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IN

10 18.03.19 W. P. 3731 (W) of 2019

as/ Ct.28
tkm/ Nazma Khatun
rkd/ Vs.
PA State of West Bengal & Ors.

Mr. Ayan Bhattacharya, Adv.

Mr. Sharequl Haque, Adv.
…for the petitioner.

Mr. Saibal Bapuli, Ld. A.P.P.,

Mr. Sabir Ahmed, Adv.
…for the State.

An interesting question is raised in the

instant application seeking a writ of habeas corpus

for immediate release of an under trial who is

facing a prosecution under Section 21(c) of the

N.D.P.S. Act.

Shorn of details the challenge is to the

legality of the order of remand dated 19.2.2019,

committing the accused to judicial custody till

25.3.2019 on the premise such remand is for a

period exceeding 15 days is violation of the first

proviso to section 309(2) Cr.P.C. and, therefore,

illegal.

Relying on the first proviso to section 309(2)

of the Code of Criminal Procedure, Mr.

Bhattacharyya, learned Counsel appearing for the

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petitioner submits that the impugned order

remanding the accused to custody for a period

exceeding 15 days is illegal and without

jurisdiction. In his usual fairness, he admits that

the said issue was considered by a Co-ordinate

Bench of this Court in Aparna Makhal Vs. State of

West Bengal, 2014 (3) RCR (Criminal) 18, wherein it

was held that the limitation engrafted in the first

proviso to Section 309(2) does not apply to a

Special Court under NDPS Act. He submits that the

aforesaid authority requires reconsideration as the

Bench had not considered the definition of the

word ‘Magistrate’ under Section 3 (32) of the

General Clauses Act, 1897. He relies on various

authorities in support of his contention.

On the other Mr. Bapuli, learned Additional

Public Prosecutor along with Mr. Ahmed, appearing

for the State submits that the writ is not

maintainable as the petitioner had been remanded

to custody in terms of a judicial order passed by a

competent court. He submits the said issue is no

longer res integra in view of the ratio in Aparna

Makhal (Supra).
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Relevant portion of section 309 (2) of the

Code of Criminal Procedure reads as follows:-

“309. Power to postpone or adjourn

proceedings – (1) ……
(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 be 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 :
………….…”

The aforesaid provision empowers a court

to adjourn or postpone a proceeding for reasons to

be recorded in writing during enquiry and trial and

to remand an accused to custody for such purpose.

In short, the provision authorizes post cognizance

remand by a Court in contradistinction to a pre-

cognizance remand by the Magistrate under

Section 167 of the Code of Criminal Procedure.

First proviso of section 309(2) of the Code restricts

the power of the Magistrate to remand an accused

to custody under the said section for a term

exceeding 15 days at a time. Interpreting the

aforesaid provision, a Co-ordinate Bench of this

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Court in Aparna Makhal (Supra) held as follows:-

“16. Mr. Manjit Singh, learned Public

Prosecutor, per contra, argues that the order
impugned is not illegal. The Code uses to
expressions ‘Court’ and ‘Magistrate’ separately.
He submits that had the remand been made by a
Magistrate, the remand exceeding 15 days
would have been illegal, but since the remand
has been made by the Special Court in course of
trial, the order is not illegal and, therefore, the
petitioner is not entitled to relief. He has
referred to a decision in the case of Koomar
Indraneel @ Caesar & Anr. Vs. State of Bihar,
reported in 2001 Criminal Law Journal 1040
where a Division Bench of the Patna High Court
held that limit of 15 days for remanding an
accused to custody as provided under Section
309 of the Code of 1973 was meant for
Magistrate only and not for the court of
Sessions, which was clear from the proviso to
Section 309(2) of the said Code of 1973. The
absence of mention of court of Sessions in this
proviso left no room for any doubt that a court
of Sessions had been kept out of this proviso
defining the limit of period of remand at a time
of an accused to custody.

