Mashooq Ahmad v. State of Uttar Pradesh — 1986 DIGILAW 203 (ALL)

Judgment V.P. Mathur, J. 1. THIS bail application has been moved in unusual circumstances. The bail is not claimed on merits of the case, but it is claimed on account of technical illegalities which the applicant alleges to have occurred in the matter of his detention. It is contended that Mashooq Ahmad, the applicant, is in detention since 17-5-85 in criminal case no. 2987 of 1985. On 19-7-85 the applicant and others, present before the Chief Judicial Magistrate, were made to put their signatures on a blank paper and no order of custody was passed in the presence of the applicant. On 29-7-85 the Chief Judicial Magistrate, Allahabad, gave copies of the Charge sheet to three of the accused. These papers were incomplete and illegible and an application moved by the counsel of the applicant bringing this fact to the notice of the Chief Judicial Magistrate was directed to be filed with the direction that the case has already been committed to the Court of Session on 29-7-85. No correct copies were given. Even the Session Court did not issue correct copies of the documents. The order of committal was passed the same day. The record was received in the Court of Session on 2-8-85 when the case was registered as Session Trial No. 440 of 1985 and 9-8-85 was fixed for appearance of the accused. On that date, however, the accused were not present before the court. Meanwhile, the case was transferred for disposal to the court of Third Additional Session Judge, Allahabad, where it was received on 22-8-85 and then in the presence of the accused 10-9-85 was fixed for orders. THIS date was subsequently changed from time to time. 2. THE contention of the applicant is that in the first place there was no compliance of the provisions of Section 207 of the Criminal Procedure Code as copies of the documents were not supplied and this will affect the order of committal. In the present petition this aspect of the matter cannot be considered. Section 207 of the Criminal Procedure Code simply lays down that the Magistrate shall without delay furnish to the accused copies of the documents mentioned in the Section. In the present petition this aspect of the matter cannot be considered. Section 207 of the Criminal Procedure Code simply lays down that the Magistrate shall without delay furnish to the accused copies of the documents mentioned in the Section. Section 209 deals with commitment of the case to the Court of Session when the offence is exclusively triable by it if sub-section (1) lays down that the commitment has to be made after complying with the provisions of Section 207 of the Criminal Procedure Code. Thus if the applicant feels that the provisions of Section 207 of the Code have not been complied with and hence the commitment of the case to the Court of Session is illegal, he is free to take such action as the law permits him to do, but that would not be a ground to seek bail and none could be granted on that account. The only point that has been agitated before me in support of the present bail application is that there has been no compliance of the provisions of Sections 209 (b) and 309 of the Criminal Procedure Code and hence the detention of the applicant throughout is illegal and bail should be granted to him. Section 209 (b) of the Code lays down that 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, he shall subject to the provisions of the Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial. Similarly Section 309 of the Criminal Procedure Code may also be quoted 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." 3. IN the present case the admitted position is that the committal order dated 29-7-85, so far as it is relevant for the purpose of the present applicant if translated into English, shall read as follows- "The case against the accused persons..............................Mashooq and ............is triable under sections 147, 148, 149, 307, 302. 379 and 411 IPC and it is triable exclusively by the Court of Session. Hence it is committed for trial to that Court..................These accused persons are directed to appear in the Session Court on 9-8-85 and till then the remand is accepted. They shall be summoned from the Jail accordingly. Information of this commitment shall also be given to the Public Prosecutor tat Allahabad." 4. THE first point for decision is whether it amounts to a valid order of remand. As I have mentioned above, the provision of remand is under section 209 (b) of the Criminal Procedure Code, which requires that the accused have to be remanded to custody during, and until the conclusion of, the trial. It is contended that since no such order has been passed, the remand is illegal and the detention of the accused will also became illegal. It is further said that specific order of remand should be passed and mere endorsement on the warrant, even if it is drawn out, would not validate the detention. Reliance was placed upon the case of Ram Narain Singh v. State of Delhi, AIR 1953 SC 277 , in which it was held that detention of a person in custody after expiry of the remand order without any fresh order of remand committing him to further custody while adjourning the case under section 344 (old) Cr. P.C. is illegal. Reliance was placed upon the case of Ram Narain Singh v. State of Delhi, AIR 1953 SC 277 , in which it was held that detention of a person in custody after expiry of the remand order without any fresh order of remand committing him to further custody while adjourning the case under section 344 (old) Cr. P.C. is illegal. THE decision was pronounced in a case arising out of a petition for a writ of habeas corpus, and the involved persons bad been arrested and were being prosecuted for the alleged defiance of an order prohibiting meeting and procession in the area in question and the detenu is alleged to have been guilty under section 188 of the Indian Penal Code. Another case upon which reliance was placed was a Division Bench case of this Court in the matter of Tej Bahadur Singh v. State of U. P., 1977 A. Cr. R. 267 wherein it was held that if the order of remand is not passed by the Magistrate for custody in Jail, the Jail Authorities will have no power to detain the petitioner and the petitioner's continuance in Jail shall be illegal. 