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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: LAXMI BRAHMAN & ANR.

DATE OF JUDGMENT11/03/1983

BENCH: DESAI, D.A. BENCH: DESAI, D.A. MISRA, R.B. (J)

CITATION:  1983 AIR  439            1983 SCR  (2) 537  1983 SCC  (2) 372        1983 SCALE  (1)274  CITATOR INFO :  RF         1986 SC2130  (31)

ACT:      Code of Criminal Procedure, 1973-S. 167 (2) as it stood prior to  1978 and  Ss. 170.  207, 209  and 309  (2)-Offence exclusively triable  by Court of Session-Power of Magistrate to  grant   ball  to   or  remand  accused  to  custody-When investigation  is   not  complete  within  prescribed  limit Magistrate has  power under  S.167  (2)  to  grant  bail  to accused provided  he applies  for  it  and  is  prepared  to furnish bail-After  submission of police report under S. 170 and before  committing accused  to Court of Session under S. 209 Magistrate  has power  under S. 309(2) to remand accused to custody.      Code of  Criminal Procedure,  1973-S. 2(g) and Ss. 190, 207 and 209-Taking cognizance of offence by Magistrate under S. 190  is  a  judicial  function  -Discharge  of  statutory obligation by  Magistrate to  furnish copies of documents to accused under  S. 207  read with  S. 209  is  also  judicial function and  constitutes ’inquiry’ within the meaning of S. 2(g).

HEADNOTE:      The respondents  were suspected  of having committed an offence punishable with death or imprisonment for life under section 302  I.P.C. triable  exclusively  by  the  Court  of Session. They  surrendered before the Magistrate on November 2, 1974  and were  taken  into  custody.  The  investigating officer failed  to  submit  the  charge-sheet/police  report against them  within the  period of  60 days contemplated by the proviso  to sub-s. (2) of S. 167 of the Code of Criminal Procedure 1973  as it  stood prior to its amendment in 1978. However, the respondents did not apply to the Magistrate for being released  on bail  but approached the High Court under S. 439  Cr. P.C.  According to  the High  Court, the charge- sheet against  the respondents  was submitted  on February 5 1975. The  High  Court  directed  that  the  respondents  be released on  bail pending  trial by  the  Court  of  Session holding:      (i)  that in a case triable exclusively by the Court of           Session after  the charge-sheet has been submitted           under S.  170 and before committing the accused to

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         the  Court   of  Session  the  Magistrate  has  no           jurisdiction to  authorise  the  detention  of  an           accused in custody under S. 167 Cr. P.C.;      (ii) that  in such a case S. 209 would not confer power           on the Magistrate to commit the accused to custody           since after  the enactment of the Code of Criminal           Procedure,  1973,   the   procedure   before   the           Magistrate under Chapter XVI of the Code would not           be an  inquiry within  the meaning  of  S.  2  (g)           thereof; 538      (iii)that in  such a  case S. 309 would also not enable           the Magistrate  to A remand the accused to custody           since  he  would  not  be  competent  to  try  the           accused; and      (iv) that  in view of the provision contained in S. 207           read with  S. 209  Cr. P.C.  the Magistrate has to           commit the  accused  forthwith  to  the  Court  of           Session  and   it  is  only  after  the  order  of           commitment is  made that  the Magistrate will have           power to  remand the accused to the custody during           and until the conclusion of the trial.      Allowing the appeal, ^      HELD: The view that after the accused is brought before the court along with the police report under S. 170 Cr. P.C. the Magistrate  must forth  with commit  the accused  to the Court of  Session  because  the  Magistrate  would  have  no jurisdiction in  the absence  of any provision to remand the accused to custody till the order committing the case to the Court of  Session is  made. is  wholly untenable and must be set aside. [550-F-H]      Section  170   Cr.  P.C.  Obligates  the  investigating officer to  submit the  police report,  if in  the course of investigation sufficient  evidence or  reasonable ground  is made out  for the  trial or  for commitment for trial of the accused, to  the Magistrate  empowered to take cognizance of the offence  upon a  police report.  On  this  report  being submitted, the  Magistrate takes  cognizance of  the offence disclosed in investigation as envisaged by S.190. Cognizance of an  offence even  if exclusively  triable by the Court of Session has  to be  taken by  the Magistrate be cause S. 193 precludes the Court of Session from taking cognizance of any offence. Taking  cognizance of  an offence under S. 190 is a purely judicial  function subject  to judicial  review.  The statutory obligation  imposed by  S. 207 read with S. 209 on the Magistrate  to furnish  free of cost copies of documents mentioned in  S. 207  to the  accused is a judicial function and it  has to  be discharged  in a  judicial manner.  It is distinctly possible  that the  copies may not be ready. That makes it necessary to adjourn the matter for some time which may be  spent in preparing the copies and supplying the same to the  accused. The  Magistrate can  proceed to  commit the accused for  trial to  the Court  of Session  only after  he judicially discharges  the function  imposed upon  him by S. 207.  This   conclusion  is   fortified  by  the  provisions contained  in  Ss.  226  and  227  of  Chapter  XVIII  which prescribe the  procedure for trial of a case by the Court of Session.  When  the  Magistrate  is  performing  a  judicial function under  s. 207,  it would undoubtedly be an inquiry. The making  of an  order committing the accused to the Court of Session will equally be a stage in the inquiry. Thus from the time  the accused  appears or  is  produced  before  the Magistrate with  the police  report under  S.  170  and  the Magistrate proceeds  to enquire  whether  S.  207  has  been

