The word "custody" in Section 309, Cr.P.C., in our opinion therefore, means physical imprisonment as distinct from being on bail. Even if the accused is in prison after his arrest in a criminal case without an order or warrant of remand by a competent Court he is in custody as distinct from being on bail. The word "custody" therefore embraces both legal imprisonment as well as illegal imprisonment."
"The Court is, therefore, competent to remand the accused to custody under S. 309(2), Cr.P.C., even if he is in illegal imprisonment. It can thus rectify its mistake and transform his illegal imprisonment into legal imprisonment."
In view of the above discussion it is clear that the submissions of the learned counsel are not tenable. The remand order dated 20.4.2005 was to continue till 26.04.2005. During this period a fresh remand order under section 309 was passed on 25.4.2005 (though not expressly) and at any rate on 26.4.2005. There is no dispute that the order dated 20.4.2005 was a valid order under section 167. As indicated above, it did not cease to operate on the mere filing of the charge-sheet and upon cognizance being taken. It ceased to operate possibly on 25.4.2005 (if the production order is taken to be an implied remand order) and definitely on 26.4.2005, both, because of lapse of time and because the fresh remand order under section 309) CrPC came to be passed. The remand order of 26.04.2005 was passed after cognizance had been taken and when the petitioner was in custody in the sense explained above. At present also, the petitioner is in judicial custody on the basis of a subsequent valid remand order. In these circumstances the petitioner is not entitled to be released on bail on the grounds urged by him. Accordingly, this application is dismissed. It is made clear that no arguments were advanced on 'merits' nor was this application treated a regular bail application solely under section 439 CrPC. The entire scope and discussion centered around section 309 CrPC. So, the dismissal of this application does not foreclose the petitioner from moving an application for regular bail under section 439 CrPC which, if filed, would undoubtedly be disposed of on merits.
Delhi High Court
Sunil Kumar Sharma vs State (Nct Of Delhi) on 27 June, 2005
1. Interesting questions arise in this case. The scenario is this: During the period of a valid order under section 167 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") placing an accused under judicial custody, the charge-sheet is filed, the magistrate takes cognizance, however, as the accused is not present, he directs his production on the next date (also within the period of his earlier remand under section 167 CrPC), when, acting under the provisions of section 309(2) CrPC he remands the accused to judicial custody. The issue is with regard to the period between the magistrate taking cognizance and his passing the remand order under section 309(2). The questions that emerge are these: (a) Would the custody of the accused under the previous order under section 167 CrPC become unlawful merely because the charge-sheet had been filed and the magistrate has taken cognizance and not passed an express order of remand under section 309 If the answer to the previous question is that the custody would be unlawful then, would an order of remand passed on a subsequent date be valid and legal? As will be clear from the discussion below, there are ancilliary issues also.
2. The chronology of the relevant events is as follows:-
22.02.2005 First Information Report (FIR) No. 117/05 under section 363 IPC registered at Police Station: Sameypur Badli, Delhi on the basis of information by Shri Sapan Bhagat, father of the prosecutrix Miss Pinki. 26.02.2005 The petitioner is arrested and remanded to judicial custody. Subsequent remand orders under section 167(2) CrPC passed from time to time. 20.04.2005 The Metropolitan Magistrate passes an order under section 167(2) CrPC, continuing the petitioner's judicial custody till 26.04.2005. 25.04.2005The charge-sheet is submitted before the Metropolitan Magistrate who took cognizance of the offences under section 363/376/34 IPC. As the accused (who was in judicial custody as aforesaid) was not produced, production warrant for 26.4.2005 is directed to be issued. The order passed is under:
"25.04.2005: Fresh Challan received today. Let the same be checked and registered.
Present: APP for the State
S.I./ I.O. Jagdish Rai present.
Accused is in JC but not produced today. I have gone through the Challan filed under section 173 Cr.P.C. and documents being relied upon by the prosecution. I take cognizance for the offence under section 363/376/34 I.P.C. Issue Production Warrant for 26.4.2005.
sd/- M.M., Delhi"
26.04.2005 The accused/petitioner is produced from judicial custody before the Metropolitan Magistrate who remands the petitioner to judicial custody up to 11.05.2005. Subsequently, further remand orders under section 309(2) CrPC are passed from time to time whereby the petitioner continues in judicial custody till date.
