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Rajendra GosaIn Vs. Superintendent, District Jail and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1981CriLJ802
AppellantRajendra Gosain
RespondentSuperintendent, District Jail and anr.
Cases ReferredMantoo Majumdar v. State of Bihar
Excerpt:
- - , 1980, mentioned above, clearly directed that the petitioner should be kept in judicial custody in district jail banda during and until conclusion of the trial. the order authorising petitioner's detention in this case, therefore, is perfectly in accordance with the provisions contained in section 209, cr. learned counsel for the petitioner contended that even though no such averment has been made in the affidavit filed on his behalf, the fact that no order-sheet was written on 10th september, 1980 and the statement appearing in court's order of that date to the effect that 'as accused rajendra gosain and jagat pal are in jail, they are remanded to jail custody during and until conclusion of the trial,'clearly indicates that the said order was made without summoning the petitioner.....h.n. seth, j.1. by this petition under article 226 of the constitution, petitioner rajendra gosain who is being detained in the district jail, banda ever since 11th aug., 1979, challenges the validity of his detention and prays for a writ of habeas corpus. according to him, his detention has been rendered invalid inasmuch as the persons responsible for the same have contravened the provisions of article 22 of the constitution and the code of criminal procedure. he also claims that as at present there is no valid order from any competent court authorising the superintendent of district jail, banda to keep him in custody, he is entitled to be set at liberty forthwith.2. the case of the respondents, on the other hand is that to begin with the petitioner was lodged in the district jail banda.....
Judgment:

H.N. Seth, J.

1. By this petition under Article 226 of the Constitution, petitioner Rajendra Gosain who is being detained in the District Jail, Banda ever since 11th Aug., 1979, challenges the validity of his detention and prays for a writ of habeas corpus. According to him, his detention has been rendered invalid inasmuch as the persons responsible for the same have contravened the provisions of Article 22 of the Constitution and the Code of Criminal Procedure. He also claims that as at present there is no valid order from any competent Court authorising the Superintendent of District Jail, Banda to keep him in custody, he is entitled to be set at liberty forthwith.

2. The case of the respondents, on the other hand is that to begin with the petitioner was lodged in the District Jail Banda on 12th Aug., 1979 in pursuance of a warrant of remand in criminal case No. 323 of 1978 under Section 396, I.P.C. Subsequently petitioner's detention was also authorised under remand warrants issued by criminal Courts in connection with crime case No. 67 of 1979 under Section 395/397, I.P.C. Police Station Raipura, Crime case No. 256 of 1978 under Sections 395/397, 1. P.C. Police Station Karvi, and crime case No. 42 of 1979 under Sections 395/397, I.P.C. Police Station Mau. Although the petitioner has been discharged in crime case No. 323 of 1978, he continues to be under detention in connection with remaining three cases. According to the respondents, the petitioner has been, in connection with crime case No. 42 of 1979 committed to Court of Session on 23rd May, 1980 (S. T. No. 162 of 1980) and his detention during the pendency of the Sessions trial is authorised under a warrant under Section 290(b), Cr. P.C. Issued by the Chief Judicial Magistrate, Banda on 23rd May, 1980. It has also been authorised by subsequent endorsement made by the Sessions Court, on the back of the warrant. Likewise the petitioner has been committed to Court of Session in connection with crime case No. 67 of 1979 on 10th Sept., 1980 (S. T. No. 360 of 1980) and his detention during the pendency of the trial has been authorised by the Chief Judicial Magistrate by means of a warrant under Section 209(b) Cr. P.C. issued at the time of making of the order for petitioner's commitment.

So far crime case No. 256 of 1978 is concerned, the proceedings for petitioner's commitment are going on and he is being duly remanded to jail custody and is being detained in that connection under remand orders made by the Chief Judicial Magistrate, Banda from time to time. The Superintendent of the District Jail, Banda has also produced the originals of the authority on the basis of which the petitioner is being detained by him in connection with the three cases for our perusal.