17. There is a practical aspect of the matter.

The session is on. One witness has been
examined, cross-examined and discharged.

18. The trial court considering the pendency of

the cases in the court fixed February 20, 2014
and February 21, 2014 for recording of the
evidence of the case and directed the accused
persons to be produced on the next date.

19. If Mr. Banerjee’s submission is accepted and

the accused is produced every fortnight to rule
out the rigour of proviso of Section 309(2) of the
Code, no useful purpose will be served as the
court will again send him on remand. This will
only complicate the situation and embarrass the
proceedings before the court.

20. When the legislation has exercised to

expressions in the statute it has to be presumed
that the expressions were used consciously.

21. In Section 309 (2) of the Code, the expression

‘Court’ was mentioned, but in the proviso of
Section 309 (2) of the said Code the expression
‘Magistrate’ was mentioned. It should have been
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better if the court concerned fixed next date of

the trial expeditiously, but we cannot say that
fixing a date of trial after about four months
vitiates the trial or makes the order illegal. The
order asking the authorities to produce the
accused on the next date is not also illegal.”

We are called upon to reconsider the said

ratio in the light of the definition clause in the

General Clauses Act, 1897 particularly Section

3(32) thereof defining the expression “Magistrate”

and in the event we differ from the ratio in Aparna

Makhal (Supra) to refer the matter to the Hon’ble

the Acting Chief Justice for decision by a Special

Bench.

Section 3 (32) of the General Clauses Act,

1897 defines ‘Magistrate’ as follows:-

“Magistrate” shall include every person

exercising all or any of the powers of a
magistrate under the Code of Criminal
Procedure for the time being in force”.

Definition of the expression ‘Magistrate’

under the General Clauses Act, 1897 is an

inclusive one and would, therefore, include all

judicial authorities exercising all or any magisterial

power under the Code. On such premise, it has

been argued as the power of remand is a

magisterial exercise, the Special Court while

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exercising such power under section 309 (2) Cr.P.C.

must be deemed to be a Magistrate. This is further

fortified by the argument that the special court is a

court of first instance under the N.D.P.S. Act and

must be deemed to be a Magistrate when it

exercises power of remand under the N.D.P.S. Act.

Section 36 of the N.D.P.S. Act provides for

constitution of special courts to try offences under

the N.D.P.S. Act. A special court shall consist of a

Special Judge who shall be appointed by the

Government in concurrence of the Chief Justice of

the High Court and he must be qualified before

appointment to be a Sessions Judge or an

Additional Sessions Judge. Section 36A empowers

the special court to exercise powers of the

Magistrate under Section 167 of the Code of

Criminal Procedure in relation to cases falling

within its jurisdiction and also to take cognizance

of an offence on a police report without the case

being committed to it for trial.

Section 36 C of the N.D.P.S. Act provides

save as otherwise provided in the Act, provisions of

the Code of Criminal Procedure (including the

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provisions as to bail and bonds) shall apply to the

proceedings before a Special Court and for the

purposes of the said provisions, the Special Court

shall be deemed to be a Court of Sessions.

Scheme of the N.D.P.S. Act envisages the

special court trying offences under the Act to be a

court of Sessions for all purposes save and except

when it exercises magisterial power to remand an

accused during investigation under Section 167 of

the Code of Criminal Procedure or takes cognizance

on a police report without the case being committed

to it. When the power and jurisdiction of the

Special Court is tested from this perspective, it is

evident that the Special Court while exercising

remand powers at the post-cognizance stage under

section 309(2) Cr.P.C acts as a Courts of Session

unlike the pre-cognizance stage when it is exercises

remand powers as if it were a Magistrate. Reference

to the definition “Magistrate” in section 3(2) of the

General Clauses Act, 1897 does not alter the

position. The said definition merely provides that

“every person” exercising “all or any of the powers

of a Magistrate under the Code of Criminal

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Procedure” shall be fall within the term

