M.M.PUNCHHI,J. - (1.) THE petitioners claim bail from this Court as a matter of right. Whether such claim is well-founded on the principles and scheme of sections 167, 209 and 309 of the Code of Criminal Procedure is the important procedural question to be determined in this petition.
(2.) THE petitioners were arrested for offences under sections 302/109/120-B of the Indian Penal Code on 1.11.1982 in FIR No. 348 dated 27.10.1982 registered at Police Station Tanda, District Hoshiarpur. They were produced before the Magistrate having jurisdiction of the areas on 2.11.1982 and were remanded to custody.The custody was extended from time to time, the last being uptill 4.2.1983. On Sunday, January 30, 1983 the prosecution agency submitted the Police report within the meaning of section 173(2) of the Code, before a Duty Magistrate. It was obviously put not in the presence of the accused. The learned Duty Magistrate then passed the following order : "Present :- ASI Angrez Singh for the State. Challan presented today as Duty magistrate. Ahalmad is directed to send the file to the Court of Shri C.S. Jawa' J.M.I.C. Dasuya for 4.2.83, the date fixed on remand papers. Sd/- Magistrate. 30.1.83, Now is the act of receiving the challan (police report) in the circumstances of this case tantamount to taking cognizance of the offence within the meaning of section 190(1)(b) of the Code ? This is the pivotal point on which the entire controversy has come to revolve. The three provisions in the present Code 1973, which authorise the accused to be remanded to custody, are sections 167, 209 and 309. In the Old Code 1898, there were two provisions, namely, sections 167 and 344. Under the old Code the aforesaid two provisions were taken to be part and parcel of one scheme. It is for this reason that the Supreme Court in Gauri Shankar Jha v. State of Bihar and others, AIR 1972 SC 711, observed as follows :- "...... In cases falling, under section 167, a magistrate undoubtedly can order custody for a period at the most of 15 days in the whole and such custody can be either police or jail custody. Section 344, on the other hand, appears in Ch. XXIV which deals with inquiries and trials. Further, the custody which it speaks of is not such custody as the magistrate thinks fit as in section 167, but only jail custody, the object being that once an inquiry or a trial begins it is not proper to let the accused remain under police influence. Under this section a magistrate can remand an accused person to custody for a term not exceeding 15 days time provided that sufficient evidence has been collected to raise a suspicion that such an accused person may have committed an offence and it appears likely that further evidence may be obtained be granting a remand." and further :- "...... The fact that Section 344 occurs in the Chapter dealing with inquiries and trials does not mean that it does not apply to cases in which the process of investigation and collection of evidence is still going on." The New Code brought about certain changes. These were prominently noticed in Natabar Parida and others v. State of Orissa, AIR 1975 SC 1465. It was held as follows :- "..... The law as engrafted in proviso (a) to Section 167 (2) and Section 309 of the New Code confers the powers of remand to jail custody during the pendency of the investigation only for the former and not under the latter. Section 309(2) is attracted only after cognizance of an offence has been taken or commencement of trial has proceeded. In such a situation what is the purpose of Explanation-I in Section 309 is not quite clear. But then the command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding ... ... ... ... ... ... ... ... ... .. ... ... ... ... ... ... ... ... ... .. ... ... ... ... ... ... the intention of the Legislature seems to be to grant no discretion to the court and to make it obligatory for it to release the accused on bail ... ... ... ... ... ... ... ... ... ... .. ... ... ... ... ... ... It is also clear that after the taking of the cognizance the power of remand is to be exercised under Section 309 of the New Code. But if it is not possible to complete the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be a "paradise for the criminals," but surely it would not be so, as sometimes it is supposed to be because of the courts, it would be so under the command of the Legislature." The instant case would, however, be governed by 90 days period on account of an amendment in the Code.
(3.) ON the expiry of the period of 60 days or 90 days, as the case may be, of the detention of an accused, authorised under section 167, how is the right to be actuated was answered by the Supreme Court in Hussainara Khatoon and others v. Home Secretary, State of Bihar, Patna, AIR 1979 SC 1377 in the following words :- "When an undertrial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days, as the case may be, the Magistrate must, before making an order of further remand to judicial custody, point out to the undertrial prisoner that he is entitled to be released on bail.?" (Emphasis supplied) And lately in State of U.P. v. Laxmi Brahman and another, (Criminal Appeal No. 249 of 1976 decided on 11th March, 1983) reported in 1983(1) CRIMES 797, the Supreme Court has shed light in the context of an inquiry relating to cases triable exclusively by the Court of Session in this manner :- "..... Thus from the time the accused appears or is produced before the Magistrate with the police report under section 170 and the Magistrate proceeds to enquire whether section 207 has been complied with and then proceeds to commit the accused to the Court of Session, the proceeding before the Magistrate would be an enquiry as contemplated by section 2 (g) of the Code. We finding it difficult to agree with the High Court that the function discharged by the Magistrate under section 207 is something other than a judicial function and while discharging the functions of the Magistrate the Magistrate is not holding an inquiry as contemplated by the Code. If the Magistrate is holding the inquiry obviously section 309 would enable the Magistrate to remand the accused to the custody till the inquiry to be made is complete." ... ... _ ... ... ... ... If, the proceedings before the Magistrate since the submission of the police report under section 170 and till the order of commitment is made under section 209 would be an inquiry and if, it is an inquiry, during the period, the inquiry is completed, section 309(2) would enable the Magistrate to remand the accused to the custody. Therefore with respect, the High Court committed an error in holding "that the order remanding the respondents to custody, cannot be justified under section 167(2), 209 and 309 of the code and no other provision under which the respondents can be remanded to custody at this stage, has been indicated by the learned Government Advocate, we feel that it would be proper to accede to the request made by the respondents and to direct that they would be released on bail after furnishing adequate security to the satisfaction of the Chief Judicial Magistrate, Banda." (Emphasis supplied by me). And in the aforesaid case, how the right of the accused is to be regulated was stated in the following words :- ".... The High Court after examining the scheme of section 167(1) and (2) with the proviso rightly concluded that, on the expiry of the 60 days from the date of the arrest of the accused, his further detention does not become ipso facto illegal or void, but if the charge-sheet is not submitted within the period of 60 days, then notwithstanding anything to the contrary in section 437(1), the accused would be entitled to an order for being released on bail if he is prepared to and does furnish bail. In this case, it is an admitted position that the respondents did not apply to the Magistrate for being released on bail on the expiry of 60 days from the date of their arrest. The High Court was of the opinion that as the respondents did not apply for bail on the expiry of sixty days from the date of their arrest, their continued detention would not be illegal or without the authority of law. So far there is no controversy" (Emphasis supplied by me.) ;