02.05.2005 The petitioner Along with co-accused persons move an application under section 439 CrPC read with section 309(2) CrPC for grant of bail before the Sessions Court. The application is moved on two grounds:-
(i)As soon as the Metropolitan Magistrate took cognizance of the offences on 25.04.2005, the remand order dated 20.04.2005 which was passed under section 167(2) CrPC got extinguished and section 309(2) CrPC came into operation. But, as no order of remand was passed on 25.04.2005, custody of the petitioner became unlawful;
(ii) When the Metropolitan Magistrate did pass the remand order on 26.04.2005, he remanded the petitioner to judicial custody till 11.05.2006, for 16 days according to the petitioner's counsel, which is contrary to the provisions of section 309(2) CrPC.
And, subsequent valid remand orders will not cure these defects.
06.05.2005 The learned Additional Sessions Judge dismisses the said bail application.
3.The two grounds taken before the learned Additional Sessions Judge were reiterated before me. Mr Vikas Sharma, the learned counsel for the petitioner submitted that no valid order for remand was passed under section 167(2) CrPC or under section 309(2) CrPC on 25.04.2005 or on 26.04.2005. He contended that the order of remand passed on 20.04.2005 was one which was passed during the pendency of investigation and accordingly it got automatically extinguished upon the Metropolitan Magistrate taking cognzance of the offences on 25.04.2005. The remand order passed under section 309(2) was passed on 26.04.2005. So, according to Mr Vikas Sharma, the petitioner was in unlawful custody for one day i.e., from 25.4.2005 to 26.04.2005. The subsequent order remand on 26.04.2005 would not also validate the illegal custody and, therefore, the petitioner is liable to be released on bail forthwith. In support of these submissions, Mr Vikas Sharma relied upon the following decisions:-
(i) Devindrappa and anr v. State of Karnataka: 2004 Cri.L.J. 1506 (Karnataka)
(ii) Manohari v. State of Rajasthan: 1983 Cri.L.J. 1231 (Rajasthan)(DB)
(iii) Gyanu Madhu Jamkhandi and ors v. The State of Karnataka: 1977 Cri.L.J. 632 (Karnataka)
4. The learned counsel for the petitioner also contended that the remand order of 26.04.2005 is also ex facie illegal. He submitted that under section 309 CrPC the remand could be for a maximum period of fifteen (15) days at a time. However, the petitioner was remanded to judicial custody on 26.04.2005 till 11.05.2005. According to the learned counsel for the petitioner the remand would be of sixteen (16) days as the day of the remand order is to be included. Hence, it was submitted that this would be in violation of section 309(2) and the petitioner's custody pursuant to such an order would be unlawful. And, the subsequent order of remand under which the petitioner is currently in judicial custody cannot "cure" this defect. Therefore, in the view of the learned counsel for the petitioner, the petitioner is liable to be released on bail forthwith.
5. Mr Pawan Sharma, the learned counsel for the state/respondent, opposed the grant of bail to the petitioner. He submitted that the petitioner's custody was lawful. According to him, the order dated 20.04.2005 was admittedly a valid order of remand under section 167 CrPC. The remand was operative under that order till 26.04.2005 and the mere filing of the charge-sheet and taking of cognizance on 25.04.2005 did not, ipso facto, extinguish or put out the remand order dated 20.04.2005. Furthermore, when the order of remand under section 309(2) was made on 26.04.2005, the original period of remand had not expired and the petitioner was in custody. In any event, without prejudice to his abovementioned contentions, he submitted that assuming without admitting that the detention of the petitioner between 25.04.2005 and 26.04.2005 was unlawful and/or that the remand order dated 26.04.2005 was bad in view of the allegation of excessive term of remand, the subsequent remand order being valid, the petitioner's custody was legal and proper on the date of hearing of this application. He relied upon the decision of a Full Bench of this court in the case of Rakesh Kumar v. State: 1994 I AD (Delhi) 669.
6. In order to examine the rival contentions of the counsel for the parties it would be necessary to set out the relevant provisions of sections 167(2) and 309. Sections 167 and 309 CrPC, so much as is relevant, are reproduced below:
"167. Procedure when investigation cannot be completed in twenty-four hours.
