TMI Blog1989 (9) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... he Terrorist and Disruptive Activities (Prevention) Act, 1985 in pursuance of the complaint lodged by P.S.I. Mr. M. K. Parmar on 12-7-1986 regarding the incident which had taken place at about 9.00 hours on 12-7-1986. The petitioner was arrested on 12-8-1986 and a case was registered as Terrorist Case No. 1 of 1987. On 4-12-1987, the Designated Judge has framed the charge against the present petitioner and 62 others and the petitioner pleaded not guilty to the charge on 4-12-1987. From 4-12-1987 till today, according to the petitioner, the case was adjourned for more than 65 occasions and has not yet been concluded. It is the further say of the petitioner that it is only on 9-3-1988 the prosecution has examined the first witness in Terrorist Case No. 1 of 1987. 4. The petitioner, alleging that the detention, as an under-trial prisoner as and from 12-8-1986, which is the date of his arrest, is against the basic principle of the criminal jurisprudence and violative of Article 21 of the Constitution of India, which confers right to have a speedy trial and that there is a violation of Section 309 of the Criminal Procedure Code in passing the orders of adjournments and remand by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessarily follow that a citizen can always move the High Court under Article 226 or Article 227, or this Court under Article 32 challenging the constitutional validity of the Act or its provisions on the ground that they offend against Articles 14, 21 and 22 or on the ground that a notification issued by the Central Government or the State Government under Section 9(1) of the Act constituting a Designated Court for any area or areas or for such case or class or group of cases as specified in the notification was a fraud on powers and thus constitutionally invalid. Finally, the Supreme Court agreed with the High Court and stated that the High Court has no jurisdiction to entertain an application for bail under Section 439 or Section 482 of the Code of Criminal Procedure. 7. Mr. Bhatt also cited the decision in the case of Ramnarayansingh v. State of Delhi, reported in AIR 1953 SC 277 : (1953 Cri LJ 1113). This is a case arising oat of Article 32 of the Constitution of India, praying for a writ of habeas corpus. In that case, there was no remand order detaining the person in custody. After the original remand order expired, there was no fresh order of remand committing the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nherent power, but has to be found from the provisions of the Code and the Supreme Court held that Section 344 (old Code) corresponding with Section 309 (of the, new Code) gives express power to the Court for remand. This decision cannot have any application or bearing to the facts of the, present case. 11. Section 309 of the Code of Criminal Procedure reads as follows: 309. Power to postpone or adjourn proceedings.-- (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of the witnesses has once begun; the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me circumstance which can be regarded as reasonable and proper. A Magistrate cannot act arbitrarily in the matter and has to follow well-recognised precedents and principles in the exercise of his judicial discretion in the matter. In the circumstances, the remanding of the petitioner without his production before the Magistrate cannot be characterised as illegal so as to enable the Court to set him at liberty on that basis. 13. Continuing further and also referring to the adjournment of the case, the Full Bench observed (at p. 1464): It is only a postponement or adjournment which requires an order in writing and the reasons therefor, and not the act of remanding which, if I may say so. can be signed by Magistrate. The Full Bench agreed with the observations made in the decision in the case of In re Kunjan Nadar reported in AIR 1955 Tray-Co 74 : 1955 Cri LJ 740, wherein it is stated : The reasons to be stated as per the above provision are the reasons for the adjournment of the case and not the reasons for the remand. When a person charged with the commission of a non-bailable offence is produced before the Court unless he is admitted to bail the Court remands him t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutional infirmities in the arrest. Hence, this case cannot have any bearing to the facts of the present case. 16 The next decision cited by Mr. Bhatt is the one reported in 1976 Cri LJ 1782, wherein a Bench of the Allahabad High Court observed (at p. 1783): There is no order directing the accused to be kept in custody. The warrant of intermediate custody on the basis of which the petitioner is said to be detained, was produced before us on the last occasion. It contained a warrant directing the remand of the accused to custody for the period of 10th August to 23rd August, 1975. Thereafter, there is no warrant of remand for keeping the accused in custody. Under Section 309 of the Code of Criminal Procedure, the custody of an accused can be maintained and continued only by a warrant issued by the Magistrate. Without such a warrant, the custody cannot be justified. As there is no warrant of remand issued by a Magistrate directing the continuance of the custody, the custody of the petitioner must be held to be without authority of law. The petitioner is, therefore,, entitled to be released as in the return no other authority for detaining the petitioner has been shown. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remand orders passed in this case illegal. Sub-section (2) of Section 309 of the Criminal Procedure Code contemplates that reasons have to be recorded only for adjoining the enquiry or trial. As regards the remand order, there is no such inhibition of recording reasons signed by the Court. Even the provision of restriction of remand of 15 days only at a time applies to a Magistrate and not to a Sessions Court or a Designated Court. The petitioner who was arrested under the 'Terrorist and Disruptive Activities (Prevention) Act, 1985' and who is facing the rial along with 62 others, in our opinion, has been correctly remanded as provided under the rules extracted above. 