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complied with and then proceeds to commit the accused to the Court of Session, the proceeding before the Magistrate would be an  inquiry as  contemplated by  S. 2(g),  and S.  309(2) would enable the Magistrate to remand the accused to custody till the  inquiry to be made is complete. [547-G-H; 548-A-B; 549-B-H; 550A-D] 539      In the  instant case,  when the  matter was  before the High Court,  the charge-sheet had not been submitted against the respondents  by  the  investigating  A  officer  meaning thereby that the investigation was still in progress. If the High Court  had no information when the application for bail moved by  the respondents  for being  enlarged on  bail  was heard as to whether the charge-sheet against the respondents had been  submitted to  the Magistrate or not, it was futile for the  High Court to have undertaken an investigation of a point of  law which  did not  directly arise  in  the  facts before the  High Court. As the High Court had dealt with the matter, it  became a  precedent and,  therefore,  it  became necessary for  the Court  to examine whether the view of the High Court  was in  consonance with  the provisions  of  the Code. [544-H; 545-A-D]      The  High   Court  was   right  in   holding  that  the jurisdiction to  grant bail,  in case  investigation is  not completed within the prescribed limit as incorporated in the proviso to  S. 167  (2) as  it  then  stood,  vests  in  the Magistrate if  the accused  applies for  and is  prepared to furnish bail.  Section 167  envisages a stage when a suspect is arrested  and investigation  is not  complete within  the prescribed period.  The investigation  would come  to an end the moment  charge-sheet is  submitted as  required under S. 170 unless  the Magistrate  directs  further  investigation. [545 E-F]      State of  Bihar and  Arn. v.  J.A.C. Saldanha  and Ors. [1980] 2 SCR 16, referred to.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 249 of 1976.      Appeal by  Special leave  from the  Judgment and  order dated the  10th July,  1975 of  the Allahabad  High Court in Criminal Misc. No 1104 of 1975.      Prithvi Raj and Dalveer Bhandari for the Appellant.      N.M. Ghatate for the Respondents.      The Judgment of the Court was delivered by      DESAI, J.:  Respondents Lakshmi  Brahman and Naval Garg were suspected  of having  committed an  offence  punishable with death  or imprisonment  for life under section 302 IPC. Both of  them surrendered  before the Magistrate on November 2, 1974  and were  taken into custody. The investigation was then in progress. The investigating officer failed to submit the charge-sheet against 540 them within a period of 60 days as contemplated by sub-sec 2 of sec.  167 of  1973 Code  prior to  its amendment  by  the Criminal Procedure Code (Amendment) Act, 1978 which enlarges the period  from 60  to  90  days  where  the  investigation relates to  an offence  punishable with  death, imprisonment for life  or imprisonment  for a  term of  not less  than 10 years. In  this case  we are  concerned with  the proviso to sec. 167 (2) of the Cr. P. C. 1973 prior to its amendment in 1978. It  appears that  the Investigating  officer failed to submit the  charge-sheet within  the prescribed  period  and