(1) * * *
(2)The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii)sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) * * *
Explanation I.-- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.
"309. Power to postpone or adjourn proceedings.--
(1) * * * *
(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement 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:
7. It is well settled that no court has any inherent power of remand of an accused to any custody. Such power has to be conferred by law and must be traced to some provision of the statute1. The relevant provisions of the statute are sections 167 and 309 CrPC. Remand during investigation is permissible under section 167(2) CrPC up to a prescribed maximum period. After the filing of the charge-sheet or the challan (which signals the completion of investigation) and after cognizance is taken, remand of on accused to custody can only be under section 309(2) CrPC2. A plain reading of section 309 CrPC would disclose that before an order of remand in respect of the accused can be passed there under, the Magistrate, in the least, must have taken cognizance of the alleged offence. Secondly, when the order of remand is passed the accused must already be "in custody".
8. It is also well settled that non-completion of investigation within the period prescribed under section 167(2) CrPC gives an accused an "indefeasible right" to be released on bail3. But, this "indefeasible right" does not ensure indefinitely.
And, if not already availed of4, it gets extinguished the moment the investigation is completed and the charge-sheet is filed5. It is therefore clear that this indefeasible right does not survive or remain enforceable on the challan/ charge-sheet being filed, if already not availed of. On the other hand, if the right has been enforced and "bail-on-default" had been granted, the mere filing of the challan will not mean that the accused is to be taken back into custody6. The challan or charge-sheet can be filed at two stages: (1) during the period prescribed under section 167 CrPC or (2) after such period is over. In the latter case, an indefeasible right accrues to the accused for being released on bail immediately upon the expiry of the prescribed period, which right, if availed of as indicated above, does not get extinguished by the filing of the challan or charge-sheet. But, such right gets extinguished on the filing of the challan if the accused had not availed of the same till then. In he former case, which is what has happened in the present case, there is no question of any indefeasible right to bail having accrued as, till the filing of the challan, the accused was under detention consequent upon a valid order passed under section 17(2) CrPC. While it is true that once the challan is filed the magistrate does not have any power to pass an order of remand under section 167(2) CrPC, it does not mean that a valid order passed earlier (i.e., prior to the filing of the challan) would case to operate merely upon the filing of the charge-sheet or upon the taking of cognizance of the alleged offences. In my view, such an order under section 167(2) CrPC would continue to operate till it lapses by efflux of time or it is replaced by an order of remand passed under section 309 CrPC, whichever is earlier in point of time. Where filing of the charge-sheet is immediately followed by the Magistrate taking cognizance and just thereafter remanding the accused to judicial custody under section 309(2) CrPC, there is no problem. This is so because the lapse of one period [under section 167(2) CrPC] would "melt", as it were, into the period of remand under section 309 CrPC without a hiatus. However, where, upon the filing of the charge-sheet, while cognizance is taken, an order of remand under section 309(2) CrPC is not passed immediately but after a few days or so, there appears to be a chasm between a valid detention order under section 167 CrPC and a remand to custody order under section 309(2) CrPC. But, in reality there is no such "break". It only appears to be so because of the assumption that as soon as the Magistrate takes cognizance of the offences, the remand order passed under section 167 CrPC gets extinguished This assumption is faulty. Once the charge-sheet is filed and cognizance is taken, it is true, the investigation having come to an end, recourse to the power under section 167 cannot be taken. But, that does not mean that an order validly made under section 167(2) terminates the instant the charge-sheet is filed and cognizance is taken. Such an order would be valid till the duration for which it is made does not expire or till it is replaced by a remand order under section 309 CrPC, whatever's earlier in point of time.
