IQBAL v. STATE OF U. P. — 1987 DIGILAW 478 (ALL)

B. L. YADAVA, J. ( 1 ) THIS revision under Sections 397/401 of the Code of Criminal Procedure, 1974, (for short the Code), is directed against the order dated 12/2/1987 rejecting the prayer for bail in favour of the application the ground that the order of remand was not legal and hence the custody has become illegal. It appears that the applicant was sought to be prosecuted in Sessions Trial No. 476/86 for offence under Sections 147/148/323/324/325/307/302/149, I. P. C. The Magistrate passed an order Dated 31/1/1986 of remand of the accused to the court of sessions, but he did not mention the words in the order of remand that the applicant was being remanded to custody during and until the conclusion of the trial, as required by Section 209 (b) of the Code, On 13. 1 1. 86 no remand was granted by the Sessions Judge, as on account of strike of the court employees record of the case could not be put up before the Sessions Judge. On 23/12/1986 the learned Sessions Judge transferred the case to the III Additional Sessions Judge, Ghaziabad. On 5/1/1987 the case was taken up and the applicant was produced before the Court and was remanded to the custody. Learned counsel for the applicant urged that as the Magistrate did not remand the accused to custody with specified words during and until the conclusion of the trial as required by Section 209 (b) of the Code, the custody became illegal and the applicant was entitled to bail under Section 167 (2 ). Reliance was placed on Nakul Singh v. State1. Learned counsel for the State, on the other hand, urged that the order of remand was not illegal, inasmuch as the learned Magistrate on 31/1/1986, even though did not make a metion that the applicant was being remanded to custody during and until conclusion of the trial as required by Section 209 (b) of the Code, the remand could not be granted by the learned Sessions Judge on 13/11/1986 on account of strike by the employees of the court and on 23/12/1986 the case was transferred to the court of Additional Sessions Judge fixing 5/1/1987 and on that date the Sessions Judge remanded the applicant to custody. Even though the order of remand clearly states that the applicant was being remanded to custody during and until conclusion of the trial, but the custody warrant did contain a direction to the Jailor to keep the accused in custody and produce him on the date noted overleaf. This was substantial compliance of the provisions of the Code and in any case even if there was any irregularity, that can be cured by provision of Section 465 (1) of the Code. Heard the learned counsel for the parties. The principal question for determination is as to whether the order passed by the Magistrate remanding the applicant to custody was proper, even though the words during and until the conclusion of the trial was not mentioned. In fact, under Section 167 (2) of the Code the Magistrate at the first instance could grant remand for 15 days and in case the investigation relates to an offence punishable with death or imprisonment for life, the term of remand should not extend 90 days. It is not disputed that requirement of 15 days and 90 days was complied with, but the illegality was pointed out as the words during and until conclusion of the trial were not mentioned Section 167 finds place in Chapter XII (information to police and their powers to investigate ). Section 209 provides procedure for commitment of accused to the court of sessions when the offence is exclusively triable by it, and it finds place in Chapter XVI (commencement of proceedings before Magistrates ). Section 309 (power to postpone and adjourn the proceedings) finds place in Chapter XXIV (general provisions as to enquiries and trials ). These three sections have to be read together. As section 167 was under Chapter XIV pertaining to information to police and their powers to investigate, there was no question of passing an order by the Magistrate under Section 167 while committing the accused to the court of sessions (in view of Section 209 ). ( 2 ) THE trial starts only when the accused is committed to the court of sessions and not before that. Such order could have been passed only under Section 209. In this view of the matter, Section 167 was not applicable in such cases where the accused has been committed to the Court of Session. ( 2 ) THE trial starts only when the accused is committed to the court of sessions and not before that. Such order could have been passed only under Section 209. In this view of the matter, Section 167 was not applicable in such cases where the accused has been committed to the Court of Session. Even though Section 209 of the Code contains a provision that while committing the accused to the court of sessions, the Magistrate shall remand the accused to custody during and until conclusion of the trial, the order was passed to that effect, but it appears that by over sight the words during and until conclusion of the trial were not mentioned. But in the custody warrant the Jailor was directed to keep the accused in custody and produce him before the court of sessions on the date fixed. Similar was the order passed by the learned Additional Sessions judge on 5. 1. 