The requirement of production of the accused before the Magistrate for extending remand is essential, but non-production of the accused does not render the custody illegal or confer a right to seek release on bail.

John Michael Cunha, J.

1. Petitioner is aggrieved by the order dated 24.3.2016 passed by the Principal Civil Judge & JMFC, Anekal, in C.C.No.438/2016 and the order of the III Addl. Dist. & Sessions Judge, Bengaluru Rural District, sitting at Anekal, dated 30.6.2016 in Crl.R.P.5005/2016 whereby both the courts have rejected the application filed by the petitioner under section 309(2) r/w. section 167(2) of Cr.P.C. Hence, the petitioner has sought to quash the above orders.

2. The essential facts which are not in dispute are that the petitioner was arrested on 16.12.2015 in Cr.No.343/2015 registered by the respondent/Anekal Police for the offences punishable under sections 302, 201 r/w. 34 of Indian Penal Code. He was produced before the learned Magistrate on 17.12.2015 at 4.30 p.m. and was remanded to judicial custody till 31.12.2015. After investigation, charge-sheet came to be laid before the learned Magistrate on 15.3.2016 and on the same day, the learned Magistrate took cognizance of the offences and directed registration of the case in Register No.III.

3. On 24.3.2016, the petitioner/accused moved an application under section 309(2) r/w. section 167(2) of Cr.P.C., contending that as per the provisions of law, the respondent/Police was required to submit the final report/charge-sheet within 90 days from the date of arrest of the petitioner. The respondent/Police filed the charge-sheet on 15.3.2016 and the accused was remanded to JC under section 167(2) of Cr.P.C. The petitioner took up a contention that the remand under Section 167(2) of Cr.P.C., ended on 15.3.2016 and therefore any further remand could have been made only under section 309 of Cr.P.C., hence the remand of the petitioner/accused is illegal, unlawful and therefore, he is entitled to be enlarged on bail.

4. The learned Magistrate rejected the above application with the following reasoning:-

"On perusal of the order-sheet, it is clear that the accused was not produced before the court on 15.3.2016. Therefore the question of remanding the accused under section 309 of Cr.P.C. does not arise. Accused has neither challenged his detention nor filed bail application before filing the charge-sheet. In the instant case, the investigating officer has filed charge- sheet within stipulated time and this court has taken the cognizance on the movement when filing of the charge-sheet came to the knowledge of the court."

5. Before the revisional court, large number of authorities were cited and considering the ratio laid down therein, the learned Sessions Judge rejected the revision with the following order:-

"In view of the ratio of the above mentioned decisions, it is very clear that on the day when a remand order is made under section 309(2) of the Criminal Procedure Code, it is not necessary that the petitioner/accused must have been in "lawful" custody, that it is sufficient if he was in custody and that merely on the ground that the remand order was passed in the absence of an accused, the accused cannot be released on bail."

6. Before this Court, the petitioner has not assailed the reasonings assigned by the courts below but has merely stated that investigation does not prima facie make out the offence under section 302 of Indian Penal Code and the custody of the petitioner is not required for any investigation and hence, the petitioner be enlarged on bail. The grounds urged in the petition would show that the petitioner is seeking regular bail under section 439 Cr.P.C. though the application was moved under section 167(2) r/w. 309(2) of Cr.P.C.

7. In the course of the argument, the learned counsel for the petitioner has placed reliance on the decision in Niranjan Singh & Another vs. Prabhakar Rajaram Kharote & Others AIR 1980 SC 785 and the decision of the Division Bench of Andhra Pradesh High Court in the case of A. Narayana Reddy & Others vs. State of A.P., 1991(3) Crimes 873 and has argued that on account of non-production of the accused/petitioner before the Magi