9. The learned counsel for the petitioner had relied upon the decision of a learned single judge of the Karnataka High Court in the case of Gyanu (supra). In that case there were several petitioners who had been arrested in different batches on different dates. They were remanded to judicial custody from time to time. The last of such orders passed under section 167(2) CrPC being that of 3.9.1976 remanding the petitioners therein to further judicial custody till 10.9.1976. It was contended that baring two of the petitioners (nos.8 and 15), the period of sixty days prescribed under section 167 CrPC had already elapsed in respect of the other petitioners. They, accordingly became entitled to bail-on-default. As regards the remaining two petitioners, their period of sixty days also apparently ended on 6.9.1976. On 6.9.1976, the charge-sheet was filed and cognizance was taken though no order of remand under section 309 CrPC was passed on that day. On 8.9.1976 the petitioners moved an application for bail-on-default under section 167 CrPC. This application was rejected on 10.9.1976 and an order of remand under section 309 CrPC was also passed. The court held that the petitioners' custody from 6.9.1976 (when the charge-sheet was filed) and 10.9.1976 (when the remand order was passed under section 309 CrPC) was illegal. It would be appropriate to set out the relevant portion of the findings:
"It is therefore, clear to my mind that after a Magistrate takes cognizance of an offence or offences on the filing of the final report by the police under Section 173, of the Code of Criminal Procedure, his powers of remanding the accused who is in custody to custody, flow from the provisions of Section 309 and not from the provisions of Section 167 of the Code. In Heeraman's case (1975 Cri LJ 1508) (All) a further view has been expressed to the effect that as soon as the charge-sheet is submitted, the period of remand pending investigation comes to an end and the provisions of Section 167(2)(a), would cease to apply to such a case. I respectively agree with this view also. It is neatly expressed that in such a case, bail can be granted only on merits. I am unable to see any warrant in support of this view. The period of remand granted by a Magistrate in exercise of his powers under Section 167 comes to an end on the filing of the charge-sheet and that means that if at all further remand to custody is found to be necessary in regard to an accused who is already in custody, the Magistrate has to draw on the powers vested in him by Section 309 of the Code of Criminal Procedure and he has no other power of remand. If, on the filing of the charge-sheet a Magistrate does not, for a number of days proceed to apply his mind and take cognizance of the offence or offences made out, he cannot - for those number of days - exercise powers of remand to judicial custody either under Section 167 or under Section 309(2) of the Code of Criminal Procedure. This situation can be solved by a Magistrate applying his mind to the facts and material available in the final report and the documents produced along with it in no time after the filing of the final report and deciding whether cognizance of the offence or offences made out should be taken or not; if he decides to take cognizance of the offence or offences, then he can, under Section 309(2) of the Code of Criminal Procedure, proceed to exercise his power of remand.
10. In the case on hand, the charge-sheet was filed on 6-9-1976 and the Magistrate took cognizance of the offences on 6-9-1976 itself. He did not exercise his powers of remand under Section 309(2) of the Code of Criminal Procedure on or after 6-9-1976. He had remanded the petitioner to judicial custody by his order passed on 3-9-1976. The period of remand was up to 10-9-1976. The said order passed on 3-9-1976 was in exercise of the powers of the Magistrate under Section 167 of the Code of Criminal Procedure. But the period of remand fixed by the order dated 3-9-1976 came to an end on 6-9-1976 when the charge-sheet was filed. The Magistrate having not passed any order of remand on 6-9-1976 in exercise of his powers under Section 309(2) of the Code of Criminal Procedure, the period of detention of the petitioners from 6-9-1976 till 10-9-1976, which is the date of the order in question, cannot be considered as the period of remand fixed by the Magistrate in exercise of his powers either under Section 167 or under Section 309(2) of the Code of Criminal Procedure. In this view of the matter, it will have to be held that the petitioners were detained in custody during this period, viz., between 6-9-1976 and 10-9-76 without any valid and legal orders of detention in custody passed by a Magistrate."
With respect, I am unable to subscribe to the view that a soon as the charge-sheet is filed the period of remand under section 167(2) CrPC comes to an end. There is no doubt that once the charge-sheet is filed the magistrate cannot thereafter exercise any powers under section 167(2) CrPC in the sense that after the filing of the charge-sheet, as the period of investigation terminates, the magistrate cannot pass an order of remand under section 167 CrPC. A remand order can now only be passed under section 309 CrPC. But, this does not mean that an order passed under section 167 CrPC when the investigation was pending would automatically be rendered inoperative the moment the charge-sheet is filed and cognizance is taken. As mentioned above, in my view, it would operate till it runs itself out or it is replaced by an order under section 309 CrPC, whichever is earlier in point of time. The decision in Gyanu (supra) also held that the words "in custody" appearing in section 309) CrPc implied and meant "in legal custody". This is an aspect with which I have dealt at some length in paragraph 12 hereinbelow.
