The word "shall" in the first proviso to section 309(2) CrPC is instructive and not mandatory, and therefore, non-compliance with the 15-day limit for remand does not render the Magistrate's act of granting a longer remand illegal.

Headnote:
CRIMINAL PROCEDURE CODE - SECTION 209, 309 - REMAND OF ACCUSED - INTERPRETATION - LEGALITY OF DETENTION - HABEAS CORPUS - WRIT PETITION.
Fact of the Case:

Three habeas corpus petitions were filed challenging the legality of the petitioners' detention beyond 15 days without a valid remand order. The petitioners were charged with various offenses and were in judicial custody during the commitment proceedings.
Finding of the Court:

The Court held that the word "shall" used in the first proviso to section 309(2) CrPC is instructive and not mandatory. Therefore, non-compliance with the 15-day limit for remand does not render the Magistrate's act of granting a longer remand illegal. The Court also clarified that the remand of an accused under section 209 CrPC is not controlled by the provisions of section 309 CrPC, which deals with general provisions for inquiries and trials.
Issues: 1. Whether the remand of an accused beyond 15 days without a valid remand order is illegal. 2. Whether the provisions of section 209 CrPC are controlled by the provisions of section 309 CrPC.
Ratio Decidendi: 1. The Court interpreted the word "shall" in the first proviso to section 309(2) CrPC as instructive rather than mandatory. This means that the Magistrate has the discretion to grant a remand for a period longer than 15 days if necessary. 2. The Court held that the provisions of section 209 CrPC, which deal specifically with the remand of an accused during commitment proceedings, are not controlled by the general provisions of section 309 CrPC.
Final Decision: The Court dismissed the habeas corpus petitions, holding that the petitioners' detention was not illegal.

Judgement Key Points

The word "shall" in the first proviso to section 309(2) CrPC is instructive and not mandatory, allowing Magistrates discretion to grant remand beyond 15 days without rendering the detention illegal. (!) (!) [25000645660005] (!) (!) (!) (!) (!) (!) [25000645660010]
Non-compliance with the 15-day remand limit under section 309(2) CrPC proviso does not invalidate the Magistrate's order for longer remand if no prejudice is caused to the accused. [25000645660005] (!) (!) (!) (!)
Section 209 CrPC is a special provision for commitment proceedings in sessions triable cases and is not controlled by the general provisions of section 309 CrPC regarding adjournments and remands. (!) [25000645660006] (!) (!) (!) [25000645660008]
Under the U.P. amendment to section 209 CrPC, the Magistrate may remand the accused to custody until commitment to the Sessions Court and thereafter during and until the conclusion of the trial, subject to bail provisions. [25000645660006] (!) (!) [25000645660008]
Proceedings under section 209 CrPC constitute an "inquiry" to which general provisions of section 309 CrPC apply, but section 209 empowers remand without the 15-day limit overriding it. (!) (!) [25000645660008]
Custody warrants with endorsements extending dates, initialed by the Magistrate, are sufficient for continued judicial custody during commitment proceedings without fresh specific remand orders each time. [25000645660001][25000645660013] (!) [25000645660002][25000645660003]
Physical production of the accused before the Magistrate is not mandatory for granting remand orders; remand can be ordered in the accused's absence if necessary. (!) [25000645660012]
Habeas corpus petitions challenging detention beyond 15 days were dismissed as the petitioners' custody was legal under sections 209 and 309 CrPC. [25000645660004][25000645660005][25000645660009][25000645660012]

JUDGMENT

D. N. Jha, J.

1. HABEAS Corpus Petition No. 2094 of 1983 filed by Muneshwar, was referred by a Division Bench as it involved legal questions. Identical questions were involved in HABEAS Corpus Petition No. 6584 of 1983 filed by Bhagauti and HABEAS Corpus Petition No. 6324 of 1983 filed by Nageshar. Consequently they were also connected and were directed to be disposed of by a larger Bench. This is how these three habeas corpus petitions are before this Court. All these petitions have been moved on the ground that there was no valid remand order in operation against the petitioners and, therefore, their detention was rendered illegal.

