RABINDRA RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) Whether even in a case where the charge-sheet has been submitted within statutory period of ninety days, an accused is entitled to be released on bail if the cognizance is not taken on the day the charge-sheet is submitted, is the question which has to be answered.

(2.) The petitioner is an accused of an offence under Section 302 and some other sections of the Indian Penal Code, 1860. He surrendered before the Sub-divisional Judicial Magistrate, Danapur on 19.10.1982. As final form was not received, he was remanded to jail custody from time to time. One of such orders of remand was passed on 12.1.1983 remanding the petitioner to jail custody upto 24.1.1983. On 14.1.1983, police report, generally known as charge-sheet, was submitted saying that on investigation a case under Section 302 of the Indian Penal Code, 1860 had been established against the petitioner. An order was passed on 17.1.1983 saying that cognizance was being taken. It is an admitted position that as the charge-sheet was submitted within the statutory period of ninety days, the petitioner was not entitled to the benefit of proviso (a) to Sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). The application for bail on behalf of the petitioner has been pressed on the ground that as in the instant case charge sheet was submitted on 14.1.1983 and the cognizance was taken on 17.1.1983, the petitioner could not have been remanded to jail custody between the period 14.1.1983 and 17.1.1983, and, as such, he is entitled for bail. According to the petitioner, after submission of the charge-sheet and before taking of cognizance, a Magistrate cannot pass an order of remand either under Section 167(2) or under Section 309(2) of the Code.

(3.) Article 21 of the Constitution guarantees to every person that he shall not be deprived of his personal liberty "except according to the procedure established by law". Similarly, Article 22(2) confers a fundamental right on every person who is arrested and detained in custody that he shall not be detained in custody beyond a period of 24 hours without the authority of a Magistrate. In view of the aforesaid constitutional provisions, in respect of an accused who is in custody, the detention his to be authorised by a Magistrate from time to time is accordance with the procedure established by law. The Code contains three provisions in respect of detention of such an accused when he has not been released on bail. One is under Section 167(2) which is applicable during investigation of an offence, the other being Section 309(2) which can be invoked during inquiry or trial other than sessions trial, the third being Section 209(b) which is attracted during the pendency of a sessions trial. On a plain reading the aforesaid three provisions vest power in the Magistrate to order detention of an accused from time to time since the beginning of the investigation till conclusion of the trial. It cannot be disputed that unless there is a valid order for detention in respect of an accused person, his detention in custody contravenes Articles 21 and 22(2) of the Constitution, and, as such, illegal, and in appropriate cases he is entitled even to a writ of Habeas Corpus directing his release forthwith.