It is manifest from the plain language of the aforequoted two provisions that they do not expressly mandate any formal application for remand by the prosecution, nor does it appear to be so by any necessary implication. The power is conferred and vested in the Magistrate without any such pre-condition. To my mind, it would be doing violence to the plain language of Sections 167 (2) and 309 (2) of the Code by reading into them a requirement of a formal application for remand or in any case, an interest request thereof.
Case :- CRIMINAL REVISION No. - 408 of 2013
Revisionist :- Yunus & Ors.
Opposite Party :- State Of U.P. & Another
Citation; 2014 CRLJ(NOC) 364 ALLAHABAD
Hon'ble Arvind Kumar Tripathi (II),J.
This criminal revision has been filed by Yunus and Sant Ram & Ors. challenging the order dated 17.8.2013 passed by Chief Judicial Magistrate, Sitapur by which application under 169 Cr.P.C. wrongly mentioned as application under Section 173 Cr.P.C. by the investigating officer was rejected and the Chief Judicial Magistrate took cognizance against accused Mohd. Yunus and Sant Ram and directed the investigating officer for further investigation against other accused persons.
Learned counsel for the revisionist argued as the Magistrate has exceeded in its jurisdiction while he took cognizance against accused persons and simultaneously directed the investigating officer to investigate the matter for other accused persons.
In support of his argument of learned counsel for the revisionist has relied upon the decision of Apex Court reported in 2013 Criminal Law Journal 754 Vinay Tayagi Vs.Irshad Ali.
Brief facts in short are necessary to be reiterated. A first information report was lodged by Kashiram against Yunus, Kalim, Baretha, Sant Ram, Bablu, under Sections 147,148, 149,302 IPC and 3(2)V SC/ST Act on 17.1.2013 investigation started and accused Yunus and Sant Ram were sent to jail after the investigating officer obtained the first remand, later on an application was moved by investigating officer before the Chief Judicial Magistrate, Sitapur under Section 169 Cr.P.C. and a prayer was made that accused Yunus and Sant Ram be released. The Chief Judicial Magistrate rejected this application vide impugned order hence this revision.
Before proceeding for discussing the merit of the case I would like to refer to Section 169 Cr.P.C. which reads as follows:-
169. Release of accused when evidence deficient- If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial.
A bare perusal of this Section reveals that (i) Magistrate has no role to play in this Section. The word "Magistrate" has only been used with regard to forwarding the accused to a Magistrate. (ii) Investigating Officer too has no power to proceed under Section 169 Cr.P.C. Only the officer incharge of the police station is empowered to act under this Section. (iii) The stage of 169 Cr.P.C. starts after the arrest of the accused and ends after first remand has been granted because, the officer incharge of a police station can only act under this Section when after arrest of the accused and before sending the accused to the Magistrate having jurisdiction, finds the evidence is not sufficient then he may release the accused on his executing bond with or without sureties. After first remand is granted the provision of Section 169 Cr.P.C. ends and after that only report under Section 173 Cr.P.C. can be filed which may be either charge-sheet or may be final report.
A perusal of the impugned order reveals that learned Chief Judicial Magistrate has earlier directed the investigating officer to produce the case diary along with this application under Section 169. No case diary was produced and later on a report under Section 173 Cr.P.C. was submitted on which action is to be taken by the Court. This is clear defiance of order of the Court, on part of Investigating Officer
A confusion may arise in the mind of the Magistrate when the above provision of Section 169 Cr.P.C. are followed that Magistrate has no role to play in the report under Section 169 Cr.P.C. The question will arise as to what, Magistrate should do when the investigating officer fails to or declines to seek subsequent remand either knowingly or inadvertently.
The answer is very simple Section 167 Cr.P.C. reads as follows:-
167.Procedure when investigation cannot be completed in twenty four hours. (1)Whenever any person is arrested and detained in custody,and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not 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,-
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 of the accused in custody of the police under this section unless the accused is produced before him; in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electornic video linkage.
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
[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 ;}
[Explanation II.-If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electrornic video linkage, as the case may be provided further that in case of woman under eighteen years of age, the detention shall be authorized to be in the custody of a remand home or recognized social institution.
[(2A) Notwithstanding anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order ; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.]
(3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.
Reference in this connection may also be instructively made to Section 309 which provides for the remand of accused person after cognizance and during trial. Sub section(2) of section 309 is in the term of following:
Section 309(2) Cr.P.C:
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 be 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.
It is manifest from the plain language of the aforequoted two provisions that they do not expressly mandate any formal application for remand by the prosecution, nor does it appear to be so by any necessary implication. The power is conferred and vested in the Magistrate without any such pre-condition. To my mind, it would be doing violence to the plain language of Sections 167 (2) and 309 (2) of the Code by reading into them a requirement of a formal application for remand or in any case, an interest request thereof.
