This petition by Hussain Bakhsh, complainant, under section 497 (5) read with section 439 of the Code of Criminal Procedure calls in question the validity of the order of the learned Additional Sessions Judge, Faisalabad, dated the 5th March, 1980 releasing on bail Muhammad Arshad and Muhammad Ashraf, sons of Muhammad Ibrahim, respon--dents 1 and 2, accused in the murder case registered at Police Station, Thikriwala, vide F. I. R. No. 133 on the 11th September, 1979, and seeks cancellation of their bail.
2. The facts relevant for the purposes of decision of this petition may be shortly stated in the following words. After investigating the above-mentioned case the Station House Officer of Police Station, Thikriwala prepared complete challan (report under section 173 of the Code of Criminal Procedure) and sent it to the Police Office, Faisalabad, on the 28September, 1979. After checking the challan and adding thereto the reports of the Chemical Examiner and Serologist the Police Office passed on the file to the Ilaqa Magistrate on the 6th February, 1980 for, sending the case to the Court of Session as it was triable exclusively by that Court. The learned Magistrate, on the perfunctory report of his reader and without specifically pointing out the defects required to be removed returned the challan papers to Police office on the 20th February, 1980. The papers are still lying in that office and have not been re-submitted to the Magistrate.
3. Muhammad Arshad (respondent 1) and Muhammad Ashraf (respondent 2) were arrested on 11September, 1979. They were remanded in judicial custody by the Ilaqa Magistrate and not by the Sessions Judge. They moved application before the learned Sessions Judge, Faisalabad, for grant of bail on the ground, inter alia, that their detention was illegal because the learned Magistrate was not competent to order their remand in Jail. The application on transfer by the learned Sessionsth th Judge, came up for hearing before the learned Additional Sessions Judge, Faisalabad. The learned Additional Public Prosecutor appearing for the State and the counsel for the complainant conceded before the learned Additional Sessions Judge, on the basis of the rule enunciated by this Court in Yaqoob Khan v. State that the order of their remand in judicial lock-up not having been passed by the Court of Session, which alone was competent to remand them in judicial custody, their detention was illegal. For that reason without discussing, or passing judgment on, the merits of the case, the learned Additional Sessions Judge bailed them out by his impugned order.
4. The learned counsel for the petitioner contended that the learned Magistrate was empowered to remand respondents 1 and 2 in judicial custody under section 344 of the Code of Criminal Procedure. In the alternative he submitted that even if the detention of respondents 1 and 2 was said to be illegal on account of incompetence of the learned Magistrate to remand them in custody the Court of Session bad no power to declare such a detention to be illegal and enlarge them on bail for such power is conferred only on the High Court under section 491 of the Code of Criminal Procedure and Article 199 of the Constitution or on the Supreme Court by Virtue of Article 184 read with Article 199 of the Constitution.
5. The first point that emerges for decision is whether remand of respondents 1 and 2, who were accused of an offence triable exclusively by the Court of Session and whose case by then had not been sent by the Magistrate to that Court, could have been granted by the Magistrate. The decision of this Court in Yaqoob Khan v. State (1979 P Cr. L J 1069) relied upon by the learned Additional Sessions Judge as well as by the learned counsel for respondents 1 and 2 answers this question in the negative. The judgement in Yaqoob Khan's case after analysing the provisions of sec--tions 61, 167, 190 and 344 of the Code of Criminal Procedure, lays down that after exhaustion of a maximum of fifteen days' detention of an accused authorised by the Magistrate under section 167 of the Code remand can be granted in cases triable exclusively by the Court of Session according to the provisions of section 344 of the Code by that Court which is competent to try such cases and not by the Magistrate who lacks jurisdiction to hold their trial.
6. The learned counsel for the petitioner referred to Khushi Muhammad v. Shaukat (1979 P Cr. L J 244), Arfan Ali Shah alias Poopi Shah (1980 P Cr. L J 444) and State of Kerala v. Madhwan Kuttan (AIR 1964 Kar. 232) to meet the process of reasoning adopted in Yaqoob Khans judgment. However, the aforesaid authority does not deal with the point raised in this case.
7. The learned counsel argued that the Magistrate could also grant remand while acting on the principles of equity, justice and good conscience. The argument is too spacious to be acceptable.
Detention by remand can only be ordered if it is authorised by law, Principles of equity, justice and good conscience do not confer any power on the Magistrate to remand a person in custody.
