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Abdul Zabbar Vs. Superintendent of District Jail and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1984CriLJ847
AppellantAbdul Zabbar
RespondentSuperintendent of District Jail and anr.
Excerpt:
.....clearly shows that the chief judicial magistrate was authorising petitioners' detention in jail custody during and until conclusion of the sessions trial. the object of mentioning the date, 14-9-1983, in the custody warrants was not to define the limits of the period during which the superintendent, district jail was being authorised to keep the petitioners in his custody clearly its purpose was to indicate in the order the date on which the petitioners were to be produced before the court of session. (c) and (d) .this section clearly enables the magistrate to, while committing the case of a person accused of offences triable exclusively by a court of session to that court, authorise his detention for the duration of the sessions trial. it is well settled that a special provision..........neither competent to pass any orders under section 309, cr. p.c. remanding the petitioners to jail custody nor did he pass and such order on the order-sheet. the custody warrants prepared by the sessions judge on 22-10-1983 were illegal and the detention of the petitioners continued to be without authority of law.4. in the counter-affidavit sworn on 24-11-1983 the respondents refuted the stand taken by the petitioners and contended that while committing the case of the petitioners to sessions on 1-9-1983, the chief judicial magistrate did pass an order under section 209(b), cr. p.c. authorising the superintendent, district jail, meerut, to detain the petitioners during and until conclusion of the sessions trial. the magistrate also prepared formal custody warrants which apart from.....
Judgment:

H.N. Seth, J.

1. By these petitions under Article 226 of the Constitution the petitioners, namely, Abdul Zabbar (Petitioner in Writ Petition No. 12534 of 1983) Abdul Gaffar, Abdul Rab alias Pappus Abdul Wahab, Ilyas and Aas Mohammad (Petitioners in Writ Petition No. 12737 of 1983) question the validity of their detention in the District Jail, Meerut and pray that the Superintendent, District Jail, Meerut, should be directed to set them at liberty forthwith.

2. All the six petitioners are accused in crime case No. 177/83 under Sections 147, 148, 149 and 302, I.P.C. pertaining to Police Station Lisari Gate, Meerut. After completing the investigation the police submitted a charge-sheet against them on 5th of August, 1983 and the Chiei Judicial Magistrate has, vide his order dated 1-9-1983 committed their case to the Court of Session. On the same day the Sessions Judge registered the case as S. T. No. 430 of 1983; and the petitioners are at present being detained in the District Jail, Meerut, in connection with the said trial.

3. According to the petitioners, the Chief Judicial Magistrate did not, while committing their case to Sessions on 1-9-1983 pass any order under Section 209(b), Cr. P.C. remanding them to custody during and until the conclusion of the trial. He merely issued custody warrants addressed to the Superintendent, District Jail, Meerut, authorising him to detain the petitioners up to 14-9-1983 and to on that date, produce them before the Court of Session. However, the petitioners were, as required by the custody warrants, not produced before the Sessions Court on 14-9-1983. Even though neither the Chief Judicial Magistrate, ' nor the Sessions Judge, had passed orders authorising petitioners' detention in the District Jail, Meerut, after 14-9-1983 the petitioners were kept in illegal confinement and were produced before the Sessions Court only on 22-10-1983 when the Sessions Judge framed charges against the petitioners. After framing the charges, the Sessions Judge, without passing any orders under Section 309, Cr. P.C. on the order-sheet, prepared custody warrants directing the Superintendent, District Jail to take the petitioners into custody and to produce them before the Court on 30-11-1983. The petitioners claim that as between 14-9-1983 and 22-10-1983 the Superintendent, District Jail, Meerut was not authorised to keep them under detention and their detention during that period was absolutely illegal. Accordingly, the learned Sessions Judge was, on 22-10-1983 neither competent to pass any orders under Section 309, Cr. P.C. remanding the petitioners to jail custody nor did he pass and such order on the order-sheet. The custody warrants prepared by the Sessions Judge on 22-10-1983 were illegal and the detention of the petitioners continued to be without authority of law.

4. In the counter-affidavit sworn on 24-11-1983 the respondents refuted the stand taken by the petitioners and contended that while committing the case of the petitioners to Sessions on 1-9-1983, the Chief Judicial Magistrate did pass an order under Section 209(b), Cr. P.C. authorising the Superintendent, District Jail, Meerut, to detain the petitioners during and until conclusion of the Sessions trial. The Magistrate also prepared formal custody warrants which apart from authorising the Superintendent District Jail to keep the petitioners under detention, required him to produce them before the Court of Session on 14-9-1983. Thus, the Superintendent, District Jail, had been vested with the authority to detain the petitioners during and until conclusion of the sessions trial. Since the sessions trial against the petitioners is still pending, it cannot be said that they are being detained in the district jail without any legal authority. The respondents further claimed that the Sessions Judge also has, acting under Section 309, Cr. P. C, prepared custody warrants on 22-10-1983 authorising the Superintendent, District Jail to keep the petitioners in his custody and to produce them before the court on 30-11-1983. In any case as after 22-10-1983, petitioners' detention in jail has been validly authorised by the Court of Session, the petitioners are not entitled to the relief claimed by them.

