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1986 Supreme(All) 64
High Court of Allahabad
V.P. Mathur, J.
Mashooq Ahmad – Appellant
Versus
State of Uttar Pradesh – Respondent
Criminal Misc. Bail Application No. 1853 of 1986
Decided On : Feb 19, 1986
D.S. Mishra
A valid order of remand is necessary for detention of an accused in custody during trial, and such remand can be effected by issuing a warrant of remand under Section 309(2) of the Criminal Procedure Code.
Headnote:
CRIMINAL PROCEDURE CODE - SECTIONS 207, 209(B), 309 - BAIL - ILLEGAL DETENTION - REMAND - VALIDITY - WARRANT OF REMAND - SUFFICIENCY - INTERPRETATION.
Fact of the Case:
The applicant, Mashooq Ahmad, was in detention since 17-5-85 in a criminal case. On 19-7-85, the applicant and others were made to put their signatures on a blank paper and no order of custody was passed in the presence of the applicant. On 29-7-85, the Chief Judicial Magistrate gave copies of the Charge sheet to three of the accused, which were incomplete and illegible. The order of committal was passed the same day. The record was received in the Court of Session on 2-8-85 and 9-8-85 was fixed for appearance of the accused. However, the accused were not present before the court on that date. The case was transferred for disposal to the court of Third Additional Session Judge, Allahabad, where it was received on 22-8-85 and then in the presence of the accused 10-9-85 was fixed for orders.
Finding of the Court:
The court held that there was a valid remand upto 9-8-1985 under section 309 (b) Cr. P.C. in view of the order of the Magistrate, dated 29-7-85. Thereafter even if there was no remand for some time, the illegality would stand cured and the Court would see the position on the date when this application was moved and it is clear that thereafter right from 10-9-85 when the accused was brought before the learned Session Judge and a date for framing of the charges was given and then he: was sent back to Jail with a direction to be produced again on 25-9 85 and on subsequent dates. it will mean that he was in custody from 10-9-85 on the basis of a valid warrant of remand made under section 309 (2) Cr. P.C. There was thus* no illegality in his detention and no question of bail arises in his favour.
Issues: 1. Whether the order of committal dated 29-7-85 amounted to a valid order of remand? 2. Whether the detention of the applicant was illegal due to non-compliance of the provisions of Sections 209 (b) and 309 of the Criminal Procedure Code? 3. Whether the applicant was entitled to bail on account of the alleged illegal detention?
Ratio Decidendi: 1. The court held that the order of committal dated 29-7-85, which directed the accused to appear in the Session Court on 9-8-85 and till then the remand was accepted, amounted to a valid order of remand. 2. The court held that the detention of the applicant was not illegal as there was a valid remand upto 9-8-1985 under section 309 (b) Cr. P.C. in view of the order of the Magistrate, dated 29-7-85. Thereafter, even if there was no remand for some time, the illegality would stand cured and the Court would see the position on the date when the bail application was moved. The court found that from 10-9-85, the accused was in custody on the basis of a valid warrant of remand made under section 309 (2) Cr. P.C. 3. The court held that since the detention of the applicant was not illegal, the question of grant of bail on account of the alleged illegal detention did not arise.
Final Decision: The bail application was rejected.
V.P. Mathur, J.
1. THIS bail application has been moved in unusual circumstances. The bail is not claimed on merits of the case, but it is claimed on account of technical illegalities which the applicant alleges to have occurred in the matter of his detention. It is contended that Mashooq Ahmad, the applicant, is in detention since 17-5-85 in criminal case no. 2987 of 1985. On 19-7-85 the applicant and others, present before the Chief Judicial Magistrate, were made to put their signatures on a blank paper and no order of custody was passed in the presence of the applicant. On 29-7-85 the Chief Judicial Magistrate, Allahabad, gave copies of the Charge sheet to three of the accused. These papers were incomplete and illegible and an application moved by the counsel of the applicant bringing this fact to the notice of the Chief Judicial Magistrate was directed to be filed with the direction that the case has already been committed to the Court of Session on 29-7-85. No correct copies were given. Even the Session Court did not issue correct copies of the documents. The order of committal was passed the same day. The record was received in the Court of Session on 2-8-85 when the case was registered as Session Trial No. 440 of 1985 and 9-8-85 was fixed for appearance of the accused. On that date, however, the accused were not present before the court. Meanwhile, the case was transferred for disposal to the court of Third Additional Session Judge, Allahabad, where it was received on 22-8-85 and then in the presence of the accused 10-9-85 was fixed for orders. THIS date was subsequently changed from time to time.
2. THE contention of the applicant is that in the first place there was no compliance of the provisions of Section 207 of the Criminal Procedure Code as copies of the documents were not supplied and this will affect the order of committal. In the present petition this aspect of the matter cannot be considered. Section 207 of the Criminal Procedure Code simply lays down that the Magistrate shall without delay furnish to the accused copies of the documents mentioned in the Section. Section 209 deals with commitment of the case to the Court of Session when the offence is exclusively triable by it if sub-section (1) lays down that the commitment has to be made after complying with the provisions of Section 207 of the Criminal Procedure Code. Thus if the applicant feels that the provisions of Section 207 of the Code have not been complied with and hence the commitment of the case to the Court of Session is illegal, he is free to take such action as the law permits him to do, but that would not be a ground to seek bail and none could be granted on that account.
The only point that has been agitated before me in support of the present bail application is that there has been no compliance of the provisions of Sections 209 (b) and 309 of the Criminal Procedure Code and hence the detention of the applicant throughout is illegal and bail should be granted to him. Section 209 (b) of the Code lays down that when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall subject to the provisions of the Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial. Similarly Section 309 of the Criminal Procedure Code may also be quoted as under :-
309. (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to