10. In Manohari (supra), a Division Bench of of the Rajasthan High Court was required to answer the following four questions:-
"1. Whether the remand granted in the absence of the accused can be valid ?
2. Whether in the absence of a valid order for remand of the accused to jail, only an order for production of the accused on the next date can be treated as valid remand ?
3. Whether any previous illegality in granting remand can make the present detention of the accused illegal even though thereafter a valid remand has been granted?
4. Whether on account of some illegality in grant of the earlier remand, the accused is entitled to be released on bail, even though at the time of giving the decision, a valid order of remand exists?"
The first question was answered, following the decisions of the Supreme Court in Sandip Kumar Dey v. Officer-in-charge, Sakchi P.S. Jamshedpur: (1974) 4 SCC 2737; Raj Narain v. Supdt. Central Jail, New Delhi: (1971) 2 SCR 147 : (AIR 1971 SC 178 : 1971 Crlj LJ 244); Gouri Shankar v. State of Bihar: (1972) 3 SCR 129 : (AIR 1972 SC 711 : 1972 Cri LJ LJ 505) and M. Sambasiva Rao v. Union of India: AIR 1973 SC 850 : 1973 Cri LJ 663), holding that even if it be desirable for the Magistrates to have the prison produced before them when the prisoners are remitted to further custody an order of remand made without producing the accused in court is not invalid as it may on occasions be necessary to order remand in the absence of an accused. This, of course, does not in any way help the petitioner in this case.
The second question was answered as under:
"However, it cannot be said that merely an order for production of the accused on the next date would be invalid even if the request for further remand by the prosecutor is not opposed by the accused or no bail application is filed on his behalf."
And, this also does not help the petitioner's cause. In fact, a production warrant, after cognizance is taken, may be deemed to be a remand order. This is what was considered and so held in the case of Raghunandan Chauhan v. State: 18 (1980) DLT 154, which was a decision of a learned single judge of this court. The facts of this case are that on 21st November, 1979 the Petitioner was arrested. He was produced before a magistrate on 22nd November, 1979 and remand for his custody from time to time was taken from magistrate. Lastly, it was on 12th February 1980 that he was produced before the Metropolitan Magistrate who remanded him to judicial custody up to 27th February 1980. On 19th February 1980 the police file the chargesheet against the Petitioner and the Metropolitan Magistrate passed the following order:
"Challan filed today. It be registered. Accused is in J. C. in Tihar jail. Issue PW for 27.2.1980, already fixed."
A question arose as to whether this order constituted an order of remand. The Court held:-
"Therefore, in the present case it was not necessary in the part of the learned Magistrate to have made an express order of remand of the accused to judicial custody and her order to the effect that the present petitioner who was in jail be produced on 27th every 1980, clearly indicates that the accused was to be kept in custody till February 27, 1980 on which date he was to be produced before her. Thus after the power of remand to custody under section 167 of the code was exhausted on account of expiry of 90 days on 19th February 1980 petitioner was remanded to judicial custody in exercise of the power under section 309 of the code. In that way, not only that the custody of the Petitioner was absolutely legal, his right to grant of bail under proviso-
(a) of sub-section (2) of section 167 never accrued to him."
Therefore, in this context, it would be clear that the order dated 25.04.2005 passed by the Metropolitan Magistrate in the present case could also be treated as a remand order under section 309 CrPC. Looked at from this angle also, the case of Manohari (supra) would, on this aspect, be of no help to the petitioner.
