further submits that after registration of FIR on 17.3.2016 and arrest prior to it on 11.3.2016, charge sheet was filed by the ACB on 9.5.2016 against the petitioner and co-accused. The trial court posted the case for taking cognizance of offence on 23.5.2016 as sanction for prosecution was not received against the petitioner. The custody of the petitioner without cognizance of offence becomes illegal as is not authorised under the Code of Criminal Procedure. The provisions of the Cr.P.C. authorises custody during the course of investigation under section 167 Cr.P.C. subject to maximum period given therein. The custody on filing of the charge sheet is authorised in the hands of the Magistrate on cognizance of offence.
8. In the instant case, cognizance of offence has not yet been taken thus subsequent to filing of the charge sheet, section 167 Cr.P.C. becomes inapplicable. The custody thereupon is governed under section 309 Cr.P.C. but in absence of cognizance of offence, it does not apply. In view of above, custody subsequent to filing of charge sheet also becomes illegal thus petitioner is entitled to be released.
9. To support the arguments, learned counsel has made reference of the judgment of the Apex Court in the case of "Natabar Parida, Bisnu Charan Parida, Batakrushna Parida and Babaji Parida versus The State of Orissa", MANU/SC/0157/1975 : (1975) 2 SCC 220. Therein, it is held that court will have no inherent powers for remand of custody of the accused unless conferred by law.
10. In the instant case, order for remand of the accused for custody is without support of any provision of law after filing of the charge sheet.
11. The other judgment referred by learned counsel for petitioner is in the case of "Sanjay Dutt versus State through CBI, Bombay (II)", MANU/SC/0554/1994 : (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", MANU/SC/0222/2001 : (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 judgment in the case of "Suresh Kumar Bhikamchand Jain versus State of Maharashtra & Anr.", (2013) 2 SCC 77 is per incuriam thus should not be applied being contrary to earlier judgments on the issue. The prayer is accordingly made to issue writ of habeas corpus for release of the accused petitioner from illegal detention.
14. We have considered the submissions and perused the record.
15. On the facts given by learned counsel, we formulate following questions for our determination-
1. Whether detention can be ordered by the court/Magistrate under section 167 Cr.P.C. without a report being filed before the court/Magistrate in terms of section 157 Cr.P.C.?
2. Whether remand of the accused can be given without producing him before the court/Magistrate either physically or through video linkages?
3. Whether after completion of investigation and filing of the charge sheet, remand for custody can be given by the court/Magistrate without taking cognizance?
16. The first question has been raised in view of the fact that arrest of the accused was made on 11.3.2016 though FIR for the offence was registered on 17.3.2016. To answer the first question, reference of sections 157 and 167 Cr.P.C. would be relevant and thus are quoted hereunder-
"Section 157 - Procedure for investigation. (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:
Provided that--
(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, 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 information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that-
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen 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 to released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
(b) no Magistrate shall authorise 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 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 entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.
(3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into 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 period of 24 hours given under section 57 Cr.P.C. In that case, police officer making investigation shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary prescribed relating to the case and shall at the same time forward the accused to such Magistrate. Sub-section (2) of section 167 Cr.P.C. provides that if an accused is forwarded to a Magistrate, whether he has or has no jurisdiction to try the case, may authorise detention of the accused for a term not exceeding 15 days in the whole and if such Magistrate has no jurisdiction to try the case or to commit it for trial, he may order to forward the accused to a Magistrate having jurisdiction. As per the provision aforesaid, for remand of the case, accused needs to be forwarded to the Magistrate.
19. The order for remand of custody of the accused is without even forwarding the accused to the Magistrate whether having or not having jurisdiction to try the offence. Thus the orders for remand of the accused petitioner without forwarding him to the Magistrate physically or through video linkages is illegal. The court below should not have passed an order under section 167 Cr.P.C. unless the accused is forwarded to him. Therefore, second question is answered in favour of the petitioner.
20. The third question is as to whether section 167 Cr.P.C. would apply after filing of the charge sheet and custody would be authorised subsequent to it without taking cognizance of the offence. To answer the aforesaid question, reference of section 309 Cr.P.C. needs to be given as has been referred by learned counsel for the petitioner. The provision aforesaid is quoted hereasunder-
"Section 309-Power to postpone or adjourn proceedings.-(1) In every inquiry or trial the proceedings 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 section 376, section 376A, section 376B, section 376C or section 376D 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 filing of the charge sheet.]
(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, 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, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.
Explanation 1.-If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.
Explanation 2.-The terms on which an adjournment or postponement may be granted in include, in appropriate cases, the payment of costs by the prosecution or the accused."
21. Section 309 Cr.P.C., no doubt, comes in operation on cognizance of offence or commencement of trial. The custody is authorised on cognizance of offence. We are not making reference of section 209 Cr.P.C. as it is not applicable in the case in hand. If sections 167 and 309 Cr.P.C. are read together and arranged in seriatim of events, it would become clear that section 167 Cr.P.C. would apply during the course of investigation and till filing of the charge sheet. The operation of section 167 Cr.P.C. would cease to exist after filing of the charge sheet. It is as per section 167 Cr.P.C. and the judgment of the Constitutional Bench of the Apex Court in the case of Sanjay Dutt (supra). Thus, we can safely conclude that after the charge sheet/challan, section 167 Cr.P.C. ceases to apply.
