D.

Gundappa vs State Of Karnataka on 5 June, 2017

Karnataka High Court

D. Gundappa vs State Of Karnataka on 5 June, 2017
Author: H.G.Ramesh And Cunha
1 Crl.P.No.5347/2016

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 05TH DAY OF JUNE 2017

PRESENT

THE HON'BLE MR. JUSTICE H.G.RAMESH

AND

THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA

CRIMINAL PETITION No.5347 OF 2016

BETWEEN:

D. GUNDAPPA
S/O DYAVAPPA
AGED ABOUT 35 YEARS
R/A SURAJAKKANA HALLI VILLAGE
KASABA HOBLI, ANEKAL TALUK
BANGALORE DIST-562106 ... PETITIONER

(By Sri.H.P.LEELADHAR, ADVOCATE)

AND:

1. STATE OF KARNATAKA
BY ANEKAL POLICE
BANGALORE DIST-562106

2. MANJUNATH
S/O.HUCCHALAPPA,
AGED ABOUT 29 YEARS,
R/A.No.32, 3RD MAIN ROAD,
3RD CROSS, BYRASANDRA,
OPP.ANJANEYA TEMPLE,
1ST BLOCK, JAYANAGARA,
BENGALURU -560011. ... RESPONDENTS

(By Sri.P.M.NAWAZ, SPP FOR R1)

2 Crl.P.No.5347/2016

Indian Kanoon - http://indiankanoon.org/doc/28941236/ 1

 D. Gundappa vs State Of Karnataka on 5 June, 2017

THIS CRL.P. IS FILED U/S.482 CR.P.C., PRAYING TO QUASH

THE ORDER DATED 24.03.2016 PASSED BY THE PRL. CIVIL JUDGE
(Jr.Dn) AND JMFC COURT, ANEKAL IN C.C.NO.438/2016 AND QUASH
THE ORDER DATED 30.06.2016 PASSED BY THE III ADDL. DIST. AND
S.J., BANGALORE RURAL DISTRICT SITTING AT ANEKAL IN
CRL.R.P.5005/2016 AND ALLOW THE PETITION BY GRANTING BAIL TO
THE PETR. IN CR.NO.343/2015 OF ANEKAL POLICE STATION,
BANGALORE RURAL DISTRICT ETC.

THIS CRIMINAL PETITION HAVING BEEN HEARD AND

RESERVED FOR ORDERS ON 12.04.2017, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, JOHN MICHAEL CUNHA J.,
MADE THE FOLLOWING:

ORDER

Petitioner is aggrieved by the order dated 24.3.2016 passed by the Principal Civil Judge & JMFC,
Anekal, in C.C.No.438/2016 and the order of the III Addl. Dist. & Sessions Judge, Bengaluru Rural
District, sitting at Anekal, dated 30.6.2016 in Crl.R.P.5005/2016 whereby both the courts have
rejected the application filed by the petitioner under section 309(2) r/w. section 167(2) of Cr.P.C.
Hence, the petitioner has sought to quash the above orders.

2. The essential facts which are not in dispute are that the petitioner was arrested on 16.12.2015 in
Cr.No.343/2015 registered by the respondent/Anekal Police for the offences punishable under
sections 302, 201 r/w. 34 of Indian Penal Code. He was produced before the learned Magistrate on
17.12.2015 at 4.30 p.m. and was remanded to judicial custody till 31.12.2015. After investigation,
charge-sheet came to be laid before the learned Magistrate on 15.3.2016 and on the same day, the
learned Magistrate took cognizance of the offences and directed registration of the case in Register
No.III.

3. On 24.3.2016, the petitioner/accused moved an application under section 309(2) r/w. section
167(2) of Cr.P.C., contending that as per the provisions of law, the respondent/Police was required
to submit the final report/charge-sheet within 90 days from the date of arrest of the petitioner. The
respondent/Police filed the charge-sheet on 15.3.2016 and the accused was remanded to JC under
section 167(2) of Cr.P.C. The petitioner took up a contention that the remand under Section 167(2)
of Cr.P.C., ended on 15.3.2016 and therefore any further remand could have been made only under
section 309 of Cr.P.C., hence the remand of the petitioner/accused is illegal, unlawful and therefore,
he is entitled to be enlarged on bail.

