JUDGMENT
N.P. Singh and S.N. Jha, JJ.
1. This is an application for bail filed on behalf of the petitioner, who is accused for offences under Sections 419, 420, 466, 467, 468, 471, 472 and 120-B of the Indian Penal Code (hereinafter referred to as ‘the Penal Code’). The case, aforesaid, was registered by police on an information lodged by Shri Mahendra Prasad Singh, Judicial Magistrate, 1st Class, Hajipur.
2. According to the allegation made in the first information report, a case under Section 302 of the Penal Code along with Sections 25-A and 26 of the Arms Act had been registered by Bidupur Police Station against one Suresh Singh and others. The prayer for bail made on behalf of Suresh Singh was rejected even by the High Court. After the rejection of the prayer for bail by the High Court, on 9-2-1985, a certified copy of the order purported to have been passed by the Supreme Court in Cr. Misc. Petition 213 of 1985 was filed on behalf of aforesaid Suresh Singh in the Court of the Judicial Magistrate, Hajipur, directing the release of said Suresh Singh. On the basis of that order, Suresh Singh was released on bail. Later it transpired that the order purported to have been passed by the Supreme Court was a forged order. Thereafter the present case in question was lodged by the Judicial Magistrate for offences mentioned above.
3. During investigation of the aforesaid case, the petitioner was taken in custody on 6-9-1985 and was produced before the Magistrate the same day who remanded him to judicial custody. The police report was submitted to the Chief Judicial Magistrate, Hajipur, on 29-11-1985 against the petitioner and others. After the submission of the charge-sheet, the case has been taken over by the C.B.I. and further investigation is proceeding.
4. According to the petitioner, as the Magistrate did not take cognizance within 90 days from the day the petitioner was taken in custody on the basis of the police report, aforesaid, the petitioner was entitled to be released on bail in accordance with the proviso to Sub-section (2) of Section 167 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’).
5. According to the petitioner, he had been taken in custody on 2-9-1985 but was produced before the Chief Judicial Magistrate on 6-9-1985. This is being challenged on behalf of the State. It has been asserted on behalf of the State with reference to the records that the petitioner was taken in custody on 6-9.1985 and was produced the same day before the Chief Judicial Magistrate who remanded him to custody. Nothing has been brought on record to show that the petitioner was actually taken in custody on 2-9-1985. From the records it appears that the Chief Judicial Magistrate has made an initial on the police report submitted on 29-11-1985 itself. As such it is an admitted position that police report/charge-sheet was submitted by police within 90 days from the date the petitioner was taken in custody. The submission of police report on 29-11-1985 shall be within 90 days even if the case of the petitioner that he was arrested on 2-9-1985 is accepted. However, the formal order saying that cognizance of the offences was being taken was passed on 19-2-1986.
6. On behalf of the petitioner it was submitted that as the order taking cognizance of the offences was not passed within 90 days from the date the petitioner was taken in custody, the Magistrate had no power to remand the petitioner and he should be released on bail.
7. This case was listed before a learned Judge of this Court who has referred it to a Division Bench for consideration of the aforesaid question. With consent of the parties this application is being disposed of at the stage of admission itself.
8. The scope of proviso (a) to Sub-section (2) of Section 167 of the Code has been considered by the Supreme Court in the well known case of Natbar Parida v. State of Orissa where it was pointed out that it was mandatory on the part of the Magistrate to release an accused on bail after expiry of the period mentioned in the said proviso, if investigation is not completed. In that case it was pointed out that after the expiry of the aforesaid period a Magistrate cannot remand an accused during investigation. But, if a police report is submitted within the period, aforesaid, and cognizance is taken on the basis of such a police report, then the Magistrate has power to remand such an accused even after the expiry of the period, under Section 309(2) of the Code. Sub-section (2) of Section 309 opens with the words “if the Court after taking cognizance of an offence or commencement of trial…”. In view of the aforesaid expressions occurring in Sub-section (2) of Section 309, it was submitted that unless the Magistrate takes cognizance on the basis of police report, power under Sub-section (2) of Section 309 cannot be exercised. This aspect of the matter has been examined by a Full Bench of this Court in the case of Rabindra Rat v. State of Bihar 1984 Cr. L.J. 1412 where it has been held on the basis of the judgment of the Supreme Court in the case of State of U.P. v. Lakshmi Brahman as follows:
In view of the clear enunciation of the position that any inquiry within the meaning of Section (2)(g) of the Code shall deem to have commenced since the submission of the police report, and shall continue till an order of commitment is made under Section 209, it is difficult for this Court to hold that such inquiry shall commence only after a formal order is passed by the Magistrate saying that cognizance has been taken. Once it is held that inquiry commences since the submission of the police report/charge-sheet there should not be any difficulty in holding that the Magistrate has during that period power to remand the accused in terms of Sub-section (2) of Section 309 of the Code.
The Supreme Court in the aforesaid case after making reference to Sub-section (2) of Section 309 has observed as follows:
If, therefore, the proceedings before the Magistrate since the submission of the police report under Section 170 and till the order of commitment is made under Section 209 would be an inquiry and if it is an inquiry, during the period, the inquiry is completed, Section 309(2) would enable the Magistrate to remand the accused to the custody.
