SURESH CHANDRA DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) This is an application under section 439 of the Code of Criminal Procedure. It is alleged against the petitioner-accused that on 22.10.1993 he committed the offence of rape and is, therefore, liable to be punished under section 376 of the Indian Penal Code. The petitioner was produced before the Judicial Magistrate, Cuttack on 25.10.1993 and he was remanded to Jail custody till 9.11.1993 and his bail application was rejected. There after fresh orders of remand were passed without the petitioner the Petitioner being produced before the Judicial Magistrate. On 17.1.1994 the charge-sheet was filed against the petitioner and he was also produced before the court.

(2.) The first contention raised on behalf of the pinioned is that as the remand orders subsequent to 25.10. 1993 were passed without producing the petitioner before the Magistrate, his detention him and der those remand orders should be regarded as illegal and he is entitled to be released on bail. This contention raised on behalf of the accused must be rejected in view of the decision of the Supreme Court in the case of Raj Narain v. Superintendent, Central Jail, New Delhi, wherein it has been clearly held that even if the remand order is passed in the absence of the accused, it does not render his detention under such order invalid or illegal. That decision has been followed in the case of M. Sambasiva Rao v. Union of India, and Sandip Kumar Dey v. The Officer-in-charge, Sakchi P.S.

(3.) The next contention raised on behalf of the petitioner is that the petitioner could not have been remanded for a term exceeding fifteen days and, therefore, also his detention subsequent to 9.11.1993 should be regarded as illegal. Even this contention deserves to be rejected for the simple reason that the proviso to sub-section (2) of section 167 of the Code of Criminal Procedure authorises the Magistrate to detain the accused person otherwise than in custody of the police for a period more than fifteen days. Moreover, in this case the charge-sheet was filed on 17.1.1994 and there is no grievance that his detention thereafter has been illegal. This application for bail was filed on 21.2.1994. For that reason also the petitioner can not be released on bail on the ground urged by the learned advocate.