S K LAL Vs. LALU PRASAD

JUDGEMENT

(1.) THE Special Judge (C.B.I.), Patna, before whom Special Case No. 65. of 1996 is pending, has made a reference to this Court under Section 395. of the Code of Criminal Procedure, referring for the decision of this Court two questions of law, which, in his opinion, arose for consideration, and which were not covered by any direct decision on the point. The two questions of law which he has formulated for the consideration of this Court are : "(1) Whether the proceeding in between filing of charge -sheet and commencement of trial in a warrant case is an enquiry? (2) Whether the undertrial can be remanded to custody after submission of charge -sheet even before taking cognizance during such enquiry -

(2.) BEFORE Proceeding to express my opinion on the questions of law referred to this Court, a few facts which are not in dispute may be noticed. On the basis of a first information report a case was being investigated by the Central Bureau of Investigation and some of the accused were remanded to judicial custody pending investigation. Some of the accused are political figures, and one of them happened to be the Chief Minister of the State of Bihar at the relevant time. There are others who were at the relevant time Union Minister or State Minister. It is also not in dispute that the Special Judge, who is to try the case, is a Judicial Officer of the rank of Additional District and Sessions Judge. The procedure to be followed in the case is the one prescribed for trial of warrant cases by Magistrates. The sanction of the Governor of Bihar for the prosecution of some of the accused was sought for, but the same has not so far been granted. After completion of investigation, charge -sheet has been submitted in the case, but the Special Judge has not yet taken cognizance.

(3.) IT was urged before us on behalf of the accused that in the absence of an order taking cognizance of the offences alleged to have been committed by them, the Special Judge has no jurisdiction to order their further remand to judicial custody. Their submission is that the charge -sheet having been filed on the 90th day of their detention, any further remand under the provision of Section 167 of the Code is not permissible. The provision of Section 209 of the Code has no application to this case as the same applies only to offence triable exclusively by the Court of Session. Section 309 of the Code under which a remand may be ordered, pending disposal of any enquiry or trial, is also of no help to the prosecution since the power of remand under Section 309 of the Code can be exercised only in a case where a trial has commenced and is pending, or in a case where, after taking cognizance, an enquiry is pending before the Court. It was, therefore, submitted before the learned Special Judge, and also before us, that since the power of remand under Section 167(2) of the Code cannot be exercised as the investigation is complete and the period of ninety days has run out, and Section 209 has no application to this case, the only Section under which the accused may be remanded is Section 309 of the Code, which permits a Court to remand an accused in custody only if after taking cognizance an enquiry is pending before the Court. It has, therefore, been submitted that unless the Special Judge takes cognizance of the offence , he cannot exercise the power of remand under Section 309(2) of the Code.