J. M. L. SINHA, J.

This is a third application for bail moved by Sri Virendra Saran, Advocate on behalf of Sayeed Ahmad. Learned counsel for the applicant has not argued the appli cation on merits of the case, but has placed reliance on some technical defects which, according to him, persist in the detention of the applicant in jail. Since the learned counsel has not argued this application on merits of the case, it is not necessary for me to make any reference to the facts thereof.

Learned counsel for the applicant pointed out that the applicant was committed to the court of sessions on 7. 5. 1977 and thereafter the case is pending in the court of the Second additional District and Sessions Judge, Muzaffarnagar. Learned counsel con tended that at no stage of the case any legal warrant was issued authorising the detention of applicant in jail and, consequently, the applicant is entitled to bail.

It was not disputed before me that the applicant has been committed to the court of Sessions and the case is at present pending in the court of the Second Additional District and Sessions Judge. It was also conceded on behalf of the State that the present detention of the applicant in jail is under the order of the court of sessions and not the Magistrate. The question for con sideration is whether the present deten tion of the applicant in jail is lawful.

The provision which applies to a person being remanded to jail custody by a court of sessions is contained in section 309 of the Code of Criminal Procedure which corresponds to section 344 of the old Code. The relevant part of that section reads as under :

" (2) If the Court, after taking cognizance of an offence, or com mencement of trial, finds it necessary or advisable to postpone the com mencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks tit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody :

. . . " (underlining is by me ).

A perusal of the above would show that the law enjoins that, if a case has to be adjourned and the accused is in custody, the court shall remand him to jail custody by a warrant. In order to examine whether this requirement was complied with, I issued a direction on the last day that the original warrants may be produced before me. The war rants have since been produced. In view of the contention raised, and for a proper appreciation thereof, it will be necessary to reproduce the warrant as it exists. The writing on the front face of the warrant is as follows :

"warrant Sessions Supardigi.

Sayeed P/naim r/o p. S. Purkazi. Mi. Mu. No. (Misil Moqadma No. Mu. E. (Maqadma Elzam) 246 Dhara 302, I. P. C. Chalani : P. S. Purkazi Adalat : Sessions Supurd. Abhyukt Sayeed. Sd. Illegible. C. J. M. 7-5-77.

Note : (The language in brackets does not exist in the proforma and has been deduced by me ).

The writing on the reverse side of this page exists in vertical arrangement. What is written on the first vertical half of the page reads as follows ;

Sayeed P/naim".

The entry on the second vertical half reads as follows :

"16-6-77 to 18-7-1977 Sd. Illegible. II Addl. D. J. 16-6-77 21-7-77 to 29-8-77 Sd. Illegible. II A. D. J.

21-7-77 9-to 11-12-77 Sd. Illegible for II ADJ.

Learned counsel pointed out that the so-called warrant does not in any part of it indicate as to whom it is addressed, nor does it contain a direc tion for the applicant being detained in custody. Learned counsel further pointed out that even in the entries on the reverse of this warrants there is no indication of any sort and all that is mentioned on that side of the paper are certain dates. That is the purpose of those dates and for whose use they have been written is not indicated On this basis learned counsel urged that the aforesaid paper, which is relied upon by the State as a warrant authorising the detention of the appli cant in jail, does not legally

Click Here to Read the rest of this document