IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL APPLICATION NO. 2698 OF 2007 CRIMINAL APPLICATION NO. 2698 OF 2007 CRIMINAL APPLICATION NO. 2698 OF 2007 1. Mr. Gulam Mohd. Kabir Mohd. Mir @ Gulmir R/o Gopalpura Kalan Po: Mutton Dist. Anantnag, Jammu & Kashmir. 2. Mohd. Nazir Mohd. Mehbood Ansari Gopalpura Kalan Aged 45 years Po: Mutton Dist. Anantnag, Jammu & Kashmir.. ... Applicants. V/s. State of Maharashtra. ... Respondents. Ayaz Khan with Rajendra Bidkar for applicants. K.V.Saste, A.P.P. for the respondent- State. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 10th January 2008. DATED: 10th January 2008. DATED: 10th January 2008. JUDGMENT : JUDGMENT : JUDGMENT : -------- -------- -------- . The short issue involved in this Criminal Application for bail is as under :- "Whether in the facts and circumstances of the case, the applicants/ accused are entitled for bail under section 167 (2) of the Code of Criminal Procedure, 1973 (for short "Cr.P.C." or "Code"), for want of order by the learned Magistrate taking cognizance of the offence before expiry of the period stipulated in the said Section (180 days in this case) although the charge sheet was filed before expiry of such period?" FACTUAL MATRIX : FACTUAL MATRIX : FACTUAL MATRIX : -------------- -------------- -------------- 2. Admitted facts are in narrow compass . The applicants/ accused were arrested on 6th November, 2006 for the alleged violation of Narcotics Drugs & Psychotropic Substances Act ( for short "NDPS Act") since they were found in possession of commercial quantity weighing 11 kg. Subsequent to the arrest applicants were produced before the Magistrate on 7th November, 2006. Their custody was sought under section 167 of Cr.P.C, which was granted. The charge-sheet was filed on 5th May, 2007 i.e. on 180th day; however, order directing issuance of process against the accused under section 8C, 20 and 28 of the NDPS Act was passed on 7th May, 2007., since 6th May, 2007 was Court holiday being Sunday. Before order directing process could be passed, accused/ applicants moved an application under section 167 (2)(a) of Cr.P.C. for bail on default. RIVAL SUBMISSIONS RIVAL SUBMISSIONS RIVAL SUBMISSIONS : ----------------- ----------------- ----------------- 3. The learned counsel for the applicants/ accused submits that under section 167(2) (a) of Cr.P.C. not only charge-sheet is required to be filed within the period stipulated therein but cognizance of the offence is also required to be taken within that prescribed period. Since no cognizance was taken - 3 - before the expiry of such period mentioned therein, the applicants/ accused were and are entitled to be released on bail. 4. Learned counsel for applicants placed reliance on various unreported orders/judgments of this Court, viz. Vijay Baban Babar v. State of Vijay Baban Babar v. State of Vijay Baban Babar v. State of Maharashtra Maharashtra Maharashtra (Criminal Application No.303/1992 decided on 4th March, 1992 ); Prakash @ Pintya Dinanath Pisal Prakash @ Pintya Dinanath Pisal Prakash @ Pintya Dinanath Pisal and another v. State of Maharashtra and another v. State of Maharashtra and another v. State of Maharashtra (Criminal Application No.1419/1992 decided on 7th July, 1992); Joaqium M. Correia v. State of Goa Joaqium M. Correia v. State of Goa Joaqium M. Correia v. State of Goa (Criminal Misc.Application No.88/1988 decided on 18th July, 1998). In addition to these unreported judgments, reliance is also placed on the reported decision of this Court in the case of Khimbahadur Thapa v. State Khimbahadur Thapa v. State Khimbahadur Thapa v. State of Maharashtra of Maharashtra of Maharashtra, (1989 (3) Crimes 542 together with the judgment of the Apex Court in the case of CBI v. CBI v. CBI v. Anupam J. Kulkarni Anupam J. Kulkarni Anupam J. Kulkarni, 1992 SCC (Criminal) 554 in support of the submission. 