Full Judgment Text
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PETITIONER:
STATE OF U.P.
Vs.
RESPONDENT:
LAXMI BRAHMAN & ANR.
DATE OF JUDGMENT11/03/1983
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
MISRA, R.B. (J)
CITATION:
1983 AIR 439 1983 SCR (2) 537
1983 SCC (2) 372 1983 SCALE (1)274
CITATOR INFO :
RF 1986 SC2130 (31)
ACT:
Code of Criminal Procedure, 1973-S. 167 (2) as it stood
prior to 1978 and Ss. 170. 207, 209 and 309 (2)-Offence
exclusively triable by Court of Session-Power of Magistrate
to grant ball to or remand accused to custody-When
investigation is not complete within prescribed limit
Magistrate has power under S.167 (2) to grant bail to
accused provided he applies for it and is prepared to
furnish bail-After submission of police report under S. 170
and before committing accused to Court of Session under S.
209 Magistrate has power under S. 309(2) to remand accused
to custody.
Code of Criminal Procedure, 1973-S. 2(g) and Ss. 190,
207 and 209-Taking cognizance of offence by Magistrate under
S. 190 is a judicial function -Discharge of statutory
obligation by Magistrate to furnish copies of documents to
accused under S. 207 read with S. 209 is also judicial
function and constitutes ’inquiry’ within the meaning of S.
2(g).
HEADNOTE:
The respondents were suspected of having committed an
offence punishable with death or imprisonment for life under
section 302 I.P.C. triable exclusively by the Court of
Session. They surrendered before the Magistrate on November
2, 1974 and were taken into custody. The investigating
officer failed to submit the charge-sheet/police report
against them within the period of 60 days contemplated by
the proviso to sub-s. (2) of S. 167 of the Code of Criminal
Procedure 1973 as it stood prior to its amendment in 1978.
However, the respondents did not apply to the Magistrate for
being released on bail but approached the High Court under
S. 439 Cr. P.C. According to the High Court, the charge-
sheet against the respondents was submitted on February 5
1975. The High Court directed that the respondents be
released on bail pending trial by the Court of Session
holding:
(i) that in a case triable exclusively by the Court of
Session after the charge-sheet has been submitted
under S. 170 and before committing the accused to
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the Court of Session the Magistrate has no
jurisdiction to authorise the detention of an
accused in custody under S. 167 Cr. P.C.;
(ii) that in such a case S. 209 would not confer power
on the Magistrate to commit the accused to custody
since after the enactment of the Code of Criminal
Procedure, 1973, the procedure before the
Magistrate under Chapter XVI of the Code would not
be an inquiry within the meaning of S. 2 (g)
thereof;
538
(iii)that in such a case S. 309 would also not enable
the Magistrate to A remand the accused to custody
since he would not be competent to try the
accused; and
(iv) that in view of the provision contained in S. 207
read with S. 209 Cr. P.C. the Magistrate has to
commit the accused forthwith to the Court of
Session and it is only after the order of
commitment is made that the Magistrate will have
power to remand the accused to the custody during
and until the conclusion of the trial.
Allowing the appeal,
^
HELD: The view that after the accused is brought before
the court along with the police report under S. 170 Cr. P.C.
the Magistrate must forth with 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 the
Court of Session is made. is wholly untenable and must be
set aside. [550-F-H]
Section 170 Cr. P.C. Obligates the investigating
officer to submit the police report, if in the course of
investigation sufficient evidence or reasonable ground is
made out for the trial or for commitment for trial of the
accused, to the Magistrate empowered to take cognizance of
the offence upon a police report. On this report being
submitted, the Magistrate takes cognizance of the offence
disclosed in investigation as envisaged by S.190. Cognizance
of an offence even if exclusively triable by the Court of
Session has to be taken by the Magistrate be cause S. 193
precludes the Court of Session from taking cognizance of any
offence. Taking cognizance of an offence under S. 190 is a
purely judicial function subject to judicial review. The
statutory obligation imposed by S. 207 read with S. 209 on
the Magistrate to furnish free of cost copies of documents
mentioned in S. 207 to the accused is a judicial function
and it has to be discharged in a judicial manner. It is
distinctly possible that the copies may not be ready. That
makes it necessary to adjourn the matter for some time which
may be spent in preparing the copies and supplying the same
to the accused. The Magistrate can proceed to commit the
accused for trial to the Court of Session only after he
judicially discharges the function imposed upon him by S.
