Nishan Singh vs State of Punjab

P.K. Jain, J.

The petitioner was arrested in F.I.R. No. 59 of 1997 registered at Police Station Shahkot, District Jalandhar for an offence under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). During the course of investigation, he was remanded to judicial custody by the Judicial Magistrate at Nakodar (who had the territorial jurisdiction over Police Station Shahkot). On 11.8.1997, the petitioner was produced before the Duty Magistrate, Nakodar as the Illaqa Magistrate was on leave. The petitioner moved an application seeking bail under Section 167(2) of the Code of Criminal Procedure (hereinafter referred to as the Code). After obtaining a report from the Ahlmad of the Illaqa Magistrate as well as a statement made at the Bar by Shri Sukhdev Singh, Public Prosecutor that the challan had not been presented in the court by the police within 90 days, the Duty Magistrate granted bail to the petitioner. However, on 12.8.1997, the said Duty Magistrate received the challan file in a registered cover sent by the Duty Magistrate, Jalandhar whereby it was revealed that the chargesheet had been filed before the Duty Magrate granted, Jalandhar by the police on 4.8.1997. The Duty Magistrate, Nakodar recalled his order dated 11.8.1997 and directed the arrest of the petitioner vide order dated 12.8.1997. The petitioner challenged the said order and sought bail underSection 438 of the Code from the Session Judge, Jalandhar which was declined by order dated 22.9.1997. Feeling aggrieved, the petitioner has approached this court.

While assailing the legality of the order dated 12.8.1997 passed by the Duty, Magistrate, Nakodar, Shri H.S. Riar, Senior Advocate, learned counsel for the petitioner has argued that the bail granted to the petitioner on account of a default of the prosecution as envisaged by Section 167(2) of the Code could not be cancelled or recalled, merely on the ground that subsequently a chargesheet has been received by that court. It has been further argued by the learned counsel that no chargesheet had been filed in a proper court having jurisdiction within the prescribed period of 90 days and as such the Duty Magistrate had no power to recall the order and revoke the bail granted to the petitioner. It has also been pointed out by the learned counsel that the impugned order has been passed even without giving any opportunity to be heard to the petitioner. Thus, it has been contended that the order dated 12.8.1997 may be set aside and the petitioner may be released on bail during the pendency of the trial.

On the other hand, Shri I.P.S. Sidhu, learned Assistant Advocate General, Punjab has argued that the chargesheet was filed by the police before the Duty Magistrate, Jalandhar on 4.8.1997 i.e. within the prescribed period of 90 days, that the bail was granted to the petitioner on a misrepresentation that the challan had not been filed within the prescribed time and when the true facts came to light, the Magistrate rectified by recalling the order dated 11.8.1997 as empowered under S. 437(5) of the Code.

I have considered the respective arguments advanced at the Bar as well as the relevant provisions of law contained in Sections 167, 173, 190 and 437 of the Code.

Subsection 1 of Section 167 insofar as it is relevant for our purpose provides that whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within 24 hours and there are grounds for believing that the accusation or information is well founded, the officerincharge of the police station or the investigating officer not below the rank of SubInspector shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary and forward the accused to such Magistrate. Subsection (2) of Section 167 which has bearing on the question under consideration may be extracted at this stage.

"167(2) : The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.

Provided that

(a) the Magistrate may authorise the detention of the accused persons, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this subsection shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter."

Thus, it becomes clear that the initial remand of an accused for fifteen days in the whole can be granted by a Judicial Magistrate, irrespective of the fact if he has or has not jurisdiction to try the case. After the expiry of the initial remand period of fifteen days, the accused is required to be produced before a Judicial Magistrate having jurisdiction to try the case or to commit the case to the court of Sessions for trial. The expression "the Magistrate" in the proviso would mean the Magistrate having jurisdiction to try the case or to commit the case for trial. If such Judicial Magistrate is not available on the date fixed, the accused can be produced before the Duty Magistrate who can pass an appropriate order in the facts and circumstances of the case. If the investigation is not completed and a chargesheet is not filed within the time prescribed, the accused would be entitled to be released on bail. The right to bail under proviso (a) to Section 167(2) of the Code is absolute. It is a legislative command and not court''s discretion. In fact, the Judicial Magistrate has no power to remand a person beyond the stipulated period.

The relevant portion of Section 173 of the Code reads as under :

"(1) Every investigation under this Chapter shall be completed without unnecessary delay.

(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government........"

From a bare reading of the above provision it is evident that on completion of the investigation a chargesheet is to be filed before a Magistrate empowered to take cognizance of the offence on a police report. On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) of the Code. In other words, the requirement of law is that after completing the investigation the officerincharge of the Police Station or the Investigating Officer shall file the chargesheet as envisaged by Section 173(2) of the Code before a Magistrate having jurisdiction to take cognizance of the offence. If the chargesheet has been filed before a Magistrate who has got no jurisdiction to take cognizance, the same would not fulfil the necessary requirement of Sections 167(2), 173 and 190 of the Code. It cannot be disputed that an order for release on bail under proviso (a) to Section 167(2) of the Code may appropriately be termed as an orderondefault. It is a release on bail on the default of the prosecution in filing the chargesheet within the prescribed period. The term ''default'' means neglect to do what duty or the law requires. If Officerincharge of the Police Station or the Investigating Officer files a chargesheet in a court which has got no jurisdiction to take cognizance of the offence disclosed therein, it cannot be said that the chargesheet has been filed in the court. Till such time the chargesheet comes before the proper court, the default as envisaged by Section 167(2) of the Code continues and accused is entitled to the benefit thereof.