8. It may be advantageous to notice in passing the scheme of the Code of Criminal Procedure touching detention of an accused person and his remand to custody. Under sections 60 and 61 of the Code a person arrested without warrant by a police officer must be brought before a Magistrate without unnecessary delay, the maximum period for which he can be detained by Police is twenty-four hours. Under section 81 of the Code a person arrested under a warrant is similarly to be brought before the Court before which he is required by law to be produced without unnecessary delay. On the arrested person being so brought before a Magistrate, the latter is empowered under section 167 to authorise, from time to time his detention either in police custody or in the judicial lock-up as he thinks fit for a term not exceeding fifteen days in the whole. Under section 169 if within that period the result of investigation shows that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate he is to be released by the Investigating Officer on his furnishing security for appearance before rte Magistrate. However, if within that period the investigation indicates that there is sufficient evidence or reasonable ground as aforesaid or if the period expires without the investigation having been completed. The accused in non-bailable offence as enjoined by section 170, must be forwarded under custody to the Magistrate empowered to take cognizance of the offence and to try the accused or send him for trial to the Court of Session. If the Magistrate receives alongwith the accused a police report under section 173 he can take cognizance of the offence on such report and if necessary remand the accused to judicial custody for a maximum period of fifteen days at a time when it becomes necessary or advisable to postpone the commencement of or adjourn, any inquiry or trial, as envisaged by section 344, even where police report has not been submitted under section 173 the accused can be remanded under section 344 to judicial custody as contemplated by Explanation to that section.
9. Section 193, subsection (1) prohibits a Court of Session from taking cognizance of any offence as a Court of original jurisdiction unless the case has been sent up to it by the Magistrate in accordance with the provisions of section 190, subsection (3). Cognizance of the offence triable exclusively by the Court of Session is to be taken in the first instance under section 190, subsection
(1) by a duly empowered Magistrate and after taking cognizance of such an offence he is required by section 190, subsection (3) to send the case, without recording any evidence, to the Court of Session for trial.
10. A Magistrate takes cognizance of any offence as soon as he applies his mind to the offence with the intention of initiating judicial proceedings against the offender in respect of the offence. As held in Arjan Singh v. Emperor (AIR 1939 Lah. 479) taking of cognizance is not a momentary act which can only be done once with regard to a particular offence, but is a continuous act which commences as soon as a Magistrate applies his judicial mind to a case and only ends when he no longer has seisin of it. Taking of cognizance does not ipso facto mean commencement of judicial proceedings against the accused, it is only the fulfilment of a condition requisite for the initiation of judicial proceedings, In these circumstances whenever Police papers, whether constituting complete or incomplete challan, are placed before a Magistrate when the accused is produced before him and he applies leis mind to the offence alleged to have been committed by the accused the takes cognizance of the offence. This process continues till he has actually sent the case to the Court of Session. He has to decide on perusal of the Police report whether the offence made out against the accused is triable exclusively by the Court of Session or he is himself competent to try it. It is only when he is of the view that the offence is triable exclusively by the Court of Session that he would send the case up, without recording evidence, to the Court of Session. Otherwise, he would retain the case on his file and try it himself. This process of probing the evidence and formulating the view touching the nature of offence as to whether or not it is triable exclusively by the Court of Session appears to me to constitute an `inquiry' as defined by section 4
(1) (k) of the Code which term is not confined to proceedings in which an accused is actually placed before the, Magistrate on a charge for an offence. It is meant to include everything done in a case by the Magistrate whether the case has been challenged or not Sher Muhammad v. King- Emperor (AIR 1923 Lah. 279),
11. If that were so a Magistrate would be competent under section 344 of the Code to grant remand of an accused involved in a case triable exclusively by a Court of Session whose cognizance he has taken when it becomes necessary or advisable to postpone the commencement of, or adjourn, any such inquiry or trial for any reasonable cause including the one relating to collection of evidence by the investigating agency and submission of complete challan. Even otherwise, in my humble view the meaning of the word `Court' occurring in section 344 is not to be restricted in reference to the case triable exclusively by the Court of Session to the said Court, it may be extended to include the Court of Magistrate taking cognizance of the offence in the first instance so as to enable it to remand the accused in custody.
12. The task of sorting out cases pertaining to offences triable exclusively by the Court of Session was entrusted to the Magistrate. The Court of Session was spared this trouble so as to save its time which could be better utilized in the actual trial of the cases. The fact that this job was not assigned to the Police indicates that the Magistrate was supposed to apply his judicial mind in screening out such cases and that is why be was required to take cognizance of these cases before sending them on to the Court of Session. While performing the function of picking out the cases relating to offences triable exclusively by the Court of Session the Magistrate would have sometimes to wait for the completion of investigation in a number of cases and during the inquiry he were to hold in this behalf he could not be expected by the Legislature to be bereft of tee powers of dealing with the question of custody of the accused If the matter pertaining to remand of the accused was to be attended to by the Court of Session while decision of sending the cases to the Court was to be made by the Magistrate the object of the amended legislation in sparing the Court of Session from extra botheration and saving its time would be frustrated. It may happen, as the learned counsel for the petitioner contended, that an accused along with incomplete Police report is produced before the Magistrate at the tail end of the working hours of the Court on the last day of the maximum admissible period of his remand granted under-section 167. The Magistrate has no time to send the accused and case papers to the Court of Session because by the time they are supposed to reach there the latter Court would be closed: it is worth noting that the accused and the police report cannot be directly produced before the Court of Session for that Court is not competent to take cognizance of the offence until the case is duly sent by the Magistrate. Cannot the Magistrate after taking cognizance of the offence remand the accused to custody in such a situation? Will such a remand render the detention of the accused? The Legislature cannot be said to be unconscious of such a situation and would be deemed to have provided measures for coping with it. It seems that amendments of sections 190 and 193 of the Code of Criminal Procedure by the Law Reforms Ordinance, 1972 (XII of 1972), read with the provisions of section 344, despite abolition of inquiry proceedings held by a Magistrate before--- commitment of the case to the Court of Session, do invest the Court of Magistrate with powers to remand the accused, who is alleged to have committed an offence which is triable exclusively by the Court of Session.