207. This conclusion is fortified by the provisions
contained in Ss. 226 and 227 of Chapter XVIII which
prescribe the procedure for trial of a case by the Court of
Session. When the Magistrate is performing a judicial
function under s. 207, it would undoubtedly be an inquiry.
The making of an order committing the accused to the Court
of Session will equally be a stage in the inquiry. Thus from
the time the accused appears or is produced before the
Magistrate with the police report under S. 170 and the
Magistrate proceeds to enquire whether S. 207 has been
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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 S. 2(g), and S. 309(2)
would enable the Magistrate to remand the accused to custody
till the inquiry to be made is complete. [547-G-H; 548-A-B;
549-B-H; 550A-D]
539
In the instant case, when the matter was before the
High Court, the charge-sheet had not been submitted against
the respondents by the investigating A officer meaning
thereby that the investigation was still in progress. If the
High Court had no information when the application for bail
moved by the respondents for being enlarged on bail was
heard as to whether the charge-sheet against the respondents
had been submitted to the Magistrate or not, it was futile
for the High Court to have undertaken an investigation of a
point of law which did not directly arise in the facts
before the High Court. As the High Court had dealt with the
matter, it became a precedent and, therefore, it became
necessary for the Court to examine whether the view of the
High Court was in consonance with the provisions of the
Code. [544-H; 545-A-D]
The High Court was right in holding that the
jurisdiction to grant bail, in case investigation is not
completed within the prescribed limit as incorporated in the
proviso to S. 167 (2) as it then stood, vests in the
Magistrate if the accused applies for and is prepared to
furnish bail. Section 167 envisages a stage when a suspect
is arrested and investigation is not complete within the
prescribed period. The investigation would come to an end
the moment charge-sheet is submitted as required under S.
170 unless the Magistrate directs further investigation.
[545 E-F]
State of Bihar and Arn. v. J.A.C. Saldanha and Ors.
[1980] 2 SCR 16, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
249 of 1976.
Appeal by Special leave from the Judgment and order
dated the 10th July, 1975 of the Allahabad High Court in
Criminal Misc. No 1104 of 1975.
Prithvi Raj and Dalveer Bhandari for the Appellant.
N.M. Ghatate for the Respondents.
The Judgment of the Court was delivered by
DESAI, J.: Respondents Lakshmi Brahman and Naval Garg
were suspected of having committed an offence punishable
with death or imprisonment for life under section 302 IPC.
Both of them surrendered before the Magistrate on November
2, 1974 and were taken into custody. The investigation was
then in progress. The investigating officer failed to submit
the charge-sheet against
540
them within a period of 60 days as contemplated by sub-sec 2
of sec. 167 of 1973 Code prior to its amendment by the
Criminal Procedure Code (Amendment) Act, 1978 which enlarges
the period from 60 to 90 days where the investigation
relates to an offence punishable with death, imprisonment
for life or imprisonment for a term of not less than 10
years. In this case we are concerned with the proviso to
sec. 167 (2) of the Cr. P. C. 1973 prior to its amendment in
1978. It appears that the Investigating officer failed to
submit the charge-sheet within the prescribed period and
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according to the High Court till as late as February 5,
1975. Thereupon the two respondents moved an application
under sec. 439 of the Cr. P. C. invoking the power of the
High Court to grant bail to any person accused of an
offence, even where the offence is punishable with death or
imprisonment for life.
A Division Bench of the Allahabad High Court which
heard the application was of the opinion that after the
charge-sheet has been submitted under sec. 170 Cr. P. C.,
the Magistrate has no jurisdiction to authorise the
detention of an accused in custody under sec. 167 Cr. P. C.,
and therefore, the authority to remand the accused to
custody after the charge-sheet has been submitted, has to be
gathered from other provisions of the Code. The High Court
then posed to itself the question whether in a case
instituted upon a police report exclusively triable by the
Court of Sessions, the Magistrate while committing the
accused to the Court of Sessions, under sec. 209 Cr. P. C.
