' Mst. Safia Bibi has filed this petition under section 491, Cr.P.C. Praying that the detention of her son Muhammad Arshad in Camp/District Jail, Lahore, be declared to be illegal and he be directed to be released from the detention of respondent No,1.
2. On 7-4-1996, this Court called for report and parawise comments from respondent No,1 . He was also directed to appear in person on 10-4-1996. On the said date, statements of Nasir Mahmood, respondent No,1 and Imtiaz Ahmad, Judicial Magistrate were recorded. Thereafter on 17-4-1996 and 21-4-1996 statements of Abdul Ghaffar, A.S -I. And Tahir Shah, A.S.-I., respectively, were recorded to ascertain the factual position.
3. The facts as gathered from the record and statements, as stated above, are that Muhammad Arshad (hcreinafer called the ,It,'Null son of the petitioner was involved in six cases and was lodged in Camp Jail, Lahore, on 1-2-1996. Out of these cases, he was released on bail in four cases and remained as under trial prisoner in two cases, viz. F.I.R. No,532/95, dated 2-12-1995, under section 392, P.P.C. Registered at Police Station Iqbal Town and F.I.R. No,198/95, dated 21-12-1995, under section 392, P.P.C. Registered at Place Station Gulshan Iqbal, Lahore.
In F.LR. No, 532/95, the challan was submitted in the Court on 15-2-1996. The detent was produced before the Magistrate on 12-3-1996 and he was remanded to judicial custody till 8-4-19')6. On 8-4- 1996, the detent was not produced in the Court and the learned Magistrate in his absence granted remand under section 344, Cr.P.C. Till 22-4-1996. On 22-4-1996, the detent was produced before the trial Magistrate and he was remanded to judicial custody till 2-5-1996. . ' In F.I.R. No,198/95, the detent was directed to be produced in Court on 25-2-1996. He was not produced on the said date, but the learned Magistrate granted remand on the Robkar in the absence of the detent till 10-3-1996. Thereafter on the subsequent dates, the police had been producing the detent in the Court and the learned Magistrate had been granting judicial remand.
Ultimately, on 21-4-1996, the learned Magistrate granted judicial remand till 5-5-1996. ' The challah in this case was submitted in the Court on 14-4-1996. ,4. The learned counsel for the petitioner contended that the police has been obtaining remand of the detent in the two cases from the Executive Magistrate and thereafter due to the non- submission of the challan the learned Magistrate has been ordering the detention of the detent in judicial custody presumably under section 344, Cr.P.C. It is submitted that the learned Magistrate was not competent to pass the order under section 344, Cr.P.C., without taking cognizance of the case under section 190(1)(b), Cr.P.C. And as such the detention of the detent in jail is illegal and improper.
' It is next contended that the detent was not produced before the learned Magistrate on 8-4-1996, in case F.I.R. No,532/95, who authorized his detention in judicial custody till 22-4-1996. He was again produced on 22-4-1996 and the learned Magistrate granted his judicial remand till 2-5-1996. In case F.I.R. No,198/95, the detent's detention was authorized by the learned Magistrate from 25-2- 1996 to 10-3-1996, without his presence and now on 21-4-1996, he has been remanded to judicial custody till 5-5-1996. It is submitted with vehemence that as the detention of the detent in case F.I.R. 532/95 from 8-4-1996 to 22-4-1996 and in case F.I.R. No,198/95, from 25-2-1996 to 10-3-1996 was illegal and without lawful authority, hence his detention could not be legalized by the subsequent orders of remand by the learned Magistrate and the detent is thus entitled to be released from jail on this score alone. In the alternate, learned counsel submitted that due to this lacuna in the remand orders, the detent may be admitted to bail. Reliance has been placed in support of this contention on 1985 PCr.LJ 603, Criminal Miscellaneous No,257/H of 1988, Criminal Miscellaneous No,241/H of 1987, 1991 PCr.LJ 408, 1984 PCr.LJ 2588, 1992 PCr.LJ 357 and 1993 PCr.LJ 437.
5. The learned Law Officer on the other hand submitted that the detent was brought from jail in case F.I.R. No,532/95 on 8-4-1996, for his production before the learned Magistrate, but the police did not produce him before the Court and he was remanded to judicial custody till 22-4-1996. On 22-4-1996, the detent was produced before the trial Magistrate who remanded him to judicial custody till 2-5-1996. He submitted that as the challan in this case was submitted in the Court on 15-2-1996, hence the illegality, if any, in the remand order dated 8-4-1996, stood cured by his subsequent judicial remand order, dated 22-4-1996, whereby he was remanded to judicial custody till 2-5-1996. With regard to case F.I.R. No,198/95, he submitted that the non-production of the detent in Court on 25-2-1996, also stood cured by his subsequent legal judicial remand order, as the challan in this case was submitted on 14-4-1996; hence this petition has become infructuous.
He submitted that the case-law relied upon by the learned counsel is not applicable to the facts and circumstances of this case and is distinguishable.
6. I have heard the learned counsel for the parties and have gone through the case-law relied upon by the learned counsel for the petitioner. There is no cavil with this proposition that a trial Magistrate cannot remand an accused under section 344, Cr.P.C. To judicial custody without first taking cognizance of the case under section 190(1)(b), Cr.P.C. However, in case F.I.R. No,532/95, the cognizance had already been taken by the learned Magistrate on 15-2-1996 and thereafter he passed the remand order on 8-4-1996, in the absence of the detent. The said order, dated 8-4- 1996 of detention, if at all was illegal, stood regularized by the subsequent remand order, dated 22- 4-1996 whereby the learned Magistrate remanded the detent to judicial custody till 2-5-1996; hence the argument of the learned counsel so far as F.I.R. No,532/95, is concerned, is devoid of force.
