JUDGMENT
Madan Mohan Prasad, J.
1. An application under Sections 439 and 440 of the Code of Criminal Procedure (hereinafter called ‘the code’) was filed by the petitioner which, with the permission of this Court has now been converted into an application under Article 226 of the Constitution of India with a prayer for issuance of a writ for the release of the petitioner from illegal detention.
2. It is stated that an occurrence resulting in the death of one person took place on the 23rd of April, 1976, in respect of which a first information report was lodged. After investigation the police submitted final form on the 28th of June, 1976, as against this petitioner, which was received by the Magistrate on the 30th of June, 1976. Mean-while, however, this petitioner had surrendered before the Magistrate on the 7th of May, 1976. Unsuccessfully though, he made several attempts to get an order of release on bail at all levels including this Court, his bail application to this Court having been rejected on merits on the 14th of September, 1976. An application thus, based on different grounds, for an order for bail was filed in this Court on the 25th of November, 1976. The day next it was admitted by a learned single Judge of this Court who, in view of the importance of the argument pressed in support of the application, directed it to be heard by a Division Bench. It appears that it was placed before one such Bench but could not be disposed of and ultimately it has come to us for decision.
3. It has been alleged that it would appear from the order sheet of different dates that the petitioner was not produced, even though he had surrendered, and was kept in custody on many dates on which orders of remand were passed in his absence and only on the production of the custody warrant. This state of affairs continued until the 30th October, 1976. When the application was placed before us, we directed copies of the further orders passed thereon to be sent to us in order to have materials on which to decide as to whether on the date of hearing of this application the order of remand was legal and proper. It appears from the subsequent orders passed that the petitioner was not produced from custody, even on the subsequent dates fixed and in his absence, orders of remand to custody were passed. Meanwhile, it may be mentioned, on the 6th of December, 1976, when this application was placed before us for hearing, and finding that the matter would be protracted, we considered it in the interest of justice to pass an ad interim order of release of the petitioner on his furnishing bail of Rs. 5,000/- with two sureties of like amount As a result thereof the petitioner was enlarged on bail, though temporarily. Thus it was only on the 13th of December, 1976, that the petitioner appeared before the Magistrate. The Magistrate, however, did not pass any order on that date except that, in the absence of the records of this case, he directed the case to be placed before him on the 7th of January and 25th of January, 1977. The orders passed subsequently are, therefore, irrelevant to the question as to whether the petitioner was remanded to custody by any proper and legal order.
4. The fact that the petitioner has been granted ad interim bail does not, however, relieve us from deciding the question as to whether his detention, if he had not been granted bail by this Court, was valid. The interim order of bail could not, therefore, be treated as one which would effect the merits of the case.
5. Learned Counsel for the petitioner; has urged only one point in support of his argument that the petitioner’s detention is invalid and that is, that there is no provision of law in the Code, which enables a Magistrate to pass an order of remand after submission of final form under Section 173(2) of the Code and before taking of cognizance of the offence disclosed by the aforesaid report under Section 190 of the code.
6. Admittedly, in the present case final form has been submitted. Admittedly, again, cognizance of the offence has not been taken. The question, therefore, pertinently arises. In this connection, briefly stated, the argument is that there are only three provisions under the Code relating to orders of remand. The first one is to be found in Section 167(2) of the Code which, it is said, relates only to the period during which investigation is going on. Then comes Section 209 which provides for a case where the accused appears or is brought before the Magistrate and it appears to him that the offence is triable exclusively by the court of Sessions, in which case he has to commit the accused to the court of Sessions. The third provision is to be found in Section 309 which relates to inquiry or trials. It is urged, therefore, that when the investigation is over, Section 167 ceases to be applicable to the case and until the accused appears and is committed to the court of session, Section 209 is not attracted nor is Section 309 attracted until the court has taken cognizance of the offence and the trial has commenced. Thus, it is urged, it follows that there is a lacuna in the Code inasmuch as it does not provide for the stage in between the submission of the final form and the stage of Sections 209 or 309, as the case may be.
