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HIGH COURT OF ALLAHABAD
V.N.Varma, J.
Izhar Ahmad
Versus
State
Decided On : 30 August 1977
CRIMINAL PROCEDURE CODE - SECTION 167 AND 209 - BAIL - ILLEGAL DETENTION - PRODUCTION OF ACCUSED BEFORE MAGISTRATE - MANDATORY - REMAND ORDERS PASSED IN ABSENCE OF ACCUSED - INVALID - BAIL GRANTED.
Fact of the Case:
The applicants, Mohammad Farooq and Izhar Ahmad alias Izhar Ali, were arrested for the murder of Brij Bhushan Dubey. They were remanded to custody at the stage of Section 167 Cr. PC without being produced before the Magistrate. The charge-sheet against them was filed on 29-6-77, but they were not produced before the Magistrate on that date or on any of the subsequent dates when remand orders were passed.
Finding of the Court:
The Court held that the detention of the applicants was illegal both at the stage of Section 167 Cr. PC and at the stage of Section 209 Cr. PC, as they were not produced before the Magistrate when the remand orders were passed. The Court further held that the orders of remand passed in the absence of the applicants were invalid.
Issues: Whether the detention of the applicants was illegal at the stage of Section 167 Cr. PC and at the stage of Section 209 Cr. PC.
Ratio Decidendi: The Court relied on the provisions of Section 167(2)(b) and Section 209 Cr. PC, which mandate the production of the accused before the Magistrate when remand orders are passed. The Court also relied on a Division Bench decision of the Allahabad High Court, which held that an order for remanding an accused to Jail custody during and until the conclusion of the trial, can be made only when the accused appears or is brought before the Magistrate.
Final Decision: The Court granted bail to the applicants, subject to certain conditions, including a direction that they should not visit village Gurma P. S. Chopan or any other place within 20 miles around it.
( 1 ) THESE are two bail applications, one filed by Mohammad Farooq and the other filed by Izhar Ahmad alias Izhar Ali, which I propose to dispose o together as they are inter-connected and involve the same questions of law and fact.
( 2 ) BOTH the applicants (Mohammad Farooq and Izhar Ahmad alias Izhar Ali) are wanted in a case Under Section 302 I. P. C. for the murder of one Brij Bhushan Dubey. At the relevant time, Brij Bhushan Dubey was Deputy Jailpr in Sampurnanand Open Air Jail, Gurua. On 30-4-77, at about 6 A. M. , Brij Bhushan Dubey was taking his tea at the tea-stall of one Kenhaiya when six persons came there in a Jeep bearing No. D. L. L 7173. Those six persons alighted from the jeep. They were armed with guns and pistola They threatened to kill Brij Bhushan Dubey saying that he had maltreated one of their relations while the was in Sampurnanand Open Jail. Brij Bhushan Dubey felt panicky, threw down his cup of tea and started running to gave his life. Those, persons gave him a chase, fired upon him and killed him. They then left the plaqe with a, view to escape. On of them (went to the jeep which was parked near the iea-stall of Kanhaiya and drove it, away while the remaining five , rah towards Markandi Hills. This incident. was seen by one of the wardens, of Sampurnanand Open Air Jail and he went to P. S. . Chopan and made a report there. The Taipei; of Sampurnanand Open Air Jail was also informed about this ghastly incident. A posse of P. A. C. constables had, been posted in the vicinity and the Jailor contacted them unmediately. . Some constables at once left in a jeep to apprehend the miscreants, In the way they noticed the jeep of Platoon Commander Sheo Kumar Chaubey comings from the direction of Canal Inspection. House,. The constables stopped his jeep and informed him about the murder of Brij Bhushan Dubey; Platoon Commander Sheo Kumar Chaubey joined them and they all proceeded towards Markandi Hills in search of the miscreants. They sighted six persons climbing Markaridi Hills. It appears that the person who had driven away Jeep No, DLI 7173 had abandoned his jeep in the Way and had joined his other five associates. The police party opened fire oh the miscreants arid killed three of them. The remaining three were; chased and caught alive. Two of thosa caught are the applicants before me. Pistols, guns end cartricgeg were recovered from them: After arrest all the three of them were" lodged in Mirzapur Jail.
( 3 ) DURING the, cours of investigation, the first remand wag taken for 15 days, Thereafter the Judicial Magistrate made remand orders dated. 14-5r77, 21-5-77, 2-6-77 and 16-6-77. : On the last four days the applicants were not produced before the Judicial of Magistrate when remancj. orders were passed. 6n 29-6-77 charge-sheet against both the applicants was received in Court the next date fixed in the case was, 12-7-77, On 12-7-77 the magistrate was on leave and the case was abjourned to 27-7-77. Nothing happened on 27-7-77 and the case was adjourned to 9-8-77. On 9-8-77 also noting in particular happened. In the order-sheet of 9-8-77 all that is mentioned is that the applicants are needed for identification at allahabad and they should therefor be sent to Allahabad. The case was then abjouraned to 22-8-77. On 22-8-77 the applicxants were still at Allahabad in connection with their identification. The case was then adjourned to 49-77. On none of the dates mentioned above, either at the stage of Section 167 Cr. PC or at the stage of Section 209 Cr. PC the applicants had been produced in Court.
( 4 ) THE applicants have prayed for bail on merits as also on legal grounds. So far as their request for bail on merits is concerned, I may say here at once that it has no substance at all in it. The murder of Brij Bhushan Dubey had taken place in broad day-light. One of the wardens had seen five persons coming near Brij Bhushan Dubey and shooting him dead with gun9 and pistols. On seeing the ghas
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