TMI Blog1994 (1) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... hemical Examiner for blood stained earth was not received and the committal order has been passed without this report. The learned Chief Judicial Magistrate had passed mechanical order and had not applied his mind. The remand orders are illegal and, therefore, they are liable to be quashed. 3. I have heard learned Counsel for the revisionist, learned A.G.A. appearing for the State at great length and perused the record of the lower Court. 4. Learned Counsel for the revisionist laid emphasis on the order passed by the learned Magistrate on different dates. They are said to be passed in mechanical way without applying the mind. These orders do not contain direction for remand in jail custody. The revisionist was brought before the Court on 31-8-1993 and the following order was passed by the learned Chief Judicial Magistrate: Aaj Abhiyukt jail se talab hoker nyayalaya aaya. Uprokt apradh mein arop-patra prastut kiya gaya. Darj register No. Nakalein taiyar hain. Waste dene nakal dinak 14-9-93 ko pesh ho. Tab-tak muljim ko nyayik abhiraksha mein rakha jai. Then the accused-revisionist was brought before the Court again on 14-9-1993. The learned Chief Judicial Magistrate as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and there was initial of the Presiding Officer and that will be deemed to be an order of remand and, therefore, the custody could not be illegal and the accused revisionist was not entitled to bail. 9. The learned Counsel for the parties have referred a number of cases tin the point of remand which are to be considered for disposal of this revision on merits. 10. The learned Counsel for the revisionist referred to the decisions passed by this High Courts in writ petition No. 10884 of 1989 (Ram Shanker v. Adhikshak, Janpad Karagar, Faizabad and Anr. (LB), writ petition No. 10885 of 1989 Vijai Kumar alias Aggu v. Superintendent, District Jail, Faizabad and Anr. (L.B.), writ petition No. 260 of 1991 Shivaji Singh alias Netaji and Anr. v. Adhikshak, District Jail Lucknow and Anr. (L.B.) the case of Vashisht Muni v. Superintendent, District Jail, Faizabad, U.P. Cr.R. 1993 p. 159, Habeas Corpus Petition No. 4605 of 1993 Sukhdeo Singh alias Sukha Singh and Anr. v. The Superintendent, District Jail Nainital and Ors.; writ petition No. 236 of 1992, 237 of 1992, 238 of 1992 and 239 of 1992 (L.B.) decided by a common judgment by Hon'ble S. Saghir Ahmad, J. and Hon'ble H. N. Tilh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there is no need to record an order of remand in writing separately in the order-sheet nor there is any need to record the reasons therefore in writing for remanding the accused to jail has been correctly laid down? (3) Whether the interpretation placed on Section 309 of the Code of Criminal Procedure in Urooj Abbas vide, 1973 CLJ 1458, is in consonance with the principles of law enshrined under Articles 14 and 21 of the Constitution? 15. These questions have been referred to the larger bench of five Judges of this Court and the matter is still pending. While referring the matter to the larger bench the Court directed that sending the accused to jail custody without specific remand order was held illegal and the accused was enlarged on bail. 16. Again reference was made to the case of Tej Bahadur Singh v. State of U.P. 1977 ACC 273. In that case also it was held that detention without specific order of remand is illegal. 17. On the other hand learned A.G.A. appearing for the State relied on the case of Dr. Ram Manohar Lohiya v. The Superintendent, Central Prison, Fatehgarh AIR 1955 All 193. In that case it was held that: The Magistrate ordinarily while adjourning t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying with the provisions of Section 207, or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made: (b) Subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of the trial. (c) Send to that Court the record of the case and the documents and articles if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session. The State amendment in Section 209 of the Code reads as under: Uttar Pradesh-In Section 209 for Clauses (a) and (b), the following clauses shall be substituted and be deemed always to have been substituted, namely: (a) as soon as may be after complying with the provisions of Section 207, commit the case to the Court of Session; (b) subject to the provisions of this Code relating to bail, remand the accused to custody until commitment of the case under Clause (a) and thereafter during and until the conclusion of trial. Section 309 of the Code is contained in Chapter XXIV of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Criminal Procedure. The learned A.G.A. appearing for the State laid emphasis on the amended Clause (b) of Section 209 Code of Criminal Procedure providing that subject to the provisions of the Code relating to bail, remand the accused to custody untill commitment of the case under Clause (a) and thereafter during, and until the conclusion of trial. 24. Learned A.G.A. argued that in view of this amended provisions once the Magistrate has committed the case to the Court of session and remanded the accused to custody till conclusion of the trial, no further order of remand was required to be passed by the learned Sessions Judge when he adjourns or postpones the proceedings but under the provisions of Section 309 Code of Criminal Procedure merely signing the warrant sheet by the Session Judge is enough. 