SUNIL KUMAR SHARMA Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) INTERESTING questions arise in this case. The scenario is this: During the period of a valid order under section 167 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") placing an accused under judicial custody, the charge -sheet is filed, the magistrate takes cognizance, however, as the accused is not present, he directs his production on the next date (also within the period of his earlier remand under section 167 CrPC), when, acting under the provisions of section 309(2) CrPC he remands the accused to judicial custody. The issue is with regard to the period between the magistrate taking cognizance and his passing the remand order under section 309(2). The questions that emerge are these: (a) Would the custody of the accused under the previous order under section 167 CrPC become unlawful merely because the charge -sheet had been filed and the magistrate has taken cognizance and not passed an express order of remand under section 309 If the answer to the previous question is that the custody would be unlawful then, would an order of remand passed on a subsequent date be valid and legal? As will be clear from the discussion below, there are ancillary issues also.

(2.) THE chronology of the relevant events is as follows: -

(3.) THE learned counsel for the petitioner also contended that the remand order of 26.04.2005 is also ex facie illegal. He submitted that under section 309 CrPC the remand could be for a maximum period of fifteen (15) days at a time. However, the petitioner was remanded to judicial custody on 26.04.2005 till 11.05.2005. According to the learned counsel for the petitioner the remand would be of sixteen (16) days as the day of the remand order is to be included. Hence, it was submitted that this would be in violation of section 309(2) and the petitioner's custody pursuant to such an order would be unlawful. And, the subsequent order of remand under which the petitioner is currently in judicial custody cannot "cure" this defect. Therefore, in the view of the learned counsel for the petitioner, the petitioner is liable to be released on bail forthwith.