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Judgment
Paul, J.—This is a petition under Sections 439 and 437 of the Criminal procedure Code for releasing the petitioners against whom and a number of others Crime No. 314 of 1978 under Ss. 147, 148, 149. 307, 302 and 286 I.P.C. has been registered and is being investigated into, an earlier bail application filed on behalf of the petitioners was dismissed on 13th June 1978 but giving liberty to the petitioners for renewing the application after three weeks.
It appears that a charge-sheet has since been filed in this case, But the Magistrate has not yet committed the accused for trial before the Court of Session.
Mr. Sankaran en behalf of the petitioners has argued that the detention of the petitioners is, custody is illegal inasmuch as, there is no provision in the Criminal Procedure Code by which an accused could be remanded after the filing of the charge sheet before the Magistrate in a case triable exclusively by a Court of Session and before the case is committed to the Sessions Court. Mr. Sankaran has pointed out that remands under S. 167, Crl. P.C., will ensure only during the period when the case is under investigation and once the charge sheet is filed there can be no remand under S. 167. Crl. P.C. This contention of his is quite correct, for, S. 167 prescribes the procedure when investigation cannot be completed in 24 hours. Mr. Sankaran has argued that S. 309 Crl. P.C. would apply to cases in which the filing of a charge sheet is to be followed by an enquiry or trial and to a case where there is an interval between the filing of a charge sheet and the committal of the accused to take his trial before the Court of Session.
In support of his contention he has cited the decision of the Allahabad High Court in Lakshmi Braman and another v. State 1976 Crl. L.J. 118 . The Allahabad High Court held that in a case exclusively triable by a Court of Session once the police submits the charge sheet and investigation of the case is over the Magistrate cannot authorise the detention of an accused under S. 167 of the Code and his authority to remand an accused to custody, after he has taken cognizance of an offence, cannot also be gathered from S. 209 of the Code, for, the power to remand an accused to custody under S. 209 can be exercised only while making an order committing the accused to Court of Session; and thus, if for some reason, the Magistrate defers the making of an order committing the case to the Court of Session, the Magistrate cannot after taking cognizance of the offence remand the accused to custody under S. 209. The Allahabad High Court further held that the power to remand the accused to custody under S. 309(2) can be exercised only when a Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourns, any enquiry or trial and in a case which is exclusively triable by a Court of Session, the Magistrate while proceeding to commit an accused under S. 209 of the Code does not conduct an enquiry as contemplated by S. 209 of the Code and accordingly, in a case where, for some reason, the Magistrate defers the making of an order committing the case to the Court of Session,, he does not postpone the commencement of or adjourn any inquiry contemplated by S. 309(2) of the Code and consequently, an order remanding the applicants to custody made after the police had submitted the charge sheet, cannot be justified even under S. 309(2) of the Code. The Allahabad High Court further observed that interpreted in the light of the provisions of the Code relating to the inquiries, it becomes, obvious that "inquiry" is the name given to a proceeding conducted under the Code by a Magistrate or a Court other than a trial, for ascertaining or verifying facts with a view to take some action under the Code. The Allahabad High Court further observed that in a case which is triable exclusively by a .Court of Session, 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 and it cannot, therefore, be said that the Magistrate while proceeding to commit an accused under S. 209 conducts an enquiry.
The Allahabad High Court rejected the argument of the defence on the side of the prosecution that under the Code, before the Magistrate taking cognizance makes an order committing a case which is triable exclusively by a Court of Session, he has to see that the necessary copies mentioned in S. 207 of the Code are supplied to the accused and in many cases it will not be possible for the Magistrate to see that all the copies are supplied to the accused on the very first day when he appears or is brought before him and as such he will have to postpone the date for making the order committing the case to the Court of Session and if such proceedings before the Magistrate are not considered to be inquiry there would be a hiatus it pointed out that S. 207 nowhere lays down that the copies have to be supplied to the accused before making an order under S. 209 committing the case to the Court of Session and the making of an order Committing the accused to the Court of Session is not dependent upon the supplying of the copies mentioned in S. 207 to the accused person and the Magistrate is not debarred from complying with the provisions of S. 207, even after the order committing the case to Sessions has been made.