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according to  the High  Court till  as late  as February  5, 1975. Thereupon  the two  respondents moved  an  application under sec.  439 of  the Cr.  P. C. invoking the power of the High Court  to grant  bail  to  any  person  accused  of  an offence, even  where the offence is punishable with death or imprisonment for life.      A Division  Bench of  the Allahabad  High  Court  which heard the  application was  of the  opinion that  after  the charge-sheet has  been submitted  under sec.  170 Cr. P. C., the  Magistrate   has  no   jurisdiction  to  authorise  the detention of an accused in custody under sec. 167 Cr. P. C., and therefore,  the  authority  to  remand  the  accused  to custody after the charge-sheet has been submitted, has to be gathered from  other provisions  of the Code. The High Court then  posed  to  itself  the  question  whether  in  a  case instituted upon  a police  report exclusively triable by the Court of  Sessions,  the  Magistrate  while  committing  the accused to  the Court  of Sessions, under sec. 209 Cr. P. C. has, after  the accused is brought before him and before the order committing  the accused  to the  Court of  Sessions is made, jurisdiction  to remand  the accused  to custody other than the police custody ? The High Court was of opinion that since after  the enactment  of Code  of Criminal  Procedure, 1973, the proceeding before the Magistrate under Chapter XVI of the  Code would  not be  an enquiry within the meaning of the expression  in sec.  2 (g) and, therefore, sec.209 would not confer  power on the Magistrate to commit the accused to custody. Proceeding along the line, the High Court held that in view  of the  provision contained  in sec.  207 read with sec. 209  of the  Cr. P. C. the Magistrate has to commit the accused forthwith  to the  Court of  Sessions and only after the order  of commitment  is made,  the Magistrate will have power to  remand accused to the custody during and until the conclusion of  the trial. Tho High Court according held that the Magistrate has no 541 jurisdiction, power  or authority  to remand  the accused to custody after  the charge-sheet  is submitted and before the commitment order  is made,  and therefore  the accused  were entitled to  be released  on bail. So saying, the High Court directed that  the respondents  be released  on bail pending the trial  by the  Court of  Sessions.  State  of  U.P.  has preferred this appeal by special leave.      Respondents have  not appeared  even though  served and the notice  of lodgment  of appeal has also been served upon them. As the respondents had not entered appearance, a fresh notice of  hearing the  appeal  was  also  issued,  but  the respondents have  not chosen to appear at the hearing of the appeal. Mr.  Prithviraj, learned  counsel appeared  for  the appellant, State  of U.P. At the commencement of the hearing of the  appeal, we enquired from him as to what has happened to the  case against  the respondents, whether the trial had taken place;  whether they  were acquitted  or convicted and whether any useful purpose would be served by hearing of the appeal which  appears  to  us  to  have  become  practically infructuous. Mr.  Prithviraj had  no information  about  the stage of  trial and the present position of the respondents. But it  was urged  that the  interpretation put  by the High Court on  secs. 207,  209 and  309 if  not examined  by this Court is  likely to  result in  miscarriage of  justice in a large number  of cases  as the  High Court  has introduced a stage of  compulsory grant  of bail  to persons  accused  of serious offence not warranted by the Code, and who would not be otherwise  entitled to  the discretionary relief of bail. It is  this submission which has persuaded us to examine the