5. IN another Division Bench case, arising out of a habeas corpus petition, Muzaffar Hussain v Superintendent, District Jail, Moradabad, 1981 LLJ 78 it was held that commitment of the accused to Session without passing an order of detention in Jail makes the detention illegal. A further observation was made that if remand order is passed without the petitioner's being produced before the Magistrate, the order shall be illegal. 6. A Full Bench of this Court in the matter of Urooj Abbas v. State of U.P., 1973 Cr. L.J. 1458 took the view that if the accused is not produced in Court, the remand does not become illegal and the custody of the accused in Jail shall be legal. It was further observed that the statutory requirement of a separate order in writing with reasons therefore is only in respect of postponement or adjournment of the inquiry or the trial and not in respect of remanding the accused to Jail custody for which mere issuing of a warrant of remand is sufficient. It was further observed that the statutory requirement of a separate order in writing with reasons therefore is only in respect of postponement or adjournment of the inquiry or the trial and not in respect of remanding the accused to Jail custody for which mere issuing of a warrant of remand is sufficient. In the matter of Bir Bhadra Pratap Singh v. District Magistrate, Azamgarh, AIR 1959 Allahabad 384 = 1959 AWR 79 a Division Bench of this Court observed that when Magistrates make order of remand under section 167 of the Criminal Procedure Code, they should make the same in a prescribed form and not on mere chits of paper. 7. BEFORE another Division Bench of this Court in a habeas corpus petition concerning Pusbpendra Singh v. Superintendent, District Jail, Nainital, 1984 A. Cr. R. 446 the provisions of sections 209 (b) and 309 (2) of the Criminal Procedure Code came up for consideration and it was held that the order remanding the accused to custody by means of a warrant under section 309 (2) of the Code would not render the previous order under section 209 (b) of the Cr. P.C. illegal. Similar order passed under section 309 (2) of the Code would also not be rendered illegal simply because a previous order under section 209 (b) of the Code existed. The Court perused the order passed on 20-6-83 by the Session Court and held that it fulfilled all the requirements of a valid warrant of remand. It was further held that the provisions contained in section 209 (b) of the Code are mandatory and have to be followed by the Magistrate while committing an accused to the Court of Session. These are special provisions which do not only empower the Magistrate to remand the accused to custody during, and until the conclusion of, the trial, but command him to do so and the Magistrate is required to remand the accused to custody by means of a warrant. Similarly, the Court has been empowered under section 309 (2) of the Code to remand the accused by means of a warrant if he is in custody. The case of Surjeet Singh v. State of U. P., 1984 A. Cr. R. 55 (FB) was also taken note of and it was held that the custody includes the illegal custody also. Similarly, the Court has been empowered under section 309 (2) of the Code to remand the accused by means of a warrant if he is in custody. The case of Surjeet Singh v. State of U. P., 1984 A. Cr. R. 55 (FB) was also taken note of and it was held that the custody includes the illegal custody also. The Court also took note of the fact that in the case before it, specific orders of remand had been passed on various dates, which were written on the warrant of intermediary custody wherein it has been mentioned that the accused was present in custody before the Court and since the case was being adjourned, so he shall be produced on the next date. It was held that these facts fulfilled the requirement of a valid warrant of remand under section 309 of the Criminal Procedure code. It was urged before the Court that in the orders there is no direction that the accused should be taken into custody again but they simply mentioned that he is in custody and shall be produced on the next date. No form of warrant has been prescribed by the court but the High Court has in exercise of its supervisory power under Article 227 of the Constitution of India prescribed a form for intermediary custody on remand under section 344 of the Old Act. It was held that no rules prohibited preparation of warrant by getting the matter typed or hand written and the only requirement is that the endorsement should make out a valid custody warrant. 