Criminal Procedure Code, 1973 — section 167 (2) — the power of the Magistrate to pass orders of remand even beyond the period envisaged under Section 167(2) Cr.P.C.

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION(CRL.)NO.147 OF 2013
Suresh Kumar Bhikamchand Jain … PETITIONER
Vs.
State of Maharashtra & Anr. … RESPONDENTS
J U D G M E N T
ALTAMAS KABIR, CJI.
1. This Special Leave Petition arises out of
the judgment and order dated 17th December, 2012,
passed by the Aurangabad Bench of the Bombay High
Court in CRLA No. 4601 of 2012, dismissing the same
and directing the Special Judge, in seisin of thePage 2
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matter, to expedite the hearing on framing of
charge, as had been directed by this Court on 12th
October, 2012, while disposing of Special Leave to
Appeal (Crl.) No. 6463 of 2012, filed by the coaccused Pradeep Raisoni.
2. This case has thrown into focus certain
important issues regarding the right of an accused
to be released on bail under Section 167(2) of the
Code of Criminal Procedure, 1973, hereinafter
referred to as “Cr.P.C.”. One of such issues
concerns the power of the Magistrate to pass orders
of remand even beyond the period envisaged under
Section 167(2) Cr.P.C. In the instant case, despite
charge-sheet having been filed, no cognizance has
been taken on the basis thereof. The learned
Magistrate has, however, continued to pass remand
orders, without apparently having proceeded to the
stage contemplated under Section 309 Cr.P.C. InPage 3
3
order to appreciate the issues which have cropped
up during the hearing of the instant case, it is
necessary to briefly set out the facts giving rise
to the said questions, which have fallen for
determination.
3. As per the prosecution case, the Petitioner,
Suresh Kumar Bhikamchand Jain, is alleged to have
misappropriated amounts meant for development of
slums in Jalgaon city, when he was functioning as
the Minister of Housing and Slum Area Development,
as a Member of the Legislative Assembly.
Initially, charge-sheet was filed against certain
persons claiming to be the contractors and the
Vice-President of the Municipal Corporation,
Jalgaon. Thereafter, during investigation the
Petitioner was arrested on 11th March, 2012, and
while charge-sheet was filed against the four other
accused persons on 25th April, 2012, aPage 4
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supplementary charge-sheet came to be filed against
the Petitioner herein on 1st June, 2012. For a
while, the Petitioner was released on interim bail,
but upon rejection of his application for bail on
merit, he was again taken into custody on 5th July,
2012.
4. What has been stressed upon on behalf of the
Petitioner is that, although, charge-sheet had been
filed within the time stipulated under Section
167(2) Cr.P.C., sanction to prosecute the
Petitioner had not been obtained, as a result
whereof, no cognizance was taken of the offence.
Notwithstanding the above, remand orders continued
to be made and the Petitioner remained in
magisterial custody.
5. At this stage, it may be pertinent to point
out that the Petitioner is an accused in respect ofPage 5
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offences punishable under Sections 120B, 409, 411,
406, 408, 465, 466, 468, 471, 177, 109 read with
Section 34 of the Indian Penal Code, hereinafter
referred to as “IPC” and also under Sections 13(1)
(c), 13(1)(d) and 13(2) of the Prevention of
Corruption Act, 1988, hereinafter referred to as
“the PC Act”, in Crime No. 13 of 2006, registered
with the City Police Station Jalgaon.
6. Appearing in support of the Special Leave
Petition, Mr. U.U. Lalit, learned senior Advocate,
submitted that since the statutory period of 90
days, envisaged under Section 167(2) Cr.P.C., had
lapsed, the Petitioner could not have been remanded
to custody, as had been done by the learned Special
Judge, who is yet to take cognizance for want of
sanction. Mr. Lalit submitted that the Petitioner
was, therefore, entitled to be released on bail
forthwith, since the orders of remand passed by thePage 6
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learned Magistrate after a period of 90 days were
without jurisdiction and, therefore, invalid in the
facts and circumstances of the case.
7. Mr. Lalit also submitted that Section 309
Cr.P.C., which also deals with remand of the
accused under certain circumstances, does not apply
to the allegations relating to the provisions of
the PC Act, inasmuch as, there is no committal
proceeding contemplated in the proceeding before
the learned Special Judge. However, as far as
Section 309 Cr.P.C. is concerned, Mr. Lalit
submitted that the same would be applicable only
after cognizance of the offence had been taken or
upon the commencement of the trial before the
Special Court. In the absence of cognizance being
taken by the Special Court, it could not be said
that the trial had commenced and, therefore,
further detention of the Petitioner was whollyPage 7
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illegal and not authorised in law and he was,
therefore, entitled to be released on bail
forthwith on the basis of the “indefeasible right”
acquired by him on the failure of the Investigating
Authorities to obtain sanction for prosecuting the
Petitioner.
