TUNESHWAR PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner of each of these two criminal writ cases feeling oppressed and obsessed by his alleged illegal detention has prayed for a writ of habeas corpus. Time and again learned Counsel for the petitioners pressed upon our attention the observations of Untwalia, J, speaking for the Supreme Court in the case of Natabar Parida v. State of Orissa (AIR 1975 SC 1465) that if the Legislature has, in its wisdom, created a 'paradise for the criminals' by the Cr. P. C., 1973 (hereinafter to be referred to as the Code), the courts have to abide by the will of the Legislature, Such a paradise, it is claimed, has been created for the petitioners 'under the command of the Legislature'. Learned Counsel for the petitioners, while initiating their argument with the aforesaid observations, sought to support these applications by contending that, since there was no power of remand of an accused person to custody between the time of taking of cognizance of the offence by the Magistrate and the commitment of the case to the court of session in cases exclusively triable by that court, the Magistrate could not resort to his inherent powers for the purpose of remanding the accused to custody in this so-called period of interregnum. No exception can be taken to the observations relied upon by the learned Counsel for the petitioners that, if the Legislature so commands, criminals may float in paradise. But the moot question before us is as to whether the Legislature, in such circumstances as the present, has left a lacuna or a hiatus to provide a frolicking ground for persons accused of serious offences.

(2.) The point involved in these cases has given rise to divergence of judicial opinion. The decision of the point is not only of great moment to the petitioners here concerned but its aspects bring up a question of wide public importance and it would be well indeed if it could be brought home not merely to the parties interested in these cases but to those who, in the future, are in the position of an accused against whom cognizance of an offence has been taken but the case has yet to be committed to the court of session in cases exclusively triable by the sessions court. The arguments in these cases on behalf of the petitioners have indeed roamed very wide but the simple question for consideration is as to whether, where an accused, whose offence has been taken cognizance of and whose case has not yet been committed to the court of session in cases exclusively triable by it, it can be said to be still in the stage of an inquiry within the meaning of Section 2(g) of the Code, thus empowering the Magistrate to exercise his power of remand under the provisions of Section 209 read with Section 309(2) of the Code or is only in the stage of some sort of vacuum between the conclusion of an inquiry and the commencement of the trial.

(3.) Before, however, entering into any discussion on the question of law posed, it would be worthwhile to narrate the facts, short as they are, relating to the two applications. Relevant facts of Cr. W. J. C. 91/77 :