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contention on merits.      Section 2(g)  of the Code defines inquiry to mean every inquiry, other  than a  trial, conducted under the Code by a Magistrate or  Court. Cognizable offence has been defined in sec, 2(c)  to mean  an offence  for which,  a police officer may, in  accordance with  the First  Schedule or  under  any other law  for the  time in  force, arrest  without warrant. Sec. 57  provides that  no police  officer shall  detain  in custody a  person arrested  without  warrant  for  a  longer period than  under all  the circumstances  of  the  case  is reasonable and  such period  shall not,  in the absence of a special order of a Magistrate under Sec. 167, exceed twenty- four hours,  exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court. In fact, the  provision   contained  in   sec,  57  incorporates  the fundamental right guaranteed by Art. 22 of the 542 Constitution.  Chapter   XII  of   the   Code   incorporates provisions for  initiation of  investigation on  receipt  of information  of   a  cognizable   offence   continuing   the investigation culminating  in the  submission  of  a  police report otherwise  styled as  charge-sheet under  sec. 170 to the Magistrate  having jurisdiction,  which would  imply the end  of  investigation.  Subsequent  proceeding  before  the Magistrate would  be the  commencement of  inquiry or  trial leading to  either commitment for trial in the Session Court or to  discharge or  acquittal of  the accused  by the Court having jurisdiction  to try  the case.  Sec. 167  finds  its place in Chapter XII. Prior to its amendment by the amending Act of 1978, it read as under:-           "(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 sec.  57, and  there  are  grounds  for      believing that  the accusation  or information  is well      founded, the officer-in-charge of the police station or      the police  officer making  the investigation, if he is      not below  the rank  of sub-inspector,  shall forthwith      transmit to  the nearest  Judicial Magistrate a copy of      the  entries   in  the   diary  hereinafter  prescribed      relating to  the case,  and  shall  at  the  same  time      forward the accused to such Magistrate.           (2) The  Magistrate to  whom an  accused person is      forwarded under this section may, whether he has or has      not jurisdiction  to try  the case,  from time  to time      authorise the  detention of the accused in such custody      as such Magistrate thinks fit, for a term not exceeding      fifteen  days   in  the   whole;  and   if  he  has  no      jurisdiction to  try the  case or  commit it for trial,      and considers  further detention  unnecessary,  he  may      order the  accused to be forwarded to Magistrate having      such jurisdiction:           Provided that:      (a)  the Magistrate  may  authorise  detention  of  the           accused person,  otherwise than  in custody of the           police, beyond the period of fifteen days if he is           satisfied, that  adequate grounds  exist for doing           so,  but,   no  Magistrate   shall  authorise  the           detention of  the accused  person in custody under           this section  for a  total period  exceeding sixty           days, and on the 543           expiry of  the said  period  of  sixty  days,  the           accused person  shall be  released  on  bail;  and           every person  released on  bail under this section

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         shall be  deemed  to  be  so  released  under  the           provisions of  Chapter XXXIII  for the purposes of           the Chapter;      (b)  no Magistrate  shall authorise  detention  in  any           custody under  this section  unless the accused is           produced before him;      (c)  no Magistrate  of the  second class, not specially           empowered in  this behalf by the High Court, shall           authorise detention in the custody of the police."      In  this   appeal,  we  are  concerned  with  sec.  167 hereinabove extracted.  The High  Court after  examining the scheme of  sec. 167(1)  and (2)  with  the  Proviso  rightly concluded that,  on the  expiry of  60 days from the date of the arrest  of the  accused, his  further detention does not become ipso  facto illegal  or void, but if the charge-sheet is  not  submitted  within  the  period  of  60  days,  then notwithstanding to  the contrary in sec. 437(1), the accused would be  entitled to an order for being released on bail if he is prepared to and does furnish bail. In this case, it is an admitted  position that  the respondents did not apply to the Magistrate  for being  released on bail on the expiry of 60 days from the date of their arrest. The High Court was of the opinion  that as  the respondents did not apply for bail on the  expiry of  sixty days from the date of their arrest, their continued  detention would  not be  illegal or without the authority of law. So far there is no controversy.      It was  next contended before the High Court that after the submission  of the  charge-sheet, when the investigation could be  said to  have  ended,  it  was  not  open  to  the Magistrate to  authorise the  detention  of  an  accused  in custody under  sec. 167  of the  Code, and therefore, if the accused is to be detained in custody after the submission of the charge-sheet  upon which the Magistrate takes cognizance of an  offence, the  power to  remand the accused to custody will have  to be gathered from other provisions of the Code. The High  Court then took notice of the fact that the police report discloses an offence exclusively triable by the Court of  Sessions   and  the  Magistrate  will  have  to  proceed according to  the provision  contained in  sec. 209  of  the Code. Shorn  of embellishment  the High  Court proceeded  to find out how the accused against whom the allegation is that he is 544 suspected of  having committed  an offence  punishable  with death or  imprisonment for  life and  in respect of whom the period for  completion of  investigation has  elapsed and in the absence  of charge-sheet,  order committing him to Court of Sessions  to stand  his trial  cannot  be  made  and  the accused does  not apply for bail, how is he to be dealt with by the  Magistrate. In  other words  during the interregnum, has the  Magistrate power  or jurisdiction  to remand him to custody other  than police  custody and  if  there  is  such power, in which provision it is located. The High Court then combed  other  provisions  of  the  Code,  and,  ultimately, concluded that  since the  1973 Code  does  not  envisage  a preliminary enquiry  to be  held  by  the  Magistrate  under Chapter XVI,  the Magistrate  is not  expected to  hold  any enquiry before  committing the  accused and  therefore  sec. 309, would  not enable him to remand the accused to custody. In the  terms High  Court held  that in such a situation for want of  power  in  the  Magistrate  to  remand  accused  to custody, the  Magistrate must forthwith on receipt of charge sheet pass  an order  committing the  accused  to  Court  of Sessions to  stand his  trial and  then exercise power under sec. 309  or to release him on bail notwithstanding the fact