8. Mr. Lalit submitted that the High Court also
went wrong in holding that in the absence of
sanction, the actual trial could not be stayed and
could be proceeded with and that the question of
grant of sanction could be considered at the stage
of framing of charge, as to whether such sanction
was actually required to prosecute the accused.
9. In support of his submission, Mr. Lalit
referred to and relied upon the Constitution Bench
decision of this Court in Sanjay Dutt v. State
[(1994) 5 SCC 410], wherein the said Bench hadPage 8
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occasion to consider the effect of non-completion
of investigation within the time stipulated under
Section 167(2) Cr.P.C. Learned counsel pointed out
that in the said decision, it has, inter alia, been
held that default in completion of investigation
within 180 days did not give a fully indefeasible
right to the accused to be released on bail. Such
a right arises from the time of default in filing
of the charge-sheet and continues till the filing
thereof, but does not survive once the charge-sheet
is filed. Thereafter, grant of bail would be
decided on merits. Mr. Lalit submitted that the
indefeasible right referred to in the said decision
would become absolute in the event an application
for bail was filed after the expiry of the
statutory period stipulated by the statute, but
before filing of the charge-sheet. In such a case,
Mr. Lalit submitted that the concerned accused was
entitled as a matter of right to be released onPage 9
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bail.
10. Mr. Lalit also referred to the decision of
this Court in Natabar Parida v. the State of Orissa
[(1975) 2 SCC 220], which was decided by a Bench of
2-Judges, who also had occasion to consider the
impact of Section 167(2) Cr.P.C. and the proviso
(a) thereto. In the said case, the powers of the
High Court to pass an order of remand of an accused
on the basis of inherent powers, was sought to be
negated. It was ultimately held that the Court
will have no inherent power of remand of an accused
to any custody, unless the power is conferred by
law. Mr. Lalit urged that since remand orders
passed against the Petitioner in the present case
did not have the sanction either of Section 167(2)
Cr.P.C. or Section 309 Cr.P.C., the Petitioner was
entitled to be released on statutory bail
forthwith.Page 10
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11. Appearing for the State of Maharashtra, Mr.
Sanjay V. Kharde, learned Advocate, supported the
decision of the High Court and urged that with the
filing of the charge-sheet under Section 167(2)
Cr.P.C., the conditions of the said Section stood
satisfied and even if sanction had not been
obtained for prosecuting the Accused, the Trial
Court was entitled to proceed further in the
matter. Mr. Kharde submitted that the orders of
remand passed by the Trial Court were not vitiated
since charge-sheet had already been filed within 90
days of the arrest of the Petitioner.
12. Also referring to the decision in Sanjay
Dutt’s case (supra), Mr. Kharde submitted that the
“indefeasible right” of the accused to be released
on bail under Section 167(2) Cr.P.C., in default of
completion of the investigation and filing of
charge-sheet within the time allowed, is a rightPage 11
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which accrued to and is enforceable by the accused
only from the time of default till the filing of
the charge-sheet and it does not survive or remain
enforceable on the charge-sheet being filed.
Accordingly, if in a given case, the accused
applies for bail, under the aforesaid provision, on
expiry of the period of 180 days or the extended
period, as the case may be, then he has to be
released on bail forthwith. However, once the
charge-sheet is filed, the question of bail has to
be decided only with reference to the merits of the
case under the principles relating to grant of bail
to an accused after filing of the charge-sheet.
Mr. Kharde reiterated that in the instant case
since the charge-sheet had already been filed,
notwithstanding the fact that sanction had not been
obtained, it could not be said that the powers of
the learned Magistrate or the Trial Court to pass
orders of remand came to an end, even if sanctionPage 12
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had not been obtained for prosecuting the accused
under the provisions of the PC Act.
13. The question posed in this Special Leave
Petition concerns the right of a Magistrate or the
Trial Court to pass orders of remand in terms of
Section 167(2) Cr.P.C. beyond the period prescribed
therein. Section 167(2) Cr.P.C., which is relevant
for an understanding of the issues involved in this
case, is extracted hereinbelow:
“167. Procedure when investigation
cannot be completed in twenty-four
hours.
(1) *** *** ***
(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 thePage 13
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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 authorize
the detention of the accused
person, 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 doesPage 14
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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;
(b) no Magistrate shall authorize
detention of the accused in custody
of the police under this section
unless the accused is produced
before him in person for the first
time and subsequently every time
till the accused remains in the
custody of the police, but the
Magistrate may extend further
detention in judicial custody on
production of the accused either in
person or through the medium of
electronic video linkage;
(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.
Explanation I. – For the avoidance
of doubts, it is hereby declared
that, notwithstanding the expiry of
the period specified in paragraph
(a), the accused shall be detained
in custody so long as he does not
furnish bail.
