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1999 Supreme(Bom) 528
IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
B.H. Marlapalle, J.
Vaijanath s/o Trimbak Patre.... Applicant.
Versus
The State of Maharashtra..... Respondent.
Criminal Application No. 712 of 1999, decided on 26-7-1999.
Advocates appeared :
S.B. Talekar, for applicant.
K.B. Choudhary A.P.P., for respondent.
Headnote:Sections 209 and 465-On committal of case to Sessions Court, Magistrate has to remand accused to custody-However, absence of specific order in that regard would not per se mean that the detention of the accused is illegal.-Section 209 of the Criminal Procedure Code mandates the Magistrate to pass an order 0f committal if the offence is not triable by him and is exclusively triable by the Sessions Court or by any other Court. Though the Magistrate is required to specifically state in the order of committal that the accused is remanded to the custody during and until conclusion of the trial, absence of such specific order would amount to mere irregularity and even if such an irregularity is there, it does not, per of mean that the detention of the accused in the custody would be illegal. If the order of committal passed by the Magistrate does not indicate that the accused be taken in custody and he remanded until he is presented before the Court of Sessions, it only indicates that the authority is directed to produce the accused before the Sessions Court and it implies that the accused is remanded to the custody during and until completion of the trial subject however, to his right to apply for bail provided under the Code.
2.Crime bearing No. 0065/98 came to be registered against the applicant for the offences punishable under sections 302, 452, 504, 506 r/w 34 of I.P.C. at Ardhapur Police Station, tq. and dist. Nanded. It was alleged that the applicant committed the murder of one Gajanan s/o Basappa Patre on 22-5-98. The applicant came to be arrested on 30-5-98 and Police Custody was obtained upto 4-6-98, on which date, he was ordered to be taken in Magisterial Custody Remand. His bail applications were rejected and on completion of investigation, the charge-sheet came to be filed in the Court of Judicial Magistrate, First Class at Nanded on 19-8-1998. By an order dt. 28-9-98, the learned Magistrate committed R.C.C. No. 596/98 u/s 209 of Cr.P.C. to the Court of Sessions for the trial of an offence punishable under section 302, 452, 406 r/w 34 of I.P.C. and at present the case is pending in the Court of Sessions for trial. The bail application filed by the applicant even after the chargesheet was filed, has been rejected by this Court on 19-2-1999 in Criminal Application No. 45/99.
3.This is an application praying for being released on bail on the ground that the applicant has been continued in jail illegally and without authority of law in as much as he was not produced before the learned Judicial Magistrate, First Class immediately after the expiry of the remand period and therefore, detention of the applicant in jail has become illegal. It is the contention of the applicant that the learned Judicial Magistrate, First Class had passed the order of remand when the applicant was not produced before him and no justification was either given before or recorded by the learned Judicial Magistrate, First Class, for the extended remand, order being passed in the absence of the accused. The learned Counsel for the applicant agreed that in a given case the Magistrate has the powers to pass the order of extending the custody, provided he is satisfied with such compelling circumstances beyond the control of the investigating agency and he records such satisfaction in the order of extension of remand. The learned Counsel, in support of his contention, has relied upon the following judgments :
(1) (Ramnarayan Singh v. State of Delhi others)1, A.I.R. 1953 S.C. 277.
(2) (A. Narayan Reddy others v. State of Andhra Pradesh)2, 1991(3) Crimes 873.
4.The learned A.P.P for the respondent State has opposed the application by filing an affidavit in reply and he has relied upon the following two judgments in support of his contentions that the nonproduction of the accused, while passing the extension order of remand, itself, does not make the extension order illegal and the accused cannot be released on bail.
(1) (Rahul Gupta v. State of Madhya Pradesh)3, 1995 Criminal Law Journal 3340;
(2) (Budha Mala Pavara others v. State of Maharashtra), unreported judgment of Bombay High Court (Single Judge)
5.In the case of Rahul Gupta (supra), a learned Single Judge of the Madhya Pradesh High Court, inter alia, held that where the Magistrate is satisfied that the physical nonproduction of the accused was on account of reasons beyond the control of the authorities, he may expressly or impliedly waive production and if satisfied that remand needs to be extended, he may do so. The learned Judge also held that failure to make an endorsement of an extension in the order or if such an endorsement is made on the reverse side of the original warrant itself, is a curable irregularity and not incurable irregularity and an omission to mention the extension of remand in the order sheet may not amount to illegal detention, when there is an authorization in the warrant itself. The detention, therefore, would not be illegal in cases of such curable irregularities.
6.In the case of Budha Mala Pavara (supra), the accused could not be produced before the Magistrate for the extension of remand as no escort was made availa