Now, apart from the language of the statute, even on principle the contention of the Learned Counsel for the petitioner is untenable. If the stand on behalf of the petitioner were to be conceded to, the necessary legal result is that the issue of the custody of the accused would pass on completely in the discretion of the investigating agency, leaving the Magistrate or the Court as a helpless spectator of their actions and whimsicalities. Negatively put, the proposition canvassed on behalf of the petitioner is that it the Investigating Officer does not choose to apply or pray for further remand, the Court is powerless to do so. No such absurd result can be easily countenanced. The whole spirit of the Code is that the custody and liberty of the accused is entirely governed by the authority and sanction of a Court of law beyond the initial period of twenty four hours betwixt the first arrest and production before the Magistrate thereafter. By no twisted interpretation can this power in actual fact and practice be passed on into the mere discretion of the investigating agency, whether to ask for remand or not. In my view, once an accused person is produced before a Magistrate, he is in a a legal sense in custodia legis and it is the Court's responsibility and power whether he is to be remanded to further custody or granted bail on released altogether. By no stretch of imagination can this power of the Court be whittled down and he indeed passed on to the mere discretion of the investigating agency alone.
In the case of� Rakesh Ram Vs. State of Bihar AIR 1988 Patna,1999. A Full Bench of Patna High Court which has considering the same question given a decision that no written application for remand is required. This decision was given after considering the provision of Section 167 of Cr.P.C and Section 309 Cr.P.C.
In view of above, the Magistrate is not duty bound to wait for request for investigating officer for remand. He can, if he is satisfied, extend the detention of the accused in the custody, as per provisions of Section 167 Cr.P.C.
Now coming to the instant case the Magistrate has while taking cognizance on an application under Section 169 Cr.P.C. against accused persons Yunus and Sant Ram has acceded its jurisdiction as on an application under Section 169 Cr.P.C., he can not pass such orders as Magistrate has no role to paly in this provision. There was no occasion for the Magistrate to take cognizance against Yunus and Sant Ram and also to direct further investigation while deciding the application under Section 169 Cr.P.C.
If the Magistrate was satisfied and has granted first remand perusing the case diary and other relevant material then he is not bound to grant or release the accused persons on bail only on the whims of the Investigating Officer.
In view of above, the cognizance taken by the Magistrate record of Yunus and Sant Ram were directions of further investigation is quashed.
The Magistrate may pass appropriate orders on the report under Section 173 Cr.P.C. according to law.
With these observations the revision is disposed of.
Registrar General of this Court is directed to circulate this order for guidance of all the Magistrate in the State of U.P.
Order Date :- 10.9.2013
Subodh/-
Print Page
Case :- CRIMINAL REVISION No. - 408 of 2013
Revisionist :- Yunus & Ors.
Opposite Party :- State Of U.P. & Another
Citation; 2014 CRLJ(NOC) 364 ALLAHABAD
Hon'ble Arvind Kumar Tripathi (II),J.
This criminal revision has been filed by Yunus and Sant Ram & Ors. challenging the order dated 17.8.2013 passed by Chief Judicial Magistrate, Sitapur by which application under 169 Cr.P.C. wrongly mentioned as application under Section 173 Cr.P.C. by the investigating officer was rejected and the Chief Judicial Magistrate took cognizance against accused Mohd. Yunus and Sant Ram and directed the investigating officer for further investigation against other accused persons.
Learned counsel for the revisionist argued as the Magistrate has exceeded in its jurisdiction while he took cognizance against accused persons and simultaneously directed the investigating officer to investigate the matter for other accused persons.
In support of his argument of learned counsel for the revisionist has relied upon the decision of Apex Court reported in 2013 Criminal Law Journal 754 Vinay Tayagi Vs.Irshad Ali.
Brief facts in short are necessary to be reiterated. A first information report was lodged by Kashiram against Yunus, Kalim, Baretha, Sant Ram, Bablu, under Sections 147,148, 149,302 IPC and 3(2)V SC/ST Act on 17.1.2013 investigation started and accused Yunus and Sant Ram were sent to jail after the investigating officer obtained the first remand, later on an application was moved by investigating officer before the Chief Judicial Magistrate, Sitapur under Section 169 Cr.P.C. and a prayer was made that accused Yunus and Sant Ram be released. The Chief Judicial Magistrate rejected this application vide impugned order hence this revision.
Before proceeding for discussing the merit of the case I would like to refer to Section 169 Cr.P.C. which reads as follows:-
169. Release of accused when evidence deficient- If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial.
A bare perusal of this Section reveals that (i) Magistrate has no role to play in this Section. The word "Magistrate" has only been used with regard to forwarding the accused to a Magistrate. (ii) Investigating Officer too has no power to proceed under Section 169 Cr.P.C. Only the officer incharge of the police station is empowered to act under this Section. (iii) The stage of 169 Cr.P.C. starts after the arrest of the accused and ends after first remand has been granted because, the officer incharge of a police station can only act under this Section when after arrest of the accused and before sending the accused to the Magistrate having jurisdiction, finds the evidence is not sufficient then he may release the accused on his executing bond with or without sureties. After first remand is granted the provision of Section 169 Cr.P.C. ends and after that only report under Section 173 Cr.P.C. can be filed which may be either charge-sheet or may be final report.
