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Case Details
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK WPCRL No. 143 of 2022 An application under Articles 226 and 227 of the Constitution of India --------------- Anil Prusty @ Anil Kumar Prusty ..…... Petitioner -versus- State of Odisha and Anr. …… Opposite Parties --------------------------------------------------------------------------- For Petitioner : Mr. D. Panda, Advocate For Opposite Parties : Ms. S. Patnaik, Addl. Government Advocate. ---------------------------------------------------------------------------- CORAM: THE HONOURABLE MR. JUSTICE S. TALAPATRA THE HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGEMENT 25th January, 2023 S. Talapatra, J. By means of this writ petition, the orders dated 11.10.2022 and 22.10.2022, remanding the Petitioner, namely, Anil Prusty @ Anil Kumar Prusty to the jail custody by the Special Court (POCSO), Cuttack in Special G.R. Case No.111 2 of 2022 [arising from Lalbag P.S. Case No.180 of 2022] have been challenged. 2. The facts as relevant for appreciating the challenge may briefly be noted at the outset. After filing of the police report, within the meaning of Sections 173 (2) of the Code of Criminal Procedure (Cr.P.C. in short), no cognizance of the offence, based on the said police report, was taken. It has been asserted that till the day of filing of the writ petition, no such cognizance has been taken, on the said police report. The Petitioner has been sent up for facing the trial for commission of offences under Sections 376 (2)(f), 376 (3) of the IPC, Section 6 of POCSO Act, 2012 and Section 3(2),(5) and 3(1)(i)(w)(ii) of the SC & ST (Prevention of Atrocities) Act, 1989. The Petitioner has contended that the custodial detention without taking cognizance, after filing of the charge- sheet, cannot be continued. Only after taking cognizance, the custodial detention can be extended under Section 309(2) of the Cr.P.C. Hence, the orders dated 16.10.2022 and 20.10.2022 are contrary to Article 21 of the Constitution of 3 India, in as much as the Special Court was not authorized, in the circumstances, as noted above, to pass such orders extending detention. 3. One Arun Sethi lodged the first information report (F.I.R.) at Lalbag Police Station on 05.08.2022 and based thereon, Lalbag P.S. Case No.108 of 2022 under Section 376(2)(f) of the IPC, Section 6 of the POCSO Act, 2012 and Sections 3(2)(5) of the SC & ST (Prevention of Atrocities) Act, 1989 has been registered. The informant disclosed in the F.I.R. that his minor daughter (name withheld) aged about 15 years, who was studying Standard-X at Stewart School, Cuttack (hereinafter referred to as the victim) used to go for tuition daily to the private tuition centre of the Petitioner at his house. On 31.07.2022 (Sunday) at 9.30 pm when the victim was about to leave the said tuition centre with her friend, the Petitioner called her to a nearby room and touched her body including her private parts. The victim was stunned by the said obnoxious conduct. The Petitioner threatened her to not disclose the incident to anyone. That night, the victim did not 4 inform anything. On advice of one of her friends, the victim disclosed the entire episode to her mother. Thereafter, the information about the occurrence was lodged on 05.08.2022. The police arrested the Petitioner on 07.08.2022 and he was produced before the Special Court (POCSO), Cuttack. He was remanded to judicial custody. 4. It emerges from the records that the charge-sheet (the police report) was filed on 02.10.2022 in the Special Court (POCSO), Cuttack, but, without taking cognizance, the case was posted on 11.10.2022 and on that day the case was adjourned to 20.10.2022, as the Presiding Judge was not available. In the order dated 11.10.2022, it has been noted that “as no P.O. had joined, cognizance order will be passed after his joining”. Without passing any formal order of remand, the Petitioner’s production had been ordered on the next date i.e. 22.10.2022. On 22.10.2022 when the Presiding Judge, Special Court (POCSO) in-Charge, Cuttack took up the bail petition of the Petitioner for consideration, it was submitted for and on behalf of the Petitioner that, he was not pressing the bail 5 petition on merit but, it was contended that since no cognizance has been taken, the detention of the Petitioner was unlawful and hence, he was entitled to be released forthwith from the custody. On that day i.e. 22.10.2022, the Presiding Judge in the face of such submission by his order observed as follows: “…….charge-sheet was filed by the I.O. on 02.10.2022 after the sad demise of the Presiding Officer on 02.09.2022, means after a period of one month. As such, the Court was lying vacant in absence of regular Presiding Officer and this Court (Presiding Officer of SC & ST (PoA) Act has been kept in-charge of his routine duty. It is apt to mention that the power of cognizance of offences in relation to POCSO Court is conferred upon the regular Presiding Officer of that Court by the Hon’ble High Court and the in-charge Court had not been conferred upon such power in that regard.” 6 5.
