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SUPREME COURT OF INDIA
ALTAMAS KABIR, CJI., J. CHELAMESWAR AND VIKRAMAJIT SEN, JJ.
SURESH KUMAR BHIKAMCHAND JAIN - Petitioner
VERSUS
STATE OF MAHARASHTRA & ANR. - Respondents
Special Leave Petition (Crl.) No.147 of 2013
Decided on : 13-2-2013.
Criminal Procedure Code, 1973 - Section 167(2) - Indian Penal Code,1860 - Sections 120B, 409, 411, 406, 408, 465, 466, 468, 471, 177, 109 read with Section 34- punishable - charge-sheet- Special Leave Petition arises out of the judgment and order dated 17th December, 2012, passed by the Aurangabad Bench of the Bombay High Court in CRLA No. 4601 of 2012, dismissing the same and directing the Special Judge, in seisin of the matter, to expedite the hearing on framing of charge, as had been directed by this Court on 12th October, 2012, while disposing of Special Leave to Appeal (Crl.) No. 6463 of 2012, filed by the co-accused Pradeep Raisoni -case has thrown into focus certain important issues regarding the right of an accused to be released on bail under Section 167(2) of the Code of Criminal Procedure, 1973, hereinafter referred to as "Cr.P.C.". One of such issues concerns the power of the Magistrate to pass orders of remand even beyond the period envisaged under Section 167(2) Cr.P.C. In the instant case, despite charge-sheet having been filed, no cognizance has been taken on the basis thereof. The learned Magistrate has, however, continued to pass remand orders, without apparently having proceeded to the stage contemplated under Section 309 Cr.P.C. In order to appreciate the issues which have cropped up during the hearing of the instant case, it is necessary to briefly set out the facts giving rise to the said questions, which have fallen for determination –Held, provisions relating to remand of an accused, first during the stage of investigation and, thereafter, after cognizance is taken, indicates that the Legislature intended investigation of certain crimes to be completed within 60 days and offences punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, within 90 days. In the event, the investigation is not completed by the investigating authorities, the accused acquires an indefeasible right to be granted bail, if he offers to furnish bail. Accordingly, if on either the 61st day or the 91st day, an accused makes an application for being released on bail in default of charge-sheet having been filed, the Court has no option but to release the accused on bail. The said provision has been considered and interpreted in various cases, such as the ones referred to hereinbefore. Both the decisions in Natabar Paridas case Court proceeds to the next stage, which is the taking of cognizance and trial. An accused has to remain in custody of some court. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced. During that stage, under Section 167(2) Cr.P.C., the Magistrate is vested with authority to remand the accused to custody, both police custody and/ or judicial custody, for 15 days at a time, up to a maximum period of 60 days in cases of offences punishable for less than 10 years and 90 days where the offences are punishable for over 10 years or even death sentence. In the event, an investigating authority fails to file the charge-sheet within the stipulated period, the accused is entitled to be released on statutory bail. In such a situation, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the Court trying the offence, when the said Court assumes custody of the accused for purposes of remand during the trial in terms of Section 309 Cr.P.C. The two stages are different, but one follows the other so as to maintain a continuity of the custody of the accused with a court - Petition dismissed
Certainly. Based on the provided legal document, here are the key points:
The provisions related to remand of an accused during investigation and after cognizance are distinct, with the legislature intending investigation to be completed within specific timeframes (60 days for less serious offenses and 90 days for serious offenses) (!) (!) (!) (!) .
If the investigation is not completed within the stipulated period, the accused acquires an indefeasible right to be released on bail, provided they offer bail, upon the expiry of the investigation period (!) (!) .
During investigation, the Magistrate has the authority to remand the accused for limited periods, but this authority ceases once the maximum period (60 or 90 days, depending on the offense) has elapsed, and the accused must be released on bail if they are willing (!) (!) .
The filing of a charge-sheet within the statutory period (Section 167(2)) is considered sufficient compliance, regardless of whether cognizance has been taken by the court or whether sanction for prosecution has been obtained (!) (!) (!) .
The act of filing a charge-sheet marks the transition from investigation to the next stage of the trial process. Once filed within the prescribed period, the accused’s right to default or statutory bail ends, and the question of bail is to be considered on the merits of the case (!) (!) .
The continuation of remand orders beyond the period allowed under Section 167(2) without taking cognizance or proceeding to trial is generally not permissible, and such remand beyond the statutory period is invalid (!) (!) .