3. Sri D.S. Misra, learned Counsel appearing for the petitioner, who argued the case before us with great tenacity tried to make out that in none of the three cases, in connection with which the petitioner is at present being confined in the District Jail, Banda, is there a valid authority enabling the Jail authorities to detain the petitioner. He thus claimed that the petitioner is entitled to be released forthwith. Sri Malviya, learned Additional Government Advocate, appearing for the respondents, refuted the submission made by Sri Misra and contended that present detention of the petitioner in connection with the three cases is fully justified under the authority of criminal Courts, validly exercised. He further contended that if it is found that there exists a valid authority to detain the petitioner in the District Jail. Banda even in one of the three cases, it will not be possible for this Court to issue a writ of habeas corpus and to direct his release,

4. We agree with the submission made by the learned Additional Government Advocate that if the petitioner is, at present being validly detained in connection with any of the three cases in which he is involved, it will not be possible for this Court to issue a writ of habeas corpus and to direct his being released from custody. We have, therefore, to examine the facts and circumstances of each of the three cases in connection with which the petitioner is being, at present detained in District Jail, Banda one after the other, and to find whether his present detention has been validly authorised in any one of them. If it is found that petitioner's present detention is justified in any of the three cases, it will not be necessary for us to go into and scrutinise the facts and circumstances of remaining cases at this stage.

5. We will, first of all, proceed to consider the facts and circumstances in which the petitioner is at present being detained in connection with crime case No. 67 of 1979 under Sections 395/397, I.P.C. Police Station Raipura, giving rise to Sessions Trial No. 366 of 1980. A perusal of the record shows that on 10th September, 1980 the Chief Judicial Magistrate, Banda committed the petitioner to Court of Session to stand his trial for offences under Sections 395/397, I.P.C. by making an order which translated into English reads thus:

Accused Rajendra Gosain, Shiv Bali and Jagat Pal have been put up before this Court by Police Station Raipura in connection with crime case No. 67 of 1979 under Sections 395/397, I.P.C. As aforesaid offences are triable by Court of Session, the case is committed to Sessions and it is directed that the accused should be present in the Court of Sessions Judge on 24th Sept. 1980.

Accused Shiv Bali has been granted bail by the Court and it is directed that he should continue to remain on the same bail. Accused Rajendra Gosain and Jagat Pal are in jail. It is accordingly directed that they shall remain in judicial custody during and until conclusion of the trial and they are being sent to the jail for that purpose. All necessary copies of police papers have been handed over to the accused. Necessary records and calendar should, in accordance with the rules, be submitted to the Court of Session and the Public Prosecutor be informed accordingly.

On the same day the Chief Judicial Magistrate prepared an authorisation slip requiring the Jailor, District Jail, Banda to keep the petitioner in his custody, and to produce him before the Court on the dates mentioned on its reverse. Translated into English, the authorisation slip reads thus:

Court of Chief Judicial Magistrate, Banda Superintendent, District Jail, Banda, you should keep accused Rajendra Gosain, son of Nathoo, resident of Gosainpur, Police Station Rajapur, District Banda, who is required in connection with crime case No. 67 of 1979 under Sections 395/397, I. P. C, Police Station Raipura, confined in your jail and you are also directed to produce the accused before the Court on the dates mentioned at the back of the warrant.

At the back of the warrant we find mention of following dates under the signatures of the Chief Judicial Magistrate and Presiding Officers of Sessions Court :

1. 10-9-80-24-9-80 Sd/Chief Judicial Magistrate

24-9-80-3-10-80 Sd/Presiding Officer of Sessions Court.3-10-80-10-10-80 Sd/ -Do-10-10-80-17-12-80 sd/ -Do-

We may mention here that Annexure I to the counter affidavit sworn by Sri M. L. Singh appears to indicate that all the dates mentioned at the back of the warrant have been put under signatures of the Chief Judicial Magistrate, but the original produced before us indicates that it is only the first set of dates, namely, 10-9-80--24-9-80, that appears under the signatures of the Chief Judicial Magistrate and the remaining dates, namely, 24-9-80--3-10-80, 3-10-80--10-10-80 and 10-10-80--17-12-80 appear under the signatures of the Presiding Officers of the Sessions Court.

6. Learned counsel for the respondent invited our attention to Section 209 of the Cr. P.C. relevant portion of which as it stands after amendment made by U.P. Act No. XVI of 1976, reads 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) as soon as may be after complying with the provisions of Section 207, commit the case to the Court of Session.

(b) subject to the provisions of this Code relating to bail, remand the accused to custody until commitment of the case under Clause (a) and thereafter during and until the conclusion of the trial: (c) to (d)....