Legal Reasoning
Mr. D. Panda, learned counsel appearing for the Petitioner has quite empathetically submitted that the Petitioner is under illegal detention, in as much as from the date of filing of the charge-sheet i.e. 02.10.2022, the Special Court cannot exercise its power for directing the custodial detention under Section 167(2) of the Cr.P.C. After filing of the charge-sheet, the order of remand can only be passed under Section 309(2) of the Cr.P.C. Mr. Panda, learned counsel has submitted that on 02.10.2022, no remand order under Section 167(2) of the Cr.P.C. was statutorily permissible nor should the Petitioner be remanded to the custody by exercise of the power vested under Section 309(2) of the Cr.P.C., as cognizance of offence was yet to be taken. Thus, custodial remand after 11.10.2022 is illegal, being not in accordance with the procedure established by law. 6. Ms. S. Patnaik, learned Additional Government Advocate has in reply contended that the special circumstances from which the situation has arisen has to be taken note of, otherwise there will be miscarriage of justice. The Presiding Judge of the Special Court (POCSO), Cuttack 7 died and for his death the said court had no Presiding Judge. Only the formal charge was with one Presiding Officer, not empowered to take cognizance. According to her, the Judge- in-Charge did not take the cognizance as he perceived that he had no power to take cognizance and only the regular Judge can take the cognizance. This irregularity cannot be allowed to frustrate the very object of justice based on the technical objection raised by the Petitioner. Ms. Patnaik, learned Additional Government Advocate has relied on a few decisions including Durel Behera and Others vs. Suratha Behera and Others (judgment dated 25.09.1986 delivered in Criminal Miscellaneous Cases No.257 and 309 of 1986). In that decision, this Court had occasion to observe that unauthorized or illegal detention of an accused does not invalidate his subsequent valid detention. If the detention of an accused is unauthorized or invalid because of infringement of the provisions contained in Section 167(2) or 309(2) of the Code, he may make an application for habeas corpus or pursue other remedies as are available to him under the law. In that judgment, one decision of the Karnataka High Court in Gyanu 8 Madhu Jamkhandi and Ors. v. State of Karnataka has been referred to, where it has been observed as follows: “In the absence of valid orders of remand, the detention of the petitioner in custody for the period referred to above was illegal and so he is entitled to be enlarged on bail, though not on appreciation of facts relating to the charges brought against him, but purely on legal grounds.” It has been observed further that the illegal detention, by itself and taken alone, is no ground for ‘bail’ as the same has not been recognised by the Code. Bail is no remedy and has never been conceived or intended in law to be a remedy for illegal detention. If the detention is illegal, remedy is not to seek the bail, but to seek release by a writ of habeas corpus. the observation as made in Durel Behera (supra) by this Court has not broken any new ground in the criminal jurisprudence. The observation reads as follows: “Where an accused succeeds on application for a writ of habeas corpus on the ground of illegal 9 detention, he may be re-arrested and remanded to custody having regard to the gravity and the nature of the offence alleged to have been committed by him. If, however, he is released on bail on the ground that his detention was illegal, his bail can be cancelled only on the ground that he has misused the privilege of bail.” 7. Mr. Panda, learned counsel has placed his reliance on the celebrated decision Re. Madhu Limaye and Ors: (1969) 1 SCC 292 where having referred to Article 22 of the Constitution of India, the Apex Court has observed thus: “Once it is shown that the arrests made by the police officers were illegal, it was necessary for the State to establish that at the stage of remand, the Magistrate directed detention in jail custody after applying his mind to all relevant matters. Remand orders are patently routine and appear to have been made mechanically. If their detention in custody could not continue after their arrest because of the violation of Article 22 (1) of the Constitution they were entitled to be released 10 forthwith. The orders of remand are not such as would cure the constitutional infirmities.” [Emphasis supplied]. Mr. Panda, learned counsel has placed his further reliance on the decision of the Apex Court in Suresh Kumar Bhikamchand Jain v. State of Maharashtra and Anr.: (2013) 3 SCC 77, which decision has been relied by the Delhi High Court in Deepak v. The State (Government of NCT Delhi) [the order dated 07.02.2022 passed in Criminal Revision No.16 of 2022]. 