Insofar as questions 3 and 4 in Manohari (supra) are concerned, when the public prosecutor therein placed reliance on judgments in Habeas Corpus matters to show that validity of custody has to be judged on the date of the return of rule or when the court considers the matter, the said Division Bench held that grant of bail under the statute and habeas corpus matters stood on entirely different footings. The court held:-
"In cases of grant of bail, the validity of the earlier orders of remand can certainly be taken into consideration. In such cases if there was illegality in the earlier orders of remand, it cannot be validated by a subsequent valid order of remand, Kudal J. in Rati Ram v. State of Rajasthan 1982 Rajasthan LR 443 has held "once and order of remand expires and a fresh order of remand is not passed then the detention becomes illegal. The liberty of an individual is guaranteed under the provisions of the Constitution. By a subsequent order of remand for a subsequent period, the previous order of detention which was patently illegal cannot be cured. The detention of the accused persons cannot be justified under any provision of law. Thus, they are entitled o be enlarged on bail." K. D. Sharma, Chief Justice in Narayan v. State of Rajasthan 1982 Rajasthan LR 698 : (1982 Cri LJ 2319) has also taken the view that once period of 90 days expired before taking cognizance of offences by Court, accused obtained absolute right to be released on bail and their detention after such period, held clearly illegal and it cannot be validated by a subsequent order of remand under Section 309, Cr.P.C. We also subscribe the view already taken by two learned single Judge o this Court..."
But, the conclusion of the Division Bench is based on the premises that the earlier order of remand was illegal or that the earlier order of remand had expired or that the period prescribed under section 167 CrPC had expired before the court took cognizance. None of these premises hold true in the present case. And, therefore, this decision also will be of no help to the petitioner. As regards the observation that habeas corpus matters and bail matters stood on different footings, it would be insructive to note the observations of the supreme court in Uday Mohanlal Acharya v. State of Maharashtra: (2001) 5 SCC 453 [at page 471] as to how an indefeasible right for bail accruing to an accused under section 167(2) CrPC would continue to be enforceable even after the filing of the charge-sheet provided, of course, the accused had availed of the right prior to the filing of the charge-sheet. The Supreme Court's observations in this context, while considering its earlier decision in Ram Narayan Singh v State of Delhi: AIR 1953 SC 277 : 1953 Cri LJ 1113 : 1953 SCR 652 are as under:
"The next decision is the case of Ram Narayan Singh v. State of Delhi. In this case on a habeas corpus petition being filed under Article 32, the Court was examining the legality of the detention on the date the Court was considering the matter. From the facts of the case, it transpires that there was no material to establish that there was a valid order of remand of the accused. The Court, therefore, held that even if the earlier order of remand may be held to be a valid one, but the same having expired and no longer being in force and there being no valid order of remand, the detention was invalid. It is in this context, an observation has been made that in a question of habeas corpus, lawfulness or otherwise, custody of the person concerned will have to be examined with reference to the date of the return and not with reference to the institution of the proceedings. There cannot be any dispute with the aforesaid proposition, but in the case in hand, the consequences of default on the part of the investigating officer in not filing the charge-sheet within the prescribed period have been indicated in the provisions of the statute itself and the language is of mandatory character, namely the accused shall be released on bail."
The above extract makes it clear that, but for the statutory prescription of consequences of default in filing the charge-sheet within the stipulated period, the considerations of validity of a remand order would stand on the same footing as in the case of a habeas corpus petition. But, this statutory right of release on bail on default arises only under section 167 CrPC after the expiry of the stipulated period. There is no such statutory right of bail when the period has not expired. In the present case the period had not expired. Indeed, even the period fixed by the remand order dated 20.4.2005 had not expired. Moreover, there is no statutory right of bail in section 309 CrPC similar to the legislative prescription of bail on default contained in section 167 CrPC. Therefore, what is true for cases of habeas corpus petitions8 would also be applicable to the present case. The learned counsel for the State has rightly pressed into service the decision of a Full bench of this court in the case of Rakesh Kumar (supra) which was a habeas corpus petition. The Full Bench held [at page 689]:-
"So, we hold that if up to the date of the hearing of the writ petition, it is shown that the detention of a particular person is valid presently, mere fact that his detention had been invalid earlier would not entitle such a petitioner to have any redess in habeas corpus petition".
In the view that I have taken above, this would apply with equal vigour to the present case.
11.The last case relied upon by the learned counsel for the petitioner is Devindrappa (supra), a decision of a learned single judge of the Karnataka High Court. This case pertains to a situation where the charge-sheet had been filed after the expiry of the applicable ninety (90) day period stipulated under section 167 CrPC. As such, it would not be applicable to the case at hand.