In the present case, it is not disputed that the Judicial Magistrate at Nakodar had the jurisdiction to take cognizance of the offence in question on a police report. It was for this reason that the petitioner was being produced before the said Judicial Magistrate for purposes of remand from time to time. Admittedly no chargesheet had been filed in that court within the prescribed period of ninety days. It is also not disputed that the chargesheet was not filed even in the court of Duty Magistrate at Nakodar where accused was produced on the expiry of the period if judicial remand. According to the prosecution, the chargesheet was filed before the Duty Magistrate at Jalandhar. Admittedly, the Judicial Magistrate/Duty Magistrate at Jalandhar had no jurisdiction to take cognizance of the offence in the present case. It was for this reason that the Duty Magistrate remitted the file by post to the concerned court at Nakodar. In other words, there was a default on the part of the prosecution in not filing the chargesheet within the stipulated period of 90 days before the appropriate court. Filing of the chargesheet before a Duty Magistrate at Jalandhar would not cure the defect nor it would effect the right of an accused to claim bail on the technical ground in view of the proviso (a) to Section 167(2) of the Code. Therefore, the Magistrate was not justified in recalling his order dated 11.8.1997 granting bail to the petitioner and directing his arrest. Once an accused is released on bail under Section 167(2), he cannot be taken back in custody merely on the filing of a chargesheet but there must exist special reasons for so doing besides the fact that the chargesheet reveals the commission of nonbailable crime.

9 A. No explanation is forthcoming as to why the chargesheet was filed on 4.8.1997 before the Duty Magistrate at Jalandhar, when the Judicial Magistrate having jurisdiction in respect of the work of Police Station Shahkot, was at Nakodar. It is also not understandable as to why the Duty Magistrate at Jalandhar accepted the chargesheet and then forwarded the same to the concerned Magistrate at Nakodar by post and not through a special messenger. Further it is to be ascertained as to why not the Investigating Officer alongwith the case diary was present in the court of the Duty Magistrate at Nakodar on 11.8.1997 when the petitioner claimed and was granted bail on account of the default of the prosecution. The role of the public prosecutor in making a statement at the Bar that the chargesheet has not been filed within the prescribed period of 90 days also requires to be looked into.

The second limb of the aforesaid contention raised by the learned Senior Advocate carries more weight, although the same is controversial in nature at this stage. The argument is that after the amendment of Section 36 and insertion of Sections 36A to 36D by the Amendment Act No. 2 of 1989, the Sessions Court has power to take cognizance of an offence under the Act without the accused being committed to it for trial, if Special Court has not been constituted for the area in which such offence has been committed. The argument proceeds further that filing of a chargesheet before any Magistrate either at Jalandhar or at Nakodar was contrary to law and the initial defect of not filing the chargesheet within the stipulated period could not be cured unless the same was filed before a Sessions Judge. In support of this plea, the learned counsel has placed reliance upon a judgment of a Single Bench of this court rendered in Nachhatar Singh v. State of Punjab, 1996(1) Recent C. R. 202 which in its turn, is based upon a decision of the apex court delivered in Supreme Court Legal Aid Committee representing undertrialprisoners v. Union of India, 1994(3) RCR(Crl.) 639 : JT 1994(6) SC 544.

On the other hand Shri I.P.S. Sidhu, learned Assistant Advocate General Punjab has argued that during the transitory period i.e. till such time Special Courts are constituted in the State of Punjab the Sessions Judge has been empowered only to try the offences under the Act and he cannot take cognizance of an offence directly without a commitment order to be passed by a Magistrate under Section 193 of the Code. Reliance has been placed upon a Full Bench judgment of this Court delivered in Janta Singh v. State of Punjab, 1996(1) Recent C.R. 1.

To appreciate the respective arguments advanced at Bar, it can be noted that the Legislature has reenacted Section 36 and added Sections 36A to 36D by the Amendment Act No. 2 of 1989. The whole object of these amendments is speedy trial of the offences under the Act and for dealing more effectively with the persons indulging in drugabuse and illicit traffic therein. Section 36 provides for constitution of Special Courts by the Central Government or a State Government and also for appointment of Judges to those Courts. Section 36A(1)(a) provides that notwithstanding anything contained in the Code of Criminal Procedure, all offences under the Act shall be triable only by the Special Court constituted for the area in which the offence has been committed. Section 36A(1)(c) confers upon the Special Court the same powers which a Magistrate having jurisdiction to try a case may exercise under S. 167 of the Code in relation to an accused person in such case who has been forwarded to him under that section. Section 36A(1)(d) expressly provides that a Special Court may upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. Thus a Special Court has to be treated as a court of original criminal jurisdiction. Section 36D contains a transitional provision i.e. the provisions applicable during the period commencing with the Amendment Act No. 2 of 1989 till the constitution of Special Courts. It provides that any offence committed under this Act on or after the commencement of the said Amendment Act, until a Special Court is constituted under Section 36 shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973, be tried by a Court of Sessions.