8. In Suresh Kumar Bhikamachand Jain (supra), the Apex Court had framed the following issues for determination: “2. This case has thrown into focus certain important issues regarding the right of an accused to be released on bail under Section 167(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C"). One of such issues concerns the power of the Magistrate to pass orders of remand even beyond the period envisaged under Section 167(2) CrPC. In the 11 instant case, despite charge-sheet having been filed, no cognizance has been taken on the basis thereof. The learned Magistrate has, however, continued to pass remand orders, without apparently having proceeded to the stage contemplated under Section 309 Cr.P.C.” From those issues, what surfaced prominently is that, although, the charge-sheet had been filed within the time stipulated under Section 167(2) Cr.P.C., sanction to prosecute the Petitioner had not been obtained (in the case of Suresh Kumar Bhikamchand Jain), as consequence whereof, no cognizance was taken of the offence. Notwithstanding, the remand orders were continued to be made and the Petitioner remained in the magisterial custody. In answering the question whether the Magistrate or the trial court can pass any order of remand in terms of Section 167(2) Cr.P.C. beyond the period of prescribed therein, the Apex Court has clearly observed as follows: “14. The power of remand is vested in the Court at the very initial stage before taking of cognizance under Section 167(2) Cr.P.C. Once cognizance is taken, the power to remand shifts to the provisions 12 of Section 309 Cr.P.C., under which the Trial Court is empowered to postpone or adjourn proceedings and, for the said purpose, to extend the period of detention from time to time. Section 309(2) Cr.P.C. contemplates a situation where if the Court after taking cognizance of an offence or commencement of trial finds it necessary to postpone the commencement of, or adjourn, any inquiry or trial, it may, for reasons to be recorded, postpone or adjourn the inquiry or trial on such terms as it thinks fit, for such time as it considers reasonable, and may by of warrant remand the accused, if in custody, for a period of fifteen days at a time.” 9. For purpose of reference, Section 167 of the Cr.P.C. [the relevant part] and Section 309 of the Cr.P.C. are extracted below: 167. Procedure when investigation cannot be completed in twenty four hours- (1) xxx xxx xxx (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 13 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 a Magistrate having such jurisdiction: Provided that- (a) the Magistrate may authorise the detention of the accused person, otherwise than in the 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 paragraph for a total period exceeding- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the 14 accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage. (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. Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic vedio linkage, as the case may be. Provided further that in case of a woman under eighteen years of age, the detention shall be authorized to be in the custody of a remand home or recognized social institution. * * * * * * 309. Power to postpone or adjourn proceedings.- 15 (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. Provided that when the inquiry or trial relates to an offence under section 376 to 376-D of the Indian Penal Code (45 of 1860), the inquiry or trial shall, as far as possible, be completed within a period of two months from the date of commencement of the examination of witness. (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, 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: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing: 16 Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. [Provided also that- (a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party; (b) the fact that the pleader of a party is engaged in another court, shall not be ground for adjournment. (c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be] Explanation 1.- If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand. Explanation 2.