Research › Browse › Judgment

Madhya Pradesh High Court · body

1995 DIGILAW 368 (MP)

RAHUL GUPTA v. STATE OF M. P.

1995-03-29

U.L.BHAT

body1995
U. L. BHAT, J. ( 1 ) THIS revision is directed against the order passed by the judicial magistrate First Class, Gwalior dismissing the revision petitioner's application for release on bail under Section 167 (2) Code of Criminal Procedure 1973 (for short the Code ). ( 2 ) THE Petitioner and others are accused in a case involving offences under Sections 147, 148, 302 read with Section 149 and other offences under the Indian Penal Code arising out of the incident which took place on 8-2-1993. The petitioner was arrested on 11-8-1993 and duly produced before the Magistrate who remanded him to judicial custody for 15 days. The charge-sheet was filed on 20-10-1993. ( 3 ) ON 13-12-1993, the petitioner filed an application seeking bail under Section 167 (2) of the Code on the ground that on 25-8-1993, 8-9-1993, 22-9-1993 and 6-10-1993, he had not been produced before the Magistrate and no valid order of remand had been passed, the copies of challan papers were supplied to him only on 14-12-1993 beyond the period stipulated for filing charge-sheet and, therefore, the detention is illegal. Learned Magistrate dismissed the petition, hence this revision. ( 4 ) LEARNED counsel for revision petitioner submitted that the contention that the petitioner is entitled to be released on account of non-supply of challan papers within 90 days of arrest is not being pressed in view of decision in M. Cr. C. No. 2766 of 1994, (Mohan Singh v. State of Madhya Pradesh ). ( 5 ) LEARNED counsel contended that the remand from 25-8-1993 till 20-10-1993 was illegal since during this period, the petitioner had not been physically produced before the Magistrate. This contention does not bear scrutiny. The orders passed by the learned Magistrate on the relevant dates contain endorsements "app appears for the State. Accused from jail. " This means that the accused had been produced from jail. In fact, learned counsel clarified that the accused was actually brought to the Court from jail but not produced physically before the learned Magistrate. This contention is not sustainable in view of the orders in the order-sheet. The further contention that if remand is extended in the absence of the accused, the order of remand is necessarily illegal also does not appear to be correct. This contention is not sustainable in view of the orders in the order-sheet. The further contention that if remand is extended in the absence of the accused, the order of remand is necessarily illegal also does not appear to be correct. Learned counsel placed reliance on the decision in Subhash Babu Rao v. State of M. P. , 1988 MP LJ 508 : (1989 Cri LJ 1553 ). This decision has been distinguished in Anand Kumar v. State of M. P. 1989 Jab LJ 55, and by Division Bench of this Court in Rajkumar v. State of M. P. , 1990 Jab LJ 666. It is of course necessary that for the purpose of extension of remand, accused must be physically produced before the Magistrate but there may be circumstances which prevent the physical production of the accused. Some of these circumstances have been referred to in Rajkumar's case, 1990 Jab LJ 666 : 1990 MP LJ 289. Circumstances enumerated are only illustrative and not exhaustive. Where the Magistrate is satisfied that physical non-production of the accused is on account of reasons beyond control of the authorities, he may expressly or impliedly waive production and if satisfied that remand needs to be extended, he may do so. On the facts of the case, learned Magistrate was satisfied about it and this does not call for interference. ( 6 ) THE next contention urged is that there is no proper remand extension order in the order sheet and the remand has been extended by making endorsement on the reverse of the original warrant itself. This practice has been deprecated by this Court in Subhash Babu Rao's case, 1988 MP LJ 508 : (1989 Cri LJ 1553), as well as in Anand Kumar's case, 1989 Jab LJ 55. But in Subhash Babu Rao's case, 1988 MP LJ 508 : 1989 Cri LJ 1553), learned single Judge observed :"ordinarily a Magistrate is expected to write in the order sheet that the accused is remanded to judicial custody for a certain period. It is not mere a form. An omission to mention the same in the order sheet may not amount to illegal detention when there is an authorisation on the warrant itself. . . . . . . . . . . . . . . . . It is not mere a form. An omission to mention the same in the order sheet may not amount to illegal detention when there is an authorisation on the warrant itself. . . . . . . . . . . . . . . . . "in these circumstances, it cannot be said that this Court has laid down a proposition of law to the effect that whenever order of extension of remand is made in the original warrant itself, the order of detention is illegal. This is not to say that the Magistrates are not to conform the requirements of law. They shall do so. We are concerned in this case with the consequences of failure to do so. It is only a curable irregularity and not an incurable illegality which renders the detention itself illegal. ( 7 ) I find no ground to interfere and the revision petition is dismissed. Petition dismissed. .