Jharkhand High Court
Md. Suhel vs The State Of Jharkhand & Ors on 5 September, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No. 413 of 2022
Md. Suhel ..... ... Petitioner
Versus
The State of Jharkhand & Ors. ..... ... Respondents
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Jitendra S. Singh, Advocate.
For the State : Mr. Devesh Krishna, S.C.(M)-III.
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06/ 05.09.2023 Heard Mr. Jitendra S. Singh, learned counsel appearing for
the petitioner and Devesh Krishna, learned S.C.(M)-III for the State.
2. This petition has been filed for releasing the petitioner
forthwith, in connection with Chandwa P.S. Case No. 147 of 2021,
pending in the court of learned Special Judge, Latehar.
3. Mr. Jitendra S. Singh, learned counsel appearing for the
petitioner submits that the final form has been submitted on 23.01.2022
and thereafter cognizance was not taken and in view of Sub-Section (2)
of Section 309 of the Cr.P.C., the petitioner is entitled for bail, as the
cognizance has been taken against the petitioner on 26.08.2022 and in
view of that the petitioner was illegally kept in jail. He submits that this
aspect of the matter has not been appreciated by the learned court and
by the impugned order dated 12.08.2022, the bail of the petitioner has
been rejected.
4. On the other hand Mr. Devesh Krishna, learned counsel
appearing for the State submits that the learned court has already taken
the cognizance against the petitioner on 26.08.2022 and there is only
one Section of default bail, i.e. under Section 167(2) of the Cr.P.C. He
submits that the stage of Section 309 Cr.P.C. was not reached at that
time and the learned court has rightly passed the order. He relied in the
case of Shintu Yadav Versus The State of Bihar through District
Magistrate, Gaya, reported in 2017(1) PLJR 363, wherein the Division
Bench of Patna High Court in paras-48, 49, 68 and 69, held as follows:-
"48. From what has been laid down in Suresh
Kumar Bhikamchand Jain (supra), Rathin
Dandapat (supra) and Jeewan Kumar Raut
(supra), it becomes abundantly clear that on
submission of charge sheet, the Magistrate is
empowered to remand an accused to custody by
virtue of powers vested in him under Section
167(2) of the Code and it is only when he takes
cognizance that the stage of Section 309(2) of
the Code is reached and till then, the remand of
the accused can be legally continued by taking
resort to the provisions embodied in Section
167(2) of the Code. And even after a Magistrate
has taken cognizance, an accused can still be
remanded to custody, police or judicial, in
exercise of the Magistrate‟s power
under Section 167(2) of the Code, if the case
falls for further investigation. [See: Dawood
Ibrahim Kaskar's case (supra), and Rathin
Dandapat's case (supra)]. Mere delay, on the
part of the Magistrate in taking cognizance of
an offence, on the basis of a police report,
would not vest in the accused an indefeasible
right to be released unconditionally or on bail.
[See: Jeevan Kumar Raut's case (supra)]
49. In short, on submission of charge sheet, a
Magistrate is not denuded of its power to
remand an accused to custody by virtue of his
power under Section 167(2) of the Code.
However, once cognizance is taken, the remand,
if any, would be pursuant to the Court's power
under Section 309(2) of Patna High Court Cr.
WJC No.305 of 2016 dt.18-10-2016 the
Code unless a case falls for further
investigation. [See: Rathin Dandapat's case
(supra)]. Only for the reason of delay in taking
cognizance, on the submission of the police
report, an accused cannot claim his release
either unconditionally or on bail. [See: Jeevan
Kumar Raut's case (supra)].
68. In Manubhai Ratilal Patel Tr. Ushaben Vs.
State of Gujarat, reported in (2013) 1 SCC 314,
the Patna High Court Cr. WJC No.305 of 2016
dt.18-10-2016 Supreme Court, having referred
to some of its earlier decisions, in Ram Narayan
Singh v. State of Delhi, (AIR 1953 SC 277), B.R.
Rao v. State of Orissa, (AIR 1971 SC
2197), Kanu Sanyal v. District Magistrate,
Darjeeling, (AIR 1973 SC 2684), and Sanjay
Dutt v. State through C.B.I., Bombay (II),
reported in (1994) 5 SCC 410, held that "any
infirmity, in the detention of the Petitioner at the
initial stage, cannot invalidate the subsequent
detention and the same has to be judged on its
own merits." In Sanjay Dutt's case (supra), a
Constitution Bench of the Supreme Court has
held that a petition ─ seeking writ of habeas
corpus, as to the illegality of detention or
custody of an accused ─ has to be decided on
the basis of legality or illegality of such
detention as on „the date of return of the rule
issued'. In other words, if on the date of return
of the rule, the detention or custody is legal, a
writ would not be issued to release the accused
or any person in custody.
69. In short, therefore, a writ petition, seeking a
writ of habeas corpus, has to be considered and
decided in light of the legality or otherwise of
such detention or custody as on the date of
return of the rule issued upon presenting such
writ petition before the Court."
5. Relying on this judgment, learned counsel appearing for the
State submits that the petitioner, who is facing the trial under the NDPS
Act is not entitled for bail.
6. In view of the above submissions of learned counsel
appearing for the parties, the court finds that the learned court has been
pleased to reject the said contention considering the judgment of
Hon'ble Supreme Court in the case of Suresh Kumar Bhikamchand
Jain Versus State of Maharashtra & Anr., reported in (2013) 3 SCC
77 and the learned court refers to para-18 of the said judgment.
7. Admittedly, the final form was submitted on 23.01.2022
and the learned court has taken the cognizance on 26.08.2022 and it has
been pointed out by learned counsel appearing for the respondent-State
that now the trial is proceeding and it is at evidence stage. In para-68 of
the judgment of Division Bench of Patna High Court, the several
judgments have been relied upon, wherein it has been held any
infirmity, in the detention of the petitioner at the initial stage, cannot
invalidate the subsequent detention and the same has to be judged on its
own merits.
8. On submission of charge sheet, the Magistrate is
empowered to remand an accused to custody by virtue of powers vested
in him under Section 167(2) of the Code and it is only when he takes
cognizance that the stage of Section 309(2) of the Code is reached and
till then, the remand of the accused can be legally continued by taking
resort to the provisions embodied in Section 167(2) of the Code and
that aspect has been held in para-48 of the judgment of the Division
Bench of the Patna High Court in the case of Shintu Yadav (Supra).
9. In the case in hand, the cognizance has already been taken
and the trial is going on, as such, the court finds that there is no
illegality in the impugned order. As such, no relief can be extended to
the petitioner. Accordingly, this petition is dismissed.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
[A.F.R.]