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that accused has not sought an order of bail. The High Court left the  question  unanswered  what  would  happen  if  the accused is  unable to  furnish bail  by suggesting  that the best thing  to do  for the Magistrate in such a situation is to  forthwith  pass  an  order  committing  the  accused  to Sessions to stand his trail and then invoke his jurisdiction to remand the accused to custody under sec. 309 of the Code. The High  Court held  that as the Magistrate before whom the charge-sheet  was  submitted  remanded  the  respondents  to custody without  making the  order of  commitment, the order remanding the  accused to custody, cannot be sustained under secs. 167  (2), 209, 309 of the Code, and no other provision under which the respondents could be remanded to the custody at that  stage having  been indicated to the Court, the High Court considered  it a compelling necessity to accede to the request of  the respondents  to direct  that they  should be released on bail. Serious exception is taken to this view of the High Court by the learned counsel for the appellant.      Respondents  were  suspected  of  having  committed  an offence punishable  under sec.  302  IPC.  On  their  having surrendered, they  were taken  into custody. When the matter was before  the High Court as noticed by the High Court, the charge-sheet  was   not  submitted   against  them   by  the Investigating Officer meaning thereby that 545 investigation  was   still  in   progress.  The  High  Court proceeded to  examine the  powers of  the Magistrate to whom the  charge-sheet  is  submitted,  in  case  of  an  offence exclusively triable  by the  Court of  Sessions for  dealing with an  accused after  he is produced before him presumably under sec. 170 and before an order committing the accused to the Court of Sessions as envisaged under sec. 209 is made.      If  the   High  Court   had  no  information  when  the application for bail moved by respondents for being enlarged on bail  was heard  as to  whether the  charge-sheet against respondents was  submitted to  the Magistrate or not, in our opinion, it  was futile  for the  High  Court  to  undertake investigation of  a point  of law  which would  not directly arise in  the facts before the High Court and ordinarily the academic exercise  is hardly undertaken. However, now as the High Court  has dealt with the matter it becomes a precedent and, therefore,  it becomes  necessary  for  us  to  examine whether the view of the High Court is in consonance with the provision of  the Code.  And if  not whether  in the  larger interest of  criminal justice,  it is necessary to interfere with the same.      We would  proceed on the assumption as done by the High Court that  the  Investigating  Officer  has  submitted  the police report  as contemplated  by sec.  170 and as required therein  forwarded   the  accused   under  custody   to  the Magistrate to  whom the police report is submitted. Now, the High Court  is right  in holding  that the  jurisdiction  to grant bail,  in case  investigation is  not completed within the prescribed  time limit  as incorporated in the provision as it  then stood,  vests in  the Magistrate  if the accused applies  and  is  prepared  to  furnish  bail.  Section  167 envisages a  stage  when  a  suspect  is  arrested  and  the investigation is not completed within the prescribed period. The investigation  would come  to an  end the moment charge- sheet is  submitted as  required under  sec. 170  unless the Magistrate directs  further investigation.  This view  is in accord with  the decision  of this  Court in  State of Bihar Anr. v. I.A.C. Saldanha & Ors. (1)      The question  is how the Magistrate is to deal with the accused forwarded  to him  with the police report under sec.

