JUDGMENT D. N. Jha, J. 1. HABEAS Corpus Petition No. 2094 of 1983 filed by Muneshwar, was referred by a Division Bench as it involved legal questions. Identical questions were involved in HABEAS Corpus Petition No. 6584 of 1983 filed by Bhagauti and HABEAS Corpus Petition No. 6324 of 1983 filed by Nageshar. Consequently they were also connected and were directed to be disposed of by a larger Bench. This is how these three habeas corpus petitions are before this Court. All these petitions have been moved on the ground that there was no valid remand order in operation against the petitioners and, therefore, their detention was rendered illegal. 2. PETITIONER Muneshwar of Writ Petition No. 2094 of 1983 has been charged under section 302 IPC. The charge sheet was submitted against him on 14-9-1982. Since the commitment proceedings were pending in the court of the Judicial Magistrate, the Judicial Magistrate pissed the following order on 27-9-1982. The translation is an under :- " Whereas a charge under section 302 IPC crime No. 254/82 criminal case No. 781/82 is pending against accused Muneshwar which is under enquiry by this Court, you are hereby required to keep the said accused Muneshwar in your custody until commitment to the court of sessions and to produce him in that court thereafter whenever required." No specific remand orders were passed on the subsequent dates of hearing, namely, 8-10-1982, 20-10-1982, 2-11-1982 and 14-3-1983. On 26-3-1983 the case had been adjourned to 8-4-83 for production of the accused persons, including those who were on bail. Muneshwar bad not been released on bail and an endorsement on the earlier custody warrant dated 27-9-02 referred to above was made as follows ;- " 26-3-83 to 8-4-83-(initials of Magistrate), " On 8-4-1983 the case was adjourned to 22-4-1983 and likewise an endorsement was made on the same custody warrant :- " 8-4-83 to 22-4-83 (initials of Magistrate). "' The petition was filed on 19-4-83. 3. THE facts giving rise to Writ Petition No. 6324 of 1983 are that Nageshwar petitioner was prosecuted by the police of P. S. Dhammaur, District Sultanpur, in a criminal case which was registered as crime case no. 119 of 1983 under sections 302/308/323 IPC along with other co-accused. THE charge sheet against the petitioner and co-accused was submitted in the court of Judicial Magistrate I, Sultanpur. 119 of 1983 under sections 302/308/323 IPC along with other co-accused. THE charge sheet against the petitioner and co-accused was submitted in the court of Judicial Magistrate I, Sultanpur. THE case had not been committed to the court of sessions till the date of filing of the writ petition. THE co-accused in the case had been released on bail by the learned Sessions Judge but the bail application moved on behalf of the petitioner was rejected by the said court. THE learned Magistrate after submission of the charge sheet fixed the case for 12-8-1983 for furnishing the necessary copies of the papers in the charge sheet for the purpose of committing the case to the court of session. THE copies were not ready for being supplied to the petitioner and the case was adjourned for 25-8-1983. THE copies were still not ready and the case was adjourned on 25-8-1983 to 31-10-1983 and again on 31-10-1983 to 27-1-1984. Various other dates on which the case was adjourned have been mentioned in Annexure A-1 filed with the counter affidavit by the State. THE petitioner was remanded to jail custody on 25-8-1983 upto 31-10-1983 and from 31-10-1V83 upto 27-1-1984. This petition was filed by Nageshwar on 30-11-1983. 4. THE facts giving rise to Writ Petition No. 6584 of 1983 are that Bhagauti petitioner was being prosecuted by the police of P. S. Atrauli, District Hardoi. Crime Case No. 75 of 1982 has been registered against the petitioner at the aforesaid police station under sections 147/148/149/302/323 IPC. On 5-4-1982 the petitioner was arrested by the Police of P. S. Atrauli as he was wanted in crime case no. 75/1982. THE petitioner was produced before the Chief Judicial Magistrate on 6-4-1982 and a remand order after perusing the case diary was granted. Charge sheet against the petitioner and other co- accused had been submitted on 4-6-1982 whici was received in court on 8-6-1982. THE petitioner entered the District Jail, Hardoi, on 6-4-1982 and the custody warrant was issued by the Chief Judicial Magistrate, Hardoi in crime no. 75 of 1982 under sections 147/148/149/302/323 IPC of P. S. Atrauli, District Hardoi. THEreafter remand warrants were issued on 2-6-1983 upto 16-6-1983, on 16-6-1983 upto 30-6-1983, on 30-6-1983 upto 14-7-1983, on 14-7-1983 upto 21-7-1983, on 28-7-1983 upto 19-9-1983, on 19-9-1983 upto 29-10-1983 and on 29-10-1983 upto 22-1-1984. 75 of 1982 under sections 147/148/149/302/323 IPC of P. S. Atrauli, District Hardoi. THEreafter remand warrants were issued on 2-6-1983 upto 16-6-1983, on 16-6-1983 upto 30-6-1983, on 30-6-1983 upto 14-7-1983, on 14-7-1983 upto 21-7-1983, on 28-7-1983 upto 19-9-1983, on 19-9-1983 upto 29-10-1983 and on 29-10-1983 upto 22-1-1984. All these petitions came up for hearing on 17-1-1984 before the Full Bench and the case was thereafter adjourned to 2-2-1984. On 2-2-1984 it was brought to our notice that Muneshwar petitioner in Writ Petition No. 2094 of 1983 had been released on bail and his case has been committed to the court of sessions. His petition, therefore, was rendered infructuous and was dismissed. 