Explanation II. – If any question
arises whether an accused personPage 15
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was produced before the Magistrate
as required under clause (b), the
production of the accused person
may be proved by his signature on
the order authorising detention or
by the order certified by the
Magistrate as to production of the
accused person through the medium
of electronic video linkage, as the
case may be.
Provided further that in case
of a woman under eighteen years of
age, the detention shall be
authorised to be in the custody of
a remand home or recognised social
institution.”
14. From the above provision, it would be amply
clear that the Magistrate may authorise the
detention of an accused person, otherwise than in
the custody of the police, beyond a period of 15
days, if he is satisfied that there are adequate
grounds for doing so, but no Magistrate is
authorised to detain the accused person in custody
for a total period exceeding 90 days where the
investigation relates to an offence punishable withPage 16
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death, imprisonment for life or imprisonment for a
term of not less than ten years and 60 days where
the investigation relates to any other offence. In
other words, if an accused was ready to offer bail,
once the stipulated period for the investigation
had been completed, then the Magistrate no longer
had the authority to extend the period of detention
beyond the said period of 90 days and,
consequently, he had no option but to release the
accused on bail. The language used in Sections
167(2)(a)(i) and (ii) is that on the expiry of the
period of 90 days or 60 days, as the case may be,
the accused person shall be released on bail, if he
is prepared to and does furnish bail. The
direction upon the learned Magistrate or the Trial
Court is mandatory in nature and any detention
beyond the said period would be illegal.
15. The power of remand is vested in the CourtPage 17
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at the very initial stage before taking of
cognizance under Section 167(2) Cr.P.C. Once
cognizance is taken, the power to remand shifts to
the provisions of Section 309 Cr.P.C., under which
the Trial Court is empowered to postpone or adjourn
proceedings and, for the said purpose, to extend
the period of detention from time to time. Section
309(2) Cr.P.C. contemplates a situation where if
the Court after taking cognizance of an offence or
commencement of trial finds it necessary to
postpone the commencement of, or adjourn, any
inquiry or trial, it may, for reasons to be
recorded, postpone or adjourn the inquiry or trial
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, for a period of fifteen
days at a time. Although, the provisions of
Section 309 Cr.P.C. may not have any application to
the facts of this case, in order to appreciate thePage 18
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view that we have taken, the same are reproduced
hereinbelow:
“309. Power to postpone or adjourn
proceedings.—(1) In every inquiry
or trial the proceedings shall be
held as expeditiously as possible,
and in particular, when the
examination of witnesses has once
begun, the same shall be continued
from day to day until all the
witnesses in attendance have been
examined, unless the Court finds
the adjournment of the same beyond
the following day to be necessary
for reasons to be recorded.
Provided that when the inquiry or
trial relates to an offence under
Sections 376 to Section 376 D of
the Indian Penal Code (45 of 1860),
the inquiry or trial shall, as far
as possible, be completed within a
period of two months from the date
of commencement of the examination
of witnesses.
(2) 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 thinksPage 19
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fit, for such time as it considers
reasonable, and may by a warrant
remand the accused if in custody:
Provided that no Magistrate shall
remand an accused person to custody
under this section for a term
exceeding fifteen days at a time:
Provided further that when
witnesses are in attendance, no
adjournment or postponement shall
be granted, without examining them,
except for special reasons to be
recorded in writing:
Provided also that no adjournment
shall be granted for the purpose
only of enabling the accused person
to show cause against the sentence
proposed to be imposed on him.
Provided also that –
(a) no adjournment shall be
granted at the request of a party,
except where the circumstances are
beyond the control of that party;
(b) the fact that the pleader of a
party is engaged in another Court,
shall not be a ground for
adjournment;
(c) where a witness is present in
Court but a party or his pleader is
not present or the party or his
pleader though present in Court, is
not ready to examine or crossexamine the witness, the Court may,
if thinks fit, record the statement
of the witness and pass such orders
as it thinks fit dispensing withPage 20
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the examination-in-chief or crossexamination of the witness, as the
case may be.
Explanation 1 – If sufficient
evidence has been obtained to raise
a suspicion that the accused may
have committed an offence and it
appears likely that further
evidence may be obtained by a
remand this is a reasonable cause
for a remand.
Explanation 2 – The terms on which
an adjournment or postponement may
be granted include, in appropriate
cases, the payment of costs by the
prosecution or the accused.”
16. At this juncture, we may refer to certain
dates which are relevant to the facts of this
case, namely:
(a) 11.03.2012 – Petitioner arrested and
remanded to police custody;
(b) 25.04.2012 – First charge-sheet filed
against the four accused; Page 21
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(c) 1.06.2012 – Supplementary charge-sheet filed
in which the Petitioner is named;
(d) 30.07.2012 – The Trial Court rejected the
Petitioner’s prayer for grant of bail;
(e) 13.09.2012 – The High Court confirmed the
order of the Trial Court;
(f) 2.10.2012 – Application filed under Section
167(2) Cr.P.C. before the Trial Court;
(g) 5.10.2012 – Trial Court rejected the
application under Section 167(2) Cr.P.C.