8. A Full Bench of this Court in the matter of Sunder Lal v. State, 1983 A. Cr. R. I 2 came to grips with a similar situation. The remand order on committal for trial of offences by Session Judge directs that the accused be kept in custody for trial in Session Court. It was held that it was not for indefinite period and neither arbitrary nor illegal and the request for bail was refused. R. I 2 came to grips with a similar situation. The remand order on committal for trial of offences by Session Judge directs that the accused be kept in custody for trial in Session Court. It was held that it was not for indefinite period and neither arbitrary nor illegal and the request for bail was refused. In this case the warrant directed the Jailor of Lucknow to keep Sunder Lal in custody, produce him before the Session Court in accordance with the instructions given on the back of the warrant and on the back of the warrant only one date i. e. 8-3-82 was mentioned and there was a note that the case had been committed to the Court of Session. The facts of the matter were that the Judicial Magistrate by order dated 8-2-82 committed the applicant and others to the Court of Session for trial under sections 147, 148, 307 and 302 IPC. No date of appearance before the Session Court was indicated in the warrant. In the order of commitment, however, it was mentioned that the custody of the accused, who was in Jail, be handed over to the Superintendent of Jail during, and till the disposal of, the trial before the Session Court where he was to be produced by the Superintendent of Jail as and when directed The Court discussed the implications of Sections 167 (1), 167 (2) (a) (i) and (ii) and sub-clause (b) alongwith the Explanation. It also considered Section 309 (2) and Section 209 (a), (b), (c) and (d), 436, 437, 438 and 439 of the Code of Criminal Procedure and held that- "the statutory requirement of a separate order in writing with reasons therefore is only in respect of commitment and not in respect of remanding an accused to Jail custody, for which mens issue of warrant of remand is sufficient and no special form of warrant has been prescribed under section 209 Cr. P.C. while remanding an accused to judicial custody at the time of the commitment of the case". In this case the order passed by the Magistrate was interpreted as clearly directing the applicant to be kept in Jail custody in the District Jail during, and until conclusion of, the trial. P.C. while remanding an accused to judicial custody at the time of the commitment of the case". In this case the order passed by the Magistrate was interpreted as clearly directing the applicant to be kept in Jail custody in the District Jail during, and until conclusion of, the trial. It may be additionally noted that the Additional Sessions Judge concerned who took up the case on committal had been getting the accused from Jail and sending him back on different dates and thus issuing orders of his custody, fixing dates for his appearance again and again. 9. THIS is the legal position upto date. The learned counsel for the applicant, however, placed reliance upon a few more judgments of this Court. The first of them is a Division Bench unreported decision in the matter of Sukhdeo Singh v Adhikshak Janpad Karagar, Nainital arising out of a habeas corpus petition (No. 4605 of 1983), decided on 16-5-1983. The facts were that on 10-1-83 the case was committed to the Court of Session but no order was passed remanding the accused to custody during, and until conclusion of the trial. The Court of Session took cognizance of the case on 29-1-83 On that date the Session Judge passed an order to the effect that the case may be put up in near future for fixing a date, without passing any specific order of remand under section 309 of the Criminal Procedure Code. The Court was of the view that on 10-1-83 when the case was committed to the Court of Session no order of remand bad been passed as was contemplated by section 209 of the Criminal Procedure Code and the warrant of custody on which the reliance was being placed could be of no avail in the absence.' of an order remanding the accused to jail custody during, and until the conclusion of, the trial. It also came to the conclusion that in the Court of Session also no date appears to have been fixed and no separate remand order was passed and this also rendered the detention illegal. 10. THE other case upon which the reliance was placed was another unreported Single Judge decision in the case oil Prem Prakash Singh and two others v. State of U. P., arising out of misc. bail application (No. 6141 of 1983), decided on 12-8-1983. 10. THE other case upon which the reliance was placed was another unreported Single Judge decision in the case oil Prem Prakash Singh and two others v. State of U. P., arising out of misc. bail application (No. 6141 of 1983), decided on 12-8-1983. In that case the applicants were committed to the Court of Session on 26-2-83 but there was no order of remand to custody during, and until the conclusion of, the trial. Thereafter the; Session Judge concerned did not pass order of remand even after the receipt of the record. THE Court was of the view that the detention was illegal and bail was granted. The third case is Nakul Single v. State of U. P., 1981 A. Cr. R. 200. It is also a single Judge decision, rendered on 9-3-81. In that case it was held that a mere mention of the fact that the accused persons were in Jail and were committed for trial to the Court of Session could not be treated as an order of remand to jail custody till the conclusion of the trial. The committal order in question was to the effect that the offences were triable by the Court of Session and hence the accused was being committed to the Session and that the accused were in Jail and copies had been delivered to them and they were directed to appear for their trial before the Court of Session on 9-8-1980. With reference to this, the Court held that the order can at the most be interpreted to contain an order directing remand to custody till 9-8-1980 but since there was no further remand by the Session Court, therefore, the detention of the applicant in Jail must be held to be illegal. The Court granted bail to the applicant. 