In our opinion, in view of the aforesaid pronouncement by the Supreme Court and the judgment of the Full Bench of this Court, it is difficult to hold that an enquiry within the meaning of Section 2(g) of the Code shall commence only after a formal order is passed by the Magistrate saying that cognizance was being taken on the basis of the police report. It need not be pointed out that it is almost settled by series of judgments of the Supreme Court and this Court that the expressions taking cognizance means only application of judicial mind to the offences alleged. As such once the Magistrate takes note of the police report submitted against the accused concerned it shall be deemed that cognizance has been taken and an enquiry has commenced within the meaning of Section 2(g) of the Code.
9. In the instant case, it is an admitted position that police report was submitted on 29-11-1985 which is within 90 days from 6-9-1985 when the petitioner is alleged to have been arrested according to prosecution and it is also within 90 days from 2-9-1985 the day, according to the petitioner, he was taken in custody. I have already pointed out that the Chief Judicial Magistrate has signed on the police report itself on 29-11-1985. In this background, it is difficult to hold that an enquiry within the meaning of Section 2(g) of the Code did not commence with effect from 29-11-19S5 itself. Once it is held that an enquiry shall be deemed to have commenced from 29-11-1985 itself then it cannot be disputed that the Magistrate had power to remand the petitioner in accordance with Section 309(2) of the Penal Code and the petitioner cannot claim to be released under Section 167(2) of the Code. Apart from that, as was also pointed out in the aforesaid Full Bench decision that any right which might have accrued to an accused person at one stage of the proceeding to be released on bail under Section 167(2) cannot be enforced at a later stage of the proceeding when he is admittedly in custody on the basis of a valid order of remand. It was observed by the Full Bench in the aforesaid case as follows:
There is an impression in some section that if an accused was entitled to bail under proviso (a) to Sub-section (2) of Section 167 of the Code at one stage, or if for some time his detention was not under a valid order of remand, then he can enforce his right to be released on bail even at a later stage of the proceeding. In my view, this is a misconceived stand. When proviso (a) to Sub-section (2) of Section 167 says that after expiry of the period of ninety days or sixty days, as the case may be, an accused, who is in custody, shall be released on bail, it does not mean to say that, thereafter, his detention in custody is illegal or without any authority of law. If detention of an accused after the statutory period is held to be illegal or without authority of law, then there is no question of his releasing on bail on furnishing security to the satisfaction of the Court concerned. He has to be released outright. Does proviso (a) to Sub-section (2) of Section 167 contemplate release of an accused after the statutory period of detention where the accused concerned fails to furnish security to the satisfaction, of the court ? The answer is in negative.
In this connection it was pointed out in the aforesaid case that even in an application for a writ of habeas corpus where challenge on behalf of the petitioner of such application is in respect of his detention without any authority of law, that question has to be examined with reference to the date fixed for return of rule. In the present case, however, a formal order taking cognizance of the offence has been passed and as such now there is no question of holding that the Magistrate cannot remand the petitioner to custody during the enquiry which is pending before him. That power certainly flows from Section 309(2) of the Code.
10. It was then submitted that as the investigation has been taken over by the Central Bureau of Investigation (hereinafter referred to as ‘the C.B.I.’), it shall be deemed that no police report has been submitted against the petitioner. It is well known that C.B.I. can take up any case for investigation at any stage. But that does not mean that the investigation conducted in accordance with the provisions of the Code by the Officer-in-charge of the Police Station which had registered the case is washed away from the records of the proceeding. As such any police report submitted after investigation by Police Station where case was registered shall be deemed to be a police report within the meaning of Sub-section (2) of Section 173 of the Code. The question whether having submitted a police report under Section 173(2) against some of the accused persons it is open to the police to investigate the case against other accused persons has been recently examined by a Full Bench of this Court in the case of Shankar Ram v. The State Cr. Misc. 1916 of 1984. decided on 29.1.1984. In that case after referring to Sub-section (8) of Section 173 it has been held that Section 173(2) of the Code envisages and permits the forwarding of a police report against only one or some out of the many accused persons jointly charged with an offence, even though the investigation has not yet been completed against all. It has been further held in that case that the accused persons against whom the investigation has concluded are not entitled to get the benefit of the proviso to Section 167(2) on the ground that it has not concluded against those who are also suspected to have committed the offence alleged. It was pointed out that the police report submitted against some of the accused persons within the statutory period can be held to be a police report within the meaning of Section 173(2) of the Code, whatever may be said in respect of any supplementary police report submitted against other accused against whom investigation has not been concluded.
11. In our view, it is difficult to hold that once a case is taken over by C.B.I. at a later stage of investigation the police report submitted by the Officer in-charge of the Police Station which had registered the case is scrapped from the records of the Magistrate and it shall be deemed that no police report has been submitted under Sub-section (2) of Section 173 and accused who is in custody has to be released under proviso to Sub-section (2) of Section 167 of the Code.
12. There is no merit, in this application and it is, accordingly, dismissed.