D. BHASKAR RAO Vs. STATE OR ORISSA

JUDGEMENT

(1.) THIS is a petition by one of the accused in G.R. Case No. 269 of 1984 of the Court of the learned Chief Judicial Magistrate, Berhampur under Section 439 read with Section 482 of the Code or Criminal Procedure (referred to as 'Code').

(2.) THE facts on brief are. A dacoity took place in the house of the informant A. Subba Rao of Tulasinagar in Berhampur town in the night of 2 -3 -1984 and cash and valuables worth of Rs. 6,000/ - were stolen. Information was lodged at Berhampur town police station the very same night and investigation was commenced. Copy of the F.I.R. was forwarded to the court of the learned Chief Judicial Magistrate on 5 -3 -1984. On 16 -7 -1984, warrant was issued requesting the learned Chief Judicial Magistrate, Puri for causing production of the Petitioner and some other accused persons who were detained in connection with another case under Section 395 of the Indian Penal Code (referred to as 'I.P.C.'). But the Petitioner was not produced in the said court despite reminders. On 16 -10 -1984 charge sheet was submitted against the Petitioner and the other accused persons for having committed offence under Sections 457 and 395 read with Section 75, I.P.C. On 25 -10 -1984, the learned court below took cognizance of the offence and directed issuance of fresh production warrants. The order was not executed and the Petitioner was not produced in the said court. On, 9 -4 -1985 the Petitioner surrendered in court and prayed for being released on bail. The prayer was disallowed, but no specific order was passed by the learned Chief Judicial Magistrate remanding the Petitioner to jail custody although as a member of fact, he was sent to the jail. On 11 -4 -1985, 26 -4 -1985, 13 -5 -1985 and 3 -6 -1985 the Petitioner was neither produced in court despite issuance of production warrants nor any specific orders of remand were passed. The case of the Petitioner therefore is that in the absence of remand order being passed from time to time his detention in jail custody was in violation of the provisions of Section 309(2) of the Code and so he is entitled to be released on bail when he is willing to offer the same. Otherwise also there are no materials to implicate him in the alleged offences for which his continuous detention in custody is unwarranted.

(3.) THIS case is patently not governed by Section 167(2) of the Code for the simple reason that charge sheet was submitted against the Petitioner on 16 -10 -1984. His governed by proviso (a) of Section 309(2) of the Code, because after submission of charge sheet the learned Chief Judicial Magistrate took cognizance of the offence against the Petitioner and others on 25 -10 -1984. This distinction has been clearly pointed out in a decision reported in Natabar Parida and Ors. v. State of Orissa : A.I.R. 1975 S.C. 1465, in which it was laid down;