has, after the accused is brought before him and before the
order committing the accused to the Court of Sessions is
made, jurisdiction to remand the accused to custody other
than the police custody ? The High Court was of opinion that
since after the enactment of Code of Criminal Procedure,
1973, the proceeding before the Magistrate under Chapter XVI
of the Code would not be an enquiry within the meaning of
the expression in sec. 2 (g) and, therefore, sec.209 would
not confer power on the Magistrate to commit the accused to
custody. Proceeding along the line, the High Court held that
in view of the provision contained in sec. 207 read with
sec. 209 of the Cr. P. C. the Magistrate has to commit the
accused forthwith to the Court of Sessions and only after
the order of commitment is made, the Magistrate will have
power to remand accused to the custody during and until the
conclusion of the trial. Tho High Court according held that
the Magistrate has no
541
jurisdiction, power or authority to remand the accused to
custody after the charge-sheet is submitted and before the
commitment order is made, and therefore the accused were
entitled to be released on bail. So saying, the High Court
directed that the respondents be released on bail pending
the trial by the Court of Sessions. State of U.P. has
preferred this appeal by special leave.
Respondents have not appeared even though served and
the notice of lodgment of appeal has also been served upon
them. As the respondents had not entered appearance, a fresh
notice of hearing the appeal was also issued, but the
respondents have not chosen to appear at the hearing of the
appeal. Mr. Prithviraj, learned counsel appeared for the
appellant, State of U.P. At the commencement of the hearing
of the appeal, we enquired from him as to what has happened
to the case against the respondents, whether the trial had
taken place; whether they were acquitted or convicted and
whether any useful purpose would be served by hearing of the
appeal which appears to us to have become practically
infructuous. Mr. Prithviraj had no information about the
stage of trial and the present position of the respondents.
But it was urged that the interpretation put by the High
Court on secs. 207, 209 and 309 if not examined by this
Court is likely to result in miscarriage of justice in a
large number of cases as the High Court has introduced a
stage of compulsory grant of bail to persons accused of
serious offence not warranted by the Code, and who would not
be otherwise entitled to the discretionary relief of bail.
It is this submission which has persuaded us to examine the
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contention on merits.
Section 2(g) of the Code defines inquiry to mean every
inquiry, other than a trial, conducted under the Code by a
Magistrate or Court. Cognizable offence has been defined in
sec, 2(c) to mean an offence for which, a police officer
may, in accordance with the First Schedule or under any
other law for the time in force, arrest without warrant.
Sec. 57 provides that no police officer shall detain in
custody a person arrested without warrant for a longer
period than under all the circumstances of the case is
reasonable and such period shall not, in the absence of a
special order of a Magistrate under Sec. 167, exceed twenty-
four hours, exclusive of the time necessary for the journey
from the place of arrest to the Magistrate’s Court. In fact,
the provision contained in sec, 57 incorporates the
fundamental right guaranteed by Art. 22 of the
542
Constitution. Chapter XII of the Code incorporates
provisions for initiation of investigation on receipt of
information of a cognizable offence continuing the
investigation culminating in the submission of a police
report otherwise styled as charge-sheet under sec. 170 to
the Magistrate having jurisdiction, which would imply the
end of investigation. Subsequent proceeding before the
Magistrate would be the commencement of inquiry or trial
leading to either commitment for trial in the Session Court
or to discharge or acquittal of the accused by the Court
having jurisdiction to try the case. Sec. 167 finds its
place in Chapter XII. Prior to its amendment by the amending
Act of 1978, it read as under:-
"(1) Whenever any person is arrested and detained
in custody, and it appears that the investigation
cannot be completed within the period of twenty-four
hours fixed by sec. 57, and there are grounds for
believing that the accusation or information is well
founded, the officer-in-charge of the police station or
the police officer making the investigation, if he is
not below the rank of sub-inspector, shall forthwith
transmit to the nearest Judicial Magistrate a copy of
the entries in the diary hereinafter prescribed
relating to the case, and shall at the same time
forward the accused to such Magistrate.
(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 Magistrate having
such jurisdiction:
Provided that:
(a) the Magistrate may authorise detention of the
accused person, otherwise than in 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 section for a total period exceeding sixty
days, and on the
543
expiry of the said period of sixty days, the
accused person shall be released on bail; and
every person released on bail under this section
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shall be deemed to be so released under the
provisions of Chapter XXXIII for the purposes of
the Chapter;
(b) no Magistrate shall authorise detention in any
custody under this section unless the accused is
produced before him;
(c) no Magistrate of the second class, not specially
empowered in this behalf by the High Court, shall
authorise detention in the custody of the police."