19. In the decision in the case of In re Kunjan Nadar, reported in AIR 1955 Trav-Co 74 : 1955 Cri LJ 740, a Bench of the Travancore-Cochin High Court has clearly observed: The reasons to be stated as per Sub-section (1) of Section 344, Criminal P.C., are the reasons for the adjournment of the case and not the reasons for the remand. When a person charged with the commission of a non-bailable offence is produced before the Court unless he is admitted to bail the Court remands him to custody. This is. don ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was a case pertaining to preventive detention and not a case of under-trial prisoner who has been refused bail by judicial Court. When an under-trial prisoner is charged with the commission of an offence, he cannot insist that the question of his innocence or guilt be tried or determined by the High Court or Supreme Court alleging violation of fundamental rights during the pendency of the trial where fairly triable questions of fact and/or law are pending and can be gone into by the trial Court which is constituted under the provisions of Terrorist and Disruptive Activities (Prevention) Act, 1985 nor can he be released by the High Court in a habeas corpus petition when he has been refused bail by a judicial order and is kept in judicial custody. 23. The decision in the case of Usman-bhai Daudbhai v. State of Gujarat, reported in (1988) 29 Guj LR 859 : (1988 Cri LJ 938) (supra), clearly affirms the decision of the Gujarat High Court to the effect that the High Court has no jurisdiction to entertain any proceeding either under Section 439 or under Section 482 of the Code of Criminal Procedure arising out of an order passed by the Designated Court under the Terrorist and Disru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be reasonable, fair or just', unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21, There-can, therefore, be no doubt that speedy trial, and by speedy trial, we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of. an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21. Would he be entitled to be released unconditionally freed from the charge levelled against him on the ground that trying him after, an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21? That is a question we shall have to consider when we hear the writ petition on merits, on the adjourned date. But one thing is certa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. While applying the right to speedy trial of an accused, the Supreme Court did not release any accused who was in judicial custody, for a period longer than the maximum possible punishment. Only such persons who had undergone undertrial confinement beyond the period of possible maximum punishment were released. Even these persons who had completed more than half the possible sentence, were not released by the Supreme Court and were directed to make applications to the trial Court. Even where charge-sheets were not filed for more than two years. the Supreme Court had not released them on bail and the prosecution was directed to file the charge-sheets within three months. Thus the right to speedy trial is not equated with a right to get bail whenever there is adjournment or some delay in the trial of an accused. Thus, we find from the above said decisions that the question as to whether the delay constitutes violation of fundamental right under Article 21 of the Constitution of India has to be decided on facts and circumstances of each case. 26. In the decision in the case of Kadra Pahadiya v. State of Bihar, reported in AIR 1982 SC 1167, the Supreme Court has reiterated the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground of delayed trial depends upon the facts and circumstances of the case. If the accused is found to defence and it could be said that the accused had thus been denied an adequate opportunity to defend himself, the conviction would certainly have to go. But if nothings is shown and there are no circumstances entitling the Court to raise a presumption that the accused had been prejudiced there will be no justification to quash the conviction on the ground of delayed trial only. 28. aS far as the present case is concerted, it is an admitted fact that as many as 63 accused have been committed to trial before the Designated Court for the offences punishable under the provisions of the Terrorist and Disruptive Activities (Prevention) Act. 1985 and out of 65 adjournments, 41 have been sought by the accused. It is not, shown that any particular adjournment was objected by the petitioner and the Court, Without valid reason, had granted adjournments for unreasonably long period. 29. Section 7 of the said Act deals with the Designated Courts and Section 7(2) states that : 7. xxx xxx (2) A Designated Court shall be presided over by a Judge to be appointed by the State Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... errides the procedure in the Criminal Procedure Code and as far as may be, the procedure in the Code is taken for the limited purpose mentioned in the Act. If the orders of adjournments and remand are not in accordance with Section 309 of the Criminal Procedure Code, it is open to the party aggrieved to apply to the said Court for necessary relief, either for grant of bail or for getting directions for a speedy trial. Section 16 of the Act of 1985 (Section 19 of Act of 1987) specifically mentions that no appeal or revision shall lie to any Court from any judgment, sentence or order of a Designated Court except to the Supreme Court. The provision in this self-contained Act, when there is especially a decision of the Supreme Court, Usman's case, : (1988 Cri LJ 938) (supra), prohibiting any revision or appeal before the High Court under Section 439 or Section 482 of the Criminal Procedure Code, cannot be circumvented by invoking the jurisdiction of this Court under Article 226 of the Constitution of India alleging as if there is a violation of Article 21 of the Constitution of India. Looking into the Roznama and the facts of this case, we are of the view that the orders of adjourn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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