A perusal of the impugned order reveals that learned Chief Judicial Magistrate has earlier directed the investigating officer to produce the case diary along with this application under Section 169. No case diary was produced and later on a report under Section 173 Cr.P.C. was submitted on which action is to be taken by the Court. This is clear defiance of order of the Court, on part of Investigating Officer
A confusion may arise in the mind of the Magistrate when the above provision of Section 169 Cr.P.C. are followed that Magistrate has no role to play in the report under Section 169 Cr.P.C. The question will arise as to what, Magistrate should do when the investigating officer fails to or declines to seek subsequent remand either knowingly or inadvertently.
The answer is very simple Section 167 Cr.P.C. reads as follows:-
167.Procedure when investigation cannot be completed in twenty four hours. (1)Whenever any person is arrested and detained in custody,and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not 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,-
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 of the accused in custody of the police under this section unless the accused is produced before him; in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electornic video linkage.
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
[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 ;}
[Explanation II.-If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electrornic video linkage, as the case may be provided further that in case of woman under eighteen years of age, the detention shall be authorized to be in the custody of a remand home or recognized social institution.
[(2A) Notwithstanding anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order ; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.]
(3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.
Reference in this connection may also be instructively made to Section 309 which provides for the remand of accused person after cognizance and during trial. Sub section(2) of section 309 is in the term of following:
Section 309(2) Cr.P.C:
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 be 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.
It is manifest from the plain language of the aforequoted two provisions that they do not expressly mandate any formal application for remand by the prosecution, nor does it appear to be so by any necessary implication. The power is conferred and vested in the Magistrate without any such pre-condition. To my mind, it would be doing violence to the plain language of Sections 167 (2) and 309 (2) of the Code by reading into them a requirement of a formal application for remand or in any case, an interest request thereof.
Now, apart from the language of the statute, even on principle the contention of the Learned Counsel for the petitioner is untenable. If the stand on behalf of the petitioner were to be conceded to, the necessary legal result is that the issue of the custody of the accused would pass on completely in the discretion of the investigating agency, leaving the Magistrate or the Court as a helpless spectator of their actions and whimsicalities. Negatively put, the proposition canvassed on behalf of the petitioner is that it the Investigating Officer does not choose to apply or pray for further remand, the Court is powerless to do so. No such absurd result can be easily countenanced. The whole spirit of the Code is that the custody and liberty of the accused is entirely governed by the authority and sanction of a Court of law beyond the initial period of twenty four hours betwixt the first arrest and production before the Magistrate thereafter. By no twisted interpretation can this power in actual fact and practice be passed on into the mere discretion of the investigating agency, whether to ask for remand or not. In my view, once an accused person is produced before a Magistrate, he is in a a legal sense in custodia legis and it is the Court's responsibility and power whether he is to be remanded to further custody or granted bail on released altogether. By no stretch of imagination can this power of the Court be whittled down and he indeed passed on to the mere discretion of the investigating agency alone.
In the case of� Rakesh Ram Vs. State of Bihar AIR 1988 Patna,1999. A Full Bench of Patna High Court which has considering the same question given a decision that no written application for remand is required. This decision was given after considering the provision of Section 167 of Cr.P.C and Section 309 Cr.P.C.
In view of above, the Magistrate is not duty bound to wait for request for investigating officer for remand. He can, if he is satisfied, extend the detention of the accused in the custody, as per provisions of Section 167 Cr.P.C.
Now coming to the instant case the Magistrate has while taking cognizance on an application under Section 169 Cr.P.C. against accused persons Yunus and Sant Ram has acceded its jurisdiction as on an application under Section 169 Cr.P.C., he can not pass such orders as Magistrate has no role to paly in this provision. There was no occasion for the Magistrate to take cognizance against Yunus and Sant Ram and also to direct further investigation while deciding the application under Section 169 Cr.P.C.
If the Magistrate was satisfied and has granted first remand perusing the case diary and other relevant material then he is not bound to grant or release the accused persons on bail only on the whims of the Investigating Officer.
In view of above, the cognizance taken by the Magistrate record of Yunus and Sant Ram were directions of further investigation is quashed.
The Magistrate may pass appropriate orders on the report under Section 173 Cr.P.C. according to law.
With these observations the revision is disposed of.
Registrar General of this Court is directed to circulate this order for guidance of all the Magistrate in the State of U.P.
Order Date :- 10.9.2013
Subodh/-
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