AMITABH KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner was taken into custody on charge of having committed an offence under Section 498A and 307/34 of the Indian Penal Code and later Section 302 of the Indian Penal Code was added when the victim died. The petitioner was remanded and ultimately chargesheet under Section 306 of the Indian Penal Code was submitted. The chargesheet was filed on 22,9.2011 before the learned Chief Judicial Magistrate, Motihari, East Champaran. Petitioner urges that notwithstanding the chargesheet having been filed signifying completion of investigation, petitioner continued to be remanded though no cognizance was taken. Ultimately, cognizance was taken on 22.2.2012.

(2.) It is submitted on behalf of the petitioner that his remand during this intervening period being without authority of law, he should be released on bail. In other words, what is submitted by Mr. Kanhaiya Prasad Singh, learned senior counsel for the petitioner is that in terms of Section 167 of the Code of Criminal Procedure, pending investigation an accused could be remanded for 60 or 90 days, as the case may be. Whereafter if no chargesheet is filed, he is entitled to bail in terms of Section 167(2) of the Code of Criminal Procedure. The Magistrate should have no discretion in that case but once chargesheet is filed then there cannot be a remand under Section 167 of the Code of Criminal Procedure. The Magistrate then has to proceed in terms of Section 209 of the Code of Criminal Procedure. A remand thereafter is only possible in terms of Section 309(2) of the Code of Criminal Procedure after taking cognizance. Thus, Sri Singh submits that in the present case the chargesheet having been filed on 22.9.2011 and no cognizance having been taken, petitioner could not have been remanded. From the ordersheet it appears that the case was being adjourned for hearing on the point of cognizance and that too at the instance of apparently the informant. We are surprised that police had submitted a chargesheet under Section 306 of the Indian Penal Code which is an offence exclusively triable by Sessions and the chargesheet had been filed within the period prescribed under Section 167 of the Code of Criminal Procedure, then what was the earthly reason for the Chief Judicial Magistrate, Motihari, East Champaran, to adjourn the matter, we fail to understand. It is the informant who filed an application trying to persuade the Magistrate to take cognizance and proceed with the matter. Regrettably the Magistrate, who is supposed to know the law, took this as an opportunity to continuously adjourn the matter for hearing on the point of cognizance. We fail to see for whose benefit and for what purpose the learned Magistrate proceeded. He had no option in the matter. Either he could have disagreed with the chargesheet and refused to proceed in the matter or he could have accepted the chargesheet and taken cognizance. What we find is something that is not known to law. The only beneficiary of this was the accused who got a right to seek his release. We do not think that the learned Magistrate intended that to be the result as on 22.2.2012 he took cognizance for an offence punishable under Section 302 of the Indian Penal Code. As of this date so also on the date when the writ petition was filed, the Magistrate had already taken cognizance and, therefore, as on date his remand to judicial custody cannot be said to be illegal in any manner. It is well settled that the legality or otherwise of the detention has to be considered with reference to the date when the writ application is being heard finally.

(3.) In that view of the matter, the writ petition is misconceived and is accordingly dismissed.