7. In support of this contention learned Counsel has placed reliance on decisions of the Allahabad and Delhi High Courts. The first one is in the case of the case of Laksimi Brahman and Anr. v. State 1976 Cr.L.J. 118 and the second in the case of State v. Jai Ram and Anr. 1976 Cr.L.J. 42. In the first case decided by the Allahabad High Court, it was an application for bail which was being considered. In that case, the police had not submitted charge sheet initially when the application was filed before that court. Subsequently, however, the charge sheet was submitted and the Magistrate had already taken cognizance of the offence. That was a case under Section 302 of the Indian Penal Code and yet the Magistrate had not committed the accused to the court of Session. The contention made before the court was that once the police had failed to submit charge sheet within a period of 60 days of the arrest, the detention of the accused became illegal and they were entitled to be released in view of Section 167(2) of the Code. On the other hand, it was urged that since the charge sheet had been submitted and cognizance had been taken subsequently, Section 167(2) of the Code ceased to apply and the accused could not claim the benefit of that section. The learned judge considered the scope of Section 167(2) of the Code as also of Sections 209 and 309 thereof, and held that the provision of Section 167(2)(a) means that a Magistrate cannot during investigation, remand an accused to custody beyond a period of 60 days, if the accused is prepared to and does furnish bail. This necessarily implies that even after expiry of 60 days if the accused does not offer and furnish bail, the Magistrate will have to make the order remanding him to custody. Accordingly it cannot be said that under Section 167(2) of the Code, the Magistrate can, in no case, authorise the detention of an accused person beyond a period of 60 days”.
Turning to the argument that Section 167 ceases to apply after the submission of the final form, the learned judges held.’ As explained above, once the police has submitted the charge sheet and Investigation of the case is over, the Magistrate cannot authorise the detention of an accused under Section 167 of the Code. “Next their Lordships discussed Section 209 and held that the power to remand the accused to custody under this section should be exercised only by making an order committing the accused to the court of session. Coming next to Section 309 of the Code, it was ‘held that the power to remand the accused under Section 309(2) pan be exercised only when a court after taking cognizance of an offence of commencement of trial finds it necessary or advisable to postpone the commencement of or adjourn any inquiry or trial”. Ultimately, therefore, their Lordships held that the order of remand passed in that case was illegal not being supported above.
8. The other case on which reliance has been placed is a decision of a learned single Judge of the Delhi High Court. There a reference had been made by a Magistrate, the point of law referred being “whether in a challan submitted under Sections 307/34, Indian Penal Code a Magistrate under Section 209 of the Code in deciding whether the offence alleged Is exclusively triable by a Court of Sessions is bound to hear the accused”. With a view to answer this question the learned Judge discussed the provision of Section 209 of the Code and was of the view that once the Magistrate reached the conclusion that the case was triable exclusively by a court of Session he had to do nothing more than to commit the accused to the court of Sessions and thus he was not required to hear the accused. It is obvious from the facts of the case that the question decided there was different and is not an opposite decision in the circumstances of the present case. It has, however, been cited before us, perhaps, only with a view to show that once the accused is produced or appears, the Magistrate has merely to determine whether it appears to him that the case is triable exclusively by the court of Sessions and if he finds so he has only to commit the accused and while so committing he may pass an order of remand.
9. The question before us thus remains whether there is any provision in the Code which would directly apply to a case where investigation is over and final form has been submitted but neither cognizance of the offence has been taken nor has the accused appeared or has been produced so as to enable the court to commit him to the court of Session. Counsel for the petitioner has contended that with the submission of the final form investigation is completed and thus the power given by Section 167(2) ceases to have any application to the case thereafter. On the other hand, it has been contended by the Counsel for the State that the stage of investigation must be deemed to continue even after the submission of the final form until the Magistrate decides upon that basis as to whether to take cognizance of the offence or discharge the accused.
10. It will first be relevant to mention what ‘investigation’ itself means and for that one has to go to the definition in Section 2 Clause (h) thereof, which is as follows:
‘investigation’ includes all the proceedings under this Code for the Collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.
It Is obvious-and there are decisions in support of that proposition, that substantially ‘investigation’ means collection of evidence.
