The Legality of Remand after Completion of Investigation and before Taking Cognizance

The term “cognizance” has not been defined under the Code of Criminal Procedure, 19731 (“the Code”). To quote the Supreme Court in Kishun Singh v. State of Bihar2:

  1. … Even though the expression “take cognizance” is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence.

Arrest, investigation, remand and cognizance in criminal matters

Section 41 of the Code3 empowers police officers to arrest a person without warrant in connection with a cognizable offence. Thereafter the mandate of Section 57 of the Code4 requires the arrestee to be produced before the nearest Magistrate within 24 hours of such arrest. The Magistrate can then authorise his custody under Section 167 of the Code5. The essence of Section 167 is for the Magistrate/court to determine if custodial interrogation of the arrestee is necessary to unearth the truth in a given case.

Section 167 of the Code contemplates detention of accused to custody, empowering a Magistrate to authorise such detention of accused in such custody as he thinks fit for a period not exceeding 15 days in total. If the Magistrate does not have jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.

A Magistrate shall, however, not authorise detention to custody for a total period exceeding:

(a) ninety 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;

(b) sixty days, where the investigation relates to any other offence.

If the investigating agency fails to complete its investigation and file its final report within the prescribed period of ninety or sixty days, an “indefeasible right” of bail accrues in favour of the arrestee. The release on bail on account of default committed by the investigating agency is widely known as default or statutory bail.

Nevertheless, if the investigating agency completes the investigation and files a final report/charge-sheet before expiry of the prescribed period under Section 167 of the Code, the Magistrate is empowered to take cognizance of the report and extend the custody of the arrestee.

In Suresh Kumar Bhikamchand Jain v. State of Maharashtra6 it was settled that Section 167 of the Code operated only at investigation stage i.e. pre-cognizance stage and ceases to operate after completion of investigation. Then comes the cognizance stage wherein the court after perusing the final report and material, can extend the remand of accused to custody under other provisions of law. The Magistrate, as held by the Constitution Bench in Dharam Pal v. State of Haryana7 is to apply his mind to a final report/charge-sheet or challan and proceed with the matter as per the provisions stipulated in the Code. The accused continues to remain in custody unless he is granted bail with regards to the merits of the case. Section 209 of the Code8 authorises the Magistrate to remand an accused to custody while committing a matter to the Court of Sessions, if the matter is triable exclusively by the Court of Sessions whereas Section 309 of the Code9 empowers the Magistrate/Court to remand an accused to custody from time to time, by issuing a warrant. However, Sections 209 and 309 of the Code come into picture only at a post-cognizance stage10. This means that the court can exercise these powers only after taking cognizance of the police report/charge-sheet or challan. There however are times when courts keep final reports pending without taking cognizance and yet proceed to extend the custody of accused. As regards prosecution against Judges and public servants, Section 197 of the Code11 states that no court shall take cognizance of such offences without previous sanction of the competent authority. A similar bar exists in certain special statutes like the Prevention of Corruption Act, 198812 (refer Section 1913). In such cases, if the court fails to take cognizance of the offence after completion of investigation, could further detention of the arrestee be legal?

Analysis

In Nitin Nagpal v. State14, the issue cropped up before the Delhi High Court. The record stated that after 18 days of investigation being completed, the Magistrate took cognizance of the report/charge-sheet. This means that the person was not kept in custody either under Section 167 or under Section 209 or Section 309 of the Code. The Single Judge Bench of the Delhi High Court, taking into account the relevant provisions of the Code, agreed with the petitioner’s contentions that it was impermissible for the Magistrate to keep the report pending for 18 days. The custody of the petitioner was therefore termed “illegal”. However, as the Magistrate had taken cognizance of the report albeit after 18 days, the High Court denied releasing the petitioner from jail. It was observed:

  1. Under these circumstances, although I am in agreement with the learned counsel for the petitioner that as on the date of the application for bail made on 4-10-2005 the petitioner’s custody was illegal and he was liable to be released, I am unable to allow the present application for bail underSection 167(2) of the Code for the reason that cognizance has since been taken and presently the petitioner is in judicial custody under a valid order or remand. This application is, accordingly, dismissed.15