5. Learned counsel for applicants took me through various relevant provisions of the Cr.P.C. and went on to demonstrate two types of custodies - one under section 167 and the other under section 309 of Cr.P.C., which, according to him, fall under different chapters of Cr.P.C. He submits that custody - 4 - under section 309 of Cr.P.C. is after cognizance of the offence is taken; whereas custody under section 167 (2) is prior to taking cognizance of the offence. According to him provision of Section 167(2) clearly lays down that the period of detention should not exceed the period stipulated therein. In his submission not only the charge sheet is required to be filed within the period stipulated under section 167(2) of Cr.P.C. but cognizance of the offence is also required to be taken before the expiry of that period He, thus, submits that in the case at hand, though charge sheet was filed within the period stipulated but no cognizance of the offence was taken during the prescribed period as such, accused/ applicants are entitled to be released on bail. 6. Per contra, learned .P.P. relying on the judgments of Division Bench of this Court in the case of Shravan Undirwade v. State of Maharashtra Shravan Undirwade v. State of Maharashtra Shravan Undirwade v. State of Maharashtra, 1976 Mh.L.J. 654 and Abdul Wahid v. State of Maharashtra Abdul Wahid v. State of Maharashtra Abdul Wahid v. State of Maharashtra, 1991 Mh.L.J. 1219, together with two other judgments of learned single Judges of this Court, viz; Biju Biju Biju Varghese v. State of Maharashtra Varghese v. State of Maharashtra Varghese v. State of Maharashtra, 1994 Mh.L.J. 671; and Avinash Sanas v. State of Maharashtra Avinash Sanas v. State of Maharashtra Avinash Sanas v. State of Maharashtra in Criminal Bail Application No. 3108/2003 decided on 11th December 2003 (unreported) (which have taken view contrary to the submission advanced by the learned - 5 - counsel for applicants) has urged that once the chargesheet has ben filed within the stipulated period, then, the right of the accused to claim bail on default gets exhausted. 7. Learned A.P.P. also relied upon the judgment of the Apex Court in the case of State of State of State of U.P. v. Lakshmi Brahman U.P. v. Lakshmi Brahman U.P. v. Lakshmi Brahman reported in AIR 1983 SC 439: 1983 Cri.L.J. 839, to contend that filing of the charge-sheet before the trial Court tantamount to the Court taking cognizance and that remand of the accused for a further period of custody is permissible, even if by that act the accused remained in custody beyond the prescribed period of 60, or 90, or 180 days, as the case may be. He went on to urge that between the stage of filing of the charge sheet and committal of the accused to the Court of sessions, the Magistrate is required to hold an inquiry and during this interval the remand of the accused to custody is permissible under Cr.P.C. In other words, his contention is that the accused cannot claim release on bail under the proviso (a) to sub-section (2) of Section 167 if the Magistrate does not take cognizance within the statutory period of 60 days, or 90 days or 180 days (as the case may be) even though the Police had filed the charge-sheet within that period. According to him, an inquiry is deemed to have - 6 - commenced on the date the charge-sheet is submitted. He, thus, reiterated that the Magistrate has full power to hold accused in custody so long as order taking cognizance is not passed. In his submission merely for want of the order of issuance of process or order taking cognizance of the offence after submitting charge-sheet, the accused is not entitled to be released on bail under section 167 (2) of the Cr.P.C. He, thus, prayed for rejection of prayer for bail on default. 8. With the aforesaid rival submissions, the issue before me is: "whether the accused are entitled for bail under section 167 (2) of Cr.P.C.?" 9. Before proceeding to examine the issue raised, it is necessary to turn to the record and proceedings so as to decide the legality and validity of the issue canvassed by the rival parties. ORDER SHEETS : ORDER SHEETS : ORDER SHEETS : ------------ ------------ ------------ 10. The order sheets produced on record reads as under :- "5.5.2007: APP Mrs.Mane for State present. Adv. Mr.A.R.Khan for accd. present. - 7 - Accused Nos.1 to 3 not produce from J’C.(only warrant received). Appln. filed by Adv. A.R.Khan requested the Court not to take cognizance in the absence of CA report. Court pass order APP to say. APP requested the Court time to file say and to keep the matter in the afternoon sessions. Matter is KB and will be resumed at 2.30 p.m. L.O. Same appearance. On oral request of APP case adjd. to 07.05.07 for filing say on appln. filed by Adv. A.R.Khan. L.O.: At 4.25 p.m. Prosecution has produced an appln. along with C.A. report. Court pass order. Along with the production of CA report with direction to submit copies of CA report for the accd. Copies furnished. Within time. Adv.A.R.Khan had already left the Court. Since matter was adjd. earlier it appears that the must be left the Court premises. It was called before the Court only to make him aware about the production of CA report today. 