Whether accused can claim bail on ground that he was kept in custody without order of remand?

As per section 167(2)(b) of the Code, normally for seeking an order of remand to continue the accused in custody, the accused is required to be produced before the Court in person or through video linkage and in case it is not possible to bodily produce the accused, for example when he is hospitalized or undergoing treatment etc., the Investigating Officer is required to submit the reasons for non-production so that the Magistrate can satisfy himself the genuineness thereof, but he cannot refuse order of remand on ground of non-production of the accused. This issue is settled by the Hon'ble Apex Court in the case of RAJ NARAIN v. SUPERINTENDENT, CENTRAL JAIL, NEW DELHI AIR 1971 SC 178 and the ratio enunciated therein is followed by the Division Bench of this Court in NOOR JAHAN v. STATE OF KARNATAKA ILR 1991 KAR 4081 wherein the Division Bench has reiterated as under:

“For the purpose of passing an order remanding the accused to judicial custody, if it not possible to produce the accused bodily, he need not be produced and the order of remand can be passed even in the absence of the production of the accused.”

17. It is held in the above case by the Division Bench that the decision in Raj Narain's case holds good even under the new Code of 1973 that wherever it is not possible to produce the accused before the court bodily, the court cannot insist upon the production of the accused and cannot refuse to pass an order of remand. Therefore, it follows that mere non-production of the accused before extending the remand does not render the custody of the accused illegal. In the instant case, the custody of the petitioner/accused is seen to have been continued without there being specific order of remand by the learned Magistrate; but that by itself, in the light of the proposition referred above, does not render the custody of the petitioner illegal even though the continuation of the custody without authorization may give rise to a cause of action to the petitioner for the remedy of habeas corpus or for damages depending upon the circumstances of the case. In the absence of any provision either in Section 167 or section 209 of Cr.P.C, the petitioner cannot seek his release on bail on the ground that the custody was extended without an order of remand or without his production before the Magistrate. The very same question fell for consideration before another Division Bench of this High Court in the case ofSAJJAD v. STATE OF KARNATAKA by IG Prisons, ILR 2005 KAR 3313 and relying on the ratio laid down in Raj Narain's case, it was held that an order of remand in the absence of the accused is not an illegality and that merely on the ground that the remand order was passed in the absence of an accused, the accused cannot be released on bail. We are in agreement with this proposition and therefore, the contrary view taken by the Division Bench of the Andhra Pradesh High Court in the case relied on by the learned counsel for the petitioner in A. Narayana Reddy v. State of A.P, 1991 (3) Crimes 873 does not commend to us.

In the High Court of Karnataka at Bengaluru

(Before H.G Ramesh and John Michael Cunha, JJ.)

D. Gundappa Vs  State of Karnataka 

Criminal Petition No. 5347 of 2016

Decided on June 5, 2017

Citation: 2017 SCC online Kar 1149

2. The essential facts which are not in dispute are that the petitioner was arrested on 16.12.2015 in Cr. No. 343/2015 registered by the respondent/Anekal Police for the offences punishable under sections 302, 201 r/w. 34 of Indian Penal Code. He was produced before the learned Magistrate on 17.12.2015 at 4.30 p.m and was remanded to judicial custody till 31.12.2015 After investigation, charge-sheet came to be laid before the learned Magistrate on 15.3.2016 and on the same day, the learned Magistrate took cognizance of the offences and directed registration of the case in Register No. III.1. Petitioner is aggrieved by the order dated 24.3.2016 passed by the Principal Civil Judge & JMFC, Anekal, in C.C No. 438/2016 and the order of the III Addl. Dist. & Sessions Judge, Bengaluru Rural District, sitting at Anekal, dated 30.6.2016 in Crl.R.P.5005/2016 whereby both the courts have rejected the application filed by the petitioner under section 309(2) r/w. section 167(2) of Cr.P.C Hence, the petitioner has sought to quash the above orders.

3. On 24.3.2016, the petitioner/accused moved an application under section 309(2) r/w. section 167(2) of Cr.P.C, contending that as per the provisions of law, the respondent/Police was required to submit the final report/charge-sheet within 90 days from the date of arrest of the petitioner. The respondent/Police filed the charge-sheet on 15.3.2016 and the accused was remanded to JC under section 167(2) of Cr.P.C The petitioner took up a contention that the remand under Section 167(2) of Cr.P.C, ended on 15.3.2016 and therefore any further remand could have been made only under section 309 of Cr.P.C, hence the remand of the petitioner/accused is illegal, unlawful and therefore, he is entitled to be enlarged on bail.

4. The learned Magistrate rejected the above application with the following reasoning:—

“On perusal of the order-sheet, it is clear that the accused was not produced before the court on 15.3.2016, Therefore the question of remanding the accused under section 309 of Cr.P.C does not arise. Accused has neither challenged his detention nor filed bail application before filing the charge-sheet In the instant case, the investigating officer has filed charge-sheet within stipulated time and this court has taken the cognizance on the movement when filing of the charge-sheet came to the knowledge of the court.”