12. I shall now take up the question of whether the expression "in custody" appearing in section 309 CrPC can be taken to mean "legal custody" only [as held in Gyanu (supra)] or would it include within its sweep even "illegal custody". My answer is that "in custody" as appearing in section 309(2) CrPC would mean custody both legal and illegal. This conclusion is based upon two Supreme Court decisions, one decision of a Division Bench of this Court and one decision of a Full Bench of he High Court at Allahabad. The Supreme Court decisions interpreted the word "custody" in the context of section 439 CrPC. The other two decisions were more direct in as much as they were concerned with the word "custody" as it appears in section 309 CrPC.
In Niranjan Singh v. Prabhakar Rajaram Kharote: (1980) 2 SCC 559 [at page 562], the Supreme Court observed:-
"7. When is a person in custody, within the meaning of Section 439 CrPC? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court" jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose."
In similar vein, the Supreme Court, in Nirmal Jeet Kaur v. State of M.P.:(2004) 7 SCC 558 [at page 564], observed:-
"16. The crucial question is when is a person in custody, within the meaning of Section 439 of the Criminal Procedure Code? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. The word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibbling and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law.
17. Since the expression "custody", though used in various provisions of the Code, including Section 439, has not been defined in the Code, it has to be understood in the setting in which it is used and the provisions contained in Section 437 which relate to jurisdiction of the Magistrate to release an accused on bail under certain circumstances which can be characterised as "in custody" in a generic sense. The expression "custody" as used in Section 439, must be taken to be a compendious expression referring to the events on the happening of which the Magistrate can entertain a bail petition of an accused. Section 437 envisages, inter alia, that the Magistrate may release an accused on bail, if such accused appears before the Magistrate. These cannot be any doubt that such appearance before the Magistrate must be physical appearance and the consequential surrender to the jurisdiction of the Court of the Magistrate.
18. In Black's Law Dictionary by Henry Campbell Black, MA (6th Edn.), the expression "custody" has been explained in the following manner:
"The term is very elastic and may mean actual imprisonment or physical detention ... Within statute requiring that petitioner be in custody to be entitled to federal habeas corpus relief does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liberty. ... Accordingly, persons on probation or parole or released on bail or on own recognizance have been held to be in custody for purposes of habeas corpus proceeding."
Thus, in the context of section 439 CrPC, the Supreme Court has ascribed a very wide meaning to the word "custody". Anybody within the control of the court is said to to be in custody. The focus is not so much the manner in which the person is under such control but the fact that he is under such control.
In Noor Mohd. v. State: 2nd (1978) II Delhi 442 (DB), after considering several decisions including Gyanu (supra) and Khinvdan v. The State of Rajasthan: 1975 Cri. L.J. 1984 and disagreeing with these two decisions on this aspect, the court held (per T.P.S. Chawla, J.) :-
"..At least at two places, the code specifically uses the phrase "lawful custody". It occurs in Section 41 and Section 60. And, in Section 98 it speaks of "unlawful detention". There may be other sections, also, in which the same or similar phrases are used. This shows that whenever the legislature wished to qualify the kind of custody it had in mind, it did so expressly. So there is no justification for importing the word "lawful" before "custody" in Section 309. It cannot be regarded as an inadvertent omission. Without compelling reasons it is not permissible to insert words into a statue: see K. M. Shanmugham Pillai, AIR1969 SC 493; Ajit Singh and another v. The State, AIR 1970 Delhi 154 and G.P. V. A. Subrahmanan and others v. Commissioner, Corporation of Hyderabad, AIR 1970 A.P. 332. Nor can hardship of the "spirit" of the law be invoked to change the plain language of the section: Rananjaya Singh v. Baijnath Singh and others, AIR 1954 SC 749 and Athiappa Gounder and others v. S. A. Athiappa Pandaram, AIR 1967 Madras 445.
15. Apart from this objection emanating from the rules of interpretation, it is very probable that the word "custody" was advisedly left at large in Section 309. It would make endless trouble for the Court if, before a remand under that Section, it was obliged to inquire into nice questions of fact and law to ascertain whether the accused was in "lawful" custody. More often than not, it would be necessary to record evidence for adjudicating on the point. How is the court to deal with the acused during the inquiry? Ex hypothesi, no order of remand could be made under section three and nine (2), as it had not yet been found that the custody of the accused was "lawful". There is no other section giving power to remand in a situation such as this. And, the Supreme Court has categorically ruled that there is no inherent power to remand: see Natabar Parida and others v. State of Orissa, AIR 1975 SC 1465.