7.5.2007: APP Mrs.Mane for State present. Adv. Mr.Rane h/f Adv. Mr. A.R. Khan for accd. Present. Accused nos. 1 to 3 are produced from J/C. Perused the papers produced along with charge-sheet. CA report is already filed on record on 5.5.2007 as per the report submitted through APP on that day. The accd. is in jail. Upon hearing the APP and on perusal of CA report and other documents prima facie material is available to proceed against the accd. Issue process against the accd. U/s 8(c) , 20 and 28 of the NDPS Act. Issue production warrant directing the Supdt. Central Prison, Arthur Road Jail to produce the accd. Before this Court on 14.5.2007 without fail. - 8 - Case adjd. to 14.5.07. 14.5.2007: APP Ms.Mane present. Accused not brought from jail. Adv. A.R.Khan present for the accd. Adjd. for filing draft charge on 28/05/2007." 11. Bearing in mind the statutory provisions of sections 156, 167, 190, 204, 207 and 309 of Cr.P.C., I may refer to some of the relevant judgments relevant to the issue involved herein. 12. In the case of R.R.Chari v. State of U.P. R.R.Chari v. State of U.P. R.R.Chari v. State of U.P., AIR 1951 SC 207, the meaning of the term "taking cognizance" was considered. It was stated that it does not involve any formal action or indeed action of any kind but occurs as soon as the Magistrate as such applies to his mind to the suspected commission of offence. 13. In the case of Narayandas Madhavdas v. Narayandas Madhavdas v. Narayandas Madhavdas v. State of West Bengal State of West Bengal State of West Bengal, AIR 1968 SC 1118, the Supreme Court has observed the mode in which a Magistrate could take cognizance of an offence and stated: "It seems to be clear, however , that before it can be said that any Magistrate has taken cognizance of any offence under section 190 (1)(a) of the Cr.P.C., he must not only have applied his mind to the contents of the - 9 - petition, but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provision of this Chapter - proceeding under section 200 and thereafter sending it for enquiry and report under section 202." 14. Tula Ram and others vs. Kishore Singh Tula Ram and others vs. Kishore Singh Tula Ram and others vs. Kishore Singh reported in AIR 1977 SC 2401, crystalised the ambit of the powers of the Magistrate under sections 156, 190, 200 and 202 in the following words : It seems to us that there is no special charm or magical formula in the expression "taking cognizance" which merely means judicial application of a mind of the Magistrate to the facts mentioned in the complaint with a view to taking further action. Thus, what section 190 contemplates is that the Magistrate takes cognizance once he makes himself fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations. The Code prescribes several modes in which a complaint can be disposed of, after taking cognizance, in the first place, cognizance can be taken on the basis of three circumstances: (a) upon receiving a complaint or facts which constitute such offence. (b) upon a Police report of such facts; and (c) upon information received from any person, other than the Police officer or upon his own knowledge , that an offence has been committed. (d) Where a Magistrate orders investigation by the Police before taking cognizance under section 156 (3) of the Code and receives the Report, he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action under section 190 as described - 10 - above. By referring to the earlier decision in the case of Devarapalli Laxminarayan Reddy and others v. Narayana Devarapalli Laxminarayan Reddy and others v. Narayana Devarapalli Laxminarayan Reddy and others v. Narayana Reddy and others Reddy and others Reddy and others, AIR 1976 SC 1672), the Apex Court in the case of Tula Ram Tula Ram Tula Ram (supra) crystallized the ambit of the powers of the Magistrate under section 156 , 190, 200 and 202 in the following words : (a) that a magistrate can order investigation under section 156(3) only at the pre-cognizance stage i.e. to say, before taking cognizance under section 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter XIV , he is not entitled in law, to order any investigation under section 156(3) though in cases not falling within the