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Issues: (i) Whether an order of remand passed under Section 167(2) of the Code of Criminal Procedure, 1973 continues to operate after filing of the charge-sheet and taking of cognizance until it expires or is replaced by a remand under Section 309(2) of the Code of Criminal Procedure, 1973; (ii) whether an accused must be in lawful custody, and not merely physical custody, before remand can be ordered under Section 309(2) of the Code of Criminal Procedure, 1973; and (iii) whether the accused was entitled to bail on the ground of alleged illegal custody or alleged excess in the period of remand.
Issue (i): Whether an order of remand passed under Section 167(2) of the Code of Criminal Procedure, 1973 continues to operate after filing of the charge-sheet and taking of cognizance until it expires or is replaced by a remand under Section 309(2) of the Code of Criminal Procedure, 1973.
Analysis: The power of remand must trace itself to statute. Remand during investigation is governed by Section 167(2), while after cognizance is taken remand can be ordered under Section 309(2). The filing of the charge-sheet and taking of cognizance do not by themselves extinguish a valid remand order already in force under Section 167(2). Such an order continues until the period fixed by it expires or until a fresh remand order under Section 309(2) is made, whichever occurs earlier. The supposed hiatus between the two provisions does not arise where the accused remains continuously in custody and the Magistrate acts within the statutory framework.
Conclusion: The earlier remand did not automatically lapse on filing of the charge-sheet and cognizance, and the custody did not become unlawful on that ground alone.
Issue (ii): Whether an accused must be in lawful custody, and not merely physical custody, before remand can be ordered under Section 309(2) of the Code of Criminal Procedure, 1973.
Analysis: The expression "in custody" in Section 309(2) was held to denote physical custody and not merely lawful custody. The Court rejected the view that an alleged defect in the legality of an earlier custody necessarily disables the Magistrate from passing a valid remand order under Section 309(2). Once the accused is physically before the court and the court has taken cognizance, the power to remand under Section 309(2) can be exercised. A subsequent valid remand may regularise the custody for the future, even if there was an arguable gap or defect earlier.
Conclusion: Physical custody was sufficient for remand under Section 309(2), and lawful custody was not a precondition.
Issue (iii): Whether the accused was entitled to bail on the ground of alleged illegal custody or alleged excess in the period of remand.
Analysis: The statutory right to default bail arises only upon expiry of the prescribed investigation period under Section 167(2). In the present case, that period had not expired, and the remand order in force had not run out before cognizance was taken. The Court also held that even if there had been a temporary illegality, subsequent valid remand orders under Section 309(2) had legitimised the custody as on the date of hearing. No ground was made out for release on bail on the basis urged.
Conclusion: The accused was not entitled to bail on the grounds urged.
Final Conclusion: A valid remand under Section 167(2) survives until its term expires or is replaced by a remand under Section 309(2), and custody for remand under Section 309(2) need only be physical custody. The application for bail was therefore rejected.
Ratio Decidendi: A remand order validly made during investigation continues after cognizance until it expires or is superseded by a remand under Section 309(2), and for remand under Section 309(2) physical custody is sufficient even if the earlier custody is alleged to have been defective.
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