5. THE other two petitioner Nageshwar and Bhagauti are still in custody. Inspite of lapse of time none of the learned counsel could inform as to whether their cases had been committed to the court of sessions, therefore, since petitioners Nageshar and Bhagauti were still in jail we heard the two petitions on merit. 6. WE have heard the learned counsel for the petitioners and the learned Additional Government Advocate for the State. The short question involved in the petitions is whether the remand order directing for detention of the petitioners in judicial custody for more than 15 days on each occasion is bad in law and their detention is rendered illegal and they are entitled to be released through these habeas corpus petitions. Sri Sabhapati Shukla, learned counsel for the petitioner Nageshar, has very ably argued the petition. His submission is that the provisions of section 209 CrPC are controlled by the provisions of section 309 CrPC. He, therefore, maintained that the limitation was prescribed under the first proviso to Sec. 309 (2) CrPC with regard to powers of the Magistrate remanding the petitioner to judicial custody and he cannot order detention beyond 15 days. In this connection he argued that the word "shall" used in the first proviso to section 309 CrPC is mandatory and, therefore, the detention of the petitioner is rendered illegal. In order to appreciate the argument of the learned counsel for the petitioner the provisions of sections 209, 309 and the first proviso to section 309 (2) CrPC are reproduced below. 7. IT may be mentioned that section 209 CrPC had been amended so far as its applicability to the State of Uttar Pradesh is concerned. In order to appreciate the argument of the learned counsel for the petitioner the provisions of sections 209, 309 and the first proviso to section 309 (2) CrPC are reproduced below. 7. IT may be mentioned that section 209 CrPC had been amended so far as its applicability to the State of Uttar Pradesh is concerned. The amendment and the section reads as under :- " 209. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, be shall :- (a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made ; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of the trial ; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence ; (d) notify the Public Prosecutor of the commitment of the case to the Court of session. UTTAR PRADESH : In Section 209 for clauses (a) and (b), the following clauses shall be substituted and be deemed always to have been substituted, namely :- (a) as soon as may be after complying with the provisions of section 207, commit the case to the Court of sessions ; (b) subject to the provisions of this Code relating to bail, remand the accused to custody until commitment of the case under clause (a) and thereafter during, and until the conclusion of trial. " 8. IT may be mentioned that these amendments were brought about by U. P. Act No. 16 of 1976. Section 309 reads as under :- " 309 (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. (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 : There is no doubt now that general provisions as to inquiries and trials are also applicable to proceedings for commitment as held by the Supreme Court in State of U. P. v. Lakshmi Brahman, 1983 AWC 378. Section 209 CrPC has been introduced by the new Code of Criminal Procedure and it provides for commitment of a case which is exclusively triable by a Court of Session. Preliminary inquiries are being dispensed with in cases triable by a court of session. However, for performing certain preliminary functions like granting copies, preparing the record and inviting Public Prosecutor etc. provision has been made that the Magistrate taking cognizance of the case will perform these preliminary inquiries and formally commit the case to the court of session. Section 209 empowers the committing Magistrate to remand the accused to custody during and until the conclusion of the trial subject to the provisions relating to bail. The period, therefore, of judicial custody of accused cannot be said to be indefinite or arbitrary as the custody is from the period starting with the commencement of the sessions trial and lasts till its conclusion. Sub-clause (b) also provides remand of the accused to custody "during and until the conclusion of the trial." A reading of this section would show that it is a self contained Code. The object of inquiry under this section is two-fold. Firstly, to prevent the commital of cases in which there was no reasonable ground for conviction so as to, on one hand, save the accused from prolonged anxiety of undergoing the trial for offences that could not be brought home to him and on the other hand, to save the time of the court being wasted over cases in which the evidence would obviously not justify a conviction. Secondly, to provide that no person shall be committed for trial without being acquainted with the facts of the offence imputed against him and without being given a fair opportunity of meeting it. The