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MADHYA PRADESH HIGH COURT
Sanjay Dwivedi, J.
Manoj Yadav - Appellant
Versus
State Of M.P. - Respondent
Miscellaneous Criminal Case No. 16197 of 2020
Decided On : 15-07-2020
Illegal Detention - Bail Application under Section 167 of the Code of Criminal Procedure, 1973 - [IPC, POCSO Act, 2012] - Section 167 - Summary of Acts and Sections: The court discussed the provisions of Section 167 of the Code of Criminal Procedure, 1973, which deals with the procedure when investigation cannot be completed within 24 hours. The court emphasized the need for the Magistrate to exercise judicial discretion while ordering remand and to satisfy themselves of the necessity for such remand. The court also highlighted the requirement for concrete material to substantiate the grounds for seeking remand. The judgment referenced various Supreme Court and High Court decisions, emphasizing the illegality of detention without a valid order of remand and the violation of personal liberty guaranteed under Article 21 of the Constitution. The court also discussed the limitations on the Magistrate's power to extend remand beyond the prescribed period and the right of the accused to be released on bail if the charge-sheet is not filed within the specified time. The judgment clarified that the proper remedy for claiming relief for illegal detention and seeking bail is through a writ of habeas corpus before the High Court or the Supreme Court.
Fact of the Case:
The applicant filed a petition seeking quashment of the order rejecting his bail application under Section 167 of the Code of Criminal Procedure, 1973. The applicant was arrested for offenses under IPC and POCSO Act, 2012 and sought bail on the grounds of illegal detention due to the absence of a valid order of remand.
Finding of the Court:
The court dismissed the petition, stating that the Magistrate did not have the power to grant bail under Section 167 of the Code. The court emphasized that the proper remedy for claiming relief for illegal detention and seeking bail is through a writ of habeas corpus before the High Court or the Supreme Court.
Issues: The core issue was whether the Magistrate had the discretion to grant bail to the accused under Section 167 of the Code based on the absence of a valid order of remand.
Ratio Decidendi: The court clarified that the Magistrate's power to grant bail under Section 167 of the Code is limited and emphasized the need for the accused to avail the proper remedy for claiming relief for illegal detention and seeking bail through a writ of habeas corpus before the High Court or the Supreme Court.
Final Decision: The petition was dismissed on the grounds that the Magistrate did not have the power to grant bail under Section 167 of the Code, and the applicant had availed an improper remedy by moving such an application instead of seeking relief through a writ of habeas corpus before the High Court or the Supreme Court.
JUDGMENT
Sanjay Dwivedi, J. - On the penultimate date of hearing i.e. 29.06.2020, the Deputy Advocate General Shri Vivek Sharma appeared for the State and sought time to file response as also to argue the matter finally. Thereafter, on the last date of hearing i.e. 08.07.2020 again time was sought by the Counsel for the State for complying with the earlier order. Today Shri Rao, Government Advocate appearing for the State submits that instead of filing reply he is ready to argue the matter finally by making oral submissions.
In the above circumstance, with the consent of the learned counsel for the parties, the matter is heard finally through oral submissions.
2. This petition under Section 482 of the Code of Criminal Procedure, 1973 (for brevity "Code") has been filed by the applicant seeking quashment of the order dated 27.05.2020 passed by the Special Judge (POCSO Act, 2012) Tikamgarh. By the impugned order, the Court below has rejected the application filed under Section 167 of the Code for grant of bail to the applicant which was filed on the ground that he is in illegal detention of the police as there is no order of remand extended and therefore in absence of any order of remand, he cannot be detained in custody and thus the order be passed to release the applicant on bail.
3. To reach the inevitable conclusion, certain relevant facts are required to be mentioned, which are:-
The applicant was arrested by the police on 01.03.2020 in connection with Crime No.79/2020 registered at Police Station Niwadi, District Tikamgarh for the offence punishable under Sections 305 and 376 of IPC and Section 5/6 of the Protection of Children from Sexual Offences Act, 2012 (in short "POCSO Act, 2012"). The applicant was produced before the Magistrate on 02.03.2020 and the police sought remand of judicial nature which was granted by the Court by order dated 02.03.2020 till 14.03.2020. Again on 14.03.2020 the police sought extension of the order of remand on the basis that the investigation could not be completed and it would take more time. Therefore, the judicial remand was further extended till 30.03.2020. On 04.04.2020, the remand was further extended till 17.04.2020. On 17.04.2020 nobody appeared on behalf of the police and neither the accused was produced nor any application for extending the remand of the accused was presented before the Court. The Court while fixing the case for 30.04.2020 directed the Station House Officer Niwadi that in the respective crime either challan should be filed or by moving an application for remand time be sought. On 30.04.2020 again nobody appeared on behalf of the police and even accused was also not produced before the Court. Thereafter, the Court directed that since the accused is in jail since 02.03.2020, the SHO Niwadi be intimated that challan be filed within the prescribed limit or application for remand be filed for filing the charge-sheet. The matter was fixed on 13.05.2020. On 13.05.2020, the Public Prosecutor appeared on behalf of the State but neither the accused was produced nor any application for extending the remand was presented. Despite no intimation was given to the Court as to why even on earlier occasions nobody appeared and the application for further remand was not moved. Thus, the Court, therefore, issued memo to the concerning SHO seeking his explanation as to why neither the challan has been filed nor any application for extension of remand was moved. The case was directed to be listed for submitting explanation on 27.05.2020.
On 26.05.2020, the counsel for the applicant moved an application under Section 167 of the Code requesting the Court that the accused is in judicial custody since 02.03.2020 but that remand was not extended for last 3-4 dates and as such the applicant's custody is illegal and due to his illegal detention and also considering the fact that there is no order of remand in force, his application may be considered and he be released on bail. The copy of appli
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