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2016 DIGILAW 1159 (RAJ)

Budhi Prakash Saini v. State of Rajasthan

2016-08-10

DINESH CHANDRA SOMANI, MOHAMMAD RAFIQ

body2016
ORDER : Mohammad Rafiq, J. This habeas corpus petition has been filed by petitioner-Budhi Prakash Saini inter alia with the prayer that respondents be directed to release his son from their illegal custody of police. 2. Facts of the case are that a first information report was registered on 28.6.2016 for offence u/s.363 IPC to the Police Station Shyam Nagar at the behest of one Jagdish Sharma, father of one Miss Deepshiksha, stating therein that her daughter aged 15 years, had gone out for attending coaching classes on 27.6.2016 at 3.00 PM and she has not yet returned back. In the FIR, it was alleged that enquiry from coaching centre transpired that Deepshikha did not reach the coaching centre. Manish, the maternal cousin of Vishnu enquired from the son of the informant whether Deepshikha has come back home from coaching. Wife of the informant received a call at 7.11 PM and then again at 7.54 PM, from cell no.8947891312, on which a female, who disclosed her identity as Priya, enquired whether Deepshikha has come back from the coaching centre. When informant's wife talked to that girl, she disclosed her name as Neetu, sister of Vishnu. When the informant went to their residence, family members of Vishnu misbehaved with them. It was stated in the FIR that informant's daughter Deepshikha has gone in a scooter-Honda DLX RJ 19 SW 6785 and taken with her a sum of Rs.30,000, a mobile handset of Samsung make and her clothes. 3. That the Police on receiving clue that Deepshikha was seen on a scooty with Vishnu, chased them and brought them to the Police Station at 10.30 PM on 7.7.2016. Statement of Deepshikha was recorded under Section 161 Cr.P.C. According to the police, in view of her statement, offence u/s.363 and 366 was made out against Vishnu. In view of statement of prosecutrix Deepshikha recorded us.161 Cr.P.C. and considering her age, however, offence of Section 8 of the POCSO Act, 2012 was added to the pending investigation. Deepshikha was handed over to the police. The police demanded from the Judicial Magistrate remand of accused Vishnu for 15 days. The Additional Chief Metropolitan Magistrate No.15, Jaipur Metropolitan by order dated 8.7.2016 remanded accused Vishnu to judicial custody till 22.7.2016. Statement of Deepshikha was recorded under Section 164 Cr.P.C. on 11.7.2016. Deepshikha was handed over to the police. The police demanded from the Judicial Magistrate remand of accused Vishnu for 15 days. The Additional Chief Metropolitan Magistrate No.15, Jaipur Metropolitan by order dated 8.7.2016 remanded accused Vishnu to judicial custody till 22.7.2016. Statement of Deepshikha was recorded under Section 164 Cr.P.C. on 11.7.2016. In her statement, Deepshikha admitted that she accompanied Vishnu on her scooty from Jaipur to Behror, then to Delhi and thereafter Haridwar. Accused Vishnu stripped her naked, touched her body and wanted to make physical contact with her, but due to resistance posed by her, he could not succeed in making physical relations with her. Thereafter, they returned back to Jaipur where she stayed with accused Vishnu's sister at different places. She was made to sign documents showing that she had voluntarily accompanied Vishnu and then she went to Police Station along with Vishnu where on their askance in which, she stated that she accompanied Vishnu with free will, but in the conclusive part of her statement, she stated that Vishnu and his family members got few papers signed from her by misleading her and that she did not want to marry Vishnu and wanted to go to her parents. 4. That the learned Additional Chief Metropolitan Magistrate No.15, Jaipur Metropolitan, Jaipur extended judicial custody of son of petitioner upto 5.8.2016 by order dated 22.7.2016. Petitioner applied for bail under Section 437 Cr.P.C. before the Court of Additional Chief Metropolitan Magistrate No.15, Jaipur Metropolitan, who however returned the same to the petitioner on the premise that since offence of Section 8 of the POCSO Act, 2012 has been added, therefore, the application should be filed in the competent court. Petitioner instead of filing application under Section 437/439 in the Court concerned, has approached this Court by filing the present habeas corpus petition. 5. Shri Hemant Nahta, learned counsel for the petitioner has argued that remand has been granted by the same Court on 22.7.2016, which on 20.7.2016 returned the bail application of the accused Vishnu on the premise that it did not have the jurisdiction. The order granting remand was thus without jurisdiction. 