He contended that under this section a power has been given to the Magistrate to, while committing the accused to stand his trial, authorise his detention in jail custody during and until the conclusion of the trial. In such a case, even though all further proceedings are to take place before the Court of Session and no proceedings are to take place before the Magistrate, the detention of the accused in jail custody can be authorized, by the Magistrate who commits the accused to Sessions. In the instant case the Magistrate has, while passing the order dated 10th of Sept., 1980, mentioned above, clearly directed that the petitioner should be kept in judicial custody in District Jail Banda during and until conclusion of the trial. The order authorising petitioner's detention in this case, therefore, is perfectly in accordance with the provisions contained in Section 209, Cr. P.C. and it authorizes the Superintendent, District Jail, Banda to keep the petitioner in his custody during and till the conclusion of the Sessions Trial. The dates mentioned at the back of the warrant are the dates on which the accused was being directed to be produced by the Superintendent of the Jail before the Sessions Court and they have nothing to do with the authority of the Superintendent to keep the petitioner in his custody. Such dates could, after the first date mentioned at the back of the warrant, be indicated only by the Sessions Court and they were so indicated by it.

7. Learned counsel for the petitioner strenuously contended that the authorisation relied upon by the learned Additional Government Advocate is neither valid nor can it be said to be in accordance with the provisions of Section 209 of the Cr. P.C. He also contended that after an accused has been committed to the Court of Session, he can be remanded to jail custody only under the authority of the Sessions Judge and in accordance with the provisions contained in Section 309 of the Cr. P.C. As, such an authority is lacking in this case, the detention of the petitioner is invalid.

8. In order to substantiate his submissions, the learned Counsel invited our attention to the orders-sheet of the case maintained in the Court of the Chief Judicial Magistrate. The last order-sheet is of the date 28th Aug., 1980, which reads thus:

Case put up today. Accused Rajendra Gosain appeared before the Court under custody. Shiv Bali's application for permission to appear through counsel accepted. Jagatpal who is in jail in connection with another case has not been summoned.

Ordered that the case be put up for orders on 10th Sept., 1980. Jagatpal and Rajendra Gosain be summoned from the jail on the same day; after supplying the copies the accused be committed.

Learned counsel contended that the fact that the Magistrate did not write any order-sheet on 10th Sept., 1980 shows that neither the petitioner was produced before the Court nor did any proceeding in the case take place on that date. An order under Section 209, Cr. P.C. for committing the accused to Court of Session and remanding him to jail custody during and until conclusion of the trial could validly be made only if the accused had either appeared or had been brought before the Court. The order made by the Chief Judicial Magistrate on 10th Sept., 1980 committing the accused to jail custody, therefore, was invalid.

9. It is true that the order-sheet for the date 10th Sept., 1980, has not been written and that there has been a lapse on the part of the Reader of Chief Judicial Magistrate's Court in this regard. However, the question that still remains to be considered is as to whether or not the order dated 10th Sept., 1980, committing the petitioner to Sessions and authorising his detention during and until conclusion of the trial, was made after producing him before the court on that date.

10. It is significant to note that there is no averment in the affidavit filed on behalf of the petitioner that he was not produced before the Chief Judicial Magistrate before the order dated 10th Sept., 1980 committing him to Court of Session and remanding him to jail custody was made. Learned counsel for the petitioner contended that even though no such averment has been made in the affidavit filed on his behalf, the fact that no order-sheet was written on 10th September, 1980 and the statement appearing in Court's order of that date to the effect that 'as accused Rajendra Gosain and Jagat Pal are in jail, they are remanded to jail custody during and until conclusion of the trial,' clearly indicates that the said order was made without summoning the petitioner from jail. We. however, find that below the order-sheet of 28th Aug., 1980 there is, on the left-hand-side margin of the order-sheet, a mention of the date '24th Sept., 1980' and below it are found the signatures of accused Sheo Bali and the petitioner. Practice prevailing in subordinate Courts of this State is that where on a particular date proceedings are adjourned to a subsequent date, the date to which the ease is adjourned is mentioned in the margin and signatures or thumb impressions of parties are obtained thereunder in token of receiving information of the date. The order-sheet is then written by the Reader who obtains the signatures of the Presiding Officer.