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170 and  the police  report disclose  an offence exclusively triable by  the Court  of Sessions.  Provisions contained in Chapter XVI  provide for  commencement of proceedings before the Magistrate. But before we refer to 546 those provisions,  w must  make a  passing reference  to the provision contained  in sec.  190 which  provides for taking cognizance of  any offence  by Magistrate,  one such mode of taking cognizance  of an offence being upon police report if the  facts   disclose  an   offence.   The   police   report contemplated by  sec. 190(1)(b)  is the one submitted to the Magistrate under  sec. 170.  Sec. 204  provides for issue of process. Sec.  207 provides  that  in  any  case  where  the proceeding has  been instituted  on  a  police  report,  the Magistrate shall  without delay furnish to the accused, free of costs,  a copy  of each of the documents set out therein. There are  two  provisos  to  this  section  which  are  not material for  the present purpose. Sec. 209 confers power on the Magistrate  to  commit  the  accused  to  the  Court  of Sessions when  the offence disclosed in the police report is triable exclusively by it. Section 209 reads as under:      "209. Commitment  of case  to Court  of  Sessions  when           offence is triable exclusively by it;           When in  a case  instituted on  a police report or           otherwise the accused appears or is brought before           the Magistrate  and it  appears to  the Magistrate           that the  offence is  triable exclusively  by  the           Court of Session, he shall-           (a) commit the case to Court of Sessions;           (b)  subject  to  the  provisions  of  this  Code,                relating  to  bail,  remand  the  accused  to                custody during,  and until  the conclusion of                the trial;..." The High  Court was of the opinion that on the submission of the police  report under  sec. 170,  the Magistrate  has  to forthwith commit the accused to the Court of Sessions if the offence disclosed in the charge-sheet is the one exclusively triable by  the Court  of  Sessions.  This  being  the  only function of  the Magistrate according to the High Court, the proceeding before  the Magistrate  under sec.  207 read with sec. 209  would not  be an inquiry within the meaning of the expression in  sec. 2(g)  of  the  Code.  In  reaching  this conclusion, the  High Court  referred to secs. 84, 116, 125, 137, 138,  145 and  146 as  well as secs. 159 and 202 of the Code to ascertain the meaning of expression ’inquiry’ in the context in  which it  is used  in  these  provisions.  These provisions would  hardly shed any light on the nature of the proceedings and  the function  discharged by  the Magistrate from the time of receipt of a police report 547 under sec.  170 disclosing an offence exclusively triable by the  Court   of  Sessions  and  until  making  of  an  order committing the accused to the Court of Sessions to stand his trial. The  question  posed  is:  is  it  an  administrative function or  it is a judicial function ? It is certainly not an administration  function. If  it is judicial function, it has to be either an inquiry or a trial because the Code does not  envisage   discharge  of   judicial  function   by  the Magistrate under  the Code  in any  other manner.  The  High Court in this context has observed as under:           "These sections  (207-209) do not contemplate that      before committing  the case to Sessions, the Magistrate      should conduct some proceeding with a view to ascertain      or verify  facts. Sec.  209 of the Code merely required      the Magistrate,  taking cognizance of an offence on the