statutory requirement of a separate order in writing with reasons therefor is only in respect of commitment and not in respect of remanding the accused to jail custody for which mere issue of warrant of remand is sufficient. This section further vests in the Magistrate power with respect to detention of an accused in jail custody duning and until the conclusion of a trial. The Magistrate, therefore, can pass an order of custody for the period of inquiry as it would be covered within the meaning of "during and until the conclusion of the trial." The only thing, therefore, to be seen is whether the order authorising the petitioner's detention is in accordance with the provisions contained in section 209 CrPC. The submission of the learned counsel for the petitioners that the provisions of section 209 CrPC are controlled by the provisions of section 309 CrPC does not appeal to reason. Section 309 CrPC only deals with postponement or adjournment of any inquiry or trial and it also refers for remanding of the accused and then commitment of the accused if in custody. The powers of the Magistrate are thus regulated for postponement and adjournment by this section. The policy of law being that criminal cases should be disposed of within a reasonable time and without undue delay which is in public interest. The criminal justice undoubtedly should be swift and the guilty should be punished while the events are still fresh in the mind of the public and the innocent should be absolved as early as is consistent with a fair and impartial trial. Sri Shukla emphasised that in order to ensure expeditious trial the legislation has intentionally prescribed a limit on the powers of the remand of the accused if the accused is in custody at any stage. He pointed out that during investigation such a limitation on the power of remand of a Magistrate can be found in section 167 CrPC. Likewise, this limitation is clearly provided by the first proviso to section 309 (2) CrPC for the stages of inquiry and trial in the court of a Magistrate. He pointed out that during investigation such a limitation on the power of remand of a Magistrate can be found in section 167 CrPC. Likewise, this limitation is clearly provided by the first proviso to section 309 (2) CrPC for the stages of inquiry and trial in the court of a Magistrate. He argued that such an express limitation has not been prescribed under section 209 CrPC.The learned counsel, therefore, urged that the question of (sic) the relationship between sections 209 and 309 CrPC therefore, assumes some amount of complication. In our opinion it is an illusory complication which in fact does not exists in reality.It is well settled that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be entertained as what is just or expedient.The maxim Generalia Specialibus Non Derogant being the rule of interpretation should be applied.This rule means that when there is conflict between a general ;and special provision the latter shall prevail. It is stated in Craies on Statute Law, 5th Edition, at page 205 " The rule is, that whenever, there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply. " To arrive at the real meaning it is always necessary to get an exact conception of the aim, scope and object of the whole Act, to consider, according to Lord Coke :- 1. What was the law before the Act was passed ; 2. What was the mischief or defect for which the law had not provided ; 3. What remedy Parliament has appointed ; and 4. The reason of the remedy. 9. THE learned counsel Sri Shukla urged that the amendment in section 209 was brought about to mitigate the rule enunciated by this Court in Lakshmi Brahman v. State, 1975 AWC 369. What was the mischief or defect for which the law had not provided ; 3. What remedy Parliament has appointed ; and 4. The reason of the remedy. 9. THE learned counsel Sri Shukla urged that the amendment in section 209 was brought about to mitigate the rule enunciated by this Court in Lakshmi Brahman v. State, 1975 AWC 369. In that case a Division Bench of this Court opined that proceedings under section 209 CrPC were not inquiry as defined in section 2 (g) CrPC and, therefore., the powers contained in section 309 would not enable a Magistrate to remand an accused to custody during the stage where the case was yet to be committed. According to the submission of the learned counsel the decision of the Division Bench led to a compulsory stage of bail immediately after taking cognizance of the case under section 209 (in the cases triable by sessions) and that stage was to continue until the actual order of commitment was made. Be that as it may, the fact remains that in the objects and reasons of U. P. Act No. 16 of 1976 it has been stated that a formal amendment was being introduced in section 209, necessitated by High Court's interpretation of section 209 CrPC. That by section 6 of Act No. 16 of 1976 clauses (a) and (b) of section 209 of the Central Act have been substituted with retrospective effect. Sub-clause (b) has been quoted above and it is also no doubt true that initially an amendment was brought about through Ordinance No. 13 of 1976 to meet the emergent situation. This Ordinance was however, subsequently replaced by U. P. Act No. 