IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.685 of 2008 SANJAY BHAGAT Versus STATE OF BIHAR & ORS ----------- For the petitioner : Mr.Ashok Kumar Jha, Advocate For the respondents : Mr.Baidyanath Thakur, Junior Counsel to Standing Counsel XVIII ------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ------ Dated, the 15th September, 2008 The petitioner has approached this court for his release, as according to him, his custody is illegal being in contravention of Section 309(2) of the Code of Criminal Procedure, 1973. 2. The petitioner is an accused in a criminal case being Dumra P.S.Case No. 61 of 2008 for the offences punishable under Sections 366 and 366A of the Indian Penal Code. He was arrested by the police on 07th April, 2008. He was produced before the court of Chief Judicial Magistrate, Sitamarhi on that date. Thereafter, the petitioner alleges that he has not been produced in the court. It transpires that the investigating officer, upon completion of investigation, on 23rd May, 2008 submitted charge sheet against the petitioner. On the day of submission of charge sheet, the petitioner not produced before the court nor the court has taken cognizance of charge sheet. - 2 - 3. It appears to us that after submission of charge sheet without taking cognizance, the judicial custody of the petitioner is rendered illegal. This is supported by Division Bench decision of this court in the case of Pawan Kumar Jaiswal Vs. The State of Bihar, 1999 (1) PCCR 370, wherein this court observed thus: “4.On these facts, the learned counsel for the petitioner submitted that once the chargesheet was submitted against the petitioner, he could not have been remanded to custody without taking cognizance. He has relied on a Division Bench Judgment of this Court reported in 1998, Vol 1, PLJR 782 (H.C.) S.K. Lal Vs. Lalu Prasad. He has also relied on an unreported judgment of a Division Bench of this Court, passed in Cr.W.J.C. No. 164 of 1999 on 24.3.99 (Magni Mahto @ Rajesh Mahto vs. State of Bihar), a copy of which is marked Annexure-3 to the writ petition. 5. It is manifest from a plain reading of both the judgments that the basic facts of both the cases are same or similar to those of the present case. In the said two judgments, as in the present case, the petitioners were already in custody, charge-sheet was submitted, cognizance was not taken by the concerned Courts which was postponed from date to date, and the accused persons were in the meanwhile remanded to custody. 6. Learned Government Advocate appearing for the respondents-State submitted that for the purpose of applicability of Section 309(2) of the Code, there is a difference between the cases triable by the Magistrate and those triable by the Court of Sessions. According to him, there is no question of enquiry in the former cases, but there is an element of enquiry in the latter kind of cases. He placed reliance on a Full Bench judgment of this Court reported in 1984 PLJR 701 (Rabindra Rai vs. State of Bihar). The submission of the learned Government Advocate does not commend itself to us for the reason that the same has been fully discussed and explained in S.K. Lal’s case (supra). It has been clearly held that the facts of Rabindra Rai’s case (supra) were entirely different. That was obviously a case (i.e. Rabindra Rai’s case), where the Magistrate after receiving the charge-sheet had taken cognizance, had remanded the petitioner therein who was already in custody, and then enquiry under Section 209 of the Code was pending before him. Paragraph 22 of the judgment in S.K.Lal’s case illumines the position and is set out hereinbelow:- - 3 - “This change of view, however, will not make any difference to the result of the instant case. Whether the proceeding contemplated under Sections 208 and 209 of the Code is an enquiry or not, the moment a Magistrate receives a Police Report under Section 170 read with Section 190 of the Code, and proceeds to perform his judicial functions 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. The case with which we are concerned, is not a sessions case, but a case triable as a warrant case. In such a case also the moment a Police Report is received, the Special Judge must take cognizance of the offence and then proceed to consider the matters relevant to Sections 238 to 240 of the Code. If he does not take cognizance, even if the next stage of the proceeding be an enquiry, he cannot, in the absence of taking cognizance, remand an accused under sub- section (2) of Section 309 of the Code. The second question formulated by the Special Judge assumed as a fact that cognizance has not been taken by the Court. If such be the position, the Court cannot remand an accused in custody under Section 309(2) of the Code without taking cognizance of the offence on the basis of Police Report submitted after completion of investigation.” 7. On the contrary, in the present case, the significant question which arises for consideration is whether or not it is permissible for the learned Magistrate by a warrant to remand the accused already in custody in cases where charge-sheet has been submitted but cognizance has not been taken. The facts of the present case are, therefore, fundamentally different from those in Rabindra Rai’s case. We, therefore, reject the submission of the learned Govt. Advocate. 8. The respondents have not filed any counter affidavit in the matter. 9. In our considered opinion, the contention of the petitioner is well founded and must prevail. The present case is squarely covered by both the judgments, wherein it has been held in no uncertain terms that in the circumstances indicated above, remand of the accused would be illegal and in the teeth of the provisions of Section 309(2) of the Code. 10. In the result, this writ petition is allowed. We hold that remand of the petitioner to Jail custody with effect from 1.4.1999 is illegal and in the teeth of provisions of Section 309(2) of the Code. We, therefore, direct the Chief Judicial Magistrate, Sitamarhi, to release the petitioner, namely, Pawan Kumar Jaiswal, on bail, if he is willing to - 4 - furnish the bail bond to his satisfaction, and also if not needed in any other case. The writ petition is accordingly allowed. 11. We feel unhappy over the mode and manner in which the Chief Judicial Magistrate, Sitamarhi, has conducted the proceedings. We see no justification for adjourning the matter for hearing on the point of cognizance on 1.4.99 and thereafter. On account of lack of attention to his essential duties and functions, he has brought about a situation where this Court is forced to allow this writ petition and order for release of the petitioner on bail. This is particularly significant in view of the fact, as is manifest from the order dated 12.4.99 of the Chief Judicial Magistrate, that the bail application of the petitioner was rejected by the learned Sessions Judge, Sitamarhi, by his order dated 7.4.99. In such circumstances, we call upon the concerned Chief Judicial Magistrate, Sitamarhi to explain the circumstances in which he passed the orders on 1.4.99 and 15.4.99 annexing copies of the materials on record. Let a copy of this judgment be sent to the concerned Chief Judicial Magistrate.” 4. Mr. Baidyanath Thakur, government counsel, does not dispute this legal position. As a matter of fact, his stance is fair admitting that petitioner’s custody, at least, after the charge sheet was filed on 23rd May, 2008 and the cognizance having been taken by the court, is illegal. 5. Consequently, we allow this writ petition and direct the Chief Judicial Magistrate, Sitamarhi to pass an appropriate order releasing the petitioner from the judicial custody on the terms and conditions he may deem fit. R. M. Lodha, CJ Kishore K. Mandal, J. Sunil