13. On the second point the learned counsel for the petitioner maintained that the learned Additional Sessions Judge enjoyed powers of enlarging respondents I and 2 on bail only on the grounds set out in section 497 of the Code and that he had no power to declare their detention to be illegal and release them on any other ground. He submitted that the learned Judge did not consider the bail application of respondents 1 and 2 on any ground admissible under section 497 rather he proceeded to let them out on bail simply because he thought their detention on account of the remand having been granted by the Magistrate to be illegal which he had no authority under the law to do. He contended that the power of releasing a person kept in illegal detention is reserved for being exercised by the High Court and Supreme Court and cannot be made use of by any subordinate Court.
14. The learned counsel for respondents 1 and 2 banked upon State v. Samiullah Khan (PLD 1959 Kar.) in support of his contention that the learned Additional Sessions Judge could admit respondents 1 and 2 to bail in the circumstances of the case. He further contended that the learned Additional Sessions Judge had no option but to follow the law laid down by this Court in Yaqoob Khans case for the purpose of granting bail to respondents 1 and 2. The facts of State v. Samiullah Khan were quite different and the law laid down therein could hardly he applied in the instant case.
The accused in the reported case were arrested in the middle of December, 1957, and upto the 9th May, 1958, no attempt had been made to bring them before any court for inquiry. The Magistrate granted remand on the request of the investigating Police on several occasions without ascertaining whether any evidence which could raise a suspicion that the accused bad committed the alleged offence, had been collected. The Sessions Judge, while hearing their bail application, was not satisfied that there was any evidence capable of raising such suspicion against them and consequently enlarged them on bail. Concurring in the order of the learned Sessions Judge the High Court observed that on facts as they were before the Sessions Judge, a good case was made out for releasing the accused on bail. Bail to that case was allowed on the ground that the material placed before the Court by the Investigating Agency did not lead it to believe that the accused had com--mitted the offence with which they stood charged and not on the ground that the learned Magistrate was legally incompetent to remand them in custody.
15. It is true that this Court passed order in Yaqoob Khan's case in bail matter brought before it and that the order does not specifically refer to the provisions of section 491 of the Code or Article 199 of the Constitution However, the hard fact remains that this Court unlike the Court of Session is possessed of the power of releasing a person who is illegally detained. Any order passed in exercise of such power does not lose its authority simply because the specific provision of law under which power is exercised is not quoted. This Court did not decide the bail application on the merits of the case on the grounds set out in section 497 of the Code. It let out the peti--tioner simply because his detention in consequence of the remand granted by the Magistrate was taken to be unlawful as the Magistrate was consi--dered to be incompetent to order the remand. Even if this Court had not considered the generally accepted grounds for enlarging an accused on bail in a criminal case its power to order release from illegal detention was very much there and the same seems to have been exercised in that case. Nevertheless the learned Additional Sessions Judge was bound by the limitations of his powers. He could have allowed respondents 1 and 2 bail on any of the grounds permissible to be considered for the purpose. He had no power under the law to release them on bail if their detention was considered to be illegal on any other ground.
16. Much though I would have liked otherwise unfortunately I have taken a view on the question of powers of the Magistrate to remand a person accused of an offence triable exclusively by the Court of Session contrary to the one expressed by my learned brother Ghulam Mujaddid Mirza. J. In Yaqoob Khan's case. Difference of opinion on an issue of practical importance which the subordinate Courts face almost daily is likely to cause confusion in their minds. I would, therefore, request my Lord the Chief Justice kindly to refer the controversial point for decision to a larger Bench whose judgment may provide from guidance to the subordinate judiciary.
17. The papers will accordingly be laid before my Lord the Chief Justice.
(1-7-1980).-This order should be read in continuation of my order of the 27th May, 1980.
My Lord the Chief Justice has directed that the case should be decided according to law by this Bench.
I have held, vide my order dated the 27th May, 1980, that the learned Magistrate was competent to grant remand of Muhammad Arshad and Muhammad Ashraf, respondents 1 and 2, in Jail and that the learned Additional Sessions Judge could not have enlarged them on bail merely because he found their detention in the lock-up to be illegal. The petition is therefore, accepted and the impugned order of the learned Additional Sessions Judge is set aside. The bail granted to Muhammad Arshad and Muhammad Ashraf, respondents 1 and 2. Is consequently cancelled. They shall be arrested and committed to judicial custody.