11. I have attempted to bring upto date law on the point on record. A perusal of the same will now make it absolutely clear that a remand order is necessary but it can be a remand by issue of warrant also. In the present case there is no dispute that the committal order itself sought to grant remand at least upto 9-8-85. Section 209 (b) of: the Criminal Procedure Code directs the Magistrate to remand the accused to custody during, and until conclusion of, the trial. In the present case there is no dispute that the committal order itself sought to grant remand at least upto 9-8-85. Section 209 (b) of: the Criminal Procedure Code directs the Magistrate to remand the accused to custody during, and until conclusion of, the trial. In the present case if the worst interpretation is put to the order passed by the learned Magistrate, it will still have to be accepted that there was a valid remand upto 9-8-85. Thereafter the order sheet of the Session Court has been placed on record and it shows that no specific order of remand was passed on the order sheet but the accused came present before the Court from time to time in Jail custody and fresh dates were given. Naturally they must have been endorsed on the warrant. On 25-9-85 the charges were framed and dates for trial were fixed and thereafter also on a number of dates the accused applicant appeared before Session Court, took orders and was sent back to Jail custody and it is not disputed any where in the lengthy petition that has been presented to this Court that a valid warrant of custody was drawn out. It is settled now that under section 309 (2) of the Criminal Procedure Code the only requirement of the law is that if an adjournment is made, then by a warrant the accused may be remanded to custody. Subjections (1) and (2) of Section 309 of the Criminal Procedure Code if taken together will make it absolutely clear that there is no need to pass a written order of remand on the order sheet. The requirement of the law is that a written order should be passed only justifying the adjournment but so far as the remand is concerned, only warrant will be sufficient. Thus while we may agree that no specific order has been passed by the Session Judge after the receipt of the record by him remanding the accused to Jail custody, it is also undoubted that from time to time the accused had been appearing before the Court of Session and was being given dates for further appearance and it necessarily follows that a warrant must have been drawn out on which endorsements of the dates must have been made. This is the requirement of the rules and there is no allegation any where in the petition that no such warrant had been drawn out. In the entire petition there is no challenge to the legality of the warrant nor has it been said that no warrant had been drawn out. Under these circumstances, Section 309 (2) shall stand completely fulfilled even though on the order sheet no specific order of remand bad been written out. The Full Bencn in the case of Sarjeet Singh v. State of U. P., 1984 Allahabad Criminal Rulings 55 was considering a case in which no custody warrant had been issued for detention of the applicant in Jail under section 309 (2) of the Code between a certain period of time and it was argued before it that the detention would be illegal. The Court, however, held that the word 'custody' in Section 309 (2) of the Code means imprisonment both legal and illegal and disagreed with the view taken in the five cases, namely (1) Hari Prasad Dubey v District Magistrate, Farrukbabad. 1976 ALJ 62 (2) Mahesh Chandra v. Adhiksbak Janpad Karagar, Nainital, 1983 LLJ 141 (3) Raghuvendra Singh v. State, 1983 ALJ 611 (4) Kamlesh Kumar Dixit v. State, 1982 LLJ 4 and (5) Khinvden v. State of Rajasthan, 1975 Cr. L.J. 1984. 12. IT is thus clear that in this case there is a valid remand upto 9-8-1985 under section 309 (b) Cr. P.C. in view of the order of the Magistrate, dated 29-7-85. Thereafter even if there was no remand for some time, the illegality would stand cured and the Court would see the position on the date when this application was moved and it is clear that thereafter right from 10-9-85 when the accused was brought before the learned Session Judge and a date for framing of the charges was given and then he: was sent back to Jail with a direction to be produced again on 25-9 85 and on subsequent dates. it will mean that he was in custody from 10-9-85 on the basis of a valid warrant of remand made under section 309 (2) Cr. P.C. There was thus* no illegality in his detention and no question of bail arises in his favour. it will mean that he was in custody from 10-9-85 on the basis of a valid warrant of remand made under section 309 (2) Cr. P.C. There was thus* no illegality in his detention and no question of bail arises in his favour. A question was raised whether if there was any illegal detention, it would justify the grant of bail The orders passed in the cases of Sukhdeo Singh, Prem Prakash Singh and Nakul Singh (all supra) were cited to justify the grant of bail. In the present case it would be a matter of academic interest only because the question will be hypothetical since, in my opinion, the detention is not illegal. I need not, therefore, express my opinion on this point. 13. IN the result, the bail application stands rejected. Application rejected.