A controversy arose among the various High Courts on the question as to whether Court of Sessions has the power and competence to take cognizance of an offence under the Act directly on a police report or a complaint by an authorised officer without any commitment order by the Magistrate under Section 193 of the Code. The majority of the High Courts has answered the question in affirmative. So far as our High Court is concerned, there is a conflict of views. In Janta Singh''s case (supra), the Full Bench while considering the question as to whether the Magistrate has the power to grant remand to an accused forwarded to it for an offence under the Act for a period more than fifteen days in the whole, observed that only the power of trial has been given to the Court of Sessions and not the power contained in Section 36A(1)(c)(d). According to this decision, a Sessions Judge cannot take cognizance of an offence under the Act directly without the case being committed to it by the Magistrate under Section 193 of the Code. However in Nachhatar Singh''s case (supra) the Single Bench did not follow the aforesaid view of the Full Bench and held that an offence under this Act is triable by a Court of Sessions, until the constitution of a Special Court, without there being any commitment order. For this view the learned Single Bench placed reliance upon the following observations made by the apex court in the case of Supreme Court Legal Aid Committee representing undertrial prisoners (supra), :

"Subsection (1) of section 36A over rides the provisions of the Code. So, from the date of its introduction on the statute book the Magisterial Courts ceased to have jurisdiction or power of try any offence committed under the Act even if the punishment prescribed is three years or less since only the Court of Session is empowered to deal with such cases. There would, therefore be no question of the Magistrate going through the exercise of committal proceedings as on account of the nonobstante clause in section 36D(1)(a), all offences under the Act become triable only by the Court of Session till the constitution of Special Courts and thereafter by the Special Court."

It thus, prima facie appears that the Court of Sessions has all the powers, duties and obligations which the Special Court has been given. It may be clarified that this very controversy has again cropped up before this Court and has been referred to a larger Bench, the reference being still pending.

Viewed in the aforesaid light and scheme of the Act and the context in which the amended provisions of Section 36D occur, the learned counsel for the petitioner appears to be right in contending that the chargesheet ought to be filed before the Court of Sessions. But in view of the pending reference before a larger Bench it may not be taken to be a final expression of opinion regarding the interpretation of the aforesaid provisions.

It requires mention that in Janta Singh''s case the Full Bench was optimistic in making the following observations :

"While parting with the judgment, we hope and expect that the States of Punjab and Haryana and Union Territory Chandigarh Administration would constitute Special Courts under Section 36 of the Act as soon as it is possible for them to do so."

It is regretfully said that the aforesaid judgment was delivered on 21.9.1995 right in the presence of the counsel for the State of Punjab. A period of more than two years had elapsed but Special Courts have not been constituted in any of the two States or the Union Territory of Chandigarh. If such courts are constituted as per mandate of the Legislature contained in section 36 of the Act, the whole controversy comes to an end. At present a serious controversy is going on in these two States and the Union Territory as to whether Judicial Magistrate has the power to grant remand of an accused under the Act for a period of more than fifteen days in a whole and whether the chargesheet after investigation in respect of an offence under the Act, can be filed before a Judicial Magistrate or a Sessions Judge. The Subordinate Courts are really in bewilderment as to what to do in view of the aforesaid conflicting views expressed by this court. Therefore, to achieve the legislative object in reenacting Section 36 and inserting Sections 36A to 36D in the Act necessary directions will have to be given to both the States as well as the Union Territory Chandigarh for the constitution of the Special Courts under Section 36 of the Act.

As a result of the above discussion, this petition is allowed. The order dated 12.8.1997 passed by the Duty Magistrate Nakodar as well as the order dead 22.9.1997 passed by the Additional Sessions Judge, Jalandhar are set aside and the order dated 11.8.1997 granting bail to the petitioner is hereby restored on the same terms and conditions. The petitioner is given 15 days'' time to execute fresh bail/surety bond to the satisfaction of Illaqa Magistrate/Duty Magistrate, Nakodar.

Sessions Judge Jalandhar is directed to hold an enquiry into the various aspects mentioned in para 9 above and to submit report to this court within a period of two months from the date of receipt of copy of this order.

A notice be issued to the Advocate General for the State of Punjab, Advocate General for the State of Haryana and the Standing Counsel for the Union Territory of Chandigarh, to appear and disclose as to what steps have been taken after the pronouncement of the Full Bench decision in Janta Singh''s case (supra) for the constitution of the Special Courts under Section 36 of the Act.

A copy of this order be given dasti to the counsel for the petitioner. A copy of the order be sent to the Judicial Magistrate, Nakodar and Sessions Judge, Jalandhar for information and compliance. A copy of the order be also sent along with notice to the Advocate Generals of the two States and the Standing Counsel for Union Territory, Chandigarh.

Adjourned to 25.11.1997.