TaxTMI 
TaxTMI 
2007 (3) TMI 819
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....er Section 120B read with Section 489-A to 489-E of IPC. The Respondent raided premises of the Petitioner on suspicion that accused persons were in hiding, but none of them were found there. The Petitioner alleged that he and his three other friends, found at the premises were apprehended by the C.B.I and taken into custody for interrogation. 4. The Petitioner alleges that he was produced before the concerned magistrate after expiry of 24 hours of his arrest i.e. on 27.09.06 and the magistrate sent him to judicial custody and since then he is in custody. He further alleges that even after the expiry of 90 days the Respondent failed to file a charge sheet or a challan against him in respect of the alleged offence for which he was arrested. It is alleged that a part charge sheet was filed against him for his over staying in India, after the expiry of his visa. The visa was valid up to 08.06.2006. 5. The Petitioner states that on 10.10.2006, he applied for bail before the ACMM, which was rejected. The extracts of the order dated 13.10.2006 are as follows; in so far as the allegations against the accused are concerned, the record reveals that the accused is not a suspect but is an ....
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....urt on 27.9.2006. It is alleged that the trial in this case is in progress and the prosecution evidence is going on. It is averred that during the raid two passports, one in the name of the petitioner and another in the name of William George were seized along with some other incriminating documents. It is alleged by the Respondent that after scientific examination by CFSL authorities, it was observed that the photographs affixed on the passport i.e. of William George were the same as those on the passport of the petitioner. 9. The Respondent states that the Petitioner was apprehended on 26.9.2006 at 1600 hours only after recovery of incriminating documents such as forged passports and counterfeit banking instruments. 10. The principal contention of the Petitioner in this case is that he was apprehended on mere suspicion and he had nothing to do with the alleged offence committed by the accused persons. He has contented that he was produced before the magistrate beyond the mandatory period of 24 hours of his arrest. The Petitioner has further contended that the Respondent has even after the expiry of 90 days failed to file charge sheet in respect of the alleged offence for which ....
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....e "as far as may be". There is no question of strict compliance with Section 173(2) when such is the intention of the Legislature. Section 173(8) deals with further investigation. That is not a provision dealing with taking cognizance. It is only upon failure of the prosecution to comply with the mandate of Section 173(2) that the indefeasible right accrues and not otherwise. Since the charge sheet, so far as it related to the offence under the Foreigners Act, was complete in all respects, it was open to the respondent to carry out further investigation under Section 173(8) of the Code. It was further submitted that even in respect of offences under the Foreigners Act, the allegations were grave, and the Forensic Laboratory confirmed that the passports were forged. 16. It would be useful to notice the relevant provisions of the Cr. PC, i.e Sections 173 and 309: 167. Procedure when investigation cannot be completed in twenty-four hours: (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or informa....
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.... as required under para (b), the production of the accused person may be proved by his signature on the order authorising detention. Section 309 of the Code reads as under: 309. Power to postpone or adjourn proceedings :- (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of the witness has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. (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 or such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody. 17. In Uday Mohanlal Acharya v. State of Maharashtra 2001CriLJ1832 , the Supreme Court, after elaborately considering all the previous decisions on the applicability of Section 167, and the vari....
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.... days, as the case may be, an indefeasible right accrues in favor of the accused for being released on bail on account of default by the Investigating Agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnish the bail, as directed by the Magistrate. 4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favor on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/Court must dispose it of forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the Investigating Agency. Such prompt action on the part of the Magistrate/Court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the Investigating Agency in completing the investigation within the period stipulated. 5. If the accused is unable to fur....
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.... The investigation under Section 167 of the Code can be one involving one or more offences against the accused persons. The investigation of a case cannot be split up in such a way to file piece-meal reports before Court. Section 173 of the Code does not stipulate a piece-meal investigation and filing of incomplete charge sheet before Court. It contemplates filing of a charge/refer report after completion of the entire investigation of the case in respect of all offences and where several offences area involved in a case, a charge report could be laid before Court only after the investigation is over and formation of an opinion regarding all the offences alleged against the accused. Admittedly, for the offence under Section 3 of the Official Secrets Act, 1923, in maximum punishment prescribed is 14 years of imprisonment. Therefore, under Section 167(2) of the Code, the maximum period the accused could be detained in custody is 90 days. That period was over on 10-4-1996, the date on which the CBI had filed a report in Court in respect of offences other than the one under the Official Secrets Act. Admittedly, the petitioners are even now in custody and now more than 130 days even ela....
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....ion 309 of the Code. 12. A Magistrate can take cognizance of an offence only on filing of a report under Section 173(2) of the Code. Unless power is conferred by law, there is no inherent power to remand an accused to custody. Holding so, in the decision reported in Natabar Parida v. State of Orissa AIR1975SC1465 , the Supreme Court proceeded to say that under Section 167(2) proviso and under Section 309(2) of the new Code, the power of remand of jail custody conferred on the Magistrate during the pendency of the investigation is only under the former Section and not under the latter Section. The Supreme Court also held that Section 309(2) is attracted only after cognizance of an offence is taken or commencement of the trial has proceeded. 13. A remand under Section 309(2) of the Code can be made only after taking cognizance of the offence. That being the position, in the absence of a final report regarding all the offences alleged to have been committed by the accused persons, it has to be held that the Magistrate has not taken cognizance of the offences as required by Section 309(2) of the Code. The Magistrate is not empowered to order remand of the accused to judicial custod....