The Allahabad High Court proceeded further and observed that if there be a practice prevailing in the lower courts whereby the making of an order under S. 209 committee the case to Court of Session is deferred so as to enable the Magistrate to get the (sic) copies under S. 207 prepared and (sic) the accused, that practice is not in (sic) with the law and in a case where (sic) takes cognizance on a police (sic) report would invariably be there (sic) and he can always, on its basis, form an opinion whether or not the case is triable (sic) by the Court of Session and in making an order committing the case to the Court of Session, the Magistrate is not to hold any inquiry and therefore there is no reason why such Magistrate should not make (sic) committing the case on the same day on which the accused appears or is brought ''before Spiff and if the Magistrate defers the making on order committing the case to Sessions, (sic) the necessary copies have not been (sic) and supplied to the accused, he does not do so with a view to proceed with an inquiry on a future date but he does so for getting the copies prepared and supplied and this hah nothing to (sic) the conduct of (sic) and in such case the question of postponing any inquiry or trial simply does not (sic). The Allahabad High Court went on the observe: In this case, the difficulty to justifying the detention of the applicants is arising not because there is some lacuna in the Code but because the Magistrate did as required by S. 209, proceed to make an order committing the case to Sessions when the applicants appeared or were brought before his after he had taken cognizance of the offence.
Mr. Sankaran while vehemently contending that the furnishing of copies under S. 207, Crl.P.C. to an accused in a case instituted en a police report or the procedure prescribed in S. 209, Crl.P.C. would not amount to an inquiry has referred to the definition (sic) an inquiry as contained in the Law Lexicon of Ramanatha Iyer. There, it is said that "inquiry" includes every inquiry other than trial conducted under the Criminal Procedure Code by a Magistrate or Court--vide S. 4 of the Crl.P.C., 1898. It further states, that inquiry of a case is not deferred till such time as Magistrate begins to record evidence. It commences not with the lodging of the complaint or issue of process, but mw appearance of the accused before the Magistrate to answer the charges ( 33 Bom. L.R. 668) . It is further observed that an enquiry under the Criminal Procedure Code does not merely mean an enquiry into an offence; its meaning is considerably wider and extends to enquiries into matters which are not offences; and an inquiry in an action is not limited to what a man can see with his own eyes; it signifies a judicial inquiry with witnesses. Pointing out the difference between an inquiry and trial it is stated there that an inquiry under the Code of Criminal Procedure is a proceeding distinct from a trial. There is no definition of the word "inquiry" in the interpretation clause, S. 4 of the Crl.P.C. But there is this explanation of the term as used in the Code "enquiry includes every enquiry other than a trial conducted under this Code by a Magistrate or Court".
The question, therefore, now is whether inasmuch as a charge sheet has been laid against the petitioners before a Magistrate for an Offence triable exclusively by a Court of Sessions but the Magistrate has not yet committed the accused to take their trial before the Court of Sessions under S. 209, the detention of the accused is illegal. With great respect, I am unable to agree with the view of the Allahabad High Court in Lokshmi Brahman and another v. State 1976 Crl. L.J. 118 . Undoubtedly, a remand under S. 167, Crl.P.C. covers the period upto the filing of the charge sheet. After the filing of the charge sheet there can be no remand under S. 167. After the filing of the charge sheet, the provision for remanding accused persons when the court has to postpone the commencement of or adjourn any inquiry or trial is contained in sub-S. (2) of S..309. In a case triable exclusively by a Court of Session, as soon as it appears to the Magistrate that the offence is exclusively triable by a Court of Session, he is required under S. 209, Crl. P.C. to commit the case 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. The simple question now for determination is whether, after receiving the police report in a case triable exclusively by a Court of Session, the Magistrate, before Committing the case to the Court b� Session, holds an inquiry. The .word ''inquiry'' has been defined in S. 2(g) as meaning every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. The Allahabad High Court is of the view that there is no inquiry in such cases, for, all that the Magistrate is required to do in a case exclusively triable by a Court of Session is to furnish without delay to the accused a copy of the various documents mentioned is S. 207 and then if it appears to him that the offence is exclusively triable by a Court of Session, he is required to commit the case to the Court of Session. No doubt, the furnishing of copies under S. 207, Crl. P.C. would not amount to holding an inquiry. But then, under S. 209 when it appears to the Magistrate that the offence is exclusively triable by a Court of Session, he is required to commit the case to a Court of Session. Before it could appear to the Magistrate that the offence is triable exclusively by a Court of Session, the