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1994 Supreme(All) 57
HIGH COURT OF ALLAHABAD
A.S.Tripathi
RAJESH MISHRA
Versus
STATE OF U P
Decided On : 20 January 1994
Criminal Revision No. 1891 of 1993,
DAYA SHANKER MISHRA,
A specific order of remand is required to be passed by the court whenever an accused is remanded to jail custody, either during enquiry or trial.
Headnote:
CRIMINAL PROCEDURE CODE - SECTIONS 209 AND 309 - INTERPRETATION - REMAND ORDERS - NECESSITY - PERSONAL LIBERTY - ARTICLES 14, 21 AND 22 OF THE CONSTITUTION OF INDIA.
Fact of the Case:
The revisionist challenged the remand orders passed by the Chief Judicial Magistrate, Allahabad, declaring them illegal and sought bail in two criminal cases.
Finding of the Court:
The court held that the remand orders passed by the Chief Judicial Magistrate and the Sessions Judge were illegal as they did not contain specific directions for remand in jail custody and that the accused was entitled to bail.
Issues: 1. Whether the remand orders passed by the Chief Judicial Magistrate and the Sessions Judge were legal. 2. Whether the accused was entitled to bail.
Ratio Decidendi: 1. The court interpreted Sections 209 and 309 of the Code of Criminal Procedure and held that a specific order of remand is required to be passed by the court whenever an accused is remanded to jail custody, either during enquiry or trial. 2. The court held that the mere signing of the custody warrant is not sufficient to justify the detention of the accused and that the court must apply its mind and pass an order of remand. 3. The court held that the accused was entitled to bail as the remand orders were illegal.
Final Decision: The revision was allowed, and the accused was directed to be admitted to bail.
This revision is filed against the remand orders passed by the Chief Judicial Magistrate, Allahabad on 14- 9-1993, 28-9-1993, 12-10-1993, 26-10-1993 and 5-11-1993 declaring the same to be illegal. It is further prayed that in view of the fact that the remand orders are illegal the revisionist be admitted to bail in case Crime No. 324 of 1993 under Sec tion 302, I. P. C. and Crime No. 328 of 1993 under Sections 25/27, Arms Act Police Station Kydeganj, District Allahabad. .
2. It is alleged that the committal order passed by the Chief Judicial Magistrate under Section 209, Cr. P. C. on 12-10-1993 did not contain the order, of remand according to law. The provisions of Section 207, Cr. P. C. are not complied with necessary papers were not supplied to the revisions. However, no remand orders were passed on 14-9-1993 and 28-9-1993. The report of Chemical 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 revisonist 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 hokar nyayalaya. aaya. Uprokt apradh mein arop-patra prastut kiya. Darj registar ho. Nakalain taiyar hain. Waste dene nakal dinak 14-9-1993 ko pesh ho. Tab-takk muljim ko nyayik adhiraksha mein rakha jai. "
5. Then the accused-revisionist was brought before the court again on 14-9-1993. The learned Chief Judicial Magistrate as it is evident from the order-sheet passed the following orders:
"accused present in custody. Fix 28-9-1993 for appearance. Sum mon the accused from jail. "
Then again on 28-9-1993 the revisionist was brought before the court and the learned Chief Judicial Magistrate passed the following orders:
"aaj pesh huwa. Awaj dilayee gayee. Muljim Rajesh jail se hirasat mein haajir aya. Waste Hajiri tareekh 12-10-1993 mukarrar kee gayee gai. Muljim jail se talab howe. "
6. On 12-10-1993 the learned Chief Judicial Magistrate committed the accused to the court of Sessions and directed that the accused shall remain in custody during and till conclusion of the trial.
7. The learned counsel for the revisionist vehemently argued that in the committal order there was no order for remand, therefore the custody of the revisionist was illegal and he was entitled to bail. However, in the alternative he argued that there was no remand order at all on 14-9-1993 and 28-9- 1993.
8. It has further been argued that after committal of the case the learned Sessions Judge also did no pass any order of remand under sub section (2) of Section 309 of the Code of Criminal Procedure on the date fixed in the case on 19-10-1993, 26-10-1993 and 5-11-1993. The only order passed by the learned Sessions Judge is that on 19-10-1993 when the accused was brought before the court 26-10-1993 was fixed with the direction that charge will be framed on that date. No specific order of remand was passed. On 26-10-1993 again when the accused was brought before the court it was directed that for appearance again 5-11-1993 be fixed. On 5-11-1993 again when the accused did not appear on account of illness and was not brought before the court the court directed that 17-11-1993 be fixed for appearance. In all these orders passed by the learned Sessions Judge no specific order or remand was passed.
9. The learned counsel for the revisionist argued that in the abse