16 of 1976. In the meantime, the appeal preferred by the State of U. P. against the decision of Division Bench in Lakshmi Brahman's case came up for hearing and as observed above the Supreme Court while interpreting the provisions of section 209 CrPC as existed before the amendment brought about by Act No. 16 of 1976 held that the proceedings of section 209 CrPC are inquiry within the meaning of section 2 (g) and, therefore, the provisions of section 309 CrPC were applicable. In our opinion the legal position as discussed above would remain unaltered so far as the remand of an accused to custody was concerned. In our opinion the legal position as discussed above would remain unaltered so far as the remand of an accused to custody was concerned. THE provision of remand of an accused in custody would not override the provision of remand provided under section 209 CrPC. THE learned counsel vehemently urged that the word "shall" used in the first proviso to section 309 (2) CrPC is a mandatory requirement and, therefore, the Magistrate could not grant a remand beyond 15 days and if he did so, the detention of the accused would be rendered illegal. He urged that this mandate was provided in order to ensure a fair and speedy trial of an accused person. We are not in disagreement that trial or inquiry should be speedy as it is the backbone of criminal Jurisprudence. In the Sixth Amendment of the American Constitution as also in Article 3 of the European Convention of Human Rights it has been emphasised that in criminal prosecutions the accused shall have the right to speedy trial, 10. THE Supreme Court in Tahsildar Singh v. State of U. P., AIR 1959 SC 1012 while interpreting the proviso to section 162 CrPC held :- " THE cardinal rule of construction of the provisions of a section with a proviso is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest. THE true principle undoubtedly is that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together, is to prevail. Unless the words are clear, the Court should not so construe the proviso as to attribute an intention to the legislature to give with one hand and take away with another. To put it in other words, a sincere attempt should be made to reconcile the enacting clause and the proviso and to avoid repugnancy between the two." It has already been observed above by us that section 309 CrPC finds place in Chapter 24 which relaxes to general provisions as to inquiries and trials. Section 309 CrPC provides for power to postpone or adjourn proceedings. Section 309 CrPC provides for power to postpone or adjourn proceedings. If the word "shall" used in the first proviso to section 309 (2) CrPC is read as mandatory then it follows that in no circumstances the Magistrate can grant a remand for a term exceeding 15 days at a time. Such an interpretation would lead to an extremely anomalous position in certain unavoidable circumstances. Supposing a witness has to come from a foreign country and his presence cannot be available, say before two or three months, the question will arise whether it will still be desirable for the Magistrate to keep on adjourning the case every fortnightly and summon the accused every time from jail custody. In another case where, say the papers under section 207 CrPC cannot be prepared within two or three months on account of its bulk will it be desirable for the Magistrate to summon the accused from detention every fortnightly ? In our opinion, if the word "shall" is to be read as mandatory it can lead to great hardships. The word "shall" therefore has to be read in a way that it provides harmonious construction to the main object sought to be achieved by the section i. e. adjournment of proceedings. Reading of the section itself envisages proceedings to be held as expeditiously as possible. Therefore, in our opinion if the word "shall" is to be interpreted as asserted by the learned counsel for the petitioner then at times it would lead to a very embarrassing situation. The Supreme Court in Dal Chand v. Municipal Corporation, Bhopal, AIR 1983 SC 303 while interpreting rule 9 (j) of the Prevention of Food Adulteration Act wherein it was provided that the Inspector was to send by registered post copy of Public Analyst's report to the person from whom the sample was taken within ten days of receipt of the report, held :- "There are no ready tests or invariable formulas to determine whether a particular provision in statute is mandatory or directory. The object of the particular provision must be considered. The link between the two is most important. The object of the particular provision must be considered. The link between the two is most important. The weighing of the consequence of holding a provision to be mandatory or directory is vital and, more often than not, determinative of the very question whether the provision is madatory or directory Where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of." The period of 15 days was prescribed with a view to expedite the hearing and with the object of giving effect to the words couched in the language which though appears to be imperative is in our opinion no more than mere instructive to those entrusted with the task of discharging statutory duties for