2013 (2) TMI 821

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....to pass orders of remand even beyond the period envisaged under Section 167(2) Cr.P.C. In the instant case, despite charge-sheet having been filed, no cognizance has been taken on the basis thereof. The learned Magistrate has, however, continued to pass remand orders, without apparently having proceeded to the stage contemplated under Section 309 Cr.P.C. In order to appreciate the issues which have cropped up during the hearing of the instant case, it is necessary to briefly set out the facts giving rise to the said questions, which have fallen for determination. 3. As per the prosecution case, the Petitioner, Suresh Kumar Bhikamchand Jain, is alleged to have misappropriated amounts meant for development of slums in Jalgaon city, when he was functioning as the Minister of Housing and Slum Area Development, as a Member of the Legislative Assembly. Initially, charge-sheet was filed against certain persons claiming to be the contractors and the Vice-President of the Municipal Corporation, Jalgaon. Thereafter, during investigation the Petitioner was arrested on 11th March, 2012, and while charge-sheet was filed against the four other accused persons on 25th April, 2012, a supplement....

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.... the trial had commenced and, therefore, further detention of the Petitioner was wholly illegal and not authorised in law and he was, therefore, entitled to be released on bail forthwith on the basis of the "indefeasible right" acquired by him on the failure of the Investigating Authorities to obtain sanction for prosecuting the Petitioner. 8. Mr. Lalit submitted that the High Court also went wrong in holding that in the absence of sanction, the actual trial could not be stayed and could be proceeded with and that the question of grant of sanction could be considered at the stage of framing of charge, as to whether such sanction was actually required to prosecute the accused. 9. In support of his submission, Mr. Lalit referred to and relied upon the Constitution Bench decision of this Court in Sanjay Dutt v. State [(1994) 5 SCC 410], wherein the said Bench had occasion to consider the effect of non-completion of investigation within the time stipulated under Section 167(2) Cr.P.C. Learned counsel pointed out that in the said decision, it has, inter alia, been held that default in completion of investigation within 180 days did not give a fully indefeasible right to the accuse....

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.... of the charge-sheet and it does not survive or remain enforceable on the charge-sheet being filed. Accordingly, if in a given case, the accused applies for bail, under the aforesaid provision, on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. However, once the charge- sheet is filed, the question of bail has to be decided only with reference to the merits of the case under the principles relating to grant of bail to an accused after filing of the charge-sheet. Mr. Kharde reiterated that in the instant case since the charge-sheet had already been filed, notwithstanding the fact that sanction had not been obtained, it could not be said that the powers of the learned Magistrate or the Trial Court to pass orders of remand came to an end, even if sanction had not been obtained for prosecuting the accused under the provisions of the PC Act. 13. The question posed in this Special Leave Petition concerns the right of a Magistrate or the Trial Court to pass orders of remand in terms of Section 167(2) Cr.P.C. beyond the period prescribed therein. Section 167(2) Cr.P.C., which is relevant for an understanding of t....

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....shall be detained in custody so long as he does not furnish bail. Explanation II. - If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be. Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution." 14. From the above provision, it would be amply clear that the Magistrate may authorise the detention of an accused person, otherwise than in the custody of the police, beyond a period of 15 days, if he is satisfied that there are adequate grounds for doing so, but no Magistrate is authorised to detain the accused person in custody for a total period exceeding 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and 60 days where the investigatio....

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....f two months from the date of commencement of the examination of witnesses. (2) If the court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing: Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. Provided also that - (a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party; (b) the fact that the pleader of a party is engaged in....

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....on bail on the failure of the investigating authorities to do so. The scheme of the provisions relating to remand of an accused, first during the stage of investigation and, thereafter, after cognizance is taken, indicates that the Legislature intended investigation of certain crimes to be completed within 60 days and offences punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, within 90 days. In the event, the investigation is not completed by the investigating authorities, the accused acquires an indefeasible right to be granted bail, if he offers to furnish bail. Accordingly, if on either the 61st day or the 91st day, an accused makes an application for being released on bail in default of charge-sheet having been filed, the Court has no option but to release the accused on bail. The said provision has been considered and interpreted in various cases, such as the ones referred to hereinbefore. Both the decisions in Natabar Parida's case(supra) and in Sanjay Dutt's case (supra) were instances where the charge-sheet was not filed within the period stipulated in Section 167(2) Cr.P.C. and an application having been made for gra....