The power to extend detention beyond the initial periods is limited and must be justified on adequate grounds; otherwise, further detention is illegal (!) (!) .
The procedure after cognizance is taken involves different provisions, specifically Section 309, which allows for adjournments and remand but within defined limits, and does not extend the authority to remand beyond the prescribed periods under investigation (!) (!) .
The legal scheme emphasizes that investigation and prosecution are separate stages, with investigation concluding upon the filing of the charge-sheet, which triggers the next phase of the trial process (!) (!) (!) .
In the case discussed, despite the lack of sanction for prosecution, the filing of the charge-sheet within the statutory period meant that the accused was not entitled to statutory bail, and remand orders passed beyond the permissible period were invalid (!) (!) .
Would you like a more detailed explanation or assistance with a specific aspect of this case?
JUDGMENT
Altamas Kabir, Cji.:- This Special Leave Petition arises out of the judgment and order dated 17th December, 2012, passed by the Aurangabad Bench of the Bombay High Court in CRLA No. 4601 of 2012, dismissing the same and directing the Special Judge, in seisin of the matter, to expedite the hearing on framing of charge, as had been directed by this Court on 12th October, 2012, while disposing of Special Leave to Appeal (Crl.) No. 6463 of 2012, filed by the co-accused Pradeep Raisoni.
2. This case has thrown into focus certain important issues regarding the right of an accused to be released on bail under Section 167(2) of the Code of Criminal Procedure, 1973, hereinafter referred to as "Cr.P.C.". One of such issues concerns the power of the Magistrate to pass orders of remand even beyond the period envisaged under Section 167(2) Cr.P.C. In the instant case, despite charge-sheet having been filed, no cognizance has been taken on the basis thereof. The learned Magistrate has, however, continued to pass remand orders, without apparently having proceeded to the stage contemplated under Section 309 Cr.P.C. In order to appreciate the issues which have cropped up during the hearing of the instant case, it is necessary to briefly set out the facts giving rise to the said questions, which have fallen for determination.
3. As per the prosecution case, the Petitioner, Suresh Kumar Bhikamchand Jain, is alleged to have misappropriated amounts meant for development of slums in Jalgaon city, when he was functioning as the Minister of Housing and Slum Area Development, as a Member of the Legislative Assembly. Initially, charge-sheet was filed against certain persons claiming to be the contractors and the Vice-President of the Municipal Corporation, Jalgaon. Thereafter, during investigation the Petitioner was arrested on 11th March, 2012, and while charge-sheet was filed against the four other accused persons on 25th April, 2012, a supplementary charge-sheet came to be filed against the Petitioner herein on 1st June, 2012. For a while, the Petitioner was released on interim bail, but upon rejection of his application for bail on merit, he was again taken into custody on 5th July, 2012.
4. What has been stressed upon on behalf of the Petitioner is that, although, charge-sheet had been filed within the time stipulated under Section 167(2) Cr.P.C., sanction to prosecute the Petitioner had not been obtained, as a result whereof, no cognizance was taken of the offence. Notwithstanding the above, remand orders continued to be made and the Petitioner remained in magisterial custody.
5. At this stage, it may be pertinent to point out that the Petitioner is an accused in respect of offences punishable under Sections 120B, 409, 411, 406, 408, 465, 466, 468, 471, 177, 109 read with Section 34 of the Indian Penal Code, hereinafter referred to as "IPC" and also under Sections 13(1)(c), 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, hereinafter referred to as "the PC Act", in Crime No. 13 of 2006, registered with the City Police Station Jalgaon.
6. Appearing in support of the Special Leave Petition, Mr. U.U. Lalit, learned senior Advocate, submitted that since the statutory period of 90 days, envisaged under Section 167(2) Cr.P.C., had lapsed, the Petitioner could not have been remanded to custody, as had been done by the learned Special Judge, who is yet to take cognizance for want of sanction. Mr. Lalit submitted that the Petitioner was, therefore, entitled to be released on bail forthwith, since the orders of remand passed by the learned Magistrate after a period of 90 days were without jurisdiction and, therefore, invalid in the facts and circumstances of the case.
7. Mr. Lalit also submitted that Section 309 Cr.P.C., which also deals with remand of the accused under certain circumstances, does not apply to the allegations relating to the provisions of the PC Act, inasmuch as, there is no committal proceeding contemplated in the pr
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