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2007 Supreme(Kar) 834
S.R. BANNURMATH AND A.C. KABBIN, JJ.
YASHODAMMA – Appellant
Versus
STATE OF KARNATAKA – Respondents
Criminal Petition No. 27 of 2005 connected with Criminal Petition Nos. 4033 and 3728 of 2004 and 1035 of 2005.
Decided on : 19-12-2007
Sri Mohan Bhat, Advocate for Petitioner in Cri. P. No. 27 of 2005;
Sri Basavaraj Kareddy, Advocate for Petitioner in Cri. P. No. 4033 of 2004;
Sri Hashmath Pasha, Advocate for Petitioners in Cri. P. No. 3728 of 2004;
Sri K Appparao and Sri Dhiraj Kumar, Advocates for Petitioners in Cri. P. No. 1035 of 2005;
Sri H.S. Chandramouli, State Public Prosecutor for Respondent in Cri. P. Nos. 27 and 1035 of 2005 and 4033 of 2004;
Sri P.N. Prakash, Special Public Prosecutor for Respondent in Cri. P. No. 3728 of 2004.
Headnote:CODE OF CRIMINAL PROCEDURE, 1973 - Sections 167 & 309(2): [S.R. Bannurmath & A.C. Kabbin, JJ] Scope of power of the Magistrate to remand the accused - Held, As per the wordings of Section 309(2) of the Code, the power of a Magistrate to remand the accused during enquiry is only after cognizance is taken and not before that and Section 309 of the Code does not come into picture until cognizance is taken. Of The remand so granted will be operative until the period specified in the remand order or until the period specified in the remand order or until the expiry of the maximum period stipulated in Sub-Section(2) of Section 167 Code whichever is earlier. The detention of the accused by a Court subsequent to the time, the charge sheet is filed until cognizance is taken falls under the said power of detaining the accused till he furnishes bail and it is not illegal. In that event, the right of the accused to be released on bail will have to be under relevant provisions for bail i.e., Sections 436,437 and 439 of the Code. and not under the proviso to Section 167 of the Code.
CODE OF CRIMINAL PROCEDURE, 1973 - Section 167 (2) Explanation: [S.R. Bannurmath & A.C. Kabbin,J] Detention of the accused - Filing of charge sheet - Entitlement of accused for bail - Held, The detention of an accused subsequent to the date of filing the charge sheet until cognizance is taken will be detention under the1st Explanation to the proviso to Section167 (2) of the Code. The accused is not entitled to be released on bail under the proviso to Section 167(2) of the Code, even if the Magistrate fails to take cognizance of the offence within the time stipulated in Section 167(2). When an accused is in custody and the charge sheet is filed within the time stipulated, a duty is cast upon the Magistrate, to consider the charge sheet without undue delay and pass orders on the question of taking cognizance of the offences. However, the delay in taking cognizance of the offence does not render the detention illegal, though it is irregular. Such detention from the time the charge sheet is filed within time until cognizance is taken falls under Explanation-I to the proviso to Section 167(2) of the Code. Indefeasible right of the accused under the proviso to Section 167(2) of the Code to claim compulsory bail will not be available in such an event.
The question of law that is required to be considered in these petitions is as to whether the remand of an accused under Section 167 of the Code of Criminal Procedure, 1973 comes to an end as soon as a charge-sheet is filed and if there is delay in the Magistrate taking cognizance of the offence, whether the intervening period from the time the charge-sheet is placed until the cognizance is taken amounts to illegal detention.
2. These four petitions have been filed under Section 439 of the Code of Criminal Procedure, for grant of bail. During arguments in Criminal Petition No. 27 of 2005 one of the contentions raised was that as held by the learned Single Judge of this Court (Justice Mrs. Manjula Chellur) in Devindrappa and Another v State of Karnataka 1, once the charge-sheet is filed, period of remand under Section 167 of the Code of Criminal Procedure comes to an end and in the absence of specific order of remand under Section 309 of the Code of Criminal Procedure, the detention of the accused is custody from the date of charge-sheet till date was illegal. Relying on an earlier decision of this Court in Balappa Karnal v State of Karnataka 1, it was urged that in view of intervening period of detention being illegal, the accused was entitled to be released on bail as of right. The learned Single Judge (Justice Sri Huluvadi G. Ramesh) before whom Criminal Petition No. 27 of 2005 was argued, was of the opinion that in view of different view taken by another Single Judge of this Court in Dorai and Another v State of Karnataka by Seshadripuram Police, Bangalore, the issues involved are required consideration by a Division Bench and accordingly he proposed that the following points of law be referred for consideration and decision:
"1. Whether the accused is entitled for compulsory bail as per Section 167(2) of the Criminal Procedure Code even if the charge-sheet is filed within 90 days from the date the Magistrate has first authorised detention of the accused and, cognizance is taken subsequent to the period of 90 days and whether such detention beyond 90 days till cognizance is taken becomes illegal and thereby accused is entitled to be released on bail?
or
2. Whether on the filing of the charge-sheet within 90 days from the date of the Magistrate first authorising detention of the accused if cognizance is not taken within 90 days and is taken beyond the said period of 90 days, the accused cannot be considered for compulsory bail under Section 167(2) of the Cr. P.C.?
3. Is taking cognizance before expiry of 90 days compulsory to disentitle the accused to seek compulsory bail under Section 167(2) of the Cr. P.C. If not, under which provision the detention and custody of the accused to be extended beyond 90 days till cognizance is taken and. till order of committal is passed under Section 209 of the Cr. P.C.?"
3. Hon'ble the Chief Justice has therefore assigned Criminal Petition No. 27 of 2005 and also three other petitions involving similar questions, i.e., Criminal Petition Nos. 4033 and 3728 of 2004 and 1035 of 2005 for consideration of the points.
4. The petitioners are represented by the learned Counsel Sri Hasmath Pasha, Sri Ravi•B. Naik, Sri Apparao, Sri Dheeraj Kumar, Sri Basavaraj Kareddy, Sri Mohan Bhat and the respondent-State is represented by Sri N. Rudramuni, learned Additional Government Advocate. Narcotic Control Bureau has been represented by Sri P.N. Prakash and Sri Urval Ramanand, learned Standing Counsel for South Zone. Since the point of law are of general matters, we have also heard the learned Amicus Curiae.
5. Before considering the questions of law referred, it is necessary to refer to the relevant factual aspects involved in these petitions. The petitioners are the accused in different cases before different Courts. In all the cases, charge-sheets were filed before the expiry of the period of remand provided in sub-section (2) of Section 167 of the Code of Criminal Procedure. However, some time was taken by
