Khedaram S/o Bhagwana Ram vs State Of Rajasthan, Through PP

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Raj) 638

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
Farjand Ali, J.
Khedaram S/o Bhagwana Ram and ors. – Petitioners
Versus
State Of Rajasthan, Through PP and ors. - Respondents
S.B. Criminal Revision Petition No. 529 of 2023
Decided On : 07-07-2023

Advocates:
Advocate Appeared:
For the Petitioner: Mr. Dhirendra Singh, Sr. Adv. Assisted by Mr. Jagdish Singh
For the Respondent: Mr. Anil Joshi, GA-cum-AAG, Mr. Praveen Vyas for Mr. Vineet Jain, Sr. Adv.

Headnote:
Criminal Procedure Code, 1973 - Section 91, 167(2), 190, 173, 209, 202, 207, 156, 157, 164, 169, 170 - Cognizance of offences by Magistrates - Report of police officer on completion of investigation - Postponement of issue of process - Procedure for investigation preliminary inquiry - Legality of detention - Held, There was no hurdle in form of any statutory stipulation which could've prevented erring officer from proceeding and process should have continued as per prescriptions in Criminal Procedural Code, thus, there was no occasion to delay taking of cognizance or proceeding towards committal of case - Detention in present matter is not approved and does not have sanction of law; no order can be passed on an individual's desire and understanding without having any underlying basis in law - Court feels that there is no need for seeking an indemnification from officer or passing of an order averse to interest of erring officer yet he is to remain observant and attentive in future - Applications disposed of.

Judgement Key Points

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 and the matter was kept pending on account of multiple adjournments sought in the context of the application filed under Section 190 CrPC for taking cognizance against another accused who had not been charge-sheeted. He submits that the petitioners were remanded into custody for an extended period without being informed of their right to statutory bail and ultimately, his application seeking default bail was rejected vide order dated 27.03.2023. The resultant extension of period of detention of the petitioners after filing of charge sheet and before taking of cognizance was unwarranted and illegal.

5. He further submits that the learned magistrate should have taken cognizance before expiry of 90 days and as he failed to do so, the right to statutory bail under Section 167 CrPC gets accrued in favour of the petitioners automatically. No opportunity was given to the petitioners to oppose the judicial remand as they were not present in court, thus, the mandate of Section 167 was violated on this count too.

6. Lastly, learned counsel prayed for setting aside of the order dated 03.05.2023 passed by learned Additional Sessions Judge, Bhinmal to the extent that if the petitioners are willing to furnish bail bonds as directed by the High Court, then the learned magistrate/sessions judge may be directed to release the petitioners on statutory bail.

7. Contrary to the submissions of learned counsel for the petitioners, learned GA-cum-AAG opposes the prayer sought by learned counsel for the petitioners.

8. Heard learned counsel for the parties. Perused the impugned orders.

9. At the outset, it would be worthwhile to mention that the want of statute for a default bail is for completion of investigation and submission of charge-sheet only and admittedly, in this case, the agency had filed the charge-sheet within the stipulated period of 90 days, therefore, no case for grant of default bail is made out. It has rightly been observed by the learned Additional Sessions Judge, Bhinmal that once charge-sheet has been filed within the stipulated time, there is no scope for default bail and it is immaterial whether cognizance has been taken or not, as has also been held by Hon'ble the Supreme Court in Suresh Kumar Bhikamchand Jain Vs. State of Maharashtra and Ors. reported in (2013) 3 SCC 77.

10. If the agency fails to file the charge-sheet within the periods prescribed under this provision, then the accused has the right to seek default bail. The question that whether Section 167 CrPC would operate if the charge sheet has been filed but cognizance has not been taken has been sufficiently answered by the top Court in multiple judgments. In Sanjay Dutt Vs. State reported in (1994) 5 SCC 410, it was held by Hon'ble the Apex Court that the right of an accused to statutory bail a