Magistrate has to from the police report or otherwise, ascertain the facts. The Allahabad High Court itself observes that the name "Inquiry" is given to a proceeding conducted by a Magistrate or a Court, other than a trial, for ascertaining or verifying facts with a view to take some action under the Code. But, nevertheless, it says that 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. But then, ascertainment of facts can be made by looking at the police report and the documents supporting it. There need not be any proceeding for ascertaining or verifying the facts and there need not be the actual examination of any witnesses for the purpose of ascertaining such facts. It cannot be gainsaid that for the purpose of finding whether the offence is triable exclusively by a Court of Session the Magistrate has to peruse the police report, etc. and ascertain facts from them. Such ascertainment of facts even if it does not involve the examination of any witnesses would be an inquiry, in my view. The Allahabad High Court interprets the provisions of S. 309(2) in the light of the other provisions of the Code in which there is a specific reference to an inquiry. But, those provisions in which there is a specific reference to inquiry will not .help us to determine whether the ascertainment of facts for the purpose of finding out whether an offence triable exclusively by a Court of Session is disclosed, is an inquiry. The absence of the word ''inquiry'' in S. 209 would not by itself indicate that when the Magistrate ascertains facts for the purpose of acting under S. 209 he does not hold an inquiry.
Moreover there must necessarily be a time interval between the appearance or the bringing of the accused before the Magistrate in a case instituted on a police report or otherwise and the actual passing of an order committing the case to the Court of Session; and if the view of the Allahabad High Court is to prevail, there is no provision in the Criminal Procedure Code which would cover that interval of time in so far as the question of the Custody of the accused is concerned. Even if immediately after the accused appears or is brought before the Magistrate, the Magistrate peruses the police report or otherwise immediately passes an order of committal, even then there will be an interregnum, however small it may be even a matter of few minutes, it cannot be that the Legislature in its wisdom allowed such a hiatus. The Allahabad High Court, however says that, "in this case the difficulty in justifying the detention of the applicant is arising not because there is some lacuna in the Code, but because the Magistrate did not, as required by S. 209 proceed to make an order committing the case to Sessions when the applicants appeared or were brought before him, after he had taken cognizance of the offence", Then again it may be that when the police report is filed, the accused may be in remand under S. 167, Crl.P.C. For the purpose of proceeding under S. 209, Crl.P.C., the accused has to appear or should be brought before the Magistrate. Therefore, inasmuch as the remand under S. 167 will enure only till the filing of the charge sheet, that remand would come to an end when the charge sheet is filed and the Magistrate in case the accused is in remand has to order his production before the Court for the purpose of inquiry and the Magistrate to act under S. 209. What is then the provision of law under which the accused could be said to be in custody during that interval of time between the filing of the final report of the police or production of the accused before the Court for the Magistrate to proceed under S. 209 Moreover, until the Magistrate finds that the offence is exclusively triable by a Court of Session he has to enquire into the case himself if he has jurisdiction to try the ease. S. 323, Crl.P.C. states that if, in inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained. Therefore, S. 209 is not the only provision relating to the committing of an accused person to take his trial. S. 309(2) therefore, runs as follows:
If the Court, after taking cognizance of an offense or commencement of trial, finds it necessary or advisable to postpone the commencement of or adjourn any inquiry or trial it may, from time to time, fin reasons to be recorded, postpone or adjourn the MOM on such terms as it thinks fit; for such time as it ponders reasonable and may by a warrant remand the accused if in custody.
This provision in my opinion covers the post cognizance stage. It also states that in cases where, after taking cognizance, of an offence the Magistrate finds it necessary or advisable he has to postpone even the commencement of any inquiry or trial. An enquiry or trial commences only when the accused appears is brought before a Magistrate. Therefore, even before the enquiry, any remand would be under S. 309(2), if the Court had taken cognizance of the offence. Even when the Magistrate postpones the commencement of an inquiry, this section would come (sic) operation. Such being the case we cannot exclude from its ambit the interval of (sic) that passes between the Magistrate taking cognizance of the offence and the Magistrate passing an order of committal under S. 209 Crl.P.C. Therefore I am unable, with great respect, to agree with the view of the Allahabad High Court and in my view, after the filing of the charge sheet the remand of the accused in this case is only under S. 309(2) and the detention of the accused in custody is not illegal.
