Ramanuj Tiwari and Nagendrapati Tripathi @ Laljee vs The State of Bihar and Others

Heard learned Counsel appearing on behalf of the Petitioners and learned Standing Counsel No. VIII for the State.

By this application, the Petitioners have challenged their detention in Bihar Police Station Case No. 133 of 2001 as invalid, as they have been remanded by the learned Magistrate to judicial custody after submission of charge sheet and without taking cognizance of the offence.

Learned Counsel appearing on behalf of the Petitioners in support of his contention has relied upon the case of S.K. Lal, Special Judge, C.B.I. (AHD), Patna v. Lalu Prasad and Ors. 1998 (1) PLJR 782.

It appears that investigation of Bihta Police Station Case No. 133 of 2001 was completed and charge sheet was submitted by the Investigating Officer in the court of the Additional Chief Judicial Magistrate, Danapur, on 12.9.2001.

It further appears that after filing of the charge sheet in the court of the learned Magistrate the Petitioners were remanded to judicial custody in exercise of powers u/s 209(a) of the Code of Criminal Procedure (hereinafter to be referred to as "Code"). Now the remand of the Petitioners is being challenged solely on the ground that the remand would be u/s 309 of the Code and the court had no jurisdiction to remand the accused to judicial custody before taking cognizance of the offence, which, according to the Petitioners, was not done by the learned Magistrate.

The law on this point is almost settled by various decisions of this Court. In the case of S.K. Lal (supra), a Bench of this Court held that taking cognizance of the offence is pre-requisite to the exercise of powers of remand u/s 309 of the Code and unless cognizance is taken in a warrant case, the court has no jurisdiction to remand the accused to judicial custody u/s 309 of the Code. It was further held that the intervening period between filing of the charge sheet and commencement of the trial must not be mistaken as inquiry, rather it would be a judicial proceeding and in view of Section 309 of the Code, if the court is unable to take cognizance u/s 190 of the Code, then it has no authority to remand the accused.

The ratio laid down in the case of S.K. Lal (supra) was considered by subsequent Bench of this Court in Ramayan Singh Vs. State of Bihar and Another, This Court in Ramayan Singh (supra) relying upon a Full Bench decision of this Court rendered in Rabindra Rai Vs. State of Bihar, held:

Thus, the binding precede (sic) are that after submissions of the chargesheet and before passing an order u/s 209 committing an accused to the court of session in a case tribal by the court of session, the proceeding pending before the Magistrate is an enquiry and during that period he can exercise the power of remand either u/s 309 of the Code or u/s 209(a) of the Code after its. amendment by Act 45 of 1978, which clearly provides that during the commitment an accused can be remanded to custody subject to the provision of bail. This amendment in Section 209 of the Code by the aforesaid Act was made to remove the difficulty actually experienced in cases where the Committing Magistrate is unable to commit the accused on the same day.

The subsequent Bench in Ramayan Singh (supra), however, distinguished the ratio laid down by this Court in S.K. Lal''s case (supra) in the following terms:

The decision in the case of S.K. Lal (supra) has no application to the facts of this case and the same is evident from the observations made by the Division Bench in paragraph No. 22 of the judgment, wherein it has been clearly stated "The case with which we are concerned, is not a sessions case, but a case triable as a warrant case". In that case, the decisions rendered by the Supreme Court in the case of Lakshmi Brahman (supra) and by the Full Bench in the case of Rabindra Rai (supra) were also cited but they were distinguished and their lordships relying upon the judgment in the case of Raj Kishore Prasad (supra) came to the aforesaid conclusion. As stated above, that was a warrant case and there is no question of commitment or enquiry at any time after final form is submitted and after the cognizance is taken the trial begins. This apart, even assuming that this question has been decided by the Division Bench and has been held that taking of cognizance is a condition precedent for exercise of power of remand in a case pending for trial, I am of the view that the said judgment cannot be relied upon in preference to the law laid down by the Supreme Court and the Full Bench of this Court. It is settled by a catena of decisions of the Apex Court that if the matter is pending before a Division Bench and it is submitted that the earlier Full Bench judgment on the said point was erroneous by virtue of a subsequent judgment of the Supreme Court, the proper course for the Division Bench to follow, if it found any merit in the submission, was to refer the said matter to a Full Bench. In the words of the Supreme Court "the judicial discipline requires that a Division Bench should not examine de novo an issue that is concluded by the decision of a Full Bench of that High Court." See State of U.P. and another Vs. C.L. Agrawal and another, etc., So far as the cases of Pawan Kumar Jaiswal (supra) and Magni Mahto (supra) are concerned, the same were decided relying upon the judgment rendered in the case of S.K. Lal (supra) and the remand was held to be illegal.

It is further held in the case of Ramayan Singh (supra) that the word "cognizance" does not require any formal action and when the court applies its mind judicially to the relevant materials on record, then it is said to have taken cognizance. Under the scheme of the Code has not been treated the stage like inquiry, investigation or trial. There are only three stages in criminal case, namely, investigation, inquiry and trial depending upon the nature of the cases and power of remand has been provided during the aforesaid stages if the accused is not on bail. While summing up their Lordships in Ramayan Singh (supra) further held:

With all humility and with respect to the Hon''ble Judges, who have rendered judgment in the case of Raj Kishore Prasad (supra), I follow the judgments rendered by the Apex Court in the earlier two cases and which have been followed by a Full Bench of this Court in the case of Rabindra Rai (supra) and hold that a proceeding before the Magistrate after submission of the charge sheet and before commitment of the case in a case where the commitment is to be made, is an enquiry u/s 2(g) of the Code and during that period the Magistrate has power to remand either u/s 209(a) or u/s 309(2) of the Code.

The question raised by learned Counsel appearing on behalf of the Petitioners, in our opinion, is squarely covered by the decision rendered by this Court in the case of Ramayan Singh (supra) and detention of the Petitioners in the given case would not be illegal or without jurisdiction, as the learned Magistrate has not in specific words recorded that he took cognizance of the offence after filing of the chargesheet.

For the reasons aforementioned and in view of the legal propositions noticed above, we hold that the detention of the Petitioners is valid and requires no interference by this Court.

In the result, this application is dismissed.