It thus appears that signatures of Shiv Bali and Rajendra Gosain, in token of receiving information about the next date fixed in the case being 24th Sept., 1980 were obtained when the Chief Judicial Magistrate made the order on 10th Sept., 1980 committing the petitioner to Sessions and fixing 24th Sept., 1980 as the date for his production in that Court. This circumstance, in our opinion, clearly shows that the order dated 10th September, 1980 was made in presence of the petitioner. In this connection it may also be mentiond that apart from proceedings in crime case No. 67 of 1979, there were proceedings pending against the petitioner in the Court of Chief Judicial Magistrate in connection with crime case No. 256 of 1978 as well. Order-sheet relating to crime case No. 256 of 1978 clearly shows that the petitioner had been produced before the Court of Chief Judicial Magistrate in connection with that case on 10th Sept., 1980 and as necessary copies had not been received, that case was adjourned to 24th Sept., 1980. Once the accused was brought and produced before the Court in connection with crime case No. 256 of 1978, there is no reason to think that he was not produced before the Court in connection with crime case No. 67 of 1979. We are accordingly of opinion that notwithstanding the fact that the office of the Chief Judicial Magistrate has been negligent in not writing the order-sheet of the date 10th Sept., 1980 in the file of crime case, No. 67 of 1979, the order dated 10th Sept., 1980 committing the petitioner to Court of Session and also remanding him to jail custody cannot be said to vitiated for the reason that the order was made without the petitioner being produced before the Court on that date.

11. Learned counsel appearing for the petitioner next contended that even if it was possible for the Chief Judicial Magistrate to make an order on 10th Sept., 1980 directing not only that the petitioner be committed to Court of Session but that he should also be detained in jail custody during and until the conclusion of the trial, the Magistrate concerned did not in fact authorise petitioner's detention in jail during and until the conclusion of the trial. The interim custody warrant issued by him on 10th of September, 1980 merely mentions that the petitioner was being remanded to jail custody and that he should be produced before the Court on the dates mentioned on the reverse of the document. The custody warrant did not state that the petitioner shall be kept in jail custody during and until the conclusion of the trial. By the warrant the Chief Judicial Magistrate could, at best, be said to have authorised detention of the petitioner in jail custody up to 24th Sept., 1980 (the date on which he directed the accused to be produced before the Court). Thereafter the other dates on the back of the warrant were put under the signatures of an officer other than the Chief Judicial Magistrate who had remanded the petitioner to jail custody on 10th Sept., 1980. The authorisation, to detain the petitioner in jail custody after 24th Sept., 1980 thus was not under the authority of the Magistrate who committed the petitioner to Court of Session and petitioner's detention cannot be justified under the authority of an order made under Section 209, Cr. P.C.

12. A perusal of the record indicates that on 10th Sept., 1980 the Chief Judicial Magistrate had, while committing the petitioner to Sessions, as provided by Section 209, Cr. P.C. specifically directed that the petitioner, who was already in jail custody, should be kept in custody during and until conclusion of the sessions trial. It was in pursuance of this order that the interim custody warrant authorising the Superintendent, District Jail, Banda to keep the petitioner in custody was prepared on 10th Sept., 1980. The custody warrant is in two parts. First part of the warrant requires the Superintendent, District Jail, Banda to keep the petitioner in his custody; the second part of the order requires him to produce the detenu before the Court on the dates mentioned on the back of that document, Reading the custody warrant in the light of the order 10th Sept., 1P80, leaves no manner of doubt that in the first part of the custody warrant, the Chief Judicial Magistrate authorised petitioner's detention in the District Jail, Banda, during and until conclusion of the sessions trial even though he did not mention therein the period for which the petitioner was to be kept in jail custody. The dates indicated on the reverse of the warrant were not intended to convey the period during which the petitioner was to be kept in custody. They had been mentioned with a view to enable the Superintendent of the District Jail to produce the detenu before the Court on those dates. In these circumstances, it is difficult to read the clause in the warrant authorising petitioner's detention in jail custody with reference to various dates mentioned on the reverse of the document.

13. A perusal of Section 209 of the Code of Criminal Procedure indicates that in a case where the accused appears or is brought before a Magistrate and the Magistrate feels that the offence is exclusively triable by Court of Session, he has to, unless the accused has been directed to be released on bail, remand him to custody during and until conclusion of the trial. He has no option in the matter. In the circumstances where a Magistrate commits an accused to Court of Session and directs his being remanded to custody during and until conclusion of the trial, the warrant remanding him to jail custody, without specifying the period for which the accused is to be kept in custody, has necessarily to be read as an authority for detaining the accused during and until conclusion of the sessions trial.