4. The learned Magistrate rejected the above application with the following reasoning:-

"On perusal of the order-sheet, it is clear that the accused was not produced before
the court on 15.3.2016. Therefore the question of remanding the accused under
section 309 of Cr.P.C. does not arise.

Accused has neither challenged his detention nor filed bail application before filing
the charge-sheet. In the instant case, the investigating officer has filed charge- sheet

Indian Kanoon - http://indiankanoon.org/doc/28941236/ 2

 D. Gundappa vs State Of Karnataka on 5 June, 2017

within stipulated time and this court has taken the cognizance on the movement
when filing of the charge-sheet came to the knowledge of the court."

5. Before the revisional court, large number of authorities were cited and considering the ratio laid
down therein, the learned Sessions Judge rejected the revision with the following order:-

"In view of the ratio of the above mentioned decisions, it is very clear that on the day
when a remand order is made under section 309(2) of the Criminal Procedure Code,
it is not necessary that the petitioner/accused must have been in "lawful" custody,
that it is sufficient if he was in custody and that merely on the ground that the
remand order was passed in the absence of an accused, the accused cannot be
released on bail."

6. Before this Court, the petitioner has not assailed the reasonings assigned by the courts below but
has merely stated that investigation does not prima facie make out the offence under section 302 of
Indian Penal Code and the custody of the petitioner is not required for any investigation and hence,
the petitioner be enlarged on bail. The grounds urged in the petition would show that the petitioner
is seeking regular bail under section 439 Cr.P.C. though the application was moved under section
167(2) r/w. 309(2) of Cr.P.C.

7. In the course of the argument, the learned counsel for the petitioner has placed reliance on the
decision in NIRANJAN SINGH & Another vs. PRABHAKAR RAJARAM KHAROTE & Others AIR
1980 SC 785 and the decision of the Division Bench of Andhra Pradesh High Court in the case of
A.NARAYANA REDDY & Others vs. STATE OF A.P. 1991(3) Crimes 873 and has argued that on
account of non-production of the accused/petitioner before the Magistrate, his detention during
investigation and subsequent to the filing of the charge- sheet is illegal and hence he is entitled to be
enlarged on bail.

8. We have gone through the above decisions. In the case of NIRANJAN SINGH & Another vs.
PRABHAKAR RAJARAM KHAROTE & Others, AIR 1980 SC 785, the Hon'ble Supreme Court has
explained as to when a person could be said to be in "custody" for the purpose of section 439 of
Cr.P.C. It is held therein that when the accused is in duress either because he is held by the
investigating agency or other police or allied authority or is under the control of the court having
been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted
to its orders by physical presence, he can be said to be in custody so as to maintain an application for
bail under section 439 Cr.P.C.

9. In the Division Bench decision of the Andhra Pradesh High Court referred to supra, the question
that came up for consideration was whether the accused is entitled to be released on bail
automatically when he is not produced before the Magistrate or Sessions Judge before remanding
him to jail when the case is adjourned after the charge-sheet has been filed. Referring to various
authorities, the Division Bench has held as under:

Indian Kanoon - http://indiankanoon.org/doc/28941236/ 3

 D. Gundappa vs State Of Karnataka on 5 June, 2017

"non-production of the accused person either before the Magistrate or before the
Sessions Judge, after filing of the charge- sheet before the Magistrate, or, framing of
charges by the Sessions Judge, as the case may be, would entitle the accused person
to grant of bail as a matter of right as no such requirement is enacted in section
309(2) of the Code of Criminal Procedure as distinguished from section 167(2) of the
Code of Criminal Procedure.

In the same decision the Division Bench has clarified that:

"If before taking cognizance of an offence the accused continued to be in detention

pursuant to successive orders of remand made by the court without production of the
accused, the detention on the date when the court took cognizance of the offence
would be illegal, and section 309(2) of the Code of Criminal Procedure would not
cure the illegal detention and the detained accused would be entitled to grant of bail
on that account, as held by the Division Bench in the decision just now referred to.
We may also add that, it is open to the accused person to move this court, for bail,
under the Code of Criminal Procedure, or, under article 226 of the Constitution of
India to secure his release depending upon facts of each case. The reference is
accordingly answered."

