Khedaram vs State Of Rajasthan
2023 Latest Caselaw 5042 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR

S.B. Criminal Revision Petition No. 529/2023

Khedaram & Anr.

----Petitioners Versus State of Rajasthan & Anr.

                                                                ----Respondents


For Petitioner(s)        :     Mr. Dhirendra Singh, Sr. Advocate
                               assisted by Ms. Priyanka Borana
For Respondent(s)        :     Mr. Gaurav Singh, AGA
                               Mr. Vineet Jain, Sr. Advocate assisted
                               by Mr. Pravin Vyas



             HON'BLE MR. JUSTICE FARJAND ALI

                                    Order

23/05/2023

1. An explanation was sought from the learned magistrate in

form of an affidavit with two specific questions to be answered by

him vide order dated 16.05.2023 wherein this Court wanted to

know that if the cognizance was not taken, then, under which

provision of law, remand was granted and if the custody that he

was so remanded to was not legal, then shouldn't he be

compensated for the illegal detention that he had to undergo.

2. A perusal of the affidavit submitted by the concerned

Judicial Magistrate before this Court reveals that the explanation is

an attempt in answering a question regarding whether extension

of judicial custody was justified or not and relates to default bail

which is not the issue for which the explanation was sought in the

instant revision petition. The question, in fact, pertained to the

fact that if the detention of the accused is found to be illegal then

(2 of 6) [CRLR-529/2023]

why shouldn't the detainee-accused be awarded compensation for

the same and since the state authorities had submitted the charge

sheet within the statutory period in the present matter yet no

cognizance was taken, why shouldn't the erring officer be made to

compensate the detainee so detained.

3. It is admitted by the judicial officer in the affidavit that

cognizance was not taken after expiry of the statutory time period

of ninety days. The charge-sheet had been filed but the case was

not instituted/registered yet the accused was detained for some

days owing to pendency of application filed under Section 190

CrPC and repeated adjournments. The learned officer has taken

refuge in being misled by the judgment passed by Hon'ble the

Supreme Court in Suresh Kumar Bhikamchand Jain Vs. State

of Maharashtra and Ors. reported in (2013) 3 SCC 77. At the

cost of repetition, it is specified again that the explanation does

not demand that it should be explained as to how default bail was

to be granted and even the endeavour to take aid from the fact of

frequent adjournments does not sit well with this Court as the

explanation demands answer to the questions relating to

compensating the accused if it is found that he was detained

illegally. This Court is cognizant and is no stranger to the

judgment passed in Suresh Kumar Bhikamchand Jain (supra)

by the top Court and the same is not relevant to the conversation

transpiring between this Court and the learned officer as the

explanation has been sought in respect of a completely different

aspect of law; and the aspect that the affidavit speaks of is not an

issue presently.

(3 of 6) [CRLR-529/2023]

4. The intention of this Court in seeking an explanation is not

ill-founded or founded in a habit of stroking its own ego rather its

genesis lies in the profound anguish felt over subjection of the

detainee to groundless remand which the officer was not

empowered to grant or extend in absence of any provision

supporting the same.

5. A plain reading of Section 209 CrPC reveals that it is a post-

registration/institution-of-case and post-cognizance stage and a

Magistrate is empowered to make an order of remand uptil

committal as well as during and until conclusion of trial. It is

important to shed light on how a judicial officer would know

whether a case is triable by Court of Sessions or not. The answer

is that he knows if the case is triable by Court of Sessions or not,

of course, after becoming cognizant of the offence(s) alleged and

having a cursory look over the material viz. FIR, report under

Section 173 CrPC, i.e. charge-sheet. This very process of

'becoming cognizant' as to what are the charges, is, in fact, what

we call in legal terminology as 'cognizance'. It simply means that

the magistrate has applied its judicial mind to proceed further in

the matter. Admittedly, neither that stage had been reached nor

had the learned magistrate proceeded further following this line of

action.

6. Now, at the cost of repetition, the question is being posed

again to make the learned Magistrate understand clearly. Section

167 of CrPC authorises a Magistrate/judicial officer to pass an

order of Police Remand/ Judicial Remand which in total should not

and in fact, can not exceed beyond the respective periods of 60,

(4 of 6) [CRLR-529/2023]

90 and 180 days, as the case may be. The instant case pertains to

offence under Section 302 IPC, thus, the period of 90 days is

applicable in the case at hand. Now, the question remains as to

what is/are the other provision(s) in criminal procedure which

authorise a Magistrate to extend or further the period of Judicial

Remand/ Police Remand after the period of 90 days has come to

an end.

7. The provision of Section 209 comes into play when the case

has been instituted/ registered and the court has taken cognizance

of the offence and thereafter, begins to proceed for passing an

order of committal. The above stage had not reached in the

instant matter till then, however, it is evident that the accused was

further remanded to judicial custody. Whether such an order of

remand could be passed or not is the precise issue that this Court

was seeking an answer to by way of asking for an explanation.

Learned Magistrate is not supposed to/expected to distract from

the issue; the Magistrate is expected to convince this Court

whether a remand order can be passed after the expiry of period

as discussed above and if not, then, whether the order of remand

and custody would tantamount to illegal detention or not and if

the answer is in the affirmative, then how the victim of such

detention can be compensated. Section 209 CrPC operates only

after institution of a case or if the magistrate is making his mind

regarding a case being a case triable by Court of Sessions or not,

then till its committal; which has not been done in the present

matter. After expiry of the time period of 90 days as provided in

Section 167 of CrPC, neither the case was registered nor was

(5 of 6) [CRLR-529/2023]

cognizance taken, implicitly or explicitly, thus, the primary concern

of this Court is to ascertain in what manner and by way of which

provision was the accused in the present matter remanded to

custody by the learned magistrate.

8. It is felt by this Court that the learned magistrate has

answered with a misconception in his mind with regard to the

reason for furnishing the explanation as it is evincing that an

answer to whether the case is covered under Section 167(2) or

not / the accused is liable to be released on default bail or not has

been provided whereas an answer as to how to remedy the wrong

done by subjecting the accused to illegal detention was actually

sought, thus, keeping in mind that the learned magistrate did not

act with any malice/bad intention, it is deemed appropriate to

afford another opportunity to the Judicial Officer to furnish a fresh

affidavit in respect of the questions formulated and specifically

stated in the order dated 16.05.2023. In the opinion of this Court,

it is imperative to know the answers to the following questions

which are being broken down and specified herein under again for

more clarity as it is necessary to understand the perspective of the

learned magistrate before passing any remarks:

a) After expiry of 90 days and before passing the order of remand,

whether cognizance was taken or not/ case had been instituted or

registered or not;

b) If the cognizance was not taken, then under which provision of

law was the order of remand passed;

(6 of 6) [CRLR-529/2023]

c) If there is no provision backing/ providing for such an order of

remand, then whether the custody of the detainee was legal or

illegal; and

d) lastly, if the custody/ detention was illegal, then whether/how

should the detainee be compensated for the period that he spent

in illegal detention.

9. It is further made clear that there is nothing to be asked

regarding the issue of default bail as the same shall be dealt with

by this Court at a subsequent stage. However, as the matter

pertains to personal liberty of an individual, therefore, the

proceeding is being conducted expeditiously.

10. Shri Vineet Jain, learned Senior Advocate, has expressed his

willingness to render his assistance in this case on the next date

of hearing.

11. List on 29.05.2023.

12. The Registrar (Judicial) is directed to communicate regarding

this order and send a copy of the same via e-mail forthwith to the

concerned judicial officer.

(FARJAND ALI),J 287-AnilKC/-

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