- The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused. [Emphasis supplied] 17 10. A bare reading would bring out that the power of remand under Section 167 of the Cr.P.C. is exercisable during investigation and such power is restricted by stipulation of time. Similarly, after the cognizance is taken, the power of remand of the accused is derived from Section 309(2) of the Cr.P.C. 11. In Section 309 of the Cr.P.C. it has been clearly provided that after taking cognizance of an offence or commencement of trial, the concerned court may by way of warrant remand the accused, if in custody, for a period as prescribed by the proviso. It is evident that no specific provision is available in the statute for remand for the period after the charge-sheet is filed (under Section 173(2) of the Cr.P.C.) and cognizance is yet to be taken. 12. Whether during that period, any court or any Judge- in-Charge of the proceeding can remand the accused to further detention or not? 13. The old provision of the Criminal Procedure Code, 1898 has also been referred by Mr. Panda, learned counsel 18 appearing for the Petitioner Section 344 of the old Cr.P.C. postulated provisions is pari materia to Section 309 of the Cr.P.C. It provided that, if for the absence of any witness, or any other reasonable cause it becomes necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, the court may, if it thinks fit, by order in writing stating the reasons therefor, from time to time 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; No Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time. 14. The comparison of the old and the new provisions shows that the law did not take a new turn by efflux of time. Both these provisions (Section 167 of the Cr.P.C. and Section 309 of the Cr.P.C.) are in tune with Article 22 of the Constitution of India. Article 22 embodies a rule, which has always been recognised, as vital and fundamental for 19 safeguarding the personal liberty in all legal systems where the rule of law prevails. 15. In Madhu Limaye (supra), the Apex Court had occasion to observe that once it is shown that the arrests made by the police officers were illegal, it was necessary for the State to establish that at the stage of remand the Magistrate directed detention in jail custody after applying his mind to all relevant matters. The remand cannot be mechanical. Whether the remand is at all required or not, that has to be assessed by the court after the statutory periodicity. If such assessment is not made, the remand as directed can be questioned and can be interfered with. 16. In Serious Fraud Investigation Office vs. Rahul Modi and Ors.(the order dated 07.02.2022 delivered in Criminal Appeals No.185-186 of 2022): SCC Online SC/53 the Apex Court had occasion to dwell upon Section 167(2) with its proviso. It has been observed in the said report as follows: 20 “15. A close scrutiny of the judgments in Sanjay Dutt v. State: (1994) 5 SCC 410, Mohamed Iqbal Madar Sheikh & Ors. v. State of Maharashtra: (1996) 1 SCC 722 and M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence would show that there is nothing contrary to what has been decided in Bhikamchand Jain (supra). In all the above judgments which are relied upon by either side, this Court had categorically laid down that the indefeasible right of an accused to seek statutory bail under Section 167(2), Cr.P.C. arises only if the charge-sheet has not been filed before the expiry of the statutory period. Reference to cognizance in Madar Sheikh (supra) is in view of the fact situation where the application was filed after the charge-sheet was submitted and cognizance had been taken by the trial court. Such reference cannot be construed as this Court introducing an additional requirement of cognizance having to be taken within the period prescribed under proviso (a) to Section 167(2), Cr.P.C, failing which the accused would be entitled to default bail, even after filing of the charge-sheet within the statutory period. It is not necessary to repeat that in both Madar Sheikh 21 (supra) and M. Ravindran (supra), this Court expressed its view that non-filing of the charge- sheet within the statutory period is the ground for availing the indefeasible right to claim bail under Section 167(2), Cr.P.C. The conundrum relating to the custody of the accused after the expiry of 60 days has also been dealt with by this Court in Bhikamchand Jain (supra). It was made clear that the accused remains in custody of the Magistrate till cognizance is taken by the relevant court. As the issue that arises for consideration in this case is squarely covered by the judgment in Bhikamchand Jain (supra), the order passed by the High Court on 31.05.2019 is hereby set aside. 