10. In the instant case, the factual matrix is slightly different. A perusal of the order-sheet
maintained by the learned Magistrate reveals that the petitioner was produced before the learned
Magistrate on 17.12.2015 along with the remand application and was remanded to judicial custody
till 31.12.2015. The subsequent order-sheet maintained by the learned Magistrate which is crucial
for deciding the controversy in hand reads as here below:-

31.12.2015 Accused not produced from JC. APP State - APP files requisition stating
that accused Accused -HS not produced for want of escort. IO directed to produce
Accused on next date 14.1.2016.

Sd/-

31.12.2015 14.1.2016 Accused not produced from JC.

State - APP IO directed to produce accused on

Accused -HS next date by 28.1.2016.

Sd/-
14.1.2016

28.1.2016 Accused produced from JC.

State - APP Accused remanded to JC till 11.2.2016
Accused -HS
Accused in JC Sd/-
28.1.2016

Indian Kanoon - http://indiankanoon.org/doc/28941236/ 4

 D. Gundappa vs State Of Karnataka on 5 June, 2017

11.2.2016 Accused not produced from JC.

State by APP IO directed to produce accused on
Accused -HS next date by 25.2.2016.
Accused in JC
Sd/-
11.2.2016

25.2.2016 Accused not produced from JC.

State - APP IO directed to produce accused on
Accused - HS next date of hearing by 10.3.2016.
Accused - JC
Sd/-
25.2.2016

10.3.2016 Accused not produced from JC.

State - APP IO directed to produce accused on
Accused - HS next date 24.3.2016.
Sd/-
10.3.2016

15.3.2016

The CPI Anekal Circle has submitted

charge-sheet against the accused

for the offence u/s.498(A), 302, 201 IPC.

Accused is in JC.

Perused the charge-sheet. Found sufficient grounds to proceed. Hence cognizance of the offence is
taken.

Register the case in register No.III i.e., Criminal Case register. Accused in JC.

Call on 24.3.2016.

Sd/-

Prl.Civil Judge & JMFC, Anekal 15.3.2016 24.3.2016 Case taken on today's board.

Advocate for Sri.H.S. Advocate for accused files

accused filed application u/s.309(2) a/w. 167(2) of
an application Cr.P.C.
u/s.309 of For objection by 23.3.2016.
Cr.P.C. Sd/-
22.3.2016

Indian Kanoon - http://indiankanoon.org/doc/28941236/ 5

 D. Gundappa vs State Of Karnataka on 5 June, 2017

23.3.2016 APP filed objection to B/A. Heard

State APP Sri.H.S. Advocate for accused and APP
Accused - HS for prosecution on B/A u/s.309(2) &
167(2) of Cr.P.C.

24.3.2016 For orders 24.3.2016

State APP Sd/-
Accused - HS 23.3.2016

Accused produced from JC.

Copy of charge-sheet furnished to
accused.

ORDER PRONOUNCED IN THE OPEN COURT

(VIDE SEPARATE ORDER)

ORDER

Bail application u/s.309(2) r/w. 167(2) of Cr.P.C. filed by the accused is rejected.

Sd/-

Prl.Civil Judge & JMFC, Anekal.

24.3.2016.

11. As could be seen from the above, subsequent to the initial remand of the accused to judicial
custody, the accused was not produced before the learned Magistrate except on 28.1.2016. It is also
pertinent to note that the Investigating Officer did not make any requisition to the learned
Magistrate seeking extension of remand. Learned Magistrate also appears to have not taken any care
to extend the remand of the accused from time to time as required under section 167 of Cr.P.C.
Therefore, the immediate question that arises for consideration is whether the illegality in
continuing the custody of the accused entitles him for bail as of right?

12. It is trite law that "Personal liberty is one of the cherished objects of the Indian Constitution and
deprivation of the same can only be in accordance with law and in conformity with the provisions
thereof, as stipulated under Article 21 of the Constitution." The Division Bench of this Court in the
case of NOOR JAHAN vs. STATE OF KARNATAKA (ILR 1991 Karnataka 4081) has reiterated the
above proposition and has laid down that, "In order to detain the accused in custody, law specifically
provides in Section 167 of the Code that there should be an order remanding the accused to judicial
custody. Therefore, in the absence of the order remanding the accused to judicial custody there will
not be any authority either in the State or in the State Police to detain a person in custody merely
because he is accused of an offence punishable under Section 302 I.P.C."

