TAYGI (Ag.) G.J.—Learned Single Judge has referred these three cases to this Bench for authoritative pronouncement of a Division Bench on a question whether proceedings taken under section 209 of the Code of Criminal Procedure, 1973, falls within the ambit of the definition of the term "inquiry" as used in section 309 of the Code All these references involve a common question of law and therefore they are being disposed of by this single order.

2. The police put up a challan before the committing court under sec. 302/149 I.P.C. The learned Magistrate instead of committing the accused persons to the Court of Session adjourned the proceedings under sec. 209 and remanded the accused persons to custody. In an application for granting of bail the learned counsel for the petitioner has raised this question whether the Magistrate before whom the challan has been put up has jurisdiction to adjourn the proceedings under section 209 Cr. PC. and if he does so then can he remand the accused persons to custody under section 309 Cr. P.C. According to Mr. Bhimraj, proceedings taken under section 209 cannot come within the term "inquiry" as used in section 309 Cr. P.C,

3. In order to decide this controversy, it will be relevant to refer to sections 209 and 309. These sections read as follows :—

"S. 209. Commitment of case to Court of Session when offence is triable exclusively by it. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall—

(a) commit the case to the Court of Session;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;

(d) notify the Public Prosecutor of commitment of the case to the Court of Session."

"S, 309. Power to postpone or adjourn proceed-fags:—(1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of winesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.

(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commen-cement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody;

Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time :

Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing.

Explanation 1.—If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand this is a reasonable cause for a remand.

Explanation No 2.—The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution of the accused."

4. The main argument of Mr. Bhimraj is that while proceeding under the provisions of section 209 a Magistrate, before whom a case was instituted on a police report, has no jurisdiction either to adjourn the proceedings or to pass any other order except to commit the accused person to the Court of Session for trial subject of course to the provisions of the Code relating to bail, remand the accused to custody during the trial. In the present case it

Click Here to Read the rest of this document