proviso to section 202, he can order an investigation by the Police which would be in the nature of an inquiry as contemplated by section 202 of the Code. (b) Where a Magistrate chooses to take cognizance, he can adopt any of the following alternatives : (i) He can peruse the complaint and, if satisfied that there was sufficient ground for proceeding, he can straightaway issue process to the accused, but before he does so, he must comply with the requirements of section 200 and record the evidence of the complainant or his witnesses. (ii) The Magistrate can postpone the issue of process and direct an enquiry by himself. (iii) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the Police. - 11 - (c)© In case the Magistrate, after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered, is not satisfied that there was sufficient grounds for proceeding, he can dismiss the complaint. (d) Where a Magistrate orders investigation by the Police before taking cognizance under section 156 (3) of the Code and receives the Report, he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under section 190 as described above. 15. Having seen the meaning of the term "taking cognizance", now let me turn to the period during which cognizance is required to be taken. 16. In order to consider this aspect of the matter, it is relevant to take note of the Two Judge Bench judgment of the Apex Court in the case of C.B.I. C.B.I. C.B.I. v. Anupam Kulkarni v. Anupam Kulkarni v. Anupam Kulkarni (supra); wherein the question for consideration was whether a person arrested and produced before nearest magistrate as required under section 161 (1) of Cr.P.C. can still be remanded to police custody after initial period of 15 days . While considering this issue, the Apex Court has observed as under : "9. At this juncture we want to make another aspect clear namely the computation of period of remand. The proviso to section - 12 - 167 (2) clearly lays down that the total period of detention should not exceed ninety days in cases where the investigation relates to serious offences mentioned therein and sixty days in other cases and if by that time cognizance is not taken on the expiry of the said periods the accused shall be released on bail as mentioned therein. (Emphasis supplied) 17. The learned A.P.P. submits that period during the period during which cognizance is required to be taken by the Magistrate was not the issue before the Apex Court. He, thus, submits that the aforesaid observations, on which heavy reliance was placed by the applicants, cannot be said to be the ratio of the judgment. However, he does not dispute that even the obiter of the Apex Court would bind this Court. 18. With the above judgment, another two Bench judgment of the Apex Court in the case of Lakshmi Lakshmi Lakshmi Brahman Brahman Brahman (supra) also needs to be looked into. At one stage learned counsel for the applicants tried to contend that both the above judgments operate in two different fields, as such, it has no application to the case in hand. Whereas learned A.P.P. for the State tried to reconcile both views. 19. The Apex Court in the case of Laxmi Brahman Laxmi Brahman Laxmi Brahman (supra) did not approve following observations of the - 13 - Division Bench of Allahabad High Court, in which it was observed that :- "These sections (207 209) do not contemplate that before committing the case to Sessions, the Magistrate should conduct some proceeding with a view to ascertain or verify facts. Section 209 of the Code merely required the Magistrate, taking cognizance of an offence on the basis of a police report, to look into the report and if he finds that the case is triable exclusively by Court of Sessions to make an order committing the case to Sessions. Since in such a case the Magistrate taking cognizance of the offence is not required to conduct any proceeding for ascertaining or verifying facts with a view to commit the case to Sessions, it cannot be said that the provisions contained in Sec. 204, 207 to 209 of the Code contemplate an inquiry under the Code." 20. The Apex Court did not approve the above observations and went on to discuss provisions of sections 204 to 209 of the Code and the scheme engrafted therein in paras- 12 to 14 and the purpose behind such scheme. The relevant portion of paras-12 to 14 of the said judgment relevant for deciding the issue raised herein reads as under :- "12. ...... When the Magistrate