14. We are, however, of opinion that it would have been much better if the Magistrate had, in the first part of the warrant, specified that petitioner's detention was being authorised for the period during and until conclusion of the Sessions trial, but as stated earlier, non-mention of this fact does not mean that petitioner's detention had been authorised for any other period. There was, in our opinion, absolutely no scope for the detaining authority as well, to interpret the warrant otherwise. However, we hope that in order to avoid all confusion the Magistrates should, while committing an accused to sessions and authorising his detention in jail custody under Section 209 of the Cr. P.C. mention in the warrant itself that the detention of the accused is, subject to the provision relating to bail, being authorised for the period during and until conclusion of the sessions trial.

15. In the result, we are of the opinion that the warrant dated 10th Sept. 1980 authorising petitioner's detention during and until conclusion of the trial did not stand vitiated merely because there was no mention in the warrant that the authority to keep the petitioner in detention was to enure only during and until conclusion of the sessions trial.

16. In support of his submissions learned Counsel for the petitioner placed reliance on a Full Bench decision of this Court in the case of Urooj Abbas v. State of Uttar Pradesh 1973 Cr LJ 1458. In that case an accused person was remanded to jail custody in exercise of powers under Section 344 of the old Cr. P.C. The warrant for detention stated that the jailor was required to receive the accused in his custody and to produce him before the Court as required on the reverse of the warrant. On the reverse of the warrant dates, in tabular form, were mentioned and initialled by the Magistrate.

In view of the provisions in Section 344(1A) this Court held that under this section ordinarily there has to be a warrant or written authorisation to the jailor to receive the accused in custody on each date when the accused in remanded and that in appropriate cases it is also possible to use a single form for successive remands if it is appropriately worded so as to indicate that the accused was being remanded to custody on successive dates. The learned Judges, after considering the wordings of the warrant and the manner in which the dates had been mentioned on its reverse, came to the conclusion that the warrant did not indicate that the detenu had been, by means of a warrant, remanded to jail custody on certain dates rendering his detention invalid. We, however, find that in the case before us the petitioner has been, while being committed to sessions, remanded to custody under Section 209(b) of the Cr. P.C. Unlike Section 344 of the old Code of Criminal Procedure, Section 209(b) does not contemplate successive authorization for the jailor to receive the accused on each day when the accused appears before the court. As already indicated, Section 209(b) contemplates one order being made by the Magistrate authorising the jailor to keep the accused in custody during and until conclusion of the sessions trial. We have already mentioned the reasons for holding that the warrant issued by the Chief Judicial Magistrate in this case contains such authorization. We are, therefore, of opinion that the decision in Urooi Abbas's case does not help the petitioner.

17. Learned counsel appearing for the petitioner then invited our attention to the provisions of Section 309 Cr. P.C. relevant portion of which reads thus:

(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 taken, the same shall be continued from day to day until 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 postpone the commencement 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 fit, for such time as it considers reasonable, and may by a warrant re-mand 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 that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing:

Provided also...

Explanations 1 & 2...

He contended that after the Sessions Court took cognizance of the offence, on petitioner being committed to it, the case fell within the ambit of Section 309, Cr. P.C. and any remand or authorisation for the petitioner being kept in jail custody had to be issued by the Sessions Judge himself and the provisions contained in Section 209, Cr. P.C. could not be available for that purpose. Admittedly in this case there is no such authorisation by the Sessions Judge. Merely because the Sessions Judge mentioned certain dates at the back of the authorisation issued by the Chief Judicial Magistrate and initialled it, it did not constitute an authority by the Sessions Judge for detaining the petitioner in jail custody. As in this case there is no order by the Sessions Judge authorising petitioner's detention in jail custody, the present detention of the petitioner cannot be said to be valid.

