Back
KARNATAKA HIGH COURT
S. Venkataraman, J.
Dorai and Anr. - Petitioners
versus
State of Karnataka - Respondent
Criminal Petition No. 986-94
Decided on 27.7.1994
Counsel for the parties:
For the Petitioners - Hasmath Pasha, Advocate.
For the Respondent - Y.R. Jagadeesh, SPP.
Held: The contention of the learned Counsel for the petitioners that from the date on which the Magistrate issued body warrant for the production of the petitioners, he must be deemed to have remanded the petitioners to custody, cannot be accepted. This argument proceeds on the assumption that once the body warrant is issued the petitioners could not have been released even if the period of detention authorised in the other case had come to an end, and that the jailor was obliged to continue their detention and produce them before the Magistrate. Section 267, Cr. P.C. provides for issue of warrant for production of an accused who is detained in prison for the purpose of any proceedings against him. It is under this provision the body warrant is issued to the jailor for production of the petitioners. Section 269 clearly provides that where the person in respect of whom an order is made under Section 267, is in custody for a period which would expire before the expiration of the time required for complying with the order and for taking him back to the prison in which he is confined or detained, the officer-in-charge of the prison shall abstain from carrying out the court's order and shall send to the court a statement of reasons for so abstaining. As such if the petitioners who had been remanded to custody in another case had been released in the other case or if the period of their detention in the other case had come to an end, the jailor was not obliged to detain the petitioners in order to produce them before the court in this case. The body warrant only requires the production of the accused, if they had continued in detention in the jail. As such it cannot be said that from the moment the court issued the body warrant for production of the petitioner in this case they must be deemed to have been remanded to custody in this case. (Para 5)
(ii) Criminal Procedure Code, 1973 - Section 167 - Applicability - Charge sheet filed within period of 90 days - Magistrate had not passed an order taking cognizance within that period - Whether detention of accused to be held illegal? - (No) - Whether can the accused seek bail under proviso to Sec. 167(2) on ground that Magistrate has not taken cognizance? - (No)
Held: A careful consideration of the provisions of Section 167 and the law laid down by the Supreme Court in Lakshmi Brahman's case and the decisions of the Full Benches of Gujarat, Patna and Rajasthan High Courts makes it clear that an accused is entitled as of right to bail under the proviso to Section 167(2) only if the charge sheet is not filed within 90 days or 60 days as the case may be from the date the Magistrate first authorised detention of the accused and that once the charge sheet is filed within that period Section 167 ceases to apply and the accused cannot seek bail by virtue of proviso to Section 167(2) on any other ground. In the present case the fact that though the charge sheet was filed within the period of 90 days the Magistrate had not passed an order taking cognizance within that period does not entitle the accused to seek bail under proviso to Section 167(2) without reference to the merits of the case. (para 20)
(iii) Criminal Procedure Code, 1973 - Section 439 - Indian Penal Code, 1860 - Sections 394 and 302 r/ws 34 - Prosecution for offences under - Bail application - Both petitioners have permanent abodes and are carrying profession of a tailor and carpenter - They should be granted bail subject to conditions. (paras 22 to 24)
Result: Ordered accordingly.
ORDER
S. Venkataraman, J. - The petitioners have filed this petition under Section 439, Cr. P.C. seeking bail. A charge sheet has been filed against the petitioners for offences under Sections 394 and 302 read with Section 34, I.P.C. The prosecution case is that on 12.9.1993 between 11.30 and 11.45 p.m. when the complainant, his father Puttaiah and two others were proceeding in an autorickshaw, the accused persons stopped the same near Seshadripuram railway bridge, threw chilly powder on Puttaiah's face, forcibly took Puttiah and the complainant in an autorickshaw and near Oklipuram the petitioners and another absconding accused Kutti stabbed Puttiah and robbed a sum of Rs. 50,550/- along with the bag in which the amount was kept and escaped, and that Puttiah succumbed to the injuries sustained by him.
2. The first petitioner was arrested on 30.10.1993 and the second petitioner was arrested on 11.10.1993 during the course of the investigation of another case by Kengerigate police. They were remanded to judicial custody in that case. On 16.12.1993 the Circle Inspector, who was investigating this case, made an application before the Magistrate seeking police custody of the two petitioners for the purpose of interrogation in this case. The Magistrate ordered issue of body warrant for production of the two petitioners before Court on 20.12.1993. This order was passed on 16.12.1993. On 20.12.1993 when the petitioners were produced before court the Magistrate remanded the petitioners to police custody in this case till 21.12.1993. From 21.12.1993 the petitioners were remanded to judicial custody in this case also. The remand was being extended from time to time till 22.3.1994. On 19.3.1994 the police submitted the charge sheet against both the petitioners before the Magistrate. The learned Magistrate on the same day has made the following order:
"Register, call on 22.3.1994".
On 22.3.1994 the relevant copies of the charge sheet and other police papers were furnished to the accused and the remand of the petitioners was extended till 4.4.1994. On 4.4.1994 an application was filed for bail both under Section 437, Cr. P.C. and under Section 167(2), Cr. P.C. That application was rejected by the Additional Chief Metropolitan Magistrate and the bail petition filed before the Sessions Judge was also dismissed.
3. The learned Counsel for the petitioners first contended that the petitioners must be deemed to have been in detention in this case from 16.12.1993 when the Magistrate issued the body warrant, as the petitioners could not have been released once the body warrant was issued, even if their detention in the case in which they had been remanded had come to an end. According to him the charge sheet is not filed within 90 days from the date of commencement of such detention and as such the petitioners are entitled to bail under the proviso to Section 167(2). He relied on the decisions in Government of Andhra Pradesh v. A.V. Rao1 and Ramu v. State of Karnataka2.
4. The learned government pleader contended that the petitioners were remanded to custody in this case only on 20.12.1993 and that the charge sheet has been filed within 90 days from that date and for the purpose of computing the period of 90 days it is only the date on which the court first granted remanded of the accused will have to be taken into consideration the Supreme Court in Chaganti Sathyanarayana v. State of Andhra Pradesh3, has clearly laid down that the period of 90 days or 60 days mentioned in proviso (a) to Section 167(2), Cr. P.C. begins to run from the date of the order of remand and not from the date when the accused was arrested. As such we have to see as to when the petitioners were remanded to custody by the Magistrate in this case.
5. The contention of the learned counsel for the petitioners that from the date on which the Magistrate issued body warrant for the production of the petitioners, he must be deemed to have remanded the petitioners to custody cannot
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