5. Before the revisional court, large number of authorities were cited and considering the ratio laid down therein, the learned Sessions Judge rejected the revision with the following order:—

“In view of the ratio of the above mentioned decisions, it is very clear that on the day when a remand order is made under section 309(2) of the Criminal Procedure Code, it is not necessary that the petitioner/accused must have been in “lawful” custody, that it is sufficient if he was in custody and that merely on the ground that the remand order was passed in the absence of an accused, the accused cannot be released on bail.”

6. Before this Court, the petitioner has not assailed the reasonings assigned by the courts below but has merely stated that investigation does not prima facie make out the offence under section 302 of Indian Penal Code and the custody of the petitioner is not required for any investigation and hence, the petitioner be enlarged on bail. The grounds urged in the petition would show that the petitioner is seeking regular bail under section 439 Cr.P.C though the application was moved under section 167(2) r/w. 309(2) of Cr.P.C

7. In the course of the argument, the learned counsel for the petitioner has placed reliance on the decision in NIRANJAN SINGH v. PRABHAKAR RAJARAM KHAROTE AIR 1980 SC 785 and the decision of the Division Bench of Andhra Pradesh High Court in the case of A. NARAYANA REDDY v. STATE OF A.P 1991 (3) Crimes 873 and has argued that on account of non-production of the accused/petitioner before the Magistrate, his detention during investigation and subsequent to the filing of the charge-sheet is illegal and hence he is entitled to be enlarged on bail.

8. We have gone through the above decisions. In the case of NIRANJAN SINGH v.PRABHAKAR RAJARAM KHAROTE, AIR 1980 SC 785, the Hon'ble Supreme Court has explained as to when a person could be said to be in “custody” for the purpose of section 439 of Cr.P.C It is held therein that when the accused 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, he can be said to be in custody so as to maintain an application for bail under section 439 Cr.P.C

9. In the Division Bench decision of the Andhra Pradesh High Court referred to supra, the question that came up for consideration was whether the accused is entitled to be released on bail automatically when he is not produced before the Magistrate or Sessions Judge before remanding him to jail when the case is adjourned after the charge-sheet has been filed. Referring to various authorities, the Division Bench has held as under:

“non-production of the accused person either before the Magistrate or before the Sessions Judge, after filing of the charge-sheet before the Magistrate, or, framing of charges by the Sessions Judge, as the case may be, would entitle the accused person to grant of bail as a matter of right as no such requirement is enacted in section 309(2) of the Code of Criminal Procedure as distinguished from section 167(2) of the Code of Criminal Procedure.

10. In the same decision the Division Bench has clarified that:

“If before taking cognizance of an offence the accused continued to be in detention pursuant to successive orders of remand made by the court without production of the accused, the detention on the date when the court took cognizance of the offence would be illegal, and section 309(2) of the Code of Criminal Procedure would not cure the illegal detention and the detained accused would be entitled to grant of bail on that account, as held by the Division Bench in the decision just now referred to. We may also add that, it is open to the accused person to move this court, for bail, under the Code of Criminal Procedure, or, under article 226 of the Constitution of India to secure his release depending upon facts of each case. The reference is accordingly answered.”

11. In the instant case, the factual matrix is slightly different. A perusal of the order-sheet maintained by the learned Magistrate reveals that the petitioner was produced before the learned Magistrate on 17.12.2015 along with the remand application and was remanded to judicial custody till 31.12.2015 The subsequent order-sheet maintained by the learned Magistrate which is crucial for deciding the controversy in hand reads as here below:—

31.12.2015 State - APP Accused-HS	Accused not produced from JC. APP flies requisition stating that accused not produced for want of escort. IO directed to produce Accused on next date 14.1.2016
	Sd/- 31.12.2015
14.1.2016 State - APP Accused-HS	Accused not produced from JC. IO directed to produce accused on next date by 28.1.2016
	Sd/-14.1.2016
28.1.2016 State - APP Accused-HS Accused in JC	Accused produced from JC. Accused remanded to JC till 11.2.2016
	Sd/-28.1.2016
11.2.2016 State by APP Accused-HS Accused in JC	Accused not produced from JC. IO directed to produce accused on next date by 25.2.2016
	Sd/-11.2.2016
25.2.2016 State - APP Accused - HS Accused - JC	Accused not produced from JC. IO directed to produce accused on next date of hearing by 10.3.2016
	Sd/-25.2.2016
10.3.2016 State - APP Accused - HS	Accused not produced from JC. IO directed to produce accused on next date 24.5.2016
	Sd/-10.3.2016
15.3.2016	The CPI Anekal Circle has submitted charge-sheet against the accused for the offence u/s.-198(A), 302, 201 IPC. Accused is in JC.
Perused the charge-sheet. Found sufficient grounds to proceed. Hence cognizance of the offence is taken. Register the case in register No. Ill i.e, Criminal Case register. Accused in JC.	Call on 24.3.2016
	Sd/- Prl. Civil Judge & JMFC, Anekal 15.3.2016
24.3.2016 Advocate for accused filed an application u/s.309 of Cr.P.C	Case taken on today's board. Sri. H.S Advocate for accused files application u/s.309(2) a/w. 167(2) of Cr.P.C For objection by 23.3 2016.
	Sd/-22.3.2016
23.3.2016 State APP Accused - HS	APP filed objection to B/A. Heard Sri. H.S Advocate for accused and APP for prosecution on B/A u/s.309(2) & 167(2) of Cr.P.C
24.3.2016 State APP Accused - HS	For orders 24.3.2016
	Sd/-23.3.2016
	Accused produced from JC. Copy of charge-sheet furnished to accused.

