LAKSHM BRAHMAN Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is an application under section 439, Cr. P. C. by Lakshmi Brahman and Nawal Garg. The applicants pray that they may be directed to be released on bail since the case involved the interpretation of section 167 (2) of the Code of Criminal procedure, 1973, and the learned Single Judge thought that there was a conflict of judicial opinion in that regard, he referred the case to a Division Bench. This is how the case has come up before us. The two applicants Lakshmi Brahman and Nawal Garg were accused in a case under section 302, I. P. C. They surrendered themselves before Magistrate on 2nd November, 1974 and were taken into custody on the same day. However, the police failed to submit a charge-sheet against them, within 60 days of their arrest (the charge-sheet had not been submitted even upto 5th February, 1975). The applicants, there-fore moved the present application and claimed that once the police failed to submit a charge-sheet within a period of 60 days of the arrest, their detention thereafter became Legal and they were entitled to be released on bail as pro-vided in section 167 (2) of the Code of Criminal procedure, 1973. In their application, the applicants further alleged that their request for being released on bail had already been rejected by the Sessions judge, but they did not make it clear whether their request was made and rejected before or after the expiry of 60 days of their arrest.

(2.) WHEN the case came jump for hearing before us, learned counsel appearing for the State admitted that in this case the police did not submit the charge-sheet again the applicants within 60 days of November 2, 1974 (the date on which the two applicants were taken into custody) he also informed us that subsequently the charge-sheet has been submitted and the Magistrate has already taken cognizance of the offence. However, by the time this application came up for hearing before us, the learned Magistrate, could not, due to certain unavoidable reasons, make an order committing the applicants to the court of Sessions he contended that once the charge-sheet has ocean submitted and cognizance of the offence taken, section 167 (2) of the Code ceased to apply and in such circumstances an accused could not claim to be released on bail as of right. His prayer for bail had to be considered in accordance with the provisions of section 437 of the Code of Criminal procedure Relevant portion of section 167, which falls in Chapter XII of the Code dealing with the information of police and their powers to investigate, reads thus:-

(3.) LEARNED counsel for the applicant then argued that even if it be assumed that the applicants did not during the investigation and after the expiry of 60 days of their arrest, move the Magistrate concerned under section 167 (2) (1) for being released on bail, the learned Magistrate could not, in the exercise of his power under section 167 (2) (a) of the Code, authorize the detent of the applicant in jail custody after the investigation was over and the police had submitted the charge-sheet against then, and pointed out that even according to the Government counsel the provisions of section 167 ceased to apply after the charge sheet had been submitted and cognizance of the offence taken by the Magistrate, After cognizance of the offence had been taken, the power to remand the accused to custody, in a case exclusively triable by court of Session, could be exercised only either under section 209 or under section 309 of the Code which provisions too are not attracted in the case. There being no other provision in the Code justifying applicant's detention at the present stage this is a fit case in which they should be admitted to bail.