- Bench - D. A. Desai, R. B. Misra, JJ.
- Appellant - State of Uttar Pradesh
- Respondent - Laxmi Brahmin & Anr.
Issues
• Proviso to Sec 167 (2) of the CrPc 1973 (before it was amended) – interpretation put forth by the High Court – was it valid and maintainable?
Facts
• The respondents – Laxmi Brahmin & Naval Garg., were suspected of having committed an offence punishable with death or imprisonment for life under section 302 I.P.C. triable exclusively by the Court of Session.
• They surrendered before the Magistrate on November 2, 1974 and were taken into custody.
• The investigating officer of the case failed to submit the charge-sheet/police report against the accused in custody within the period of 60 days contemplated by the proviso to sub-s. (2) of S. 167 of the Code of Criminal Procedure 1973 as it stood prior to its amendment in 1978.
• However, the respondents did not apply to the Magistrate for being released on bail but approached the High Court under S. 439 Cr. P.C. – person accused of an offence and in custody to be released on bail. The High Court held that the respondents be released on bail pending trial by the Court of Sessions.
Appellant's Contentions
• At the start of the trial, the learned counsel appearing for the State of UP was asked regarding the respondents – whether the trial had taken place, whether they were acquitted or convicted and if the hearing for appeal would serve any useful purpose, since unresponsiveness on the part of appellant's seemed to have made the hearing “infructuous”.
• The learned counsel, unfortunately had no information regarding the queries of the Court. He, however, submitted that the interpretation put by the High Court on secs. 207, 209 and 309 if not examined by this Court is likely to result in miscarriage of justice in a large number of cases as the High Court has introduced a stage of compulsory grant of bail to persons accused of serious offence not warranted by the Code, and who would not be otherwise entitled to the discretionary relief of bail.
Respondent's Contentions
• Respondents had not appeared even though served and the notice of lodgment of appeal had also been served upon them.
• As the respondents had not entered appearance, a fresh notice of hearing the appeal was also issued, but the respondents have not chosen to appear at the hearing of the appeal.
Judgement
• The appeal was allowed and the order of the High Court granting bail to the respondents on the short ground that they could not be remanded to the custody before the order committing them to the Court of Sessions is made, was set aside.
• If in the meantime, the trial was over, no question of taking the respondents into custody pursuant to the order would arise.
Relevant paragraphs
• Section 2(g) of the Code defines inquiry to mean every inquiry, other than a trial, conducted under the Code by a Magistrate or Court. Cognizable offence has been defined in sec, 2(c) to mean an offence for which, a police officer may, in accordance with the First Schedule or under any other law for the time in force, arrest without warrant. Sec. 57 provides that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable and such period shall not, in the absence of a special order of a Magistrate under Sec. 167, exceed twentyfour hours, exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. In fact, the provision contained in sec, 57 incorporates the fundamental right guaranteed by Art. 22 of the 542 Constitution.
• In this appeal, we are concerned with sec. 167 hereinabove extracted. The High Court after examining the scheme of sec. 167(1) and (2) with the Proviso rightly concluded that, on the expiry of 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 to the contrary in sec. 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.
• It was next contended before the High Court that after the submission of the charge-sheet, when the investigation could be said to have ended, it was not open to the Magistrate to authorise the detention of an accused in custody under sec. 167 of the Code, and therefore, if the accused is to be detained in custody after the submission of the charge-sheet upon which the Magistrate takes cognizance of an offence, the power to remand the accused to custody will have to be gathered from other provisions of the Code. The High Court then took notice of the fact that the police report discloses an offence exclusively triable by the Court of Sessions and the Magistrate will have to proceed according to the provision contained in sec. 209 of the Code. Shorn of embellishment the High Court proceeded to find out how the accused against whom the allegation is that he is suspected of having committed an offence punishable with death or imprisonment for life and in respect of whom the period for completion of investigation has elapsed and in the absence of charge-sheet, order committing him to Court of Sessions to stand his trial cannot be made and the accused does not apply for bail, how is he to be dealt with by the Magistrate.
• If under sec. 207, the Magistrate is performing a judicial function of ascertaining whether copies have been supplied or not, it would undoubtedly be an inquiry for the purpose of satisfying himself that sec. 207 has been complied with in letter and spirit. That satisfaction has to be judicial satisfaction. It is not a trial but something other than a trial and being judicial function it would necessarily be an inquiry. The making of an order committing the accused to the Court of Sessions will equally be a stage in the inquiry and the inquiry culminates in making the order of commitment. Thus, from the time the accused appears or is produced before the Magistrate with the police report under sec. 170 and the Magistrate proceeds to enquire whether sec. 207 has been complied with and then proceeds to commit the accused to the Court of Sessions, the proceeding before the Magistrate would be an inquiry as contemplated by sec. 2(g) of the Code. We find it difficult 550 to agree with the High Court that the function discharged by the Magistrate under sec. 207 is something other than a judicial function and while discharging the function the Magistrate.
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