25. When the personal liberty of a citizen is in question the provisions of Statute have to be interpreted keeping in view the provisions of Articles 21 and 22 of the Constitution of India. 26. The provisions of Section 209 Code of Criminal Procedure apply only till the stage of committal of the case to the Court of Session. Thereafter when the trial begins the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remand. The order sheet shows that simply dates have been fixed for attendance and charge. No order of remand was passed as contemplated under Section 309 Sub-section (2) of Code of Criminal Procedure. These orders passed by the learned Chief Judicial Magistrate are mechanical and also the learned Session Judge did not pass any order of remand. Only intermediate custody warrant was signed which was not an order of remand. However, the committal order dated 12-10-93 does contain an order of remand of accused during and till conclusion of the trial as contemplated under the amended Clause (b) of Section 209 Code of Criminal Procedure. But there was no remand order on 12-9-93 and 28-9-93 and also there is no remand order on 19-10-93, 26-10-93 and 5-11-1993 when the trial has proceeded before the learned Session Judge and the same was postponed without any remand order. Again it is clarified that under Section 309 Sub-section (2) when the trial is postponed the accused has to be remanded to custody by a warrant. This Sub-section also calls upon the Court to pass an order of remand. Simply signing of intermediate custody warrant as contemplated under Section 167 Code of Criminal Proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter of right. However, in this case the Court has observed that the sessions Court was also required to pass an order of remand. 38. Also in the case of Kedar v. State of U.P. 1977 CriLJ 1230 Alld. 1977 ACR 163 : 1977 AWC 205, it was held that Sessions Judge has a power of remand if the accused is in custody once he has taken cognizance of the sessions trial. In this case it was observed that it was called upon the Session Judge also to pass an order of remand. 39. In the case of Veru Vishwanthan v. State of Karnataka 1971 MLJ 13 and the case 1971 CriLJ 1368 it was held that: Recording reasons for order of remand was necessary. Such order cannot be passed as a matter of right. The remand order without reasons recorded construed grave injustice to the accused. 40. In the case of Chhitar v. State of Rajasthan 1980 CriLJ 94 it was held that every time if the case is adjourned there should be fresh order of remand to judicial custody. 41. In the case of Jeewan Singh v. State of Bihar 1978 CriLJ 119 it was held that an accused was entitled to be released when he was detained without a proper order of remand in a case however grave it may be, even it may be the murder case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se has remanded the accused to custody during and conclusion of the trial. Also the amendment of the State of U.P. in Section 209 Code of Criminal Procedure authorises the Magistrate to remand the accused of judicial custody during and till conclusion of the trial. 44. In my opinion the amended provisions of Section 209 Code of Criminal Procedure will remain in force only till the provisions of Section 309(1) of the Code of Criminal Procedure are applicable and continued. But once the provisions of Sub-section (2) of Section 309 Code of Criminal Procedure begins to apply on adjournment or postponement of the trial then a fresh remand is required if the accused is in custody. If the accused is on bail then the question does not arise but in case when the accused is in custody then to deprive him of the personal liberty an order of valid remand has to be passed by the Court applying its mind. A mechanical signing of a custody warrant is not enough as held by Hon'ble Supreme Court in Madhu Limaye's case. 45. The same principles apply when a accused in custody is to be remanded either in Section 209 or under Section 309 Sub-section (2) Code of Criminal Procedure. In my op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enquiry or trial, he expects that the Court will pass an order either of his release or his further custody. In such a situation mere mechanical signing of the custody warrant will not fulfill the requirement of law for passing of an order whose personal liberty is in question and who cannot be detained without an authority of law. The point authority of law requires that the Court will express its opinion to the accused that he is to be detained in further custody either during enquiry or trial. Mechanical signing the custody warrant will deprive the accuse a of his right to know that he is being detained by the Court further for valid reasons and he is entitled to know the cause of his further detention. In this view of the matter it is always required that the Court while directing further detention by warrant of remand must apply its mind and pass orders of directing the accused to be detained further for a specified period. In the absence of an order mere signing the custody warrant will not fulfill the conditions that an accused has a right to know as to for how long he will be detained in custody. As such an order of remand is equally necessary under Section 309 Sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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