17. Let us look back to Suresh Kumar Bhikamchand Jain (supra). In that occasion, the Apex Court had observed as follows: “17. In our view, grant of sanction is nowhere contemplated under Section 167 Cr.P.C. What the said Section contemplates is the completion of investigation in respect of different types of cases within a stipulated period and the right of an accused to be released on bail on the failure of the investigating authorities to do so. The scheme 22 of the provisions relating to remand of an accused, first during the stage of investigation and, thereafter, after cognizance is taken, indicates that the Legislature intended investigation of certain crimes to be completed within 60 days and offences punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, within 90 days. In the event, the investigation is not completed by the investigating authorities, the accused acquires an indefeasible right to be granted bail, if he offers to furnish bail. Accordingly, if on either the 61st day or the 91st day, an accused makes an application for being released on bail in default of charge- sheet having been filed, the Court has no option but to release the accused on bail. The said provision has been considered and interpreted in various cases, such as the ones referred to hereinbefore. Both the decisions in Natabar Parida's case(supra) and in Sanjay Dutt's case (supra) were instances where the charge-sheet was not filed within the period stipulated in Section 167(2) Cr.P.C. and an application having been made for grant of bail prior to the filing of charge-sheet, this Court held that the accused enjoyed an indefeasible right to grant of 23 bail, if such an application was made before the filing of the charge-sheet, but once the charge- sheet was filed, such right came to an end and the accused would be entitled to pray for regular bail on merits. 18. None of the said cases detract from the position that once a charge-sheet is filed within the stipulated time, the question of grant of default bail or statutory bail does not arise. As indicated hereinabove, in our view, the filing of charge- sheet is sufficient compliance with the provisions of Section 167(2)(a)(ii) in this case. Whether cognizance is taken or not is not material as far as Section 167 Cr.P.C. is concerned. The right which may have accrued to the Petitioner, had charge-sheet not been filed, is not attracted to the facts of this case. Merely because sanction had not been obtained to prosecute the accused and to proceed to the stage of Section 309 Cr.P.C., it cannot be said that the accused is entitled to grant of statutory bail, as envisaged in Section 167 Cr.P.C. The scheme of the Cr.P.C. is such that once the investigation stage is completed, the Court proceeds to the next stage, which is the taking of cognizance and trial. An accused has to remain in custody of some court. During the 24 period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced. During that stage, under Section 167(2) Cr.P.C., the Magistrate is vested with authority to remand the accused to custody, both police custody and/ or judicial custody, for 15 days at a time, up to a maximum period of 60 days in cases of offences punishable for less than 10 years and 90 days where the offences are punishable for over 10 years or even death sentence. In the event, an investigating authority fails to file the charge-sheet within the stipulated period, the accused is entitled to be released on statutory bail. In such a situation, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the Court trying the offence, when the said Court assumes custody of the accused for purposes of remand during the trial in terms of Section 309 Cr.P.C. The two stages are different, but one follows the other so as to maintain a continuity of the custody of the accused with a court.”[Emphasis supplied] 18. It is noteworthy that, the Apex Court has in no uncertain terms laid down the law that Section 167 of the 25 Cr.P.C. is concerned with the stage of investigation. There is no dispute in the present case that the charge sheet has been filed within the period as prescribed by Section 167 of the Code. But the case has not proceeded to the stage of Section 309 of the Cr.P.C. Ordinarily, during the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced if he is not granted bail. During the stage of investigation, the Magistrate is vested with authority under Section 167(2) of the Cr.P.C to remand the accused to custody. It has been further laid down that in the event, an investigating authority fails to file the charge-sheet within the stipulated period, the accused is entitled to be released on statutory bail as a matter of right. In that situation, the accused continues to remain in the custody of the Magistrate till cognizance is taken by the court trying the offence by virtue of the last remand order passed before the statutory period was expired. After taking the cognizance or with commencement of trial, power to remand an accused on due consideration falls within the ambit of Section 309 of the Cr.P.C. 26 19. The solitary question that arises for consideration in this case is that whether the remand of the Petitioner as directed by the Judge-in-charge, Special Court is authorized by law or not. As discussed, there is no specific law how the remand of the accused is to be dealt with after filing of the charge-sheet and before the cognizance of the offence is taken on the basis of the police report by the trial court. 