public benefit. Where no prejudice is caused by giving remand beyond 15 days then in our opinion there should be no cause for complaint. The word "shall" therefore in our opinion is only instructive and its non compliance would not render the act of the Magistrate illegal in granting remand beyond 15 days. We would however, like to observe that since the intention of the Legislature is to expedite the proceedings whether it be inquiry or trial it would be expedient in the interest of justice that the accused in custody ordinarily should not be remanded for a longer period while the commitment proceedings are in progress, but as discussed above, if the remand is for a longer period than 15 days it would be irregular and the remand granted by the Magistrate beyond 15 days would not be rendered illegal. Sri Shukla in order to support his contention relied upon a Division Bench decision of this Court in Kunjan v. State of U. P., 1980 LLJ 119. It was held by the Division Bench that the remand of the accused to custody for more than fifteen days by the warrants was bad in law. With utmost respect we are unable to find ourselves in agreement with the view expressed by the learned Judges in Kunjan's case. It was held by the Division Bench that the remand of the accused to custody for more than fifteen days by the warrants was bad in law. With utmost respect we are unable to find ourselves in agreement with the view expressed by the learned Judges in Kunjan's case. There is no reason for us to conclude that when the power of remand is exercised by the Magistrate under section 209 CrPC and he is vested with the power to remand the accused to custody during and until commitment of the case and also during and until the conclusion of the trial the custody cannot be said to be illegal as the scope of the section is wide to remand the accused to custody. The applicability of section 309 CrPC which provides for general procedure would not be contrary to section 209 CrPC. 11. K. N. Goyal, J., who referred the case: of Muneshwar by a detailed order, has made reference to Kunjan v. State of U. P. (supra). The learned Judge doubted the correctness of the decision and he has been pleased to refer the matter to a larger Bench for consideration. We have already expressed our view with respect to the instructive nature of the first proviso to section 309 (2) CrPC. The law laid down in Kunjan's case, therefore, cannot be said to be a good law. With utmost respect we also do not find ourselves in agreement with the majority view in Babu Nandan Mallah v. State, 1972 CrLJ 423 which held that an order remanding an accused person to custody for a term exceeding 15 days at a time is bad and the person so detained will have to be directed to be released by grant of a writ of habeas corpus. It may be mentioned that the learned Judges had expressed this view while interpreting sub-section (1-A) of section 344 of the old CrPC. The learned Judges had no occasion to consider the object and scope of section 209 incorporated in the new CrPC and U. P. Act No. 16 of 1976 or any corresponding provision as existing in the said Code. 12. THE custody of the petitioners cannot be said to be visited with any legal infirmity in view of the observations made in Surjeet Singh v. State of U. P., 1984 AWC 81 (FB). 12. THE custody of the petitioners cannot be said to be visited with any legal infirmity in view of the observations made in Surjeet Singh v. State of U. P., 1984 AWC 81 (FB). THE Full Bench on the basis of decisions and authorities held that in view of the normal meaning of the word " custody " actual or physical imprisonment of a person both legal and illegal amounts to his being in custody. By restricting the meaning of the word " custody" section 309 (2) CrPC to only legal imprisonment the normal meaning is obviously curtailed. It is not at all necessary for the harmonious construction of the provisions of the Code of Criminal Procedure to restrict the meaning of the word "custody" in section 309 (2) CrPC to legal imprisonment only. Learned counsel for Bhagauti adopting the arguments of Sri Sabhapati Shukla further urged that the production of the petitioner before the Magistrate was mandatory and on account of serious lapse on the part of the authorities in not producing the petitioner at the time of grant of remand, his detention is rendered illegal. We are not impressed by this argument. It is now well settled that remand can be passed without the physical production of the accused before the court. Even if it be desirable for the Magistate to have the prisoner produced before him when the prisoners are remitted to further custody an order of remand without producing the accused in court is not invaild as it may on occasions be necessary to order remand in the absence of the accused. However, from the facts it is not borne out that the remand order had been passed in absentia. However, the legal position as urged by the learned counsel for Bhagauti calls for no interference by this Court. 13. IN view of the observations made above the detention of petitioners Bhagauti and Nageshar does not suffer from any illegality as urged by the learned counsel for the petitioners. Their petitions are accordingly dismissed.