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    basis of  a police  report, to look into the report and      if he  finds that  the case  is triable  exclusively by      Court of  Sessions to make an order committing the case      to Sessions. Since in such a case the Magistrate taking      cognizance of  the offence  is not  required to conduct      any proceeding for ascertaining or verifying facts with      a view  to commit  the case  to Sessions,  it cannot be      said that the provisions contained in secs. 204, 207 to      209 of the Code contemplate an inquiry under the Code."      With respect this approach is not only not borne out by the relevant  provisions of  the Code  but it  overlooks the scheme of the sections and the purpose underlying the same.      Section 170  obligates  the  Investigating  Officer  to submit the  police report  if in the course of investigation sufficient evidence or reasonable ground is made out for the trial or  for commitment  of the  accused, to the Magistrate empowered to  take cognizance  of the  offence upon a police report. On  this report being submitted the Magistrate takes cognizance of  the offence  disclosed  in  investigation  as envisaged by  sec.  190.  It  is  indisputable  that  taking cognizance of an offence under sec. 190 is a purely judicial function subject  to judicial  review by  court of appeal or revision to  which the  Magistrate is subject. Cognizance of an offence  even if  exclusively triable  by  the  Court  of Sessions has  to be  taken by the Magistrate because section 193 precludes it from taking cognizance 548 of any  offence when  it provides  that no Court of Sessions shall take  cognizance of any offence as a court of original jurisdiction unless  the accused  has been  committed by the Magistrate under  the Code.  Thus even in case of an offence exclusively triable  by the  Court of  Sessions, the  police report on completion of investigation has to be submitted to the Magistrate having jurisdiction to commit the accused for trial. It  is the  Magistrate who  takes cognizance  of  the offence and not the Court of Sessions though the case is one exclusively triable  by the latter. Sec. 170 directs that if the accused  in respect  of  whom  police  report  is  being submitted is  in police  custody, he  has  to  be  forwarded alongwith the  police report  to the  Magistrate.  When  the Magistrate receives  the report  and the accused is produced before him  it is  necessary for  him to pass some order for his further  detention subject  to provisions  contained  in Chapter XXXIII  as to Bails and Bonds. The view taken by the High Court  makes it  a  necessity  for  the  Magistrate  to release the  accused on  bail even  if the  accused  is  not otherwise entitled to the discretionary order of bail nor he applies for  nor is  ready to  furnish bail only because the Magistrate has  no  jurisdiction  to  keep  the  accused  in custody till  an order  committing the  accused for trial is made. The  High Court  referred to  sec. 209  which provides that the  Magistrate shall  commit the  accused to  Court of Sessions and  subject to the provisions of the Code relating to bail,  remand the accused to custody during and until the conclusion of  the trial.  This according  to the High Court implies that the Magistrate can exercise power to release on bail or  remand to the custody the accused only after making the order of commitment but the Magistrate has no such power anterior  to   the  order   of  commitment  and  during  the interregnum since  the receipt  of  the  charge-sheet.  This dichotomy read  by the  High Court  in secs.  207 and 209 is certainly not  borne out by the provisions of the Code. Sec. 207 as  it then  stood made it obligatory for the Magistrate to supply  free of costs, copies of the documents set out in the section. The duty cast on the Magistrate by sec. 207 had