17. From the above dates, it would be evident
that both the charge-sheet as also the
supplementary charge-sheet were filed within 90Page 22
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days from the date of the Petitioner’s arrest and
remand to police custody. It is true that
cognizance was not taken by the Special Court on
account of failure of the prosecution to obtain
sanction to prosecute the accused under the
provisions of the PC Act, but does such failure
amount to non-compliance of the provisions of
Section 167(2) Cr.P.C. is the question with which
we are confronted. In our view, grant of sanction
is nowhere contemplated under Section 167 Cr.P.C.
What the said Section contemplates is the
completion of investigation in respect of different
types of cases within a stipulated period and the
right of an accused to be released on bail on the
failure of the investigating authorities to do so.
The scheme of the provisions relating to remand of
an accused, first during the stage of investigation
and, thereafter, after cognizance is taken,
indicates that the Legislature intendedPage 23
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investigation of certain crimes to be completed
within 60 days and offences punishable with death,
imprisonment for life or imprisonment for a term of
not less than 10 years, within 90 days. In the
event, the investigation is not completed by the
investigating authorities, the accused acquires an
indefeasible right to be granted bail, if he offers
to furnish bail. Accordingly, if on either the
61st day or the 91st day, an accused makes an
application for being released on bail in default
of charge-sheet having been filed, the Court has no
option but to release the accused on bail. The
said provision has been considered and interpreted
in various cases, such as the ones referred to
hereinbefore. Both the decisions in Natabar
Parida’s case(supra) and in Sanjay Dutt’s case
(supra) were instances where the charge-sheet was
not filed within the period stipulated in Section
167(2) Cr.P.C. and an application having been madePage 24
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for grant of bail prior to the filing of chargesheet, this Court held that the accused enjoyed an
indefeasible right to grant of bail, if such an
application was made before the filing of the
charge-sheet, but once the charge-sheet was filed,
such right came to an end and the accused would be
entitled to pray for regular bail on merits.
18. None of the said cases detract from the
position that once a charge-sheet is filed within
the stipulated time, the question of grant of
default bail or statutory bail does not arise. As
indicated hereinabove, in our view, the filing of
charge-sheet is sufficient compliance with the
provisions of Section 167(2)(a)(ii) in this case.
Whether cognizance is taken or not is not material
as far as Section 167 Cr.P.C. is concerned. The
right which may have accrued to the Petitioner, had
charge-sheet not been filed, is not attracted toPage 25
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the facts of this case. Merely because sanction
had not been obtained to prosecute the accused and
to proceed to the stage of Section 309 Cr.P.C., it
cannot be said that the accused is entitled to
grant of statutory bail, as envisaged in Section
167 Cr.P.C. The scheme of the Cr.P.C. is such that
once the investigation stage is completed, the
Court proceeds to the next stage, which is the
taking of cognizance and trial. An accused has to
remain in custody of some court. During the period
of investigation, the accused is under the custody
of the Magistrate before whom he or she is first
produced. During that stage, under Section 167(2)
Cr.P.C., the Magistrate is vested with authority to
remand the accused to custody, both police custody
and/ or judicial custody, for 15 days at a time, up
to a maximum period of 60 days in cases of offences
punishable for less than 10 years and 90 days where
the offences are punishable for over 10 years orPage 26
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even death sentence. In the event, an investigating
authority fails to file the charge-sheet within the
stipulated period, the accused is entitled to be
released on statutory bail. In such a situation,
the accused continues to remain in the custody of
the Magistrate till such time as cognizance is
taken by the Court trying the offence, when the
said Court assumes custody of the accused for
purposes of remand during the trial in terms of
Section 309 Cr.P.C. The two stages are different,
but one follows the other so as to maintain a
continuity of the custody of the accused with a
court.
19. Having regard to the above, we have no
hesitation in holding that notwithstanding the fact
that the prosecution had not been able to obtain
sanction to prosecute the accused, the accused was
not entitled to grant of statutory bail since thePage 27
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charge-sheet had been filed well within the period
contemplated under Section 167(2)(a)(ii) Cr.P.C.
Sanction is an enabling provision to prosecute,
which is totally separate from the concept of
investigation which is concluded by the filing of
the charge-sheet. The two are on separate
footings.
20. In that view of the matter, the Special
Leave Petition deserves to be and is hereby
dismissed.
……………….CJI.
(ALTAMAS KABIR)
…………………J.
(J. CHELAMESWAR)
…………………J.
(VIKRAMAJIT SEN)
New Delhi;
Dated: February 13, 2013.

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