receives the report and the accused is produced before him it is necessary for him to pass some order for his further detention subject to provisions contained in Chapter XXXIII as to Bails and Bonds. The view taken by the High Court makers it a necessity for the Magistrate to release the accused on bail even if the accused is not otherwise entitled to the discretionary order of bail nor he applies for nor is ready to furnish - 14 - bail only because the Magistrate has no jurisdiction to keep the accused in custody till an order committing the accused for trial is made. The High Court referred to Sec. 209 which provides that the Magistrate shall commit the accused to the Court of Session and subject to the provisions of the Code relating to bail, remand the accused to custody during and until the conclusion of the trial. This according to the High Court implies that the Magistrate can exercise power to release on bail or remand to the custody the accused only after making the order of commitment but the Magistrate has no such power anterior to the order of commitment and during the interregnum since the receipt of the charge-sheet. This dichotomy read by the High Court in Secs. 207 and 209 is certainly not borne out by the provisions of the Code...... 13. Now, if under Sec. 207, the Magistrate is performing a judicial function of ascertaining whether copies have been supplied or not, it would undoubtedly be an enquiry for the purpose of satisfying himself that Sec. 207 has been complied with the letter and spirit. That satisfaction has to be judicial satisfaction. It is not a trial but something other than a trial and being judicial function it would necessarily be an inquiry. The making of an order committing the accused to the Court of Session will equally be a stage in the enquiry and the inquiry culminates in making the order of commitment. Thus, from the time the accused appears or is produced before the the Magistrate with the police report under Sec. 170 and the Magistrate proceeds to enquire whether Sec. 207 has been complied with and then proceeds to commit the accused to the Court of Session, the proceeding before the Magistrate would be an inquiry as contemplated by sec. 2 (g) of the Code. We find it difficult to agree with the High Court that the function discharged by the Magistrate under Sec. 207 is something other than a judicial function the Magistrate is not holding an inquiry as contemplated by the Code. If the Magistrate is holding the inquiry obviously Sec. 309 - 15 - would enable the Magistrate to remand the accused to the custody till the inquiry to be made is complete. Sub-sec.(2) of Sec. 309 provides that if the Court after taking cognizance of an offence or commencement of trial, finds it necessary or advisable to postpone the commencement ore adjourn any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody. There are three provisos to sub-sec. (2) which are not material. If, therefore, the proceedings before the Magistrate since the submission of the police report under Sec. 170 and till the order of commitment is made under Sec. 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. Therefore, with respect, the High Court committed an error in holding that "the order remanding the respondents to custody, made after cognizance of offence was taken, cannot be justified under Sections 167(2), 209 and 309 of the Code and no other provision under which the respondents can be remanded to custody at this stage, having been indicated by the learned Govt. Advocate, we feel that it would be proper to accede to the request made by the respondents and to direct that they would be released on bail after furnishing adequate security to the satisfaction of the Chief Judicial Magistrate, Banda." 14. The view taken by the High Court introduces a stage of compulsory bail not envisaged by the Code, and therefore, also the view of the High Court cannot be upheld. According to the High Court after the accused is brought before the Court along with the police report, the Magistrate must forthwith commit the accused to the Court of Session because the Magistrate would have no jurisdiction in the absence of any provision to remand the accused to custody till the order committing the case to Court of Session is made. The view, with respect, is - 16 - wholly untenable and must be set aside." (emphasis supplied) 21. Perusal of the aforesaid extracted portions of the judgment would