18. We are unable to accept this submission. Section 309, Cr. P.C. is a general provision contained in the Code enabling all courts taking cognizance of an offence or commencing the trial if they find it necessary or advisable to postpone the commencement or adjourn any inquiry or trial, remand an accused who is already in custody. Section 209, Cr. P.C. however, is a special provision which enables a Magistrate to while committing an accused lo Sessions, authorise his detention during and until conclusion of the trial. It is true that generally speaking under Section 309, Cr. P.C. the court taking cognizance of an offence or trying an accused finds it necessary or advisable to adjourn or postpone the commencement; of an inquiry or trial, is enabled to remand an accused who is already in custody till the date on which the case is to be taken up next and the detention of the accused beyond the period mentioned in the custody warrant has to be reauthorized after expiry of that date. But, Section 209, Cr. P.C. enables the Magistrate committing an accused to Sessions to pass an order in respect of the proceedings that are to take place before a court other than himself and also for the period during and until conclusion of the trial irrespective of the dates on which the accused is to be produced before the court trying the accused. Inasmuch as Section 209, Cr. P.C. is a special provision dealing with special type of cases it will continue to govern the cases coming under it notwithstanding that such cases may in terms be dealt with under Section 309, Cr. P.C. as well. In cases falling under Section 209, Cr. P.C. it is the Magistrate committing the accused to sessions who has been empowered to validly authorise the Superintendent, of the District Jail, to keep him in Ms custody during and until conclusion of the sessions trial, even though it is the Sessions Court, which may be seized of the case, In such cases the authority to detain the accused flows not from an order made by the Sessions Judge before whom the proceedings are to take place but from the order made by the Magistrate under Section 209 of the Cr. P.C. In our opinion nothing contained in Section 309 of the Cr. P.C. derogates from the authority conferred by Section 209 of the Cr. P.C. on the court which commits an accused to Sessions to direct his being detained during and until conclusion of the Sessions trial. Once the detention of an accused during and until conclusion of the trial has been duly authorized it would not be necessary for the Sessions Judge to, every time he adjourns or postpones the trial, confer on any one such authority for detention of the accused.

19. Learned counsel appearing for the petitioner contended that the provisions contained in Section 309 of the Cr. P.C. make the legislative intent absolutely clear that a Magistrate is not to remand an accused to custody for a period more than fifteen days at a time, and that this intention will be completely frustrated and the salutary provision contained in Section 309 of the Cr. P.C. would be rendered nugatory in case it is held that even when the case becomes pending before a Sessions Judge the Magistrate can direct detention of the accused for a period exceeding fifteen days at a time.

20. In support of this submission learned Counsel for the petitioner relied upon a Division Bench decision of this Court in the case of Kunjan v. State 1980 Luck IJ 119 wherein, after doubting the correctness of an earlier Division Bench decision of this Court in the case of Luxmi Brahmin v. State 1975 Luck LJ 364 it was observed that under Section 209(b) of the Cr. P.C. Magistrate's authority to remand an accused to custody till he commits the case, has to be exercised subject to the restrictions on his power contained in Section 309 of the Cr. P.C. which disables a Magistrate from remanding a person to custody for a term exceeding fifteen days at a time. The Division Bench took this view as in its opinion the proceedings under Section 209 of the Code are proceedings for enquiry, within the meaning of Section 309 of the Cr. P.C. and the Magistrate is bound to follow the general procedure under that section.

21. In our opinion the ratio of Kunjan's case cited by the petitioner has no bearing on the facts of the present case. Provisions contained in Section 209(b) already noticed in the earlier part of this judgment clearly indicate that the power to remand the accused to custody under Clause (b) can be exercised at two different stages:

(1) 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, but the Magistrate is not in a position to, after complying with the provisions of Section 207 of the Code, commit the accused to Court of Session. He can, in such cases, remand the accused to custody until commitment of the case, and thereafter.

(2) When, after complying with the provisions of Section 207 of the Cr. P.C. the Magistrate makes an order committing the accused to court of Session. In such a case he is authorised to remand the accused to custody during and until conclusion of the trial.

