Sunil Kumar Sinha vs State of Bihar

Nagendra Rai, J.—The Petitioner has applied for bail in a Fodder Scam case under Sections 109, 120B, 409, 407, 468, 471, 473, 474, 477A I.P.C. and 13(2) 13(i)(c)(d) of the P.C. Act on the ground that he has remained in custody for more than 90 day and the final form has not been submitted as yet.

To appreciate the point it is apt to state the facts in brief. RC Case No. 39(A) of 1996-Pat. was registered on the statement of the Rajiv Arun Ekka, Assistant Magistrate and Collector, Dumka against 24 accused persons. Baba Chemical Works, Patna is accused at Item No. 15 and the Petitioner is the proprietor of the said firm. Allegation is that the huge amount of public money has been misappropriated by playing frauds by the Officers of the Animal Husbandry Department and the Proprietors of the Firms. It is not necessary to state the facts in detail as the bail has not been prayed for on merit.

An anticipatory bail application was filed on behalf of the Petitioner before the Special Judge. He rejecteid the said application by order dated 26.8.96 on the ground that there is no apprehension of arrest for the reason that the Petitioner is already under custody in some other case. Thereafter on 2.9.96 an application was filed on behalf of the Petitioner for his production and remand in this case i.e. Special case No. 41/1996. On 12.9.96 the Special Judge issued a production warrant fixing 21.9.96 for hearing on the matter of remand. On 21.9.96 learned Counsel for the C.B.I, took time to move against the said order. Again the said matter was not taken up and thereafter petition was filed on behalf of the Petitioner on 13.12.96 to release him on bail on the ground that he has remained in custody in this case on remand for more than 90 days, he is entitled to the privilege of bail u/s 167(2)(a)(i) of the Code of Criminal Procedure (hereinafter referred to as the Code). The Special Judge by order dated 23.12.96 reacted the said prayer on the ground that as the Petitioner has never been taken into custody nor remanded in this case, there is no question of his remaining in custody for more than 90 days.

Learned Counsel for the Petitioner submitted that once the Petitioner offered before the Magistrate for being remanded in this case and an order was passed on 2.9.96 for his production for hearing on the question of remand then he will be treated to have been remanded in this case and in that view of the matter after expiry of 90 days he is entitled to be released on bail as admittedly no final form was submitted within 90 days or even till today.

Learned Counsel for the C.B.I, on the other hand submitted that unless a specific order for remand is passed the accused will not be treated to have been remanded in law and as admittedly in this case he has not been remanded as yet there is no question of giving the benefit of the aforesaid provision to the Petitioner.

During the stage of investigation the provision for remand is contained u/s 167 of the Code. If any person is arrested by the police then he has to be produced within 24 hours excluding the period for production before the Court and the Magistrate after having satisfied that sufficient ground exists may remand the person to custody. This apart even the accused himself can surrender and submit to the jurisdiction of the Court and make request that he should be remanded in a case pending against him. Here also remand cannot be made in routine way. The Magistrate has to consider whether sufficient ground exists or not for remand. The Magistrate has to exercise its discretion to find out as the whether the materials on the record are sufficient to remand the accused or not. Situation may come that even if a person is named in the case even then Magistrate may not remand if the prosecution State informs the Court that on the basis of the materials as available upto the relevant time it does not want to proceed against the accused at that stage. The remand is not a routine matter. It requires application of mind by the Magistrate. Remand means that the law has taken control of the person. In other words, when there is physical presence of the accused before the Court an order of court has to be passed remanding the accused to the custody.

Learned Counsel for the Petitioners has relied upon a division Bench judgment, to which I was a party, reported in the case of Baleshwar Paswan Vs. State of Bihar and Others, and said that in that case it has been held in paragraph-5 of the judgment which runs as follows:

Thus, it has been held in the said case that even a person under the control of the Court either having, been remanded by the judicial order, or having offered himself to the court''s jurisdiction and submitted to its orders by physical presence before the Court or he is held by the investigating agency or police or other allied authority will be treated to be in custody, it was specifically held that the physical control or at least physical presence of the accused in Court coupled with the submission to the jurisdiction and orders of the Court will amount to custody.

In my view the aforesaid case does not support the case of the Petitioner. Even in that case I have held that even if a person surrenders before the Court then in that case also the physical presence coupled with the submission to the jurisdiction and order of the Court will amount to custody. I have never held in that case that if a person surrenders before the Magistrate then he will be treated to have been taken into custody.

Coming to the facts of the present case, as stated above, admittedly, the Petitioner is in custody in other case. An application was filed on his behalf for taking him to custody in this case. The Court on 12.9.96 fixed 21.9.96 as the next date for hearing on the matter of remand and thereafter the matter has not been heard till today. So, in this case the Petitioner has not been remanded by any order of the Magistrate. In this case only order was passed to hear on the point of remand and thereafter no order of remand has been passed. In my view, he has not been remanded as yet in this case. As he has not been remanded in this case there is no question of his being entitled to the benefit of the provision of Section 167(2)(a)(i) of the Code.

Accordingly, there is no merit in this application and the same is dismissed.