ORDER PRONOUNCED IN THE OPEN COURT (VIDE SEPARATE ORDER)

ORDER

Bail application u/s.309(2) r/w. 167(2) of Cr.P.C filed by the accused is rejected.

Sd/-

Prl. Civil Judge & JMFC, Anekal.

24.3.2016

12. As could be seen from the above, subsequent to the initial remand of the accused to judicial custody, the accused was not produced before the learned Magistrate except on 28.1.2016 It is also pertinent to note that the Investigating Officer did not make any requisition to the learned Magistrate seeking extension of remand. Learned Magistrate also appears to have not taken any care to extend the remand of the accused from time to time as required under section 167 of Cr.P.C Therefore, the immediate question that arises for consideration is whether the illegality in continuing the custody of the accused entitles him for bail as of right?

13. It is trite law that “Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution.” The Division Bench of this Court in the case of NOOR JAHAN v. STATE OF KARNATAKA (ILR 1991 KAR 4081) has reiterated the above proposition and has laid down that,

“In order to detain the accused in custody, law specifically provides in Section 167 of the Code that there should be an order remanding the accused to judicial custody. Therefore, in the absence of the order remanding the accused to judicial custody there will not be any authority either in the State or in the State Police to detain a person in custody merely because he is accused of an offence punishable under Section 302 I.P.C”

14. At the outset, it is to be noted that though before the Trial Court the petitioner had sought bail under section 167(2) Cr.P.C, the petitioner is not entitled to invoke the said provision in view of the fact that the charge-sheet has been laid within 90 days from the date of the remand of the accused. But as the custody of the petitioner/accused has been continued without there being any specific order of remand or authorization by the learned Magistrate, the only question that remains to be examined is, whether on account of the above illegality, the petitioner is entitled to be enlarged on bail as sought for in the application filed under section 167(2) r/w. section 309(2) of Cr.P.C?

15. The legal position as to the nature and scope of the remand order to be made by the learned Magistrate has been the subject matter of catena of decisions of the Hon'ble Apex Court as well as various High Courts. Though the term “remand” has not been defined under the Code, yet the crystallized legal position in view of the provisions contained in the Code is that section 167 of the Code empowers a Judicial Magistrate to authorize detention of an accused in judicial custody during investigation for a period of 90 days or 60 days as specified therein. Section 209 of Cr.P.C, confers power upon a Magistrate to remand the accused to custody until the case has been committed to the Court of Session and also until the conclusion of trial. Section 309 of Cr.P.C confers power upon a Court to remand an accused to custody after taking cognizance of the offence or during the commencement of trial when it finds it necessary to adjourn the enquiry or trial.

16. As per section 167(2)(b) of the Code, normally for seeking an order of remand to continue the accused in custody, the accused is required to be produced before the Court in person or through video linkage and in case it is not possible to bodily produce the accused, for example when he is hospitalized or undergoing treatment etc., the Investigating Officer is required to submit the reasons for non-production so that the Magistrate can satisfy himself the genuineness thereof, but he cannot refuse order of remand on ground of non-production of the accused. This issue is settled by the Hon'ble Apex Court in the case of RAJ NARAIN v. SUPERINTENDENT, CENTRAL JAIL, NEW DELHI AIR 1971 SC 178 and the ratio enunciated therein is followed by the Division Bench of this Court in NOOR JAHAN v. STATE OF KARNATAKA ILR 1991 KAR 4081 wherein the Division Bench has reiterated as under:

“For the purpose of passing an order remanding the accused to judicial custody, if it not possible to produce the accused bodily, he need not be produced and the order of remand can be passed even in the absence of the production of the accused.”

