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1999 Supreme(All) 1124
IN THE HIGH COURT OF ALLAHABAD
P. K. JAIN
SABIR HUSSAIN - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
CRI. M. T. A. 7757 Of 1999
Decided On : 08/05/1999
DAYA SHANKAR MISHRA
A separate order remanding the accused is not required if a valid warrant has been issued under Section 209(b) of the Cr. P. C.
Headnote:
BAIL - SECTION 209(B) CR. P. C. - SECTION 309 CR. P. C. - SECTION 167 CR. P. C. - SECTION 144 CR. P. C. - ARTICLE 22(1) CONSTITUTION OF INDIA - SUMMARY OF FACTS, FINDINGS, ISSUES, RATIO DECIDENDI AND FINAL DECISION OF THE COURT.
Fact of the Case:
The applicant, Sabir Husain, was accused of participating in a dacoity and murder case. He was denied bail twice by the court, but his co-accused, Ishaq, was granted bail on the ground that their roles were identical. The applicant argued that his detention was illegal since no remand order under Section 209(b) or Section 309 of the Cr. P. C. was passed.
Finding of the Court:
The court found that the applicant's bail application was rejected because of misrepresentation of facts by the prosecution. The court also held that the applicant's detention was not illegal since he was remanded to judicial custody by a valid warrant under Section 209(b) of the Cr. P. C.
Issues: 1. Whether the applicant's bail application was rejected due to misrepresentation of facts by the prosecution? 2. Whether the applicant's detention was illegal due to the absence of a remand order under Section 209(b) or Section 309 of the Cr. P. C.?
Ratio Decidendi: 1. The court held that the applicant's bail application was rejected because of misrepresentation of facts by the prosecution. The court noted that the applicant's role in the dacoity and murder case was distinguishable from that of his co-accused, Ishaq, who was granted bail. The court also noted that the prosecution had failed to bring this distinction to the court's attention when Ishaq's bail application was being considered. 2. The court held that the applicant's detention was not illegal since he was remanded to judicial custody by a valid warrant under Section 209(b) of the Cr. P. C. The court relied on the Full Bench decision in Urooj Abbas v. State of U. P., which held that a separate order remanding the accused is not required if a valid warrant has been issued.
Final Decision: The court rejected the applicant's bail application and directed that a copy of the order be sent to all Sessions Judges and Chief Judicial Magistrates for bringing it to the notice of the Magistrates.
( 1 ) THE prosecution case in short is that between the night of 8/9-3-1998 at about midnight a dacoity was committed at the house of Smt. Bano in which besides looting the property, two persons were killed and some others were injured. It was alleged that around 13-14 persons armed with gun, pistol etc. entered the house of first informant and started ransacking the house. While leaving the house, one of the miscreants, namely Sabir Husain, the present applicant who was armed with a gun exhorted that he will teach a lesson today and thereafter he put the barrel of the gun on the eye of husband of the first informant and fired at him. Co-accused Ishaq fired a shot from his pistol on the chest of the deceased. Thereafter Laiq co-accused put the barrel of pistol on Mohammad Shafis chest and fired at him. On alarm several witnesses were attracted. The accused were identified in the light of electric as well as moon light.
( 2 ) FIRST bail application was pressed on the ground that Laiq co-accused assigned similar role has been granted bail by the High Court and that the applicant was falsely implicated since his cousin Rashid was murdered and a case Crime No. 132/94 was registered. Son of the first informant in the present case was an accused in that case. It was also one of the grounds that the intention prima facie was to commit dacoity. While rejecting the first bail application it was observed by this Court that the allegation is prima facie corroborated by the post mortem examination report and even though Laiq had been granted bail on the ground that his role is almost identical to the other accused persons but prima facie his case was distinguishable from others who were granted bail earlier.
( 3 ) THE second bail application was also pressed on the ground that Laiq co-accused assigned similar role had been granted bail by order dated 19-11-1998 and that even though accused were inimical to the complainant no precaution was taken by accused to conceal their identity, which is highly unnatural. While rejecting the second bail application, this Court observed that Laiq has been assigned the role of firing from pistol by putting barrel on the chest of Mohammad Shafi, the son of first informant. Other accused were not assigned this specific role as was assigned to accused Sabir, Ishaq and Laiq. Therefore, the case of accused Sabir, Ishaq and Laiq cannot be said to be identical with remaining co-accused. However, it appears that when bail application of Laiq was pressed before the Honble Judge, the argument was that co-accused Nawab and others (not Sabir and Ishaq) assigned almost identical role have been granted bail. The fact that the case of Laiq is not identical to the case of those who were granted bail by order dated 8-6-1999 does not appear to have been brought to the notice of the Court and there appears to have been misrepresentation at the time of the pressing of the bail application of the applicant Laiq. This Court further observed that accused are also not said to have taken precaution to conceal the identity but if an accused is dare-devil and prefers to go for commission of crimes without concealing his identity, that cannot give him a licence for indulging in such activity. According to the first information report, it is the applicant, who in order to take revenge of the earlier murder exhorted to teach lesson and further actively participated by firing from point blank range along with co-accused Ishaq and Laiq.
( 4 ) AFTER the earlier two bail applications were rejected this third bail application is now being pressed on the ground that since after rejection of the second bail application, co-accused Ishaq who is assigned similar role has been granted bail by order dated 8-6-1999. Another ground taken is that while committing the case to the Court of Session, no order of remand under Section 209 (b) Cr. P. C. was passed by learned Committing Magistrate and thereafter even the Sessions Judge has
