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Rajasthan High Court · body

1999 DIGILAW 992 (RAJ)

Mahaveer v. State

1999-08-06

G.L.GUPTA

body1999
Honble GUPTA, J.–In this Misc. Petition u/S. 482 Cr. P.C., the petitioners, pointing out that their custody in sub-jail, Nagaur is illegal, pray that they should be set at liberty. (2). The relevant facts are these. The petitioners are facing trial u/Sec. 302/34 IPC in the newly created Court of Additional Sessions Judge, Deedwana. Earlier the case was pending in the court of Addl. Sessions Judge, Nagaur -Camp Deedwana. Charges were framed on 9.12.98 and the case was fixed for evidence on 11.2.99, 11.3.99, 8.4.99, 30.4.99, 3.6.99 and 21.6.99, in the Court of Addl. Sessions Judge, Nagaur Camp Deedwana. As a new Court of Addl. Sessions Judge was created at Deedwana, the file was transferred to that court, where it was registered on 3.7.99. The learned Addl. Sessions Judge, Deedwana on 3.7.99 ordered on the file that the prosecution witnesses be summoned for 9.8.99 to 11.8.99. The petitioners who were produced by the jail authorities in custody were remanded to judicial custody and were directed to be produced on 9.8.99 by an order on the jail warrants. (3). Mr. Garg, learned counsel for the petitioners contends that as no order was passed by the learned Addl. Sessions Judge on 3.7.99 on the order sheet, authorising the detention of the petitioners in jail, their custody from 3.7.99 is illegal and they are entitled to be set at liberty. He relies on the case of Mohan vs. State of Rajasthan (1). (4). Learned P.P., on the other hand, pointing out that order in express terms was passed on the warrants authorising the detention of the petitioners in jail, contends that the petitioners are in legal custody under the orders of the learned Addl. Sessions Judge. (5). I have given the matter my thoughtful consideration. It is noticed that in the order dt. 3.7.99 recorded on the order-sheet it was not written that the petition- ers were being remanded to judicial custody till 9.8.99, though such an order was recorded on the warrants sent to the jail. (6). The serious question for consideration is whether in the absence of an order on the order-sheet, authorising detention of the petitioners in jail, their custody becomes illegal. In My considered opinion, keeping in view, that the order on the warrants authorising detention of petitioners upto 9.8.99 was signed by the learned Addl. (6). The serious question for consideration is whether in the absence of an order on the order-sheet, authorising detention of the petitioners in jail, their custody becomes illegal. In My considered opinion, keeping in view, that the order on the warrants authorising detention of petitioners upto 9.8.99 was signed by the learned Addl. Sessions Judge, Deedwana himself, it cannot be accepted that the custody of the petitioners, in jail, is without an order of the Judge competent to authorise detention of the petitioners. (7). In the case of Mohan (supra), which was decided by the learned Single Judge of this Court, the facts were that the matter was at investigation stage and challan had not been filed by the police. Obviously the accused were remanded to judicial custody by the Magistrate u/S. 167(2) Cr. P.C. On 11.7.83, the relevant date, no application for further remand was made by the Investigating Officer. The Magistrate, without passing any order on the order-sheet of 11.8.83 authorising the detention of the accused, directed the jail authorities to produce him on 26.7.83. The report (judgment) does not indicate that on the jail warrant of the accused it was recorded that the accused were being remanded to judicial custody or that they could be kept in custody till 26.7.83. In these circumstances, this Court held that the Magistrate had not authorised the detention of the accused in judicial cus- tody beyond 11.7.1983 and the detention was illegal. Eventually, the accused was directed to be released on bail. (8). In the instant case, it is not disputed that the petitioners were in judicial custody upto 3.7.99 under the valid orders of the court. It may be that no order in express terms was passed on 3.7.1999 on the order-sheet authorising the detention of the petitioners in jail, but a clear cut order remanding them to judicial custody authorising their detention was passed on the warrants. The order appearing on the warrants reads as under:- 3-7-99 ^eqyfte egkohj mQZ egkohjflag dks vkt esjs le{k isk fd;k x;kA eqyfte dks iqu% U;kf;d vfHkj{kk esa izfr izsf"kr fd;k tkrk gSA rk% 9-8-99 dks isk fd;k tkosA* ,l-Mh- vij ftyk ,oa lsku U;k;k/khk] MhMokuk 3-7-99 (9). It is obvious that the learned Judge had sent the petitioners to jail, authorising the Jail authorities to keep them in custody upto 9.8.1999. It is obvious that the learned Judge had sent the petitioners to jail, authorising the Jail authorities to keep them in custody upto 9.8.1999. The authorisation was signed by the learned Judge himself, so it cannot be said that the peti- tioners were not remanded to judicial custody upto 9.8.99. (10) The relevant point to be considered is whether the detention of the accused was authorised or not by the Judge. It is not of much significance that the order authorising detention was not passed on the order-sheet. The intention of the Judge may be gathered from all the surrounding circumstances, when the learned Addl. Sessions Judge expressed his intention in the order on the jail warrant that the petitioners were being remanded to judicial custody upto 9.8.99, it has to be accepted that he had authorised the detention of the petitioner in jail. (11). In the case of Mohan (supra) it has not been decided that the order authorising detention on the jail warrants, without an order on the order-sheet, is of no effect. What has been held in that case at para 5 of the report, is that without an authorisation and written order by the Magistrate, the detention of the accused in judicial custody was not legal. It is to be noticed that in that case there was no order even on the jail warrant of the accused remanding them to judicial custody, and simply an order of production on next date was recorded. It is obvious that the further detention of the accused was without any authorisation or order of the Magistrate in express terms. The learned Single Judge has not addressed himself to the fact situation of the instant case i.e. where there is an order on the jail warrant, remanding the accused to jail custody. The principle enunciated in the case is applicable to only such cases where it is shown that the Court had not autho- rised the detention of the accused either by passing an order on the order-sheet or on the jail warrant. (12). Moreover, in view of the Full Bench decision of this Court in the case of Mahesh Chand vs. State (2), the judgment in the case of Mahesh (supra) cannot be said to hold the field. (13). Consequently, there is no merit in this petition, which is hereby dismissed.