16. These considerations convince me that the court is not required or expected to go into the lawfulness of the custody of the accused before remand under section 309. The only question with which the court is concerned is whether it is necessary to further detain the accused in custody. It must heed the future and not the past. For purposes of that Section it is enough that the accused is physically in custody, as opposed to being free. The legality of the custody is of no moment."
Lastly, the decision of the Allahabad High Court in Surjeet Singh v. State of U.P. : 1984 All. L. J. 375 (FB) requires some discussion. The question before the Full Bench of that court was whether the word "custody" used in Section 309, CrPC, means imprisonment both legal and illegal? This was answered in the affirmative. The Full Bench held:
"In view of the normal meaning of the word "custody" actual or physical imprisonment of a person both legal and illegal amounts to his being in custody. By restricting the meaning of the word "custody" in S. 309(2), Cr.P.C., to only legal imprisonment the normal meaning is obviously curtailed. It is not at all necessary for the harmonious construction of the provisions of the code of criminal procedure to restrict the meaning of the word "custody" in S. 309(2), Cr.P.C., to legal imprisonment only. In fact, grave consequences follow if this restriction is placed on the meaning of the word "custody" for once the custody of the accused becomes illegal by his being confined in jail without a valid order or warrant of remand due to mistake of the Court it would become powerless to remand the accused to custody under S. 309(2), Cr.P.C., and rectify its error."
"The word "custody" in Section 309, Cr.P.C., in our opinion therefore, means physical imprisonment as distinct from being on bail. Even if the accused is in prison after his arrest in a criminal case without an order or warrant of remand by a competent Court he is in custody as distinct from being on bail. The word "custody" therefore embraces both legal imprisonment as well as illegal imprisonment."
"The Court is, therefore, competent to remand the accused to custody under S. 309(2), Cr.P.C., even if he is in illegal imprisonment. It can thus rectify its mistake and transform his illegal imprisonment into legal imprisonment."
Clearly, on the day when a remand order is made under section 309(2) CrPC it is not necessary that the petitioner/accused must have been in "lawful" custody. It is sufficient if he was in custody. In the context of the facts of the present case, even if we assume that the remand order was made on 26.4.2005 and not on 25.4.2005 and that the petitioner's custody between 25.4.2005 and 26.4.2005 was unlawful, it would not militate against the Magistrate's power to pass a valid order of remand under section 309 CrPC on 26.4.2005 when the accused was produced before him. It is also not necessary to go into the second ground urged by the learned counsel for the petitioner with regard to the remand order of 26.4.2005 being ex facie illegal on account of it being allegedly for a period of 16 days (i.e., "exceeding fifteen days"). This is so because subsequent remand orders passed under section 309 CrPC have legitimized the custody of the petitioner as of today.
13. In view of the above discussion it is clear that the submissions of the learned counsel are not tenable. The remand order dated 20.4.2005 was to continue till 26.04.2005. During this period a fresh remand order under section 309 was passed on 25.4.2005 (though not expressly) and at any rate on 26.4.2005. There is no dispute that the order dated 20.4.2005 was a valid order under section 167. As indicated above, it did not cease to operate on the mere filing of the charge-sheet and upon cognizance being taken. It ceased to operate possibly on 25.4.2005 (if the production order is taken to be an implied remand order) and definitely on 26.4.2005, both, because of lapse of time and because the fresh remand order under section 309) CrPC came to be passed. The remand order of 26.04.2005 was passed after cognizance had been taken and when the petitioner was in custody in the sense explained above. At present also, the petitioner is in judicial custody on the basis of a subsequent valid remand order. In these circumstances the petitioner is not entitled to be released on bail on the grounds urged by him. Accordingly, this application is dismissed. It is made clear that no arguments were advanced on 'merits' nor was this application treated a regular bail application solely under section 439 CrPC. The entire scope and discussion centered around section 309 CrPC. So, the dismissal of this application does not foreclose the petitioner from moving an application for regular bail under section 439 CrPC which, if filed, would undoubtedly be disposed of on merits.
The application stands dismissed.
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