Indian Kanoon - http://indiankanoon.org/doc/28941236/ 6

 D. Gundappa vs State Of Karnataka on 5 June, 2017

13. At the outset, it is to be noted that though before the Trial Court the petitioner had sought bail
under section 167(2) Cr.P.C., the petitioner is not entitled to invoke the said provision in view of the
fact that the charge-sheet has been laid within 90 days from the date of the remand of the accused.
But as the custody of the petitioner/accused has been continued without there being any specific
order of remand or authorization by the learned Magistrate, the only question that remains to be
examined is, whether on account of the above illegality, the petitioner is entitled to be enlarged on
bail as sought for in the application filed under section 167(2) r/w. section 309(2) of Cr.P.C?

14. The legal position as to the nature and scope of the remand order to be made by the learned
Magistrate has been the subject matter of catena of decisions of the Hon'ble Apex Court as well as
various High Courts. Though the term "remand" has not been defined under the Code, yet the
crystallized legal position in view of the provisions contained in the Code is that section 167 of the
Code empowers a Judicial Magistrate to authorize detention of an accused in judicial custody during
investigation for a period of 90 days or 60 days as specified therein. Section 209 of Cr.P.C., confers
power upon a Magistrate to remand the accused to custody until the case has been committed to the
Court of Session and also until the conclusion of trial. Section 309 of Cr.P.C. confers power upon a
Court to remand an accused to custody after taking cognizance of the offence or during the
commencement of trial when it finds it necessary to adjourn the enquiry or trial.

15. As per section 167(2)(b) of the Code, normally for seeking an order of remand to continue the
accused in custody, the accused is required to be produced before the Court in person or through
video linkage and in case it is not possible to bodily produce the accused, for example when he is
hospitalized or undergoing treatment etc., the Investigating Officer is required to submit the reasons
for non-production so that the Magistrate can satisfy himself the genuineness thereof, but he cannot
refuse order of remand on ground of non-production of the accused. This issue is settled by the
Hon'ble Apex Court in the case of RAJ NARAIN vs. SUPERINTENDENT, CENTRAL JAIL, NEW
DELHI AIR 1971 SC 178 and the ratio enunciated therein is followed by the Division Bench of this
Court in NOOR JAHAN vs. STATE OF KARNATAKA ILR 1991 Karnataka 4081 wherein the Division
Bench has reiterated as under:

"For the purpose of passing an order remanding the accused to judicial custody, if it
not possible to produce the accused bodily, he need not be produced and the order of
remand can be passed even in the absence of the production of the accused."

It is held in the above case by the Division Bench that the decision in Raj Narain's case holds good
even under the new Code of 1973 that wherever it is not possible to produce the accused before the
court bodily, the court cannot insist upon the production of the accused and cannot refuse to pass an
order of remand. Therefore, it follows that mere non-production of the accused before extending the
remand does not render the custody of the accused illegal. In the instant case, the custody of the
petitioner/accused is seen to have been continued without there being specific order of remand by
the learned Magistrate; but that by itself, in the light of the proposition referred above, does not
render the custody of the petitioner illegal even though the continuation of the custody without
authorization may give rise to a cause of action to the petitioner for the remedy of habeas corpus or
for damages depending upon the circumstances of the case. In the absence of any provision either in

Indian Kanoon - http://indiankanoon.org/doc/28941236/ 7

 D. Gundappa vs State Of Karnataka on 5 June, 2017

Section 167 or section 209 of Cr.P.C., the petitioner cannot seek his release on bail on the ground
that the custody was extended without an order of remand or without his production before the
Magistrate. The very same question fell for consideration before another Division Bench of this High
Court in the case of SAJJAD & Another vs. STATE OF KARNATAKA by IG Prisons & Others, ILR
2005 Karnataka 3313 and relying on the ratio laid down in Raj Narain's case, it was held that an
order of remand in the absence of the accused is not an illegality and that merely on the ground that
the remand order was passed in the absence of an accused, the accused cannot be released on bail.
We are in agreement with this proposition and therefore, the contrary view taken by the Division
Bench of the Andhra Pradesh High Court in the case relied on by the learned counsel for the
petitioner in A.Narayana Reddy & Others vs. State of A.P., 1991(3) Crimes 873 does not commend to
us.

