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FARJAND ALI
Khedaram S/o Bhagwana Ram – Appellant
Versus
State Of Rajasthan, Through PP – Respondent
The legality of judicial custody after the filing of a chargesheet and before taking cognizance is generally not permissible under the law. Judicial custody can only be ordered after the magistrate has taken cognizance of the offence and the case has been formally instituted as a criminal proceeding (!) (!) .
Before cognizance is taken, the case is in the investigative stage, and the proceedings are primarily administrative and supervisory in nature. Orders of remand or judicial custody during this pre-cognizance phase are not authorized by the law, as the judicial process has not yet commenced and the case has not been registered as a formal criminal matter (!) (!) .
Therefore, any detention of the accused in judicial custody prior to the magistrate taking cognizance is not legally valid, as the statutory provisions do not permit such orders before the formal initiation of judicial proceedings. The law mandates that the judicial process, including orders of remand or custody, begins only after the magistrate has applied his judicial mind to the police report and taken cognizance of the offence.
ORDER :
1. An application under Section 167(2) CrPC was preferred by the petitioners before the learned Additional Chief Judicial Magistrate, Bhinmal seeking default bail which was rejected vide order dated 27.03.2023.
2. Aggrieved by the order dated 27.03.2023, the petitioners filed another application under Section 167(2) of CrPC before the learned Additional Sessions Judge, Bhinmal which was disposed of vide order dated 03.05.2023 based on the reason that the scope of Section 167 had ceased to exist and thus, the application praying for default bail filed by the petitioners had lost its ground; it was also remarked that it was the exclusive domain of the High Court to decide the question of legality of detention of the applicants from the date of filing of the charge sheet to the date of taking cognizance.
3. Discontented with the order dated 03.05.2023, the present revision petition was filed by the petitioners.
4. Learned counsel for the petitioners submits that the petitioner had moved an application under Section 167(2) CrPC before the learned magistrate seeking default bail where order of cognizance was not passed despite lapse of quite some time after filing of charge-sheet a
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