“Magistrate”. As per the said definition, a Special

Court shall fall within the expression ‘Magistrate’

when it exercises all or any powers of the

Magistrate under the Code. Interpreting this

provision in State of T.N. Vs. Krishnaswami Naidu,

(1979) 4 SCC 5, the Apex Court held Special Judge

under Criminal Law (Amendment) Act, 1952 is a

Magistrate while exercising pre-cognizance remand

powers under section 167 (2) Cr.P.C. The Court

analysed the position as follows:-

“7. We will now examine the provisions

of Section 167 of the Criminal Procedure Code.
Section 167 of the Criminal Procedure Code
requires that whenever any person is arrested
and detained in custody and when it appears
that the investigation cannot be completed
within a period of 24 hours the police officer is
required to forward the accused to the
Magistrate. The Magistrate to whom the accused
is forwarded if he is not the Magistrate having
jurisdiction to try the case may authorise the
detention of the accused in such custody as he
thinks fit for a term not exceeding 15 days on
the whole. If he has no jurisdiction to try the
case and if he considers that further detention
is necessary he may order the accused to be
forwarded to any Magistrate having
jurisdiction. The Magistrate having jurisdiction
may authorise the detention of the accused
person otherwise than in custody of the police
beyond the period of 15 days but for a total
period not exceeding 60 days. In the present
case the accused were produced before the
Special Judge who admittedly is the person who
has jurisdiction to try the case. The contention
which found favour with the High Court is that
the words “Magistrate having jurisdiction”
cannot apply to a Special Judge having
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jurisdiction to try the case. No doubt the word

“Special Judge” is not mentioned in Section 167
but the question is whether that would exclude
the Special Judge from being a Magistrate
having jurisdiction to try the case. The
provisions of Chapter XII CrPC relate to the
information to the police and their powers of
investigation. It is seen that there are certain
sections which require the police to take
directions from the Magistrate having
jurisdiction to try the case. Section 155(2)
requires that no police shall take up non-
cognizable case without an order of the
Magistrate having power to try such case or
commit the case for trial. Again Section 157
requires that when the police officer has reason
to suspect the commission of an offence which
he is empowered under Section 156 to
investigate, he shall forthwith send a report of
the same to a Magistrate empowered to take
cognizance of such offence upon a police report.
Section 173 requires that on the completion of
every investigation under the chapter the officer
in charge of the police station shall forward to
a Magistrate empowered to take cognizance of
the offence a police report as required in the
form prescribed. Section 8 of the Criminal Law
Amendment specifically empowers the Special
Judge to take cognizance of the offence without
the accused being committed to him. In taking
cognizance of an offence without the accused
being committed to him he is not a Sessions
Judge for Section 193 CrPC provides that no
Court of Session Judge shall take cognizance
for any offence as a court of original
jurisdiction unless the case has been committed
to it by a Magistrate under the Code. Strictly he
is not a Magistrate for no Magistrate can take
cognizance as a Court of Session without
committal. The Criminal Law (Amendment) Act
being an amending Act the provisions are
intended to provide for a speedy trial of certain
offences. The Criminal Law (Amendment) Act is
not intended to be a complete Code relating to
procedure. The provisions of the CrPC are not
excluded unless they are inconsistent with the
Criminal Law (Amendment) Act. Thus read there
could be no difficulty in coming to the
conclusion that the CrPC is applicable when
there is no conflict with the provisions of
Criminal Law (Amendment) Act. If a Special
Judge who is empowered to take cognizance
without committal is not empowered to exercise
powers of remanding an accused person
produced before him or release him on bail it
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will lead to an anomalous situation. A