11. It will next be relevant to examine the provisions of Chapter XII of the Code in order to find out whether there is any provision thereunder which has the effect of dealing with any situation arising after the investigation has been completed and the report under Section 173(2) submitted. It is not necessary to refer to each section of that Chapter. Firstly it would be noticed that the Chapter itself is devoid to “information to the police and their powers to investigate”. The provisions in substance relate to information given to the police, their right to investigate, examination of witnesses, making searches, submitting reports, forwarding the accused to the Magistrate after the completion of the investigation etc. The one important provision which deserves notice is Section 167. This section provides the procedure to be adopted where the investigation cannot be completed within 24 hours as fixed by Section 57 of the Code. It relates to forwarding of the accused to the Magistrate, an order of remand to be passed by him, bail to be granted after the period of 60 days, the stopping of investigation in a summons case if not concluded within six months, etc. It will thus appear that there is nothing in Section 167 which suggests that any of its provisions is to enure beyond the period of investigation.
Turning next to the other important Section 173, it appears that this section provides for investigation to be completed without delay, for submission of the report and other related matters. It also provides for further investigation and further report after the submission of the report under Section 173(2). I do not find anything either in Section 173 of the Code, except the provision of Sub-section (8), to suggest that there is any provision therein which relates to a period after submission of the final form. An examination of the provisions of the Chapter aforesaid would thus show that there is no indication given by the Legislature even in an implied manner to suggest that after the completion of investigation and the submission of the report under Section 173(2), the Magistrate has aright to pass an order of remand under Section 167(2). There is thus no escape from the conclusion that there is an obvious lacuna in the Code which, perhaps, is the result of it having escaped the notice of the Legislature that there would be some sort of a period of interregnum in between the period after the dose of investigation and the taking of cognizance by the Magistrate of the offence, or the point of time when Section 209 of the Code is attracted, in other words, when the accused appears and it appears to the Magistrate that this offence is triable exclusively by the court of session and he commits the accused to the court of Session, when he can pass an order of remand.
12. I will now turn to the provision of Section 209 of the Code to examine whether in the circumstances like the present one such an order of remand could be passed. The point need not detain me for long, for, it is so apparent that Section 209 of the Code comes into play only when “the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the court of session”. Clause (b) of this section, in such a situation, enables the Magistrate to remand the accused to custody during and until the conclusion of the trial. It is obvious, even though the Legislature has not said in so many words, that Section 209 is attracted only after the Magistrate has taken cognizance of the offence. True, it is not said that he is to do so after he has taken cognizance, but it is obvious that the Magistrate is asked to apply his mind to the facts before him with a view to take action, namely, if it is a case triable by court of session, he has to commit the accused and if it is not so he has to try the accused.” The very fact that the Magistrate has to determine this after the application of his mind makes it obvious that he has to take cognizance of the offence. It is well known that the Magistrate takes cognizance of an offence when he applies his mind with a view to proceed under the provisions of Chapters XV and XVI of the Code. Obviously, therefore, the right to remand an accused to custody under Clause (b) cannot be exercised unless the Magistrate commits the accused to the court of Session. This provision is thus of no avail in a situation which has arisen or which may arise in cases like the present one.
13. Turning now to Section 309 of the Code again, there can hardly be any doubt in view of Sub-section (2) or the section itself, that there can be no remand until after taking of cognizance or commencement of trial. This section also thus is not attracted to a. period prior thereto.
14. The view which I have taken in respect of Section 167 of the Code gets support from a decision of the Supreme Court in the case of Natabar Parida and Ors. v. State of Orissa A.I.R. 1975 S.C. 1465. Untwalia, J. speaking for the court says as follows:
The law as engrafted in proviso (a) to Section 167(2) and Section 309 of the New Code confers the powers of remand to jail custody during the pendency of the investigation only for the former and not under the latter. Section 309(2) is attracted only after cognizance of an offence has been taken or commencement of trial has proceeded.