5. So far as the controversy between the parties with regard to existence of the order under Section 209(b), Cr. P.C. made by the Chief Judicial Magistrate on 1-9-1983 authorising petitioners' detention during and until the conclusion of the trial is concerned, the respondents have produced before us a certified copy of the order dated 1-9-1983 whereby the petitioners' case had been committed to the Court of Session. Recitals in the said order, which is in Hindi, indicate that in the opinion of the Chief Judicial Magistrate, the offences alleged against the petitioners fell within the purview of Sections 147, 148, 149 and 302, I.P.C., and that those offences were exclusively triable by the Court of Session. Accordingly, he proceeded to make the order, relevant portion whereof reads thus:-

Accused persons are in judicial custody. They shall, during and until the conclusion of the sessions trial, continue to remain in judicial custody. The case is as such committed to sessions.

Let the accused be produced before the Sessions Court on 14th of September, 1983....

The Chief Judicial Magistrate further prepared custody warrants in respect of each of the petitioners (copies whereof have been filed as Annexures to the writ petitions) addressed to the Superintendent, District Jail, Meerut, stating that the case against the petitioners who were accused of committing various offences under Sections 147/148, 149/302 I.P.C., having been committed to the Court of Session for trial, he was required to take them into his custody and to produce them before the Sessions Court whenever required. The entries in the printed columns at the foot of the warrant indicated that the said order has been passed on 1-9-1983 and that the petitioners were required to be produced before the Court on 14-9-1983.

6. The order 1-9-1983 read along with the custody warrants prepared by the Chief Judicial Magistrate clearly indicates that the Chief Judicial Magistrate did, while committing the case of the petitioners to Court of Session, make the order contemplated by Section 209(b) Cr. P.C. and remanded the petitioners to custody during and until the conclusion of the sessions trial.

7. In this case learned Counsel for the petitioners submitted oral as well as written arguments. However, in view of our finding that while committing the case of the petitioners to Sessions, the Chief Judicial Magistrate did make an order remanding the petitioners to custody during and until the conclusion of their trial, it is not necessary for us to consider his such submissions as are founded on the ground that no such order had been made by the Chief Judicial Magistrate: We would, accordingly, proceed to consider only the remaining submissions made by the learned Counsel.

8. According to learned Counsel for the petitioners, when on 1-9-1983 the Chief Judicial Magistrate mentioned it in the custody warrants that the petitioners be produced before the Sessions Court on 14-9-1983, he was in fact authorising petitioners' detention only up to 14-9-1983 and not during and until the conclusion of the sessions trial as contemplated: by Section 209(b) Cr. P. C. This submission does not appeal to us. The order committing the case of the petitioners to Sessions clearly shows that the Chief Judicial Magistrate was authorising petitioners' detention in Jail custody during and until conclusion of the Sessions Trial. The object of mentioning the date, 14-9-1983, in the custody warrants was not to define the limits of the period during which the Superintendent, District Jail was being authorised to keep the petitioners in his custody Clearly its purpose was to indicate in the order the date on which the petitioners were to be produced before the Court of Session. Merely because the petitioners were not produced before the Court on 14-9-1983 the authority of the Superintendent of the District Jail to keep the petitioners in his custody during and until the conclusion of their trial did not come to an end.

9. In the result, we are unable to accept the submission of the petitioners that their detention for the period between 14-9-1983 and 22-10-1983 was without any legal authority. As the Sessions trial has not yet come to an end, petitioners' detention until today's date can be attributed to the authority flowing from the remand order passed by the Chief Judicial Magistrate on 1-9-1983.

10. In his written arguments, learned Counsel for the petitioners referred to the provisions contained in Sections 209 and 309 of the Code and submitted that even where a Magistrate acting under Section 209, Cr. P.C. entrusts the custody of an accused for the specific period starting from the commencement of the trial and lasting till its conclusion, the said period of detention has, after the case is received in the Sessions Court, necessarily to be regulated by remand orders to be made by that Court under Section 309(2), Cr. P. C. In the instant case the Magistrate remanded the petitioners to custody on 1-9-1983 with a direction that they be produced before the Sessions Court oil 14-9-1983 but then as on that date the Sessions Judge did not as contemplated by Section 309(2) of the Code, take the petitioners into custody, their detention became unlawful. Such unlawful detention could not be regularised by any subsequent order of remand purported to have been made by the Sessions Judge on 22-10-1983. ' We confess our inability to appreciate the logic behind the submission made by the learned Counsel.

11. Relevant portion of Section 209, Cr. P.C., runs thus:-

209. 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-

(a) commit the case to the Court of Session;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of the trial;

(c) and (d) ....

This section clearly enables the Magistrate to, while committing the case of a person accused of offences triable exclusively by a court of Session to that court, authorise his detention for the duration of the sessions trial. Once under Section 209(b) of the Code an accused has been remanded to jail custody for the duration of the sessions trial the Jailor-Superintendent District Jail becomes entitled to keep him in custody during that period and no further authorisation for the purpose is required from the Court of Session. Section 309, Cr. P.C. is a general provision governing various inquiries and trial. Sub-section (2) of Section 309 runs thus:-.

