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2006 DIGILAW 52 (CHH)

AMIT SONI v. STATE OF CHHATTISGARH

2006-01-27

SUNIL KUMAR SINHA

body2006
SUNIL KUMAR SINHA, J. ( 1 ) HEARD. ( 2 ) THIS petition has been filed under Section 482 of the Code of Criminal procedure against the impugned order dated 19/12/2005 passed in Cr. Revision no. 207/2005 by the 1st /additional Sessions' Judge, ambikapur (CG ). The aforesaid Criminal Revision was filed by the applicants before the Sessions' Court against the order dated 18. 8. 2005 passed in criminal case No. 440/2005, pending before the Court of Chief Judicial Magistrate, Ambikapur. ( 3 ) THE perusal of the impugned order would show that the accused/applicants were arrested by Ambikapur Police in connection with crime No. 40/ 2005, registered under Sections 302 and 120-B read with Section 34 of the IPC. The grievance of the applicants is that on 18. 8. 2005, these applicants were not produced before the concerned Magistrate and only an application for extending the period of remand was filed and the Magistrate, after considering the application, extended their period of remand to the next date i. e. upto 25/8/2005. ( 4 ) THE submission of learned counsel for the applicants is that no judicial remand was possible in view of Section 167 (2) (b)of the Cr. P. C. without physically producing the accused persons before the concerned Court and if the concerned Court had granted remand without their physical appearance, the order itself is bad in law. She further submits that in such a situation, the learned magistrate would have discharged the accused persons in absence of their physical presence before him. ( 5 ) IN the opinion of this Court, the point raised is no longer res Integra. It has been held by the full Bench of 7 Judges of hon'ble the Apex Court in the matter of raj Narain. v. Superintendent. Centraljail. New Delhi majority of five Judges to two, that there is nothing in required the personal presence of the prisoner being the magistrate because that is a rule of caution for the Magistrate before granting remands at the instance of Police. However, even if it is desirable for the Magistrate to have the person produced before him when he recommits him to further custody, the Magistrate can act only as the circumstance permits. However, even if it is desirable for the Magistrate to have the person produced before him when he recommits him to further custody, the Magistrate can act only as the circumstance permits. ( 6 ) THE same view was again taken by the Hon'ble Apex Court in the matter of M. Sambasiva Rao v. The Union of India and others that an order of remand cannot be considered to be invalid merely because the accused has not been produced before the Magistrate. The case of raj Narain (supra) is also referred to in this case. ( 7 ) IN view of the aforesaid decisions of the hon'ble Apex Court, I do not find any infirmity in the orders passed by the Courts below, particularly the Magistrate, when on a ground of shortage of force, the accused persons were not produced before him and he granted remand for a further period. The Magistrate has not committed any material irregularity or gross irregularity, warranting interference by the Sessions Court or the High court. ( 8 ) IN the result, the matter has no merits and the same is dismissed. Petition dismissed. --- *** --- .