2. PETITIONER Muneshwar of Writ Petition No. 2094 of 1983 has been charged under section 302 IPC. The charge sheet was submitted against him on 14-9-1982. Since the commitment proceedings were pending in the court of the Judicial Magistrate, the Judicial Magistrate pissed the following order on 27-9-1982. The translation is an under :-

" Whereas a charge under section 302 IPC crime No. 254/82 criminal case No. 781/82 is pending against accused Muneshwar which is under enquiry by this Court, you are hereby required to keep the said accused Muneshwar in your custody until commitment to the court of sessions and to produce him in that court thereafter whenever required." No specific remand orders were passed on the subsequent dates of hearing, namely, 8-10-1982, 20-10-1982, 2-11-1982 and 14-3-1983. On 26-3-1983 the case had been adjourned to 8-4-83 for production of the accused persons, including those who were on bail. Muneshwar bad not been released on bail and an endorsement on the earlier custody warrant dated 27-9-02 referred to above was made as follows ;- " 26-3-83 to 8-4-83-(initials of Magistrate), "

On 8-4-1983 the case was adjourned to 22-4-1983 and likewise an endorsement was made on the same custody warrant :- " 8-4-83 to 22-4-83 (initials of Magistrate). "' The petition was filed on 19-4-83.

3. THE facts giving rise to Writ Petition No. 6324 of 1983 are that Nageshwar petitioner was prosecuted by the police of P. S. Dhammaur, District Sultanpur, in a criminal case which was registered as crime case no. 119 of 1983 under sections 302/308/323 IPC along with other co-accused. THE charge sheet against the petitioner and co-accused was submitted in the court of Judicial Magistrate I, Sultanpur. THE case had not been committed to the court of sessions till the date of filing of the writ petition. THE co-accused in the case had been released on bail by the learned Sessions Judge but the bail application moved on behalf of the petitioner was rejected by the said court. THE learned Magistrate after submission of the charge sheet fixed the case for 12-8-1983 for furnishing the necessary copies of the papers in the charge sheet for the purpose of committing the case to the court of session. THE copies were not ready for being supplied to the petitioner and the case was adjourned for 25-8-1983. THE copies were still not ready and the case was adjourned on 25-8-1983 to 31-10-1983 and again on 31-10-1983 to 27-1-1984. Various other dates on which the case was adjourned have been mentioned in Annexure A-1 filed with the counter affidavit by the State. THE petitioner was remanded to jail custody on 25-8-1983 upto 31-10-1983 and from 31-10-1V83 upto 27-1-1984. This petition was filed by Nageshwar on 30-11-1983.

4. THE facts giving rise to Writ Petition No. 6584 of 1983 are that Bhagauti petitioner was being prosecuted by the police of P. S. Atrauli, District Hardoi. Crime Case No. 75 of 1982 has been registered against the petitioner at the aforesaid police station under sections 147/148/149/302/323 IPC. On 5-4-1982 the petitioner was arrested by the Police of P. S. Atrauli as he was wanted in crime case no. 75/1982. THE petitioner was produced before the Chief Judicial Magistrate on 6-4-1982 and a remand order after perusing the case diary was granted. Charge sheet against the petitioner and other

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1984 Supreme(All) 289

High Court Of AllahabadD. N. Jha, K. S. Varma, S. Zaheer Hasan, JJ.Mnneshwar : AppellantVersusState Of U. P. : RespondentWrit Petition No. 2094 of 1983Decided On : May 25, 1984

The word "shall" in the first proviso to section 309(2) CrPC is instructive and not mandatory, and therefore, non-compliance with the 15-day limit for remand does not render the Magistrate's act of granting a longer remand illegal.

Cases Referred (1)

High Court Of Allahabad
D. N. Jha, K. S. Varma, S. Zaheer Hasan, JJ.
Mnneshwar : Appellant
Versus
State Of U. P. : Respondent
Writ Petition No. 2094 of 1983
Decided On : May 25, 1984