' As to F.I.R. No,198/95, no doubt, the learned Magistrate remanded the detent to judicial custody on 25-2-1996, without his production before the Court, when he had not taken cognizance of the case, but the subsequent order, dated 21-4-1996 cured this legal lacuna in the remand order, because by that time, the challan had already been submitted in the Court on 14-4-1996, and the learned Magistrate had taken cognizance of the case.
7. Now, I may advert to the case-law relied upon by the learned counsel. In Criminal Miscellaneous No,241/H of 1987, Criminal Miscellaneous No,257/H of 1988, 1985 PCr.LJ 603, 1991 PCr.LJ 408, the accused were in illegal detention even at the time of passing the orders; hence by holding their detention in jail, as unlawful, they were allowed bail. These cases are not applicable to the present case, because at present the detent is in the legal custody of respondent No,1 .
' In 1984 PCr.LJ 2588 and 1993 PCr.LJ 437, the accused filed bail applications and the learned Judge deciding those cases after discussing the scope of section 344, Cr.P.C., granted them bail, which is not the position in the present case.
' However, the case reported as 1992 PCr.LJ 357, has some relevance to case F.I.R. No, 198/95, because in this case the challan was submitted on 14-4-1996 and prior to that the learned Magistrate had been remanding the detent to judicial custody. Even on 25-2-1996, he remanded the detent to judicial custody without his presence before him. In my opinion, this case-law is not aptly applicable to the present case, because by order dated 21-4-1996, after taking cognizance of the case on 14-4-1996, the learned Magistrate remanded the detent to judicial custody under section 344, Cr.P.C. Till 5-5-1996.
8. The next question which calls for determination is whether in view of the case-law, referred to above, the detent can be admitted to bail. There is no such bail petition before this Court; hence I am not persuaded to admit the detent to bail. This is a petition under section 491, Cr.P.C., and for that purpose I have to examine the scope of the section itself. It would be useful to reproduce the relevant provision of section 491, Cr.P.C., which reads:-- "491. Power to issue directions of the nature of habeas corpus.-- (1) Any High Court may, whenever it thinks fit, direct--
(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty;"
' The powers of a High Court under section 491, Cr.P.C. Are subscribed by the language of the section i,e, at the time of passing of the order, the Court has to see whether the person is under illegal detention or not. In Moot Chand v. The State 49 Cr.LJ 352 (Allahabad), it has been laid down:- - "If at any time before the Court directs the release of the detent, a valid order directing the detention is produced, the Court cannot direct his release merely on the ground that at some prior stage, there was no valid cause for his detention."
Respectfully following the above mentioned case, which is in accordance with the spirit of section 491, Cr.P.C., I may observe that a High Court has limited jurisdiction thereunder, that is, to see whether at the time of passing of the order, the person concerned was in illegal detention or not. In the present case, in F.I.R. No,198/95, the learned Magistrate took cognizance of the case on 14-4- 1996, and on 21-4-1996, remanded the detent to judicial custody till 5-5-1996. Thus, the legal flaw if any in the earlier remand order stood cured and detention of the detent being legal, this Court cannot order the release of the detent under section 491, Cr.P.C.
9. In view of the above discussion, this petition is devoid of any force, it is accordingly dismissed.
10. Before parting with this order, I may observe that section 173, Cr.P.C., provides that every investigation should be completed without unnecessary delay and if it is not completed within fourteen days from the date of recording of the first information report under section 154, Cr.P.C., then the officer-in-charge shall within three days of the expiration of such period, shall forward to the Magistrate concerned through the Public Prosecutor an interim report to enable the Court to proceed with the trial or adjourn the same for reasons to be recorded for not doing so. It has been observed in many cases that this requirement of law is not being complied with by the officers-in- charge of police stations while conducting the investigation and submitting the challan. It creates undue legal complications for the trial Courts for remanding the accused to judicial custody, because under section 344, Cr.P.C., a trial Magistrate could only remand the accused to judicial custody for his further detention, if he has taken cognizance of the case. A copy of this order be sent to the I.-G., Punjab, Lahore, that he should issue directions to the station house officers that they should meticulously follow the procedure laid down in section 173, Cr.P.C. To avoid any legal complication in future. He should report the compliance of this order to the Deputy Registrar (Judicial) of this Court within one month without fail.
11. During the hearing of this petition, it also transpired that the detent was brought from jail on 8-4- 1996, in accordance with the requirement of law, for being produced before the Court, but the police attached to Bakhshi Khana did not produce him before the learned Magistrate for obtaining his judicial remand under section 344, Cr.P.C. According to the Law Officer there is regular entry of the departure of the detent from the jail to the District Courts.
' A copy of this order be also sent to the District Magistrate, Lahore, to hold a proper enquiry into this matter, as to why the under-trial brought from jail are not being produced before the concerned Courts by the police attached to the Bakhshi Khana. In order to avoid any lapses in future, he should proceed against the delinquent police officials in accordance with law. The action taken in this behalf be intimated to the Deputy Registrar (Judicial) of this Court within two months positively.