In this appeal, we are concerned with sec. 167
hereinabove extracted. The High Court after examining the
scheme of sec. 167(1) and (2) with the Proviso rightly
concluded that, on the expiry of 60 days from the date of
the arrest of the accused, his further detention does not
become ipso facto illegal or void, but if the charge-sheet
is not submitted within the period of 60 days, then
notwithstanding to the contrary in sec. 437(1), the accused
would be entitled to an order for being released on bail if
he is prepared to and does furnish bail. In this case, it is
an admitted position that the respondents did not apply to
the Magistrate for being released on bail on the expiry of
60 days from the date of their arrest. The High Court was of
the opinion that as the respondents did not apply for bail
on the expiry of sixty days from the date of their arrest,
their continued detention would not be illegal or without
the authority of law. So far there is no controversy.
It was next contended before the High Court that after
the submission of the charge-sheet, when the investigation
could be said to have ended, it was not open to the
Magistrate to authorise the detention of an accused in
custody under sec. 167 of the Code, and therefore, if the
accused is to be detained in custody after the submission of
the charge-sheet upon which the Magistrate takes cognizance
of an offence, the power to remand the accused to custody
will have to be gathered from other provisions of the Code.
The High Court then took notice of the fact that the police
report discloses an offence exclusively triable by the Court
of Sessions and the Magistrate will have to proceed
according to the provision contained in sec. 209 of the
Code. Shorn of embellishment the High Court proceeded to
find out how the accused against whom the allegation is that
he is
544
suspected of having committed an offence punishable with
death or imprisonment for life and in respect of whom the
period for completion of investigation has elapsed and in
the absence of charge-sheet, order committing him to Court
of Sessions to stand his trial cannot be made and the
accused does not apply for bail, how is he to be dealt with
by the Magistrate. In other words during the interregnum,
has the Magistrate power or jurisdiction to remand him to
custody other than police custody and if there is such
power, in which provision it is located. The High Court then
combed other provisions of the Code, and, ultimately,
concluded that since the 1973 Code does not envisage a
preliminary enquiry to be held by the Magistrate under
Chapter XVI, the Magistrate is not expected to hold any
enquiry before committing the accused and therefore sec.
309, would not enable him to remand the accused to custody.
In the terms High Court held that in such a situation for
want of power in the Magistrate to remand accused to
custody, the Magistrate must forthwith on receipt of charge
sheet pass an order committing the accused to Court of
Sessions to stand his trial and then exercise power under
sec. 309 or to release him on bail notwithstanding the fact
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that accused has not sought an order of bail. The High Court
left the question unanswered what would happen if the
accused is unable to furnish bail by suggesting that the
best thing to do for the Magistrate in such a situation is
to forthwith pass an order committing the accused to
Sessions to stand his trail and then invoke his jurisdiction
to remand the accused to custody under sec. 309 of the Code.
The High Court held that as the Magistrate before whom the
charge-sheet was submitted remanded the respondents to
custody without making the order of commitment, the order
remanding the accused to custody, cannot be sustained under
secs. 167 (2), 209, 309 of the Code, and no other provision
under which the respondents could be remanded to the custody
at that stage having been indicated to the Court, the High
Court considered it a compelling necessity to accede to the
request of the respondents to direct that they should be
released on bail. Serious exception is taken to this view of
the High Court by the learned counsel for the appellant.
Respondents were suspected of having committed an
offence punishable under sec. 302 IPC. On their having
surrendered, they were taken into custody. When the matter
was before the High Court as noticed by the High Court, the
charge-sheet was not submitted against them by the
Investigating Officer meaning thereby that
545
investigation was still in progress. The High Court
proceeded to examine the powers of the Magistrate to whom
the charge-sheet is submitted, in case of an offence
exclusively triable by the Court of Sessions for dealing
with an accused after he is produced before him presumably
under sec. 170 and before an order committing the accused to
the Court of Sessions as envisaged under sec. 209 is made.
If the High Court had no information when the
application for bail moved by respondents for being enlarged
on bail was heard as to whether the charge-sheet against
respondents was submitted to the Magistrate or not, in our
opinion, it was futile for the High Court to undertake
investigation of a point of law which would not directly
arise in the facts before the High Court and ordinarily the
academic exercise is hardly undertaken. However, now as the
High Court has dealt with the matter it becomes a precedent
and, therefore, it becomes necessary for us to examine
whether the view of the High Court is in consonance with the
provision of the Code. And if not whether in the larger
interest of criminal justice, it is necessary to interfere
with the same.