17. It is held in the above case by the Division Bench that the decision in Raj Narain's case holds good even under the new Code of 1973 that wherever it is not possible to produce the accused before the court bodily, the court cannot insist upon the production of the accused and cannot refuse to pass an order of remand. Therefore, it follows that mere non-production of the accused before extending the remand does not render the custody of the accused illegal. In the instant case, the custody of the petitioner/accused is seen to have been continued without there being specific order of remand by the learned Magistrate; but that by itself, in the light of the proposition referred above, does not render the custody of the petitioner illegal even though the continuation of the custody without authorization may give rise to a cause of action to the petitioner for the remedy of habeas corpus or for damages depending upon the circumstances of the case. In the absence of any provision either in Section 167 or section 209 of Cr.P.C, the petitioner cannot seek his release on bail on the ground that the custody was extended without an order of remand or without his production before the Magistrate. The very same question fell for consideration before another Division Bench of this High Court in the case ofSAJJAD v. STATE OF KARNATAKA by IG Prisons, ILR 2005 KAR 3313 and relying on the ratio laid down in Raj Narain's case, it was held that an order of remand in the absence of the accused is not an illegality and that merely on the ground that the remand order was passed in the absence of an accused, the accused cannot be released on bail. We are in agreement with this proposition and therefore, the contrary view taken by the Division Bench of the Andhra Pradesh High Court in the case relied on by the learned counsel for the petitioner in A. Narayana Reddy v. State of A.P, 1991 (3) Crimes 873 does not commend to us.

18. The petitioner has also sought for his release on bail on the further ground that the learned Magistrate has taken cognizance of the offence in the absence of the petitioner. In our view, even this lapse does not entitle the petitioner for grant of bail as a matter of right. It is trite law that the cognizance taken by the learned Magistrate on submission of the charge-sheet is limited only for the purpose of committal of the case to the Court of Session. It is held by the Hon'ble Supreme Court that the functions performed by the learned Magistrate under section 209 of Cr.P.C, such as granting copies, preparing records, notifying the Public Prosecutor etc., are preliminary and ministerial acts. They are not trial proceedings. Cognizance taken by the learned Magistrate for the purpose of committal of the case cannot be construed as cognizance of the offence for the purpose of proceeding against the accused. Though the section requires production of the accused so as to facilitate the learned Magistrate to commit the case, it has been held that where the accused has been previously produced before the Magistrate at the initial stage, non-production at the time of cognizance is only a curable irregularity. More over, in the instant case, it is borne on record that though the accused was not produced at the time of taking cognizance by the Court, yet the presence of the accused is seen to have been procured for complying with the requirement of section 209 of Cr.P.C as evidenced in the order-sheet dated 24.3.2016 Under the said circumstances, whatever defects or lapses highlighted by the learned counsel relating to non-production of the accused from time to time and failure of the learned Magistrate to pass express order remanding the accused to custody, in our opinion, do not vitiate the proceedings, nor does it confer a right on the accused to seek for his release on bail as claimed in the petition.

19. We may hasten to add that we should not be understood as laying down the proposition that the production of the accused before the Magistrate for seeking extension of the remand is optional or that the Magistrate has unbridled power to dispense with the production of the accused for extending his remand. We reiterate that the production of the accused before the Magistrate as mandated in section 167(2)(b) and section 209 Cr.P.C is a rule and non-production of the accused is only an exception. As per section 167 of Cr.P.C, the Magistrate is empowered to authorize detention of the accused in custody only on production of the accused before him. Likewise, section 209 of the Code also prescribes that when the accused appears or is brought before the Magistrate, he shall commit the case to the Court of Sessions when the offence is triable exclusively by the Court of Sessions. Therefore, the production of the accused is indispensable. It is only when the physical production of the accused is not possible on account of his hospitalization or such other unavoidable reasons, the Magistrate cannot refuse to extend the remand merely on ground of non-production of the accused. In such event, it is incumbent on the Investigating Officer to make necessary requisition supported by genuine documents for the satisfaction of the learned Magistrate so as to extend the remand of the accused.

20. It must also be borne in mind that the requirement of production of accused as provided in section 167 of Cr.P.C has a salutary purpose to be achieved. As already stated above, this provision is in consonance with the constitutional mandate enshrined in Article 22(2) of the Constitution of India and is also intended to enable the Magistrate to see that remand is necessary and also to provide an opportunity to the accused to make a representation which he may wish to make. Therefore, production of the accused for the purpose of extending the remand is not an empty formality as the law requires the Magistrate to apply his mind even while further extending the remand of the accused to judicial custody. The practice of mechanical remand therefore is deprecated. The discussion in this order however is confined to the consequences or effect of illegal detention of the accused due to non-production of the accused or not making a specific order of remand by the Magistrate. It is in this context we have analyzed the above provisions of the Code and the case law on the subject and recorded the view as above.

21. In view of the factual and legal position discussed above, we do not find any merit in the petition. Hence, the criminal petition is dismissed.

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