Magistrate other than a Magistrate having
jurisdiction cannot keep him in custody for
more than 15 days and after the expiry of the
period if the Magistrate having jurisdiction to
try the case does not include the Special Judge,
it would mean that he would have no authority
to extend the period of remand or to release him
on bail. So also if the Special Judge is not held
to be a Magistrate having jurisdiction, a charge-
sheet under Section 173 cannot be submitted to
him. It is relevant to note that the General
Clauses Act, Section 32 defines a Magistrate as
including every person exercising all or any of
the powers of a Magistrate under the Code of
Criminal Procedure for the time being in force.
Section 3 of the Criminal Procedure Code
provides that any reference without any
qualifying words, to a Magistrate, shall be
construed, unless the context otherwise requires
in the manner stated in the sub-sections. If the
context otherwise requires the word
“Magistrate” may include Magistrates who are
not specified in the section. Read alongwith the
definition of the Magistrate in the General
Clauses Act there can be no difficulty in
construing the Special Judge as a Magistrate
for the purposes of Section 167.”

The court factually distinguished its earlier

ratio in Major General E.G. Barsay Vs. State of

Bombay, AIR 1961 SC 1762, in the following

manner:-

“8. In coming to the conclusion that the

Special Judge is not a Magistrate the High
Court strongly relied on a decision of this Court
in Major E.G. Barsay v. State of Bombay1. This
Court in construing Rule 3 made under Section
549 of the Criminal Procedure Code held that
the Rule was applicable to only a Magistrate
and not to a Special Judge who is not a
Magistrate within the meaning of Rule 3.
Section 549 of the Code of Criminal Procedure
empowers the Central Government to make
rules as to cases to which persons subject to
military, naval or air force shall be tried by the
Court to which this Code applies, or by a Court
Martial. The Central Government made rules in
exercise of the powers conferred on it under
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this section. Rule 3 which is considered by the

Court runs as follows:
“Where a person subject to military, naval
or air force law is brought before a Magistrate
and charged with an offence for which he is
liable to be tried by a Court Martial, such
Magistrate shall not proceed to try such person
or to inquire with a view to his commitment for
trial by the Court of Session or the High Court
for any offence triable by such court, unless,
(a) he is of opinion, for reasons to be
recorded that he should so proceed without
being moved thereto by competent military,
naval or air force authority, or
(b) he is moved thereto by such authority.”

9. Rule 3, it will be seen, provides

that the Magistrate shall not proceed to try
such persons or inquire with a view to his
commitment for trial by the Court of Session
Judge unless he is of opinion that he should
so proceed without being moved thereto by
such authority. The sub-section, therefore,
contemplates a Magistrate who can try the
offence himself or inquire with a view to
commitment. This part of the section is not
applicable to a Special Judge as he cannot
inquire with a view to his commitment.
Therefore, the Magistrate referred to under
Rule 3 cannot include a Special Judge. This
Court observed that Section 549 is not one of
the sections in Chapter 21 of the Code of
Criminal Procedure and that it does not
empower the Central Government to modify
the warrant procedure and that Rule 3 would
not be applicable and further it cannot be
said that by reason of the procedure to be
followed by a Special Judge he would be a
Magistrate empowered to try such a person
within the meaning of Rule 3. Relying on this
decision the learned Judge held that the same
ratio would govern the facts of the present
case. The learned Judge was in error in
applying the decision of this Court relating to
Rule 3 which is framed under Section 549 to
Section 167 of the Criminal Procedure Code.
The Magistrate contemplated under Rule 3 is
a Magistrate who is empowered to inquire
with a view to committal which cannot apply
to a Special Judge.”

Enunciation of law in the aforesaid report

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shows that the Special Court may be treated as a

Magistrate only in situations where it exercises

magisterial powers and not otherwise.

Special Court while remanding an accused

in the post cognizance stage under section 309 (2)

Cr.P.C. does not exercise magisterial powers as

envisaged under Section 167 Cr.P.C. and cannot be

treated as a Magistrate within the ambit of the

definition clause of the General Clauses Act.