Whereas, at the first of the aforementioned two stages, it may be possible to say that some enquiry, governed by the provisions contained in Section 309 of the Cr. P.C. continues to be pending before a Magistrate and as such the power of a Magistrate to remand the accused to custody under Section 209 of the Cr. P.C. until commitment of the case, continues to be governed by the restrictions contained in Section 309 of the Cr, P.C. (it is not necessary for us to subscribe our assent to the aforesaid proposition), it can, in a case after it reaches the second stage and the Magistrate makes an order committing the accused to Sessions, by no stretch of imagination, be said that any enquiry or trial continues to be pending before a Magistrate, to which the provisions contained in Section 309 can be made applicable. We are accordingly of opinion that whatever may be the position regarding inter play of Section 309 of the Code on the provisions contained in Section 209 thereof, in connection with the power of Magistrate to remand an accused to custody till the commitment of the case, it is not at all relevant for determining the scope of the power of a Magistrate to remand an accused to custody while committing him to Sessions. We are, therefore, of opinion that the observations made by this Court in Kunjan's case (1980 Luck LJ 119) do not help the petitioner's submission,

22. Moreover, it is in our opinion open to the Competent Legislature to confer on any authority the power to detain a person in different circumstances and that the power may also extend to enable such authority to, in different circumstances, authorise detention of a person for different periods. What Section 309 of the Cr. P.C. lays down is that in a case where the Magistrate trying a case or holding an inquiry considers it necessary or expedient to postpone or adjourn the hearing or commencement of any inquiry or trial by him, he can, if the accused is already in custody, remand him to custody for a period not exceeding fifteen days at a time. The proviso specifically says that the restriction that the remand shall not be made for more than fifteen days at a time shall apply only to such cases where it is so made under Section 309 of the Code of Criminal Procedure. This restriction would not apply to a case where the Magistrate remands and authorises detention of an accused in jail custody under a provision other than Section 309 of the Cr. P.C. Apart from the fact that Section 209 of the Cr. P.C. in so many words states that the Magistrate is entitled to authorise detention of a person in judicial custody during and until conclusion of a Session trial, Section 309 of the Code of Criminal Procedure very clearly indicates that the restriction on the power of the Magistrate to remand an accused to custody for a period not exceeding fifteen days would not be applicable to remands made under any other section.

In these circumstances, the ambit of the power of a Magistrate to remand an accused to custody during and until the conclusion of the trial, without specifying the exact period which may exceed fifteen days, is not at all affected by anything contained in Section 309 of the Cr. P.C. In the result, we are not satisfied that the interim custody warrant dated 10th Sept., 1980 authorising petitioner's detention in jail custody stands affected by anything contained in or action taken under Section 309 of the Cr. P.C.

23. Learned counsel appearing for the petitioner then contended that for various other reasons petitioner's initial detention and his detention up to 10th Sept., 1980 was invalid and that he was accordingly entitled to be a free man on 10th Sept., 1980. His illegal detention on 10th Sept., 1980 cannot be legalised by anything done on 10th Sept., 1980. Accordingly, despite orders made on 10th September, 1980 which may otherwise be valid, the petitioner continues to be entitled to be released from custody. We are unable to accept this submission. Without going into the question as to whether the detention of the petitioner prior to 10th Sept., 1930 was valid or not, a valid order authorising petitioner's detention in District Jail at Banda has been made on 10th Sept., 1980. This order does not purport to, nor has it the effect of, validating any prior invalid detention. It merely authorises petitioner's future detention irrespective of whether or not he was in valid detention earlier, The circumstances in which an order under Section 209 of the Cr. P.C. remanding the accused to custody is to be made by the committing court (which under the law is, unless the accused has been admitted to bail, bound to remand him to custody until the conclusion of the trial) have nothing to do with the question as to whether or not the accused was, prior to the date of commitment, in legal custody.

Such power to commit and remand the accused to custody can be exercised if the accused has either appeared or has been brought before the court. As held by Federal Court in the case of Basanta Chandra v. Emperor in such cases if at any time, before the court directs the release of the detenu, a valid order directing his detention is produced, the court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. The question is not whether the later order validates the earlier detention but whether in the face of the later valid order the court can direct release of the petitioner.

24. In the result, we find that as the Chief Judicial Magistrate has, by his order dated 10th Sept., 1980, validly authorised the Superintendent, District Jail, Banda, to detain the petitioner during the trial arising out of crime case No. 67 of 1979 (S. T. No. 366 of 1980), the Superintendent, District Jail, Banda, became entitled to keep the petitioner in his custody either till Sessions Trial No. 366 of 1980 is concluded or till such time as the petitioner succeeds in obtaining his release on bail. It is not disputed that S. T. No. 366 of 1980 is still pending and that there is no order from any competent court directing the petitioner to be released on bail in that case. Accordingly, so long as Sessions Trial No. 366 of 1980 is not concluded, it will not be possible for this Court to issue a