We would proceed on the assumption as done by the High
Court that the Investigating Officer has submitted the
police report as contemplated by sec. 170 and as required
therein forwarded the accused under custody to the
Magistrate to whom the police report is submitted. Now, the
High Court is right in holding that the jurisdiction to
grant bail, in case investigation is not completed within
the prescribed time limit as incorporated in the provision
as it then stood, vests in the Magistrate if the accused
applies and is prepared to furnish bail. Section 167
envisages a stage when a suspect is arrested and the
investigation is not completed within the prescribed period.
The investigation would come to an end the moment charge-
sheet is submitted as required under sec. 170 unless the
Magistrate directs further investigation. This view is in
accord with the decision of this Court in State of Bihar
Anr. v. I.A.C. Saldanha & Ors. (1)
The question is how the Magistrate is to deal with the
accused forwarded to him with the police report under sec.
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170 and the police report disclose an offence exclusively
triable by the Court of Sessions. Provisions contained in
Chapter XVI provide for commencement of proceedings before
the Magistrate. But before we refer to
546
those provisions, w must make a passing reference to the
provision contained in sec. 190 which provides for taking
cognizance of any offence by Magistrate, one such mode of
taking cognizance of an offence being upon police report if
the facts disclose an offence. The police report
contemplated by sec. 190(1)(b) is the one submitted to the
Magistrate under sec. 170. Sec. 204 provides for issue of
process. Sec. 207 provides that in any case where the
proceeding has been instituted on a police report, the
Magistrate shall without delay furnish to the accused, free
of costs, a copy of each of the documents set out therein.
There are two provisos to this section which are not
material for the present purpose. Sec. 209 confers power on
the Magistrate to commit the accused to the Court of
Sessions when the offence disclosed in the police report is
triable exclusively by it. Section 209 reads as under:
"209. Commitment of case to Court of Sessions when
offence is triable exclusively by it;
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 the
Court of Session, he shall-
(a) commit the case to Court of Sessions;
(b) subject to the provisions of this Code,
relating to bail, remand the accused to
custody during, and until the conclusion of
the trial;..."
The High Court was of the opinion that on the submission of
the police report under sec. 170, the Magistrate has to
forthwith commit the accused to the Court of Sessions if the
offence disclosed in the charge-sheet is the one exclusively
triable by the Court of Sessions. This being the only
function of the Magistrate according to the High Court, the
proceeding before the Magistrate under sec. 207 read with
sec. 209 would not be an inquiry within the meaning of the
expression in sec. 2(g) of the Code. In reaching this
conclusion, the High Court referred to secs. 84, 116, 125,
137, 138, 145 and 146 as well as secs. 159 and 202 of the
Code to ascertain the meaning of expression ’inquiry’ in the
context in which it is used in these provisions. These
provisions would hardly shed any light on the nature of the
proceedings and the function discharged by the Magistrate
from the time of receipt of a police report
547
under sec. 170 disclosing an offence exclusively triable by
the Court of Sessions and until making of an order
committing the accused to the Court of Sessions to stand his
trial. The question posed is: is it an administrative
function or it is a judicial function ? It is certainly not
an administration function. If it is judicial function, it
has to be either an inquiry or a trial because the Code does
not envisage discharge of judicial function by the
Magistrate under the Code in any other manner. The High
Court in this context has observed as under:
"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. Sec. 209 of the Code merely required
the Magistrate, taking cognizance of an offence on the
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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 secs. 204, 207 to
209 of the Code contemplate an inquiry under the Code."
With respect this approach is not only not borne out by
the relevant provisions of the Code but it overlooks the
scheme of the sections and the purpose underlying the same.
Section 170 obligates the Investigating Officer to
submit the police report if in the course of investigation
sufficient evidence or reasonable ground is made out for the
trial or for commitment of the accused, to the Magistrate
empowered to take cognizance of the offence upon a police
report. On this report being submitted the Magistrate takes
cognizance of the offence disclosed in investigation as
envisaged by sec. 190. It is indisputable that taking
cognizance of an offence under sec. 190 is a purely judicial
function subject to judicial review by court of appeal or
revision to which the Magistrate is subject. Cognizance of
an offence even if exclusively triable by the Court of
Sessions has to be taken by the Magistrate because section
193 precludes it from taking cognizance
548
of any offence when it provides that no Court of Sessions
shall take cognizance of any offence as a court of original
jurisdiction unless the accused has been committed by the
Magistrate under the Code. Thus even in case of an offence
exclusively triable by the Court of Sessions, the police
report on completion of investigation has to be submitted to
the Magistrate having jurisdiction to commit the accused for
trial. It is the Magistrate who takes cognizance of the
offence and not the Court of Sessions though the case is one
exclusively triable by the latter. Sec. 170 directs that if
the accused in respect of whom police report is being
submitted is in police custody, he has to be forwarded
alongwith the police report to the Magistrate. 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 makes 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 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 Court of
Sessions 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. Sec.