20. We have noted that every remand requires assessment whether the remand is required or not. We hold that the reasons given by the judge in the orders dated 02.10.2022 and 11.10.2022, as passed in Spl. G.R. Case No.111 of 2022 are not based on assessment. However, the order dated 22.10.2022, as passed in the said Spl. G.R. Case No.111 of 2022 by the ADJ-cum-Judge Spl. Court, Cuttack has to be looked at keeping in view the scheme of the POCSO Act, in as much as, the Special Court is declared by the State on due consultation and person can take over the power of the Special Court for taking cognizance unless and until such powers are vested with him expressly. Hence, it is observed thus: 27 “The record is awaiting taking cognizance consequent upon the joining regular Presiding Officer and in case, the bail is granted to him, there is chance influencing by him leading to tampering of prosecution evidence.” It has been opened that in absence of the regular Presiding Officer, taking of cognizance is beyond his competence. Hence, the Judge-in-charge has not taken the cognizance. 21. We entirely agree with the submission made by Mr. Panda, learned counsel that no express power has been provided in the statute to remand the accused after filing of the charge sheet and before taking of cognizance based on the police report. In the ordinary course, either after commitment or after filing of the charge-sheet, cognizance is taken by the concerned judge. Only the Special Judge would have taken cognizance. On account of absence of the Special Judge [under the POCSO Act] no cognizance can be taken. Hence, stricto sensu, the orders of remand after filing of the charge- sheet and before the taking the cognizance, as referred before, are not valid orders. In Suresh Kumar Bhikamchand Jain (supra), it has been clearly laid down that, “the accused 28 continues to remain in the custody after filing of the charge- sheet till such time as cognizance is taken by the court trying the offence, when the said court assumes custody of the accused for purpose of remand during the trial in terms of Section 309 of the Cr.P.C”. We cannot, in consideration of the said exposition, hold that until the cognizance is taken by the Special Court, the accused be deemed to have been in the custody, if the charge-sheet had been filed within the time. We have been persuaded to consider the dislocation caused by sudden death of the Special Judge under POCSO Act. But detention can only be continued in accordance with the procedure as established by law. We cannot rewrite the law. We are to be governed by the law. Usually, the remand as granted by the Court under Section 167(2) of the Cr.P.C. continues if the cognizance is taken within the period of remand. But after expiry of that period, no court can extend the remand unless the cognizance has been taken in the meantime. Hence, on expiry of the period of remand as given under Section 167(2) of the Cr.P.C., as no cognizance was taken, the orders of 29 remand, as challenged are invalid for absence of jurisdictional competence. 22.
Decision
If cognizance is still not taken, in view of the above observation, the Petitioner be released forthwith on execution of the bond of Rs.50,000/- (Rupees fifty thousand) supported by two sureties of the like amount upon obtaining undertaking that the Petitioner shall attend the trial, if cognizance is taken of the offence, based on the police report. But, if on taking cognizance, any order has been passed by the regular Special Judge [under POCSO Act] remanding the Petitioner, this order will not be given effect to. 23. Before parting with the records, we would clarify that if the cognizance is not taken within the period of remand, as extended in exercise of the power under Section 167 of the Cr.P.C., the Special Court will lose its authority to extend the period of remand. The order of remand by way of extension or passing fresh order can only be passed after taking cognizance and in exercise of the power under Section 309(2) of the Cr.P.C. 30 24. In the result, this petition stands allowed to the extent as indicated above. 25. No order as to costs. [ . …………………………. (S. Talapatra, J) …………………………. (Savitri Ratho, J) I agree. Orissa High Court, Cuttack. The 25th day of January, 2023. L. Murmu, Senior Stenographer.