Citing the decision in Izhar Ahmad v. State 1978 Crl.C.J. 58 , Mr. Sankaran has argued that the detention of the petitioners in this ease tit illegal inasmuch as neither at the stage of a remand under S. 167. Crl.P.C . nor at the time when the charge sheet was filed in the Court of the Magistrate for the Magistrate to proceed under S. 209, Crl.P.C. the accused were'' produced before the Magistrate of course the proviso (b) to sub-S. 2 of S. 167 of the new Code says that no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him J Therefore, for the purpose of granting a remand under S. 167, Cr.P.C. or for the purpose of extending the remand under that section from time to time, the production of the accused before the Magistrate is obligatory. No doubt S. 209 also state''s that "when in a case instituted on a police report or otherwise the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by a Court of Session...." Therefore, the accused hit to be produced before the Court or has to appear before the Court at the time when the Magistrate proceeds to act under S. 209. But then, there is no provision which enjoins the production of the accused before the Court for the purpose of changing the remand made under S. 167 to one under S. 309(2), Crl.P.C. Therefore, I am not able to agree with the contention of Mr. Sankaran that the detention of the petitioners is illegal inasmuch as the petitioners were not produced before the Court at the time when the police charge sheet was filed and the remand was made under S. 309(2).
The next contention of Mr. Sankaran is that the Magistrate after receipt of the charge sheet, while adjourning the case for further proceedings, has not given any reason as to why he was postponing the commencement or enquiry, of the trial. S. 309(2) states that if the court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or 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 think fit...and may by a warrant, remand the accused if in custody. The Magistrate has postponed the commencement of the enquiry in this case for the purpose of furnishing the accused with copies mentioned in S. 207. Therefore, it is not as if the Magistrate has not recorded any reasons for so adjourning the commencement of the enquiry in this case.
Lastly, Mr. Sankaran contended that the petitioners are entitled to be released on bail inasmuch as the investigation does not disclose that they had committed any overt acts. Of course, under S. 439(1), Crl.P.C. the High Court or the Court of Session can grant bail to persons accused of an offence punishable with death or imprisonment for life. But, as-observed by the Supreme Court in Gurcharan Singh v. State AIR 1978 S.C. 179 the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under S. 439(1) and the overriding considerations in granting bail are the nature and gravity of the circumstances in which the offence is committed, the position and status of the accused with reference to the victim and the witnesses, the likelihood of the accused fleeing from justice, of repeating the offence and of tampering with witnesses; and the two paramount considerations are the likelihood of accused fleeing from justice and of tampering with prosecution witnesses and due and proper weight should be bestowed on these two facts.
Coming now to the merits of this petition it must be noted that this is a case of gruesome double murder and grievous and simple injuries have been caused to 16 persons in Koodapathu village on the night of 3rd May 1978 with deadly weapons like knife, koduval, cycle chain, country made bomb, etc. According to the investigation, the petitioners as well as a number of other accused entered into the village armed with the aforesaid deadly weapons and went from street to street and attacked persons. The overt acts have been spoken to by the witnesses examined during investigation in regard to the accused Krishna Reddy.
It also appears from investigation that at the instigation of the first petitioner Krishna Reddy, some of the other accused caused fatal injuries and caused the death of one Nainathi. Similar overt acts have also been spoken to by the witnesses so far as the accused Chinnaraju is concerned and actually he was caught red-handed by the villagers and he had also caused injuries to two persons and he was armed with a stick. Against the accused Krishna Reddi, among other offences an offence under S. 302 read with S. 109 or S. 302 read with S.34, I.P.C. is disclosed. Against accused Chinnaraju, among other offences an offence under S. 302 read with S. 149, I.P.C. has been disclosed. Against both these accused an offence under S.307 read with S. 149, I.P.C. is also disclosed. Therefore, I see no reason to release these two petitioners on bail. The petition-is therefore dismissed.