5. Shri Hemant Nahta, learned counsel for the petitioner has argued that remand has been granted by the same Court on 22.7.2016, which on 20.7.2016 returned the bail application of the accused Vishnu on the premise that it did not have the jurisdiction. The order granting remand was thus without jurisdiction. Learned counsel has produced the certified copy of the order of remand dated 5.8.2016 passed by the Additional Chief Metropolitan Magistrate No.15, Jaipur Metropolitan, Jaipur for perusal of the Court and has submitted that this order cannot be said to be an order extending judicial remand. This order states that the accused Vishnu was produced through video conferencing. The result of the investigation has not been produced so far. The matter be again placed on 19.8.2016 awaiting the result thereof. The order does not ipso facto extend the judicial remand. In such a situation, the Constitution Bench judgment of the Supreme Court in Ram Narayan Singh vs. State of Delhi, 1953 AIR 277 squarely applies to the facts of this case, in which case also the order passed by the Magistrate merely directed adjournment of case till 11th March and did not remand the accused in judicial custody till date. The custody of the accused was held to be illegal. Learned counsel argued that in that case it has been held that in habeas corpus proceedings, the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the time of institution of the proceedings. The reply to the habeas corpus petition in this case was filed by the State on 29.7.2016. Therefore, it is on that day that validity of the detention of the petitioner should be examined. 6. It is argued that Article 22 of the Constitution extends protection to every citizen and Section 50 of the Code of Criminal Procedure provides inherent right in a citizen to be informed of the grounds of arrest and of the right to bail. The date on which son of the petitioner was arrested i.e. 7.7.2016, the FIR was registered only for offence u/s.363 IPC, which was a bailable offence. The offence of Section 366 IPC was added to the already registered FIR on the day following arrest of accused-Vishnu i.e. 8th June, 2016. The date on which son of the petitioner was arrested i.e. 7.7.2016, the FIR was registered only for offence u/s.363 IPC, which was a bailable offence. The offence of Section 366 IPC was added to the already registered FIR on the day following arrest of accused-Vishnu i.e. 8th June, 2016. He was not apprised of either the grounds of arrest or his right to bail. Reliance in this behalf is placed on judgment of the Supreme Court in Madhu Limaye & Ors., 1969 AIR SC 1014, wherein it was held that once it is shown that the arrest made by the police officers was illegal, it was necessary for the State to establish that at the stage of remand the Magistrate directed detention in jail custody after applying his mind to all relevant matters. Thus, the State has failed to do so. Learned counsel argued that Supreme Court in that judgment has reiterated the law laid down in Ram Narayan Singh, supra that the validity of detention has to be determined at the time of filing of return. In the return, the respondents have not given reasons why the accused was arrested. The remand orders are patently routine and appeared to have been passed mechanically. 7. Shri Hemant Nahta, learned counsel also relied on division bench judgment of this Court in Badru Ram & Ors. vs. State of Rajasthan, 2006 (4) WLC 734 and submitted that if a person is arrested for a bailable offence, the police officer should immediately inform him of his entitlement to be released on bail so that he may arrange for sureties. The remand of son of petitioner in the first instance was granted by recourse to invoking Section 167(1) of Cr.P.C. The accused was arrested on the mere statement of the girl without any investigation having been done on the veracity of such statement and the pre-arrest guidelines laid down by this Court in Badru Ram, supra on the basis of law laid down by the Supreme Court in Joginder Kumar vs. State, (1994) 4 SCC 260 were violated. 8. Learned counsel relied on judgment of the Supreme Court in Vikram vs. State of Rajasthan, 1996 Cri.LJ 1536 (Full Bench) and judgment of Allahabad High Court in Vimal Kishore Mehrotra vs. State of Uttar Pradesh & Anr., AIR 1956 56 (All.) to the same effect. 8. Learned counsel relied on judgment of the Supreme Court in Vikram vs. State of Rajasthan, 1996 Cri.LJ 1536 (Full Bench) and judgment of Allahabad High Court in Vimal Kishore Mehrotra vs. State of Uttar Pradesh & Anr., AIR 1956 56 (All.) to the same effect. Learned counsel also relied on the judgment of division bench of Uttar Pradesh High Court in Surendra Tiwari vs. State of U.P., 1994 CriLJ 805, which again is to the same effect. Relying on the judgment of the Supreme Court in State of Tamil Nadu vs. Parmasiva Pandian, (2002) 1 SCC 15 , learned counsel argued that remand from a Court, which is not competent and does not have jurisdiction, would make the extension illegal. Reliance is placed on the judgments of the Supreme Court in Col. Dr. B.R. Rao vs. State of Orissa, (1972) 3 SCC 256 , State of Maharashtra & Ors. vs. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613 and Ichhu Devi Choraria vs. Union of India & Ors., 1980 AIR 1983. 