207 as it then stood made it obligatory for the Magistrate
to supply free of costs, copies of the documents set out in
the section. The duty cast on the Magistrate by sec. 207 had
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to be performed in a judicial manner. To comply with sec.
207 which is cast in a mandatory language, when the accused
is produced before the Magistrate, he has to enquire from
the accused by recording his statement whether the copies of
the various documents set out in sec. 207 have been supplied
to him or not. No order committing the accused to the Court
of Sessions can be made under sec. 209 unless the Magistrate
fully complies with the provisions of sec. 207. And if it is
shown that the copies of relevant documents or some
549
of them are not supplied, the matter will have to be
adjourned to get the copies prepared and supplied to the
accused. This is implicit in section 207 and sec. 209
provides that on being satisfied that the requisite copies
have been supplied to the accused, the Magistrate may
proceed to commit the accused to the Court of Sessions to
stand his trial. The statutory obligation imposed by sec.
207 read with sec. 209 on the Magistrate to furnish free of
costs copies of documents is a judicial obligation. It is
not an administrative function. It is a judicial function
which is to be discharged in a judicial manner. It is
distinctly possible that the copies may not be ready. That
makes it necessary to adjourn the matter for some time which
nay be spent in preparing the copies and supplying the same
to the accused. The Magistrate can proceed to commit the
accused for trial to the Court of Sessions only after he
judicially discharges the function imposed upon him by sec.
207. This conclusion is fortified by the provisions
contained in Chapter XVIII which prescribed the procedure
for trial of a case by Court of Sessions. Sec. 226 provides
for opening the case for the prosecution. Sec. 227 confers
power on the Court of Sessions to discharge the accused if
upon consideration of the record of the case and the
documents submitted therewith, the Judge considers that
there is no sufficient ground for proceeding against the
accused. No duty is cast on the Court of Sessions to enquire
before proceeding to hear the case of the prosecution under
sec. 226 to ascertain whether the copies of the documents
have been furnished to the accused because section 207 casts
the obligation upon the Magistrate to perform the judicial
function.
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 inquiry for the
purpose of satisfying himself that sec. 207 has been
complied with in 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 Sessions will equally be a stage
in the inquiry and the inquiry culminates in making the
order of commitment. Thus, from the time the accused appears
or is produced before 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 Sessions, the proceeding
before the Magistrate would be an inquiry as contemplated by
sec. 2(g) of the Code. We find it difficult
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to agree with the High Court that the function discharged by
the Magistrate under sec. 207 is something other than a
judicial function and while discharging the function the
Magistrate is not holding an inquiry as contemplated by the
Code. If the Magistrate is holding the inquiry obviously
sec. 309 would enable the Magistrate to remand the accused
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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 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 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, sec. 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 section 167(2), 209 and 309 of the Code
and no other provision under which the respondents can be
remanded to custody at this stage, has been indicated by the
learned Government 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."
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 alongwith the police report, the Magistrate must
forthwith commit the accused to the Court of Sessions
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 Sessions is
made. The view with respect is wholly untenable and must be
set aside.
Mr. Prithviraj, learned counsel, drew our attention to
the decision of this Court in Gauri Shanker Jha v. The State
of Bihar
551
and Ors’(1) This case is of no assistance because it dealt
with the situation under the Code of Criminal Procedure,
1898 which did require the Magistrate to be satisfied with
prima facie case before an order committing an accused to
the Court of Sessions could be made.
In view of the discussion, this appeal is allowed and
the order of the High Court granting bail to the respondents
on the short ground that they could not be remanded to the
custody before the order committing them to the Court of
Sessions is made, is set aside, However, if in the meantime,
the trial is over, no question of taking the respondents
into custody pursuant to the order would arise.
H.L.C. Appeal allowed.
552