I would like to emphasise the word “only” which comes after the word “investigation”. Obviously what the learned Judge means to say is that it is only during the period of investigation that the right to remand under Section 167(2) of the Code is to he exercised. It has also been clearly laid down, and in view of the statute it is hardly necessary to seek an authority on the point, that Section 309 has no application until cognizance has been taken or trial commenced. With regard to Section 209, I have already referred to the decision of the Allahabad High Court upon which reliance has been placed by the petitioner and again I say so with great respect, that in view of the clear and unambiguous language of the legislature it is not necessary to cite an authority in support of the view. The learned Judges held that the power to remand under that section can be exercised only after making an order committing the accused to the Court of sessions. I respectfully agree in this view.
15. The question then arises whether in the absence of any specific provision in the Code, the power of remand in a situation unprovided for can be said to be inherent in the court which is in seisin of the case. Exactly it is this very argument which has been urged on behalf of the State, that apart from any provisions in the Code since the accused had been arrested and is being proceeded against for having committed an offence, the Magistrate must be deemed to have an inherent power to remand him to custody unless he considered it proper to release him on bail. I am afraid, I am unable to accept this contention. The reason is obvious. Right to liberty of person is a fundamental human right. It is not granted by any particular statute. It cannot be said that society or State grants a man a right to liberty. If he has the right to liberty his liberty can be curtailed only by law in interest of society. Thus, the curtailment of this human right is to be provided for by law. If a person has been illegally arrested and detained, in the absence of any law-providing therefor, he has got to be released. The converse is not true that he has to be kept under detention unless there is a law providing for his release. That would be putting the cart before the horse to use a hackneyed expression. A court of justice has to decide at that point of time whether or not he has been legally arrested or is being legally detained. That is the fundamental concept underlying the law relating to habeas corpus. The argument thus that a court must be deemed to have an inherent right to keep a man under detention in the absence of any law providing for that, is too big a pill to swallow. Apart from this academic approach, I am fortified in my view by a decision of the Supreme Court which clearly repels the argument. Referring to the very same case of Natabar Parida (supra) it would appear that their Lordships said as follows
It may be emphasised here that the Court will have no inherent power of remand of an accused to any custody unless the power is conferred by law.
That being the law laid down by the Supreme Court the argument of learned Counsel for the state must be rejected.
16. It is thus obvious that in the absence of any provision in the Code enabling the Magistrate to pass an order of remand of an accused to custody after the submission of the final form and before taking cognizance thereof, the order of remand under which the petitioner is said to have been kept in custody must be held to be unwarranted by law. As stated earlier, the charge sheet against the petitioner was submitted and received in court on the 20th of June, 1976. Thereafter the Magistrate has not taken cognizance of the offence so long, nor was the accused produced before him from custody on any date subsequent thereto until he appeared after he was released in pursuance of the order of this Court as a temporary measure. The Magistrate thus had no jurisdiction to pass the order of remand after the 30th of June, 1976, until after he had taken cognizance and proceeded in accordance with law. The order of remand resulting in the detention of the petitioner must, therefore, be held to be illegal and invalid.
17. In the result, the petitioner is entitled to a writ directing his immediate release. In the circumstances of this case, however, keeping in view that the petitioner is charged with a serious offence of murder, I would make the order of release conditional by directing him to execute a bond of Rs. 5,000/- with two sureties of the like amount each to the satisfaction of the Magistrate, to appear before him as and when directed. Secondly that he will not leave the territories of the State of Bihar without prior permission of the Magistrate.
18. Before I part with this case, I would like to draw attention of the Magistracy to the point which has emerged out of this proceeding. It has come to the notice of this Court in several cases that the proceedings linger in the court of the Magistrate even after the submission of the final form for one reason or the other, resulting in delay in taking of cognizance or commencement of trial. If the Magistrates in view of the decision in this case, allow this gap, the result would be that a large number of accused persons would, as a matter of law, be entitled to release inspite of the seriousness of offences alleged to be committed by them. The Magistracy would, therefore, do well to take immediate action on submission of the police report under Section 173(2) of the Code by taking cognizance of offences and proceeding in accordance with law. This is the only way, which it is necessary in the interest of administration of Justice, of avoiding the serious consequences which entail as a result of the lacuna in the Code as pointed out earlier until the Legislature takes step to fill in the gap and provide by legislation, therefor.