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

Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time : Provided further....

Explanations (I) and (II)....

This provision enables the Court before which an inquiry or trial is pending to, while adjourning the hearing of the same, remand the accused who is already in custody for such term as it thinks fit. Section 209, Cr. P.C. however, is a specific provision pertaining to cases which in the opinion of the Magistrate are exclusively triable by a Court of Session, and it enables the Magistrate to pass an order remanding an accused to custody during and until the conclusion of the sessions trial. It is well settled that a special provision in a statute governing a specific situation excludes the applicability of any general provision contained herein to that situation. Accordingly, nothing contained in Section 309, Cr.P.C. which limits the jurisdiction of a Magistrate to remand an accused to custody for a period of fifteen days only will apply to a case where a Magistrate makes an order remanding the accused to custody while committing his case to Court of Session. As already stated, Section 209 in very clear words authorises the Magistrate to pass an order directing the jail authorities to keep an accused in custody during and until the conclusion of the sessions trial and this is what has precisely been done in the instant case.

12. Learned counsel for the petitioners next contended that after the case of an accused person has been committed to the Court of Session, the trial before the Sessions Court starts only after it has framed a charge against the accused, that is after the stage under Section 228(1)(b) of the Code is reached and not prior to it. According to him after the case of an accused is committed to the Court of Session but before the stage of framing of charge under Section 228(1)(b) is reached, it is only an inquiry which is pending before the Sessions Court. Under Section 209(b), Cr. P.C. the Magistrate is merely empowered to au horise detention of an accused person in custody during and until conclusion of the Sessions Trial. The section does not empower the Magistrate to pass an, order authorising detention of an accused for the period' during which after the case is committed to Sessions, an inquiry becomes pending before the Sessions Court. Learned counsel further submits that in case it is considered necessary that during such inquiry the accused should be kept in custody the prosecution has necessarily to obtain ap-propriate orders remanding the accused to jail custody from the Sessions Judge under Section 309(2), Cr. P. C. Since in this case such a procedure has not been followed, petitioners' detention during the period 1-9-1983 and 22-10-1983, was invalid and such invalid de ention could not be validated by subsequent remand orders.

13. We are unable to accept the submission made by learned Counsel for the petitioners. Section 209, Cr. P. C. empowers the Magistrate to while committing the case of the accused to Court of Session, pass an order remanding him to custody during and until the conclusion of the sessions trial. The section does not countenance any hiatus between the making of the remand order and its becoming effective. It clearly postulates that the order remanding the accused to custody for the period during and until the conclusion of the trial, becomes effective as soon as such order is made. In our opinion having regard to the purpose of Section 209 of the Code the expression 'trial', for the duration of which the committing court has been authorised to remand an accused to custody is not to be understood in the limited sense urged by the learned Counsel. It has to be understood in a wider sense, viz., that the trial before the Sessions Court becomes pending as soon as the case is committed to it. This is also borne out from the provision contained in Chapter XVIII of the Code, headed as 'Trial before a Court of Session' and laying down the procedure to be followed subsequent to commitment of a case to Sessions. The heading of the Chapter indicates that stage of the case envisaged by Sections 225 to 227 of the Code i.e. the stage which is reached prior to framing of the charge under Section 228(b) of the Code, is also to be regarded as a stage in the trial itself. Accordingly, there would be no illegality in the Chief Judicial Magistrate authorising petitioners' detention for the perod beginning with Ist of September, 1983 and till the time the sessions trial pending before the Sessions Court is eventually concluded.

14. We are of opinion that the detention of the petitioners for the period during which the sessions trial is, pending before the Court of Session has been authorised by the, Chief Judicial Magistrate in accordance with the provisions contained in Section 209(b), Cr. P. C. Merely because the Sessions Judge fixes various dates for production of the accused before him and thereafter sends back the accused to jail custody it does not mean that the authorisation made by the Chief Judicial Magistrate for keeping the petitioners in custody during and until the conclusion of the sessions trial has come to an end. Even if there be some irregularity in the procedure adopted by the Sessions Judge in summoning the petitioners from jail and in sending them back there, it will have no effect upon the authority derived by the Superintendent, District Jail, from an order passed by the Chief Judicial Magistrate under Section 209(b) of the Code, to keep the petitioners in his custody during and until the conclusion of the trial. We are thus not satisfied that the petitioners' present detention in district jail, Meerut is not in accordance with the procedure established by law.

15. In the result, both these petitions fail and are dismissed.

16. While we were delivering judgments in these two connected cases, Sri V.K. Jain, learned Counsel for the petitioners made a prayer under Article 134A of the Constitution requesting for a certificate to the effect that the case is fit one for appeal to the Supreme Court (under Article 134A(c) of the Constitution). We are not satisfied either that the case raises any such question which needs to be decided by the Supreme Court or that it is fit one for appeal to that Court.

17. The prayer for certificate is accordingly rejected.


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