22. The question now remains as to under what provision, custody can be authorised after filing of the charge sheet. For it, reference of section 309 Cr.P.C. would be relevant. The custody after filing of the charge sheet is authorised under section 309 Cr.P.C.. It is, however, on taking cognizance of offence or commencement of trial. The provision of section 309 Cr.P.C. was made by the Legislature presuming that immediately on filing of the charge sheet, cognizance of offence would be taken or may be denied thus remand of custody should be allowed on cognizance of offence. The Legislature did not visualise the situation where there may be delay in taking cognizance of offence as it has happened in the present case in absence of sanction for prosecution.
23. In the aforesaid background, if we go by strict mandate, then judgment in the case of Natabar Parida (supra) would apply, wherein, it is held that authorisation of 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 with the aforesaid.
24. As per the judgment aforesaid, the court assumes the custody of the accused till cognizance of offence is taken. The judgment aforesaid has been given to continue custody of the accused after noticing the two stages given in the Code of Criminal Procedure and to fill up the gap in between the two stages.
25. The third question get the answer with the aforesaid and, accordingly, custody of the accused cannot be said to be illegal after filing of the charge sheet till cognizance of offence is taken. It is more so when it cannot be said that intervening period after filing of the charge sheet and till cognizance is taken, is due to lapse of the court or the police. The cognizance of offence could not be taken in absence of sanction for prosecution mandated by section 19 of the Act of 1988.
26. It is a peculiar circumstance not visualised by the Legislature and thus dealt with by the Apex Court. In the light of the aforesaid, custody of the accused cannot be said to be illegal.
27. Learned counsel has given a reference of the judgment of the Apex Court on the issue of per incuriam. It is to show that earlier judgment of the Apex Court in the case of Natabar Parida (supra) was not considered subsequently in the case of Suresh Kumar Bhikamchand Jain (supra).
28. We find that the judgment in the case of Natabar Parida (supra) was given by the Bench of two Judges, whereas, judgment in the case of Suresh Kumar Bhikamchand Jain (supra) has been given by the Bench of three Judges. We further find that the issue involved in the case of Natabar Parida (supra) was different than before the Apex Court in subsequent judgment in the case of Suresh Kumar Bhikamchand Jain (supra). Thus the judgments cannot be said to be in conflict. The relevant paras 2, 18 and 19 of the judgment in the case of Suresh Kumar Bhikamchand Jain (supra) are quoted hereunder-
"2. This case has thrown into focus certain important issues regarding the right of an accused to be released on bail under Section 167(2) of the Code of Criminal Procedure, 1973, hereinafter referred to as "Code of Criminal Procedure". One of such issues concerns the power of the Magistrate to pass orders of remand even beyond the period envisaged under Section 167(2) Code of Criminal Procedure. In the instant case, despite charge-sheet having been filed, no cognizance has been taken on the basis thereof. 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 envisaged in Section 167 Code of Criminal Procedure. The scheme of the Code of Criminal Procedure is such that once the investigation stage is completed, the Court proceeds to the next stage, which is the taking of cognizance and trial. An accused has to remain in custody of some court. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced. During that stage, under Section 167(2) Code of Criminal Procedure, the Magistrate is vested with authority to remand the accused to custody, both police custody and/or judicial custody, for 15 days at a time, up to a maximum 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 Code of Criminal Procedure. 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) Code of Criminal Procedure. Sanction is an enabling provision to prosecute, which is totally separate from the concept of investigation which is concluded by the filing of the charge-sheet. The two are on separate footings. In that view of the matter, the special leave petition deserves to be and is hereby dismissed."
29. The third question is accordingly answered against the accused petitioner. The custody of the accused petitioner cannot be said to be illegal in the facts and circumstances of the case. He is thus not entitled to get an order of release even if his initial custody was illegal so as the remand during the period of investigation when the accused 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 that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 Cr.P.C. ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in Section 20(4)(bb), both of them should be considered together. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Cr.P.C. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (Naranjan Sigh Nathawan v. The State of Punjab MANU/SC/0073/1952 : 1952 Cri.L.J. 656; Ram Narayan Singh v. The State of Delhi and Ors. MANU/SC/0035/1953 : 1953 Cri.L.J. 113; and A.K. Gopalan v. The Government of India MANU/SC/0091/1965 : 1966 Cri.L.J. 602."
30. The perusal of the para quoted above makes it clear that writ of habeas corpus should be dismissed, if on the date of return of the rule, the custody or detention is based on valid order.
31. In view of the aforesaid, we do not find that an order for release of the accused petitioner can be made. The writ petition is to be dismissed accordingly for the prayer for release of the accused petitioner.
32. In view of the discussion made above, both the writ petitions are dismissed.
33. A copy of this order be placed in connected file.


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