87. In case the custody warrant did indicate a direction to the Jailor to keep the accused in custody and to produce him on the date noted overleaf, it means that the applicant was being remanded for that period and was to be produced on the date fixed. However, the intention of legislature appears to be that the learned Magistrate either under section 209 or under section 309 was not required to pass a separate order of remand nor any special form of the order was provided. The intention of legislature appears to be that the separate order or the form of order was not considered material, otherwise it must have been specifically provided. ( 3 ) IN Nimeon Sangma and others v. Home Secretary, Government of Meghalaya, the Supreme Court has held that object of Sections 167, 209 and 302 was expeditious disposal of cases including investigation and trial. The object of these sections appears to be that there must be no delay in investigation or trial. ( 4 ) IN Urooi Abbas v. State of U. P. , it was held, considering the relevant case law on the subject, as follows: The statutory requirement of a separate order in writing with reasons therefore is only in respect of postponement or adjournment of enquiry or trial and not in respect of remanding the accused to jail custody, for which mere issue of a warrant of remand is sufficient. The note given in the printed form of remand warrant mandatorily requires reasons to be given for remanding the accused is beyond the provisions of Section 344. Urooi Abbas v. State of UP. , (supra) was a case under the old Code. But the provisions Were same as under the new Code also there was no, statutory requirement of a separate order of remand in writing In the instant case even though a separate order in writing was not passed indicating that the applicant was being remanded to custody during and until conclusion of the trial, but that would not vitiate the trial as the applicant cannot be said to be prejudiced on that account. Such irregularity, if any, can be cured under Section 465 (1) of the Code, which provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal or revision on account of any error, omission or irregularity in the order unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. ( 5 ) IN Abdul, zabbar v. Supdt. Distt. Jail, Meerut on similar facts a Division Bench of this Court held that in cases exclusively triable by a court of sessions, if the Chief Judicial Magistrate did not mention the words that the applicant shall during and until conclusion of the trial, continue to remain in judicial custody, but if the custody warrant indicates the date of appearance of the accused, that did not mean that the accused was remanded only till that date. The actual observation made in paras 8 and 9 are quoted below: The object of mentioning the date, 14/9/1983 in the custody warrant was not to define the limits of the period duilng which the Supdt. , District Jail was being authorised to keep the petitioners in custody; clearly its purpose was to indicate in the order the date on which the petitioners were to be produced before the court of sessions. Merely because the petitioners were not produced before the court on 14/9/1983 the authority of the Supdt. of the District Jail to keep the petitioner in his custody during and until the conclusion of their trial did not come to an end. Merely because the petitioners were not produced before the court on 14/9/1983 the authority of the Supdt. of the District Jail to keep the petitioner in his custody during and until the conclusion of their trial did not come to an end. In the result, we are unable to accept the submission of the petitioners that their detention for the period between 14/9/1983 and 22/10/1983 was without any legal authority. As the Sessions Trial has not yet come to an end, petitioners detention until todays date can be attributed to the authority flowing from the remand order passed by the Chief Judicial Magistrate on 1. 9. 83. In the aforesaid case before the Division Bench similar arguments, as in the present case, were sought to be urged, but the same were rejected. Nakul Singh v. State, (supra), relied upon by the learned counsel for the applicant, is not relevant in view of the Division Bench of this Court in Abdul Zabbar v. Supdt. , Distt. Jail, Meerut (supra ). Further the view taken in Nakul Singh v. State, (supra), is contrary to the Division Bench case and I do not consider it of any assistance in the present case. In the instant case, considering the aforesaid circumstances and the case law, I am of the view that as the custody warrant did indicate the date for appearance of the applicant on a particular date, even though the words that the accused was being remanded in custody during and until the conclusion of the trial were not mentioned, that would not vitiate the order nor the custody of the applicant can be said to be illegal. The custody warrant has to be read with the order of remand. There was no statutory requirement that the order of remand must be separately passed, nor it was also required that specifically these words must be mentioned in the order of remand. Even if by over sight these words were missing, the applicant could not be said to be prejudiced and such omission was curable under Section 465 (1) of the Code. I accordingly dontt find any merit in the submissions of the learned counsel for the applicant, and I am of the view that the present revision deserves to be dismissed. In the result, the present revision fails and it is hereby dismissed. I accordingly dontt find any merit in the submissions of the learned counsel for the applicant, and I am of the view that the present revision deserves to be dismissed. In the result, the present revision fails and it is hereby dismissed. It is however, made clear that the applicant can file a separate bail application in this court, if so advised. .