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2003 Supreme(P&H) 1450
PUNJAB AND HARYANA HIGH COURT
Nirmal Singh, J.
Shoqin Singh - Petitioner
Versus
State of Punjab - Respondent
Criminal Revision No. 1010 of 2002.
Decided On : 17 October, 2003
For the Petitioner:Mr. P.K. Gupta, Advocate.
For the Respondent:Mr. B.S. Sewak, DAG, Punjab and Mr. K.S. Ahluwalia, Advocate.
The distinction between discharge and release of the accused from custody and the limitations on the power of the magistrate to discharge the accused in cases exclusively triable by the court of sessions.
Headnote:
Criminal Procedure Code - Custody and Discharge - Sections 56, 57, 167, 169, 170 - The court discussed the relevant provisions of law and their interpretation in the context of custody and discharge of the accused. It emphasized the limitations on the power of the magistrate to discharge the accused in cases exclusively triable by the court of sessions and highlighted the distinction between discharge and release of the accused from custody.
Fact of the Case:
The petitioner sought quashing of an order setting aside the release of the accused by the Additional Sessions Judge and summoning the petitioner through warrants of arrest.
Finding of the Court:
The court found that the release of the accused from custody cannot be considered as discharge and emphasized the limitations on the power of the magistrate to discharge the accused in cases exclusively triable by the court of sessions.
Issues: The key issue was whether the accused can be kept in custody when no charge-sheet has been prescribed against the accused.
Ratio Decidendi: The court emphasized the provisions of Sections 56, 57, 167, 169, 170 of the Criminal Procedure Code and highlighted the distinction between discharge and release of the accused from custody.
Final Decision: The petition was accepted, and the impugned order passed by the Additional Sessions Judge was set aside. The trial court was given the liberty to summon the petitioner under section 319 Criminal Procedure Code if some material shows the complicity of the petitioner in the crime.
Nirmal Singh, J. - This is a petition under section 401 read with section 482 Criminal Procedure Code for quashing the order dated 16.2.2002 passed by the Additional Sessions Judge, Hoshiarpur, exercising the revisional powers and setting aside the order dated 12.12.2001 passed by the Addl. Chief Judicial Magistrate, Hoshiarpur.
2. The case against the petitioner was registered on the statement of the complainant Narinderjit Kaur that her father Daula Singh had been murdered by Chanchal Singh, his sons Charanjit Singh, Manga Singh in conspiracy with Shokeen Singh son of Baldev Singh, Lashkar Singh son of Nama Ram, Piara Singh son of Raja Ram and Harbhajan Singh. During the investigation, accused Chanchal Singh, Shokeen Singh, Lashkar Singh and Piara Singh were found innocent and were not challaned by the police. The S.H.O., P.S. Sadar Hoshiarpur moved an application for the discharge of accused Shokeen Singh. On the said application, the learned Additional Chief Judicial Magistrate passed the following order on 12.12.2001 :
"Request for discharging the accused has been filed. It is mentioned that the accused has been found innocent in the enquiry conducted by DSP(R) and finally, it is prayed that the accused may be discharged from this case. Challan has to be presented in the court. Order with regard to discharge of the accused can only be passed when final report under section 173 Criminal Procedure Code is submitted by the prosecution. Because, the police has not requested for judicial remand of the accused, so there is no justification for remanding the accused into judicial custody. Accordingly, the accused is ordered to be released from custody."
3. On Commitment, the case was entrusted to Additional Sessions Judge, Hoshiarpur who set aside the order releasing the petitioner by passing the following order :-
"It has been laid down in long series of cases, by the Honble High Court of Punjab and Haryana as well as the Honble Supreme Court of India that magistrate has got no power to discharge the accused in case exclusively triable by the court of sessions. Therefore, in exercise of powers conferred on this court by Section 397(1) as well as 390 of Criminal Procedure Code the discharge order as well as the commitment order is set aside and the case is remanded to the learned magistrate with the direction to commit the case to the court of Sessions in accordance with law. Accused be produced before the court of magistrate who committed the case on 20.2.2002."
4. In pursuance of the order passed by the learned Additional Sessions Judge, the Judicial Magistrate Ist Class summoned the petitioner through warrants of arrest. Aggrieved by the order of the learned Additional Sessions Judge and the Judicial Magistrate Ist Class, issuing the warrants of arrest, the present petition has been filed.
5. I have heard the counsel for the parties and perused the record.
6. The point in issue in this case is whether the accused can be kept in custody when no charge-sheet has been prescribed against the accused.
7. Before considering the submissions made by learned counsel for the petitioner, it will be appropriate to notice the relevant provisions of law contained in Sections 56, 57, 167, 169 and 170 Criminal Procedure Code :-
"Section 56. Person arrested to be taken before Magistrate or officer in charge of police station :- A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of the police station."
Section 57. Person arrested not to be detained more than twenty- four hours :- No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not in the absence of a special order of a Magistrate Under Section 167, exceed