In Kapil Wadhawan v. CBI16, the Bombay High Court also had the occasion to deal with the issue. It was argued by the Senior Counsel for the petitioner that after completion of investigation, the report was not filed by producing it before the Special Judge but it was only presented in the Department of the Court. It was therefore contented that the accused deserved to be released on default bail. This contention, however, was rejected by the Single Judge Bench of the High Court observing that the Code did not provide that the report had to be specifically presented before the Magistrate and not Registry.

In Suresh Kumar Bhikamchand Jain17, the Full Bench held that once the final report was filed by the investigating agency, Section 167(2) of the Code ceased to apply, irrespective of whether the Magistrate had taken cognizance of the report or not. Reliance was placed on the Constitution Bench judgment of Sanjay Dutt v. State (2)18\which had observed that once the report was filed, bail could only be sought on merits of the matter and not on account of default of investigation.

While the ratio rendered in Suresh Kumar Bhikamchand Jain decision19 may appear to be correct at first blush, it would be advantageous to refer to Sanjay Dutt judgment20 wherein the five-Judge Bench also observed that the custody of the accused after the challan (charge-sheet) is filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure, which we have seen above to be Sections 209 and 309 of the Code. In cases where the Magistrate or court fails to take cognizance of the final report after completion of investigation is deemed to be a pre-cognizance stage. It is therefore impermissible for the court to extend the custody of accused in such circumstances for two reasons:

  1. remand to custody under Section 167 ceases to apply once investigation is completed; and
  2. custody under Sections 209 and 309 operates only at a post-cognizance stage.

Considering that “custody” in such situations is not governed by any legal provision, it will suffice to say that both, the remand order as well as custody of the accused would be illegal.

Conclusion

It is fairly settled that trial courts have to follow the procedure of law which is provided21 under the Code or statute. They do not have any inherent powers which lie exclusively22with the High Courts.

Based on the above analysis, is it manifest that extension of custody by the court after completion of investigation, without taking cognizance of the final report/charge-sheet renders the custody of an arrestee illegal. An extension of custody under no legal provision is not only impermissible but could infringe a valuable fundamental right. It may be profitable to quote a line authored by  G.B. Pattnaik, J. in Uday Mohanlal Acharya v. State of Maharashtra23:

“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 of India.”

However, as there is no legal provision in regard to this subject, it would suffice to say that the subject-matter falls under “grey areas” of Article 21 of the Constitution. It is therefore necessary for the authorities concerned to address this issue and take a positive step in this regard.


*Advocate, Bombay High Court.

1 Code of Criminal Procedure, 1973.

2(1993) 2 SCC 16, 23.

3 Section 57 CrPC. http://www.scconline.com/DocumentLink/hCZT8v3u.

4http://www.scconline.com/DocumentLink/0oDm9d53.

5http://www.scconline.com/DocumentLink/zXLseNDD.

6(2013) 3 SCC 77.

7(2014) 3 SCC 306.

8http://www.scconline.com/DocumentLink/7t43wBu8.

9http://www.scconline.com/DocumentLink/4biCv82u.

10Dinesh Dalmia v. CBI, (2007) 8 SCC 770 and Nazma Khatun v. State of West Bengal, 2019 SCC OnLine Cal    9102.

11http://www.scconline.com/DocumentLink/47bUoZz4.

12http://www.scconline.com/DocumentLink/zo935L02.

13http://www.scconline.com/DocumentLink/kvZ11hFM.

142006 SCC OnLine Del 704.

15Nitin Nagpal v. State, 2006 SCC OnLine Del 704.

16 2020 SCC OnLine Bom 11655.

17(2013) 3 SCC 77.

18(1994) 5 SCC 410.

19(2013) 3 SCC 77.

20(1994) 5 SCC 410.

21Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338.

22 S. 482 CrPC.

23(2001) 5 SCC 453.

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