16. The petitioner has also sought for his release on bail on the further ground that the learned
Magistrate has taken cognizance of the offence in the absence of the petitioner. In our view, even
this lapse does not entitle the petitioner for grant of bail as a matter of right. It is trite law that the
cognizance taken by the learned Magistrate on submission of the charge- sheet is limited only for the
purpose of committal of the case to the Court of Session. It is held by the Hon'ble Supreme Court
that the functions performed by the learned Magistrate under section 209 of Cr.P.C., such as
granting copies, preparing records, notifying the Public Prosecutor etc., are preliminary and
ministerial acts. They are not trial proceedings. Cognizance taken by the learned Magistrate for the
purpose of committal of the case cannot be construed as cognizance of the offence for the purpose of
proceeding against the accused. Though the section requires production of the accused so as to
facilitate the learned Magistrate to commit the case, it has been held that where the accused has
been previously produced before the Magistrate at the initial stage, non-production at the time of
cognizance is only a curable irregularity. More over, in the instant case, it is borne on record that
though the accused was not produced at the time of taking cognizance by the Court, yet the presence
of the accused is seen to have been procured for complying with the requirement of section 209 of
Cr.P.C. as evidenced in the order-sheet dated 24.3.2016. Under the said circumstances, whatever
defects or lapses highlighted by the learned counsel relating to non-production of the accused from
time to time and failure of the learned Magistrate to pass express order remanding the accused to
custody, in our opinion, do not vitiate the proceedings, nor does it confer a right on the accused to
seek for his release on bail as claimed in the petition.

17. We may hasten to add that we should not be understood as laying down the proposition that the
production of the accused before the Magistrate for seeking extension of the remand is optional or
that the Magistrate has unbridled power to dispense with the production of the accused for
extending his remand. We reiterate that the production of the accused before the Magistrate as
mandated in section 167(2)(b) and section 209 Cr.P.C. is a rule and non-production of the accused is
only an exception. As per section 167 of Cr.P.C., the Magistrate is empowered to authorize detention
of the accused in custody only on production of the accused before him. Likewise, section 209 of the
Code also prescribes that when the accused appears or is brought before the Magistrate, he shall
commit the case to the Court of Sessions when the offence is triable exclusively by the Court of
Sessions. Therefore, the production of the accused is indispensable. It is only when the physical
production of the accused is not possible on account of his hospitalization or such other unavoidable

Indian Kanoon - http://indiankanoon.org/doc/28941236/ 8

 D. Gundappa vs State Of Karnataka on 5 June, 2017

reasons, the Magistrate cannot refuse to extend the remand merely on ground of non-production of
the accused. In such event, it is incumbent on the Investigating Officer to make necessary
requisition supported by genuine documents for the satisfaction of the learned Magistrate so as to
extend the remand of the accused.

18. It must also be borne in mind that the requirement of production of accused as provided in
section 167 of Cr.P.C. has a salutary purpose to be achieved. As already stated above, this provision
is in consonance with the constitutional mandate enshrined in Article 22(2) of the Constitution of
India and is also intended to enable the Magistrate to see that remand is necessary and also to
provide an opportunity to the accused to make a representation which he may wish to make.
Therefore, production of the accused for the purpose of extending the remand is not an empty
formality as the law requires the Magistrate to apply his mind even while further extending the
remand of the accused to judicial custody. The practice of mechanical remand therefore is
deprecated. The discussion in this order however is confined to the consequences or effect of illegal
detention of the accused due to non-production of the accused or not making a specific order of
remand by the Magistrate. It is in this context we have analyzed the above provisions of the Code
and the case law on the subject and recorded the view as above.

In view of the factual and legal position discussed above, we do not find any merit in the petition.
Hence, the criminal petition is dismissed.

Sd/-

JUDGE Sd/-

JUDGE Bss.

Indian Kanoon - http://indiankanoon.org/doc/28941236/ 9