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to be  performed in  a judicial  manner. To comply with sec. 207 which  is cast in a mandatory language, when the accused is produced  before the  Magistrate, he  has to enquire from the accused by recording his statement whether the copies of the various documents set out in sec. 207 have been supplied to him  or not. No order committing the accused to the Court of Sessions can be made under sec. 209 unless the Magistrate fully complies with the provisions of sec. 207. And if it is shown that the copies of relevant documents or some 549 of them  are not  supplied,  the  matter  will  have  to  be adjourned to  get the  copies prepared  and supplied  to the accused. This  is implicit  in  section  207  and  sec.  209 provides that  on being  satisfied that the requisite copies have been  supplied  to  the  accused,  the  Magistrate  may proceed to  commit the  accused to  the Court of Sessions to stand his  trial. The  statutory obligation  imposed by sec. 207 read  with sec. 209 on the Magistrate to furnish free of costs copies  of documents  is a  judicial obligation. It is not an  administrative function.  It is  a judicial function which is  to be  discharged in  a  judicial  manner.  It  is distinctly possible  that the  copies may not be ready. That makes it necessary to adjourn the matter for some time which nay be  spent in preparing the copies and supplying the same to the  accused. The  Magistrate can  proceed to  commit the accused for  trial to  the Court  of Sessions  only after he judicially discharges  the function imposed upon him by sec. 207.  This   conclusion  is   fortified  by  the  provisions contained in  Chapter XVIII  which prescribed  the procedure for trial  of a case by Court of Sessions. Sec. 226 provides for opening  the case  for the prosecution. Sec. 227 confers power on  the Court  of Sessions to discharge the accused if upon consideration  of  the  record  of  the  case  and  the documents submitted  therewith,  the  Judge  considers  that there is  no sufficient  ground for  proceeding against  the accused. No duty is cast on the Court of Sessions to enquire before proceeding  to hear the case of the prosecution under sec. 226  to ascertain  whether the  copies of the documents have been furnished to the accused because section 207 casts the obligation  upon the  Magistrate to perform the judicial function.      Now, if  under sec. 207, the Magistrate is performing a judicial function  of ascertaining  whether copies have been supplied or  not, it would undoubtedly be an inquiry for the purpose  of  satisfying  himself  that  sec.  207  has  been complied with in letter and spirit. That satisfaction has to be judicial  satisfaction. It  is not  a trial but something other than  a trial  and being  judicial function  it  would necessarily be an inquiry. The making of an order committing the accused to the Court of Sessions will equally be a stage in the  inquiry and  the inquiry  culminates in  making  the order of commitment. Thus, from the time the accused appears or is  produced before the Magistrate with the police report under sec.  170  and  the  Magistrate  proceeds  to  enquire whether sec. 207 has been complied with and then proceeds to commit the  accused to the Court of Sessions, the proceeding before the Magistrate would be an inquiry as contemplated by sec. 2(g) of the Code. We find it difficult 550 to agree with the High Court that the function discharged by the Magistrate  under sec.  207 is  something other  than  a judicial function  and while  discharging the  function  the Magistrate is  not holding an inquiry as contemplated by the Code. If  the Magistrate  is holding  the inquiry  obviously sec. 309  would enable  the Magistrate to remand the accused

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to the custody till the inquiry to be made is complete. Sub- sec. 2  of sec. 309 provides that if the Court, after taking cognizance of  an offence or commencement of trial, finds it necessary or  advisable  to  postpone  the  commencement  or adjourn any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as  it thinks  fit, for  such  time  as  it  considers reasonable, and  may by  a warrant  remand the accused if in custody. There  are three  provisos to  sub-sec. 2 which are not material.  If, therefore,  the  proceedings  before  the Magistrate since  the submission  of the police report under sec. 170 and till the order of commitment is made under sec. 209 would  be an inquiry and if it is an inquiry, during the period, the  inquiry is  completed, sec. 309(2) would enable the  Magistrate  to  remand  the  accused  to  the  custody. Therefore with respect, the High Court committed an error in holding  "that   the  order  remanding  the  respondents  to custody, made  after cognizance  of offence was taken cannot be justified  under section  167(2), 209 and 309 of the Code and no  other provision  under which  the respondents can be remanded to custody at this stage, has been indicated by the learned Government Advocate, we feel that it would be proper to accede  to the  request made  by the  respondents and  to direct that  they would be released on bail after furnishing adequate security  to the satisfaction of the Chief Judicial Magistrate, Banda."      The view  taken by the High Court introduces a stage of compulsory bail  not envisaged  by the  Code, and therefore, also the  view of the High Court cannot be upheld. According to the  High Court  after the  accused is brought before the court alongwith  the  police  report,  the  Magistrate  must forthwith commit  the  accused  to  the  Court  of  Sessions because the  Magistrate would  have no  jurisdiction in  the absence of  any provision  to remand  the accused to custody till the  order committing  the case to Court of Sessions is made. The  view with respect is wholly untenable and must be set aside.      Mr. Prithviraj,  learned counsel, drew our attention to the decision of this Court in Gauri Shanker Jha v. The State of Bihar 551 and Ors’(1)  This case  is of no assistance because it dealt with the  situation under  the Code  of Criminal  Procedure, 1898 which  did require  the Magistrate to be satisfied with prima facie  case before  an order  committing an accused to the Court of Sessions could be made.      In view  of the  discussion, this appeal is allowed and the order of the High Court granting bail to the respondents on the  short ground  that they could not be remanded to the custody before  the order  committing them  to the  Court of Sessions is made, is set aside, However, if in the meantime, the trial  is over,  no question  of taking  the respondents into custody pursuant to the order would arise. H.L.C.                                       Appeal allowed. 552