ORDER
Shiva Kirti Singh, J.
1. Heard learned Counsel for the petitioner, for the State and for the Opposite party No. 1.
2. The petitioner in this case is the informant of Bhabua P.S. Case No. 1 of 1997 instituted against one Bhanu Prasad and Toontoon Seth, O.P. No. 1, under Section 394 of the Indian Penal Code. The petitioner seeks quashing of order dated 15-5-1998 passed by learned 2nd Additional Sessions Judge, Bhabua by which he has granted bail to O.P. No. 1 admittedly after his application for bail had been rejected by this Court on the ground that although charge-sheet was submitted against O.P. No. 1 on 24-4-1997 but congnizance was taken by learned Chief Judicial Magistrate, Bhabua only on 30-4-1998 and hence, his remand during the aforesaid period was illegal in view of a Division Bench judgment of this Court, reported in 1998(1) PLJR 782 (Sri S.K. Lal Spl. Judge, CBI (AHD), Patna v. Latu Prasad and Ors.).
3. On behalf of the petitioner it has been submitted that the aforesaid judgment in the case of Sri S. K. Lal had no application to the facts of this case. In that rase, it was held that in view of Section 309 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) if the Court is unable to or refuses to take cognizance under Section 190 of the Code then it has no authority to remand the accused because in a warrant case intervening period between filing of charge-sheet and commencement of trial is not an inquiry rather it is a judicial proceeding. Elaborating this point, it was submitted firstly that in this case the Court below was neither unable nor refused to take congnizance under Section 190 of the Code and as a fact before remanding the accused the Court below had supplied its judicial mind to the charge-sheet and hence, the requirement of taking cognizance should be deemed to have been completed immediately on filing of the charge-sheet and application of mind to the same by the Court below. For this prosecution, the learned Counsel for the petitioner relied upon a Full Bench Judgment of this Court in the case of Rabindra Rai v. The State of Bihar reported in 1984 PLJR 701.
4. Learned Counsel for the petitioner further submitted on the basis of decision of the Apex Court in the case of Talib Hussain v. State of Jammu & Kashmir , that even in an application for writ of habeas corpus, challenged on behalf of the petitioner that his detention is without any authority of law, the question has to be examined and answered with reference to the date fixed for return of rule. Put in other words, it has been submitted that the Court had to consider the legality of the detention on the date of hearing and if one that date his detention is found to be not in contravention of law. a writ of habeas corpus for release cannot be issued. The aforesaid proposition has also been pointed out in another Full Bench decision of this Court in the case of Babu Nandan Mallah v. The State of Bihar as reported in 1971 PLJR 605.
5. On behalf of the O.P. No. 1, it was submitted that the Full Bench decision on this Court in the case of Rabindra Rai (supra), has been distinguished by the Division Bench in the case of Sri S.L. Lal (supra) and hence, no reliance should be placed on the same. It was further submitted that in this case, the learned Chief Judicial Magistrate, Bhabua passed an order on 30-4-1998 by which he specifically took cognizance of the offence and hence, in this case it cannot be accepted that he had already applied his mind to the charge-sheet and, therefore, by implication cognizance had already been taken. Lastly, it was submitted on behalf of O.P. No. 1 that the Court below rightly granted bail on the ground that as soon as the Chief Judicial Magistrate had passed the order of remand without taking cognizance of the offence, a right had already accrued in favour of the petitioner which cannot be brushed aside by the subsequent act of the learned Court below.
6. So far as the first point raised on behalf of the petitioner is concerned, I find that he has rightly placed reliance upon the Full Bench judgment of this Court in the case of Rabindra Rai (supra), so far as that judgment clarify, as to what would amount to take cognizance. The later Division Bench Judgment in the case of Sri S.K. Lal (supra) appears to have distinguished the Full Bench decision in Rabindra Rai’s case only 011 the question as to whether the period when the Magistrate receives charge-sheet from the police and takes cognizance and till he passes an order under Section 209 of the Code, the matter is inquiry for the purposes of Section 309 of the Code or not. In that context, it was ultimately held that after a police report is received under Section 173 of the Code, no case can be said to be instituted on a police report unless cognizance is taken of the offence mentioned in such report and if the Court is unable to take cognizance under Section 190 of the Code for any reason whatsoever or refused to take cognizance, he will have no authority to remand the accused.
7. In the aforesaid judgment in the case of Sri S.K. Lal in paragraph 22, it was specifically held that irrespective of the fact whether the proceeding contemplated under Sections 208 and 209 of the Code is an inquiry or not, the moment a Magistrate receives a Police report and proceeds to perform his judicial function under Sections 207 and 209 of the Code, he must be deemed to have taken cognizance of the offence on the basis of the police report.
8. Thus, in my view, the learned Chief Judicial Magistrate had already taken cognizance of the offence when he applied himself to the charge-sheet and then proceeded to remand the accused. In this case, there was no question of inability of the learned Magistrate to take cognizance and there was no refusal to take cognizance and hence, the learned Court below erred in relying upon the judgment of this Court in the case of Sri S.K. Lal for passing the impugned order.
9. Even the second submission made on behalf of the petitioner on the basis of judgment of the Supreme Court in the case of Talib Hussain (supra), has force and it has been correctly submitted that legality or illegality of detention as to be judged on the date of hearing of the application and there can be no question of any accrued right in favour of the petitioner even if it be presumed that learned Chief Judicial Magistrate had no authority in law to remand him prior to specific order of cognizance dated 30-4-1998.
10. In view of the aforesaid findings, this application is allowed and the impugned order of learned 2nd Additional District & Sessions Judge, Bhabua dated 15-5-1998 is quashed.