Although remand of an accused at the pre-

cognizance and post cognizance stage may fall in

the same genus, but they are of different species

deriving jurisdiction from independent provisions,

namely, Section 167(2) in the former and Section

309(2) in the latter. While the power to remand an

accused at pre-cognizance stage under section 167

of the Code is purely magisterial, the power to

remand an accused during inquiry or trial at post-

cognizance is vested in every Court having

jurisdiction to inquire or try the offences and not

upon a Magistrate only. Hence, the Special Court

under N.D.P.S. Act exercising power of remand

during inquiry and trial shall be treated as ‘Court

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of Sessions’ in terms of section 36 C of N.D.P.S. Act

and not a Magistrate in the light of section 3(32) of

the General Clauses Act, 1897. Consequentially,

restriction on the magisterial power to remand

beyond 15 days engrafted in the first proviso of

section 309(2) Cr.P.C. does not apply to Special

Court while remanding the accused during inquiry

and trial under the said section.

Accordingly, we are not impressed by the

submission of the petitioner that the ratio in

Aparna Makhal (Supra) requires re-consideration as

the Bench had not taken into consideration the

definition of the word ‘’Magistrate’’ under Section

3(32) of the General Clauses Act.

Authorities relied upon by the petitioner are

inapplicable in the facts of the case. In Ram

Narayan Singh vs. The State of Delhi & Ors., AIR

1953 SCC 277 a Constitution Bench of the Apex

Court held that a writ of habeas corpus was

maintainable without when an undertrial is

detained without an order of remand. In the

present case the accused had been remanded to

custody in exercise of powers under Section 309(2)

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Cr.P.C. and, accordingly, there is no scope of

invoking the extraordinary writ jurisdiction in the

facts of the present case. In Sapmawia Vs. Deputy

Commissioner, Aijal, 1970 (2) SCC 399, the Apex

Court held that an unlimited order of remand at

the pre-cognizance stage by the Magistrate was

illegal. Present case relates to the power of the

Special Court to remand an accused under Section

309 (2) Cr.P.C. at the post cognizance stage.

Restrictions on power of remand under Section 167

Cr.P.C., therefore, have no manner of application

and as the court was not exercising magisterial

power of pre-cognizance remand and the aforesaid

ratio is clearly distinguishable on such score.

In Harshad S. Mehta vs. C.B.I. DRT 1992

(24), Yogesh Mittal Vs. Enforcement Directorate,

2018 Delhi Law Times 630 and Asalamkhan Vs.

State of M.P., M.Cr.C. No.3100/1991, the issue

before us did not directly fall for decision and no

sustenance can be drawn from these authorities

which are of persuasive valve in the face of the

clear enunciation of law in Aparna Makhal (Supra).

In the light of the aforesaid discussion, we

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find no reason to differ from and are in humble

agreement with the ratio in Aparna Makhal (Supra)

and we hold that there is no illegality in the order

of remand passed by the trial judge.

Although, we are of the view that the

limitation engrafted in the first proviso to Section

309(2) Cr.P.C. is inapplicable to the Special Court

while remanding an accused during inquiry and

trial, we are not unmindful of the fact that an

accused particularly an undertrial in custody has a

fundamental right to speedy trial and remand to

custody for protracted periods at a time during

inquiry or trial may not be conducive to the

enjoyment of such fundament right. Special Courts

while conducting custody trials require to bear in

mind this legal imperative and ought not grant long

and unnecessary adjournments during trial and

must make all endeavours to conduct trial on a day

to day basis without unnecessary adjournments as

laid down in Thana Singh Vs. Central Bureau of

Narcotics, (2013) 2 SCC 590.

We are informed although the petitioner is

in custody for about ten months, witness action is

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not complete.

We direct the trial court to ensure prompt

examination of witnesses on a day-to-day basis (as

far practicable) without granting unnecessary

adjournments to either of the parties and to

conclude the trial at an early date preferably within

six months from the next date fixed before the said

court.

The writ petition is, accordingly, disposed

of.

(Manojit Mandal, J.) (Joymalya Bagchi, J.)