9. Shri Hemant Nahta, learned counsel for the petitioner argued that both the orders of remand dated 22.7.2016 and 5.8.2016 reflects total non-application of mind. These are no order in the eye of law. In the first order, a seal has been mechanically affixed in which what is stated with regard to accused is that he is present/absent, whereas both things would not be possible at the same time. Neither case diary was produced before the Magistrate, nor any written prayer was made by the Investigating Officer. The judicial custody was extended by Video Conferencing. And in the second order, a graver illegality has crept in that it merely gives the next date without using the word “remand” therein. The proviso of Section 167(2) has thus not been complied with. Learned counsel in support of his arguments relied on judgment of the Supreme Court in G.K. Moopanar, MLA & Ors. vs. State of Tamil Nadu, 1990 CriLJ 2685 in which it was held that the Magistrate while granting remand has to apply his mind to the nature of investigation that has been done until then and the necessity for extending the remand to enable further investigation. For this purpose, the Magistrate must have sufficient materials before him for exercising such a power. For this purpose, the Magistrate must have sufficient materials before him for exercising such a power. The order of remand dated 22.7.2016 clearly reflects that adequate grounds did not exist for extending the judicial custody. It is argued that continuation of detention of the accused in custody is illegal because adequate grounds did not exist for extending the remand to judicial custody as per Section 167(2) of Cr.P.C. Reliance in this behalf is also placed on judgment of the Supreme Court in Manubhai Ratilal Patel vs. State of Gujarat, (2013) 1 SCC 314 . 10. Learned counsel for the petitioner also relied on the judgment of Calcutta High Court in Ramrahit Singh vs. Dhananjoy Singh @ Motu &Anr., CRR No. 2562 of 2015 decided on 8.4.2015 whereby the impugned orders of the learned Additional Chief Judicial Magistrate were set aside on the basis of the interpretation of powers of Special Courts made by Supreme Court in State of Tamil Nadu vs. Krishna Swami, AIR 1979 SC 1255 , in which it was categorically held that a Special Judge is a Magistrate for the purpose of Section 167 Cr.P.C. 11. Shri Hemant Nahta, learned counsel for the petitioner has then relied on judgment of the Supreme Court in State of Maharashtra & Ors. vs. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613 and earlier judgment of the Supreme Court in Dua J. in Sapmawia vs. Deputy Commissioner, Aijal, (1971) 1 SCR 690 wherein it was held that a writ of habeas corpus is a prerogative writ by which the causes and validity of detention of a person are investigated by summary procedure and if the authority having his custody does not satisfy the court that the deprivation of his personal liberty is according to the procedure established by law, the person is entitled to his liberty. Similar view was expressed by the Supreme Court in Ichhu Devi Choraria vs. Union of India & Ors., 1980 AIR 1983 and Rekha vs. State of Tamil Nadu, (2011) 5 SCC 244 . It is therefore prayed that the habeas corpus petition be allowed in the terms prayed for. 12. Shri B.N. Sandu, learned Additional Advocate General opposed the writ petition and submitted that the habeas corpus petition in the facts of the present case, would not be maintainable. It is therefore prayed that the habeas corpus petition be allowed in the terms prayed for. 12. Shri B.N. Sandu, learned Additional Advocate General opposed the writ petition and submitted that the habeas corpus petition in the facts of the present case, would not be maintainable. If the Additional Chief Metropolitan Magistrate No.15, Jaipur Metropolitan had returned the bail application of the petitioner to be filed in the competent court, the appropriate course for the accused would have been to file such application before the competent court under the POCSO Act. 13. Learned Additional Advocate General argued that there was no illegality in arrest of the accused. The accused was arrested on the basis of statement of prosecutrix-Deepshikha, who in her statement u/s.164 Cr.P.C. made serious allegations against him. She alleged that petitioner physically harassed her, illegally detained her in a hotel, stripped her naked, tried to make physical contact with her by using force and also got her signatures on stamp papers/other papers. Therefore, the offences of not only under Section 366, but also of 376 read with Section 511 IPC and Section 8 of POCSO Act were added. It is submitted that mere affixation of seal in first order dated 22.7.2016, not specifically indicating whether the accused-petitioner was present or absent, could not, in any way, render the remand of the petitioner to judicial custody illegal. Second order clearly states that result of investigation was still awaited and matter be placed again on 19.8.2006 awaiting such result. Non-use of the word `remand' may be a mere irregularity and not an illegality. Reliance placed by learned counsel for the petitioner on Section 167(3) as to the requirement of recording reasons is applicable to police custody and not judicial custody. In the case of judicial custody, however, recording of reasons are directory and not mandatory. 14. Learned Additional Advocate General cited recent judgment of the Supreme Court in Saurabh Kumar through his father vs. Jailor, Koneila Jail & Anr., (2014) 13 SCC 436 and argued that in that case the habeas corpus petition filed by petitioner through her father was held to be not maintainable. The Supreme Court taking note of the fact that as and when the accused was produced before him, the Magistrate concerned remanded the accused to custody, held that petitioner cannot be said to be in unlawful custody. The Supreme Court taking note of the fact that as and when the accused was produced before him, the Magistrate concerned remanded the accused to custody, held that petitioner cannot be said to be in unlawful custody. He was in custody pursuant to the order of remand made by the Court and therefore the writ of habeas corpus in the circumstances, is totally misplaced. It was further held by the Supreme Court that petitioner indeed ought to have filed an application for grant of bail, which prayer could be allowed by the court below, having regard to the nature of the offences allegedly committed by him and the attendant circumstances. 15. Learned Additional Advocate General citing judgment of the Supreme Court in A. Lakshmanrao vs. Judicial Magistrate, First Class, Parvatipuram & Ors., AIR 1971 SC 186 argued that the Supreme Court in that case held that the order of remand can be passed even if the accused is not present in Court. Such an order is immune from challenge on the ground of arbitrariness or want of guidelines. The order of remand is not open to challenge in habeas corpus proceedings. Learned Additional Advocate General has also relied on judgment of the Supreme Court in Gauri Shankar Jha vs. State of Bihar & Ors., AIR 1972 SC 711 , in which also it was also held that the order of remand can be passed in absence of accused if his presence at the time for any reason could not be secured. 16. Shri B.N. Sandu, learned Additional Advocate General cited the orders passed by this Court in Aamir Qureshi vs. State of Rajasthan & Ors., D.B. Habeas Corpus Petition No.141/2016 dated 11.7.2016 and Jitendra Matasya vs. State of Rajasthan, D.B. Habeas Corpus Petition No.215/2015 dated 12.5.2016 wherein the habeas corpus petitions filed in similar circumstances were held to be not maintainable. Learned Additional Advocate General submits that accused was not only aware, but was also informed about the grounds of arrest. He has argued that the various judgments cited by learned counsel for the petitioner are not applicable to the fact situation in the present case. 17. Shri Hemant Nahta, learned counsel for the petitioner has rejoined and submitted that judgment of the Supreme Court in Saurabh Kumar, supra cited by learned Additional Advocate General is distinguishable. He has argued that the various judgments cited by learned counsel for the petitioner are not applicable to the fact situation in the present case. 17. Shri Hemant Nahta, learned counsel for the petitioner has rejoined and submitted that judgment of the Supreme Court in Saurabh Kumar, supra cited by learned Additional Advocate General is distinguishable. The facts and ratio thereof do not apply to the facts of the present case. In that case, there were land disputes between two parties and decree of the Court was also passed against one of the parties. A complaint was filed in the Court of Magistrate, which was referred to the Police for investigation under Section 156(3) by one Mohan Kumar alleging that petitioner and his other family members, armed with lathis, pharsa and pistol, beat him and snatched his wristwatch. They got his thumb impression affixed on the stamp paper at gun point. Such are not the facts of the present case. 18. We have given our thoughtful consideration to the rival submissions and perused the material available on record. 19. Learned counsel for the petitioner has indeed made great endeavour to make out a case for issuance of the writ of habeas corpus, but numbers of judgments, which he has cited in support of his arguments, do not actually persuade us to grant such a relief. It is borne out from the record that the day accused Vishnu was arrested, Deepshikha Sharma was also with him and the police initially recorded her statement u/s.161 Cr.P.C. and thereafter also got her statement recorded under Section 164 Cr.P.C. Although initial part of her statement indicates that she voluntarily accompanied Vishnu Sharma to different places, but eventually she alleged that Vishnu Saini stripped her clothes and touched her in objectionable way, tried to forcefully make physical contact with her, obtained her signatures on stamp papers and other papers etc. And she also claimed to be aged only 15 years. In the face of these facts, we have no reason not to accept the argument advanced by learned Additional Advocate General that the accused was aware of the grounds of his arrest and he was told thereabout when he was arrested and that the police had adequate reasons to arrest him. 20. In the face of these facts, we have no reason not to accept the argument advanced by learned Additional Advocate General that the accused was aware of the grounds of his arrest and he was told thereabout when he was arrested and that the police had adequate reasons to arrest him. 20. Contention that Additional Chief Metropolitan Magistrate No.15, Jaipur Metropolitan, Jaipur declined to entertain the bail application filed under Section 437 Cr.P.C. by order dated 20.7.2016 on the premise that the offence of Section 8 of the POCSO Act is attracted, therefore, his Court would not have jurisdiction to decide the bail application in this matter and on that basis, the further contention that the remand extended by 15 days by the same Additional Chief Judicial Magistrate, was illegal, is noted to be rejected. Section 167 contains an answer to this question, which in sub-section (2) provides that the Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction, to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole and if he has no jurisdiction to try the case or commit it for trial and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. 21. The legislative intention as to the requirement of reasons while granting/extending remand is manifest from sub-section (3) & (4) of Section 167 of Cr.P.C. While sub-section (3) of Section 167 provides that a Magistrate authorising under this Section detention in the custody of the police shall record his reasons for doing so, sub-section (4) thereof provides that any Magistrate, other than Chief Judicial Magistrate, making such order, shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate. A conjoint reading of the above provisions, thus makes the intention of the Legislature clear that while in the case of grant or extension of police remand, the recording of reasons has been mandatorily insisted. None the less the law that has developed by judicial precedents on interpretation of Section 167(2) of Cr.P.C. is that even the order of the Magistrate granting/extending judicial remand should reflect application of mind. None the less the law that has developed by judicial precedents on interpretation of Section 167(2) of Cr.P.C. is that even the order of the Magistrate granting/extending judicial remand should reflect application of mind. As for police custody, apart from necessity of recording of reasons, when the police custody is demanded by the police and granted by the Magistrate, Parliament has insisted on the presence of the accused on each such occasion. There is however no such emphasis on presence of the accused in the case of judicial remand. Yet, however, it has been made necessary in the sense that either he may appear in person or through the medium of electronic linkage, but extension of the judicial custody in the absence of accused may not be as such illegal. As far as judicial custody after the expiry of police custody is concerned, the Magistrate has to remand the accused to such custody unless he decides to release him on bail. The Magistrate shall in such circumstances authorise continuation of judicial custody by not more than fifteen days at one go, till the result of the investigation is filed in accordance with Section 173 of Cr.P.C. But as per proviso (a) to sub-section (2) of Section 167, he may even authorise judicial custody for more than fifteen days at a time if adequate grounds exist for doing so. Failure of the investigating agency to file the report under Section 173 Cr.P.C., either in the shape of charge sheet or negative final report, within the required period of 60 or 90 days, as the case may be, as per proviso (a) to sub-section (2) of Section 167 Cr.P.C., in any case, entitles the accused to be released on bail. Even then the Magistrate in remanding accused to judicial custody should record reasons, howsoever brief such reasons may be, so that the record may indicate application of mind by him and not that the remand has been extended mechanically in a routine manner. Once, however, the charge sheet is filed, the order of the trial court authorising continuation of accused in judicial custody during trial by the trial court need not always be supported by detailed reasons. 22. Once, however, the charge sheet is filed, the order of the trial court authorising continuation of accused in judicial custody during trial by the trial court need not always be supported by detailed reasons. 22. As regards the contention that the accused be set at liberty by issue of writ of habeas corpus on account of lacuna in the order extending remand, we may only refer to judgment of the Supreme Court in Pragyna Singh Thakur vs. State of Maharashtra, (2011) 10 SCC 445 has held that appellant cannot seek to be set at liberty on the ground that there had been non-compliance of Article 22(2) of the Constitution or Section 167(2) of Cr.P.C. by police after she was produced before Magistrate and remanded to custody by Magistrate as an accused may be entitled to be set at liberty if it is shown that the accused at that point of time is in illegal detention of the police, but such a right is not available after Magistrate remands the accused to custody. The right under sub-article (2) of Article 22 is available only against illegal detention by the police, so it is not available in the case of custody in jail of a person pursuant to a judicial order. Article 22(2) does not operate against the judicial order, held the Supreme Court. It was further held by the Apex Court that at the time of moving a bail application, applicant was in judicial custody pursuant to orders of remand passed by the learned CJM/Special Judge. The appellant did not challenge the various orders by which she was remanded. In the absence of challenge to these orders of remand passed by the competent Court, the appellant cannot be set at liberty on the alleged plea that there was violation of Article 22(2) by the police. 23. The Supreme Court in Manubhai Ratilal Patel, supra has held that writ of habeas corpus cannot be entertained when a person is committed to judicial custody or police custody, by the competent court by an order, which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. Even then, the court is required to scrutinize legality or otherwise, of the order of detention which has been passed. Even then, the court is required to scrutinize legality or otherwise, of the order of detention which has been passed. Unless the court is satisfied that person has been committed to judicial custody by virtue of an order that suffers from the vice of lack of jurisdiction or absolute illegality, a writ of habeas corpus cannot be granted. The Supreme Court further held that act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify remand of the accused. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand order automatically or in a mechanical manner. 24. Adverting now to the contention that the Judicial Magistrate while remanding accused to the judicial custody has to give reasons, the record reveals that in this case, the police on the very first date of producing the accused to the Judicial Magistrate on 8.7.2016 did not demand police custody, but requested for remand of the accused to judicial custody for a period of 15 days. The learned Magistrate has passed a detailed order on 8.7.2016, which reflects the application of mind. However, subsequent order granting remand by Video conferencing on 22.7.2016 appear to have been passed mechanically by affixation of pre-prepared seal wherein name of accused has been filled in by handwriting. Obviously before signing this order extending the remand upto 5.8.2016, the Magistrate has not taken care to strike out either of the words, indicating whether accused was “present” or “absent”. The first proviso to sub-section (2) of Section 167 Cr.P.C. requires that the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of 15 days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise detention of accused person in custody under this provision for a total period exceeding ninety days, where the investigation relates to an offence punishable with death, life imprisonment or imprisonment for a term of not less than ten years and sixty days where the investigation relates to any other offence. While sub- section (2) of Section 167 Cr.P.C. refers to both police and judicial custody, but remand of the accused “otherwise than in the custody of the police”, indicated in proviso (a) to sub-section (2) of Section 167 Cr.P.C. obviously refers to the judicial custody and for this type of custody also, the Magistrate is required to satisfy himself as to the adequacy of the grounds for doing so. The order that he passes authorising such remand, ought not to be therefore mechanically passed and should be informed of reasons and should have some semblance of application of mind as to how he has satisfied himself about the adequacy of the grounds for extension of remand. Proviso (b) to sub-section (2) of Section 167 of Cr.P.C. however stipulates that no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage. It is thus evident that the Legislature has insisted on personal production of the accused when the police custody is demanded and granted, but has diluted that condition in the case of judicial remand, which can be granted on production of the accused either in person or through the electronic medium of linkage. 25. Question whether the order extending/granting remand in the absence of accused is per se illegal, was considered by the Seven-Judge Constitution Bench of Supreme Court in Raj Narain vs. Superintendent, Central Jail, New Delhi- 1970 (2) SCC 750 was dealing with a case in habeas corpus petition was filed by the petitioner- Raj Narain, who was arrested under Section 107/117 Cr.P.C. and was remanded in jail custody under warrants issued by the City Magistrate, Lucknow on 20.8.1970. Even when the petition was pending in the Supreme Court, the Supreme Court by order dated 22.8.1970, directed transfer of the detenu to Tihar Central Jail, Delhi. As the original remand expired on 28.8.1970, that he be remanded back to the custody to which he belongs and that he may be taken to U.P. to be produced before the Supreme Court on the next day of hearing to be fixed in that case. As the original remand expired on 28.8.1970, that he be remanded back to the custody to which he belongs and that he may be taken to U.P. to be produced before the Supreme Court on the next day of hearing to be fixed in that case. It was further directed that if fresh remand order is not received by the Superintendent of Jail by midnight, the petitioner shall not be detained as directed by the Supreme Court and he shall be set at liberty at midnight. The Lucknow Magistrate wired to the Tihar Central Jail that he (Magistrate) remanded Shri Raj Narain to further jail custody upto 1.9.1970, which was later corrected to 10.9.1970. The Constitution Bench by majority of 5:2 held that the custody of Raj Narain after midnight of 28.8.1970, was quite legal. In that case also, like in the present case, Raj Narain did not want bail, but complained that his detention was illegal for the technical reason that he has not been produced before the Magistrate. It was held that there is nothing in the law, which required his personal presence before the Magistrate because that is a rule of caution for Magistrates before granting remands at the instance of the police. However, even if it be desirable for the Magistrates to have the prisoner produced before them, when they recommit him to further custody, a Magistrate can act only as the circumstances permit. There is no reason why release of the petitioner should be ordered when the Court is satisfied that he is held on a proper remand by a Magistrate and there are no circumstances justifying his release. This seven Judge Constitution Bench judgment in Raj Narain, supra distinguished the earlier Constitution Bench judgment in Ram Narayan Singh, supra cited by learned counsel for the petitioner because in that case the last order adjourning the case was made on 9th March, but there was no order of remand. However, an endorsement was made on the jail warrant that an accused was “remanded the judicial custody till 11.3.1953.” There was nothing on the court's record to show an order of remand and that all that the Court did therein was to adjourn the case. However, an endorsement was made on the jail warrant that an accused was “remanded the judicial custody till 11.3.1953.” There was nothing on the court's record to show an order of remand and that all that the Court did therein was to adjourn the case. In the facts of the present case, we also find the same distinction between the case of Ram Narayan Singh, supra and the present case because herein the order of remand although passed by affixation of seal and that the Magistrate did not at all pass any order and that the accused was not remanded to judicial custody by mere endorsement of the daily warrant without there being an order on the record. 26. Above referred to Constitution Bench judgment in Raj Narain, supra was later followed by the Supreme Court in two judgments relied by the learned Additional Advocate General i.e. A. Lakshmanrao, supra and Gauri Shankar Jha, supra wherein also it was held that the Court can pass order of remand even if the accused is not present in Court. The Supreme Court in Gauri Shankar Jha, supra has held that even if the Magistrate wrongly records presence of accused in the remand orders, when in fact the accused was not produced, the order thereby does not become bad and it cannot be held that his detention in jail was without a valid basis. 27. The Supreme Court in Col. Dr.B. Ramachandra Rao vs. the State of Orissa & Ors., (1972) 3 SCC 256 was dealing with similar fact situation where the writ of habeas corpus was prayed following the law laid down in Ram Narayan, supra. It was held that the Court is to have regard to the legality or otherwise of the detention at the time of return and not with reference to the institution of the proceedings. A writ of habeas corpus is not granted where a person is committed to jail custody by a competent court by an order, which prima facie does not appear to be without jurisdiction or wholly illegal. The Court further held that in case the petitioner is undergoing the sentence of imprisonment imposed on him by competent court then also writ of habeas corpus cannot be granted. The Court further held that in case the petitioner is undergoing the sentence of imprisonment imposed on him by competent court then also writ of habeas corpus cannot be granted. Howsoever cryptic was the order extending remand in the present case, but we are not inclined to hold that the Magistrate aforesaid passing such order acted without jurisdiction, held the Supreme Court. 28. A heavy duty has been cast on the Magistrate for safeguarding the personal liberty of citizen when he is produced before him for grant/extension of remand. Significance of this task entrusted to a Magistrate was elaborately discussed by the Supreme Court in A. Lakshmanrao, supra when their Lordships while repealing the argument that since there is in any event no guideline for making a remand order and, therefore, the power to remand an accused person under Section 344, (the provision in old Cr.P.C., analogous to Section 167 of the New Code) is ultra vires being arbitrary and unguided. The observations of the Supreme Court in para 12 of the report, reads as under:- “When a case is postponed or adjourned and the accused is in custody the court has to exercise its judicial discretion whether or not to continue him in custody by making a remand order. The court is neither bound to make an order of remand nor is it bound to release the accused person. The period of remand is in no case to exceed 15 days at a time. The discretion to make a suitable order is to be exercised judicially keeping in view all the facts and circumstances of the case including the nature of the charge, the gravity of the alleged offence, the, area of investigation, the antecedents of the accused and all other relevant factors which may appropriately help the court in determining whether to keep the accused in custody or to release him on bail. The court has to ensure the presence of the accused and a just, fair and smooth inquiry and trial of the offence charged. The order of remand is thus subject to judicial discretion and the, order is also subject to review by the superior courts in accordance, with law. The power conferred being judicial the absence of an express, precise standard for determination of the question would not render the section unconstitutional. The order of remand is thus subject to judicial discretion and the, order is also subject to review by the superior courts in accordance, with law. The power conferred being judicial the absence of an express, precise standard for determination of the question would not render the section unconstitutional. Detention pursuant to an order of remand which appropriately falls within the terms of Section 344 is accordingly not open to challenge in habeas corpus.” 29. The observations made by the Supreme Court in Saurabh Kumar, supra in para 23, on the very subject, are also pertinent to be noticed at this stage, which read as under:- “We are also of the view that the Magistrate has acted rather mechanically in remanding the accused petitioner herein to judicial custody without so much as making sure that the remaining accused persons are quickly served with the process of the Court and/or produced before the Court for an early disposal of the matter. The Magistrate appears to have taken the process in a cavalier fashion that betrays his insensitivity towards denial of personal liberty of a citizen who is languishing in jail because the police have taken no action for the apprehension and production of the other accused persons. This kind of apathy is regrettable to say the least. We also find it difficult to accept the contention that the other accused persons who all belong to one family have absconded. The nature of the offences alleged to have been committed is also not so serious as to probablise the version of the respondent that the accused have indeed absconded. Suffice it to say that the petitioner is free to make an application for the grant of bail to the Court concerned who shall consider the same no sooner the same is filed and pass appropriate orders thereon expeditiously.” 30. In Saurabh Kumar, supra, the Supreme Court, despite taking note of the fact that the Magistrate has acted mechanically in remanding the accused, refused to entertain the habeas corpus petition by observing that remedy of the petitioner lies in approaching the competent court to seek bail. In Saurabh Kumar, supra, the Supreme Court, despite taking note of the fact that the Magistrate has acted mechanically in remanding the accused, refused to entertain the habeas corpus petition by observing that remedy of the petitioner lies in approaching the competent court to seek bail. That view also commends us, but nevertheless we must observe that the Additional Chief Metropolitan Magistrate No.15 in passing the first order dated 22.7.2016 has rather acted mechanically in remanding the judicial custody and has taken up entire process “in a cavalier fashion that betrays his insensitivity towards denial of personal liberty of a citizen.” We say so because we are disturbed to note that the order of remand has not been passed by the Judicial Magistrate by due application of mind satisfying himself as to the adequacy of grounds. He has rather affixed a pre-prepared seal filled in the blanks indicating date and name of the accused and then signed it. As to the presence of the accused by use of the words “present/absent” (XXX), in that seal, regrettably the concerned Magistrate has not taken care to strike out one of these two words, whether the accused was present or absent. Even the subsequent order dated 5.8.2016 appears to have been passed mechanically. Though this time when the accused was produced for extension of judicial custody, it was a handwritten order in hindi, but curiously, again both words “XXX” (present/absent) have been indicated, dividing them by a slash and a tick mark was put on the word “XXX” (present), thus indicating that the accused was present through video conferencing. The Judicial Magistrate has not so specifically indicated whether the judicial remand was extended, but the three sentence read in conjunction would sufficiently convey that meaning because the first sentence refers to production of accused from judicial custody through video conferencing, the subsequent sentence indicates that the result of investigation has not been produced and third sentence indicates that the matter be placed on 19.8.2016 awaiting result of the investigation. Though we are not inclined to uphold the contention that the order does not per se extend the remand, nevertheless the manner in which the order has been drawn leaves much to be desired. Though we are not inclined to uphold the contention that the order does not per se extend the remand, nevertheless the manner in which the order has been drawn leaves much to be desired. Even then, since the order of remand is not under challenge before us, we shall refrain from going further into the matter except observing so and leaving that question open, to be considered by the competent court, if and when any challenge is posed to that order or the application for grant of bail is filed. Obviously, such bail application would then be considered by the Special Court constituted under Section 28 of the Protection of Children from Sexual Offences Act, 2012. 31. We, however, require the Registrar General of this Court to circulate a direction to all the courts concerned not to use seals prepared in advance for the purpose of grant/extension of police/judicial remand and to always pass an order either in handwriting or typed out order. Howsoever brief such order may be, it should indicate application of mind as to the requirement of the law that the Magistrate concerned has satisfied himself about the adequacy of the grounds for grant/extension of remand. 32. In view of above discussion, we are not persuaded to issue the writ of habeas corpus, which is accordingly dismissed however with the aforementioned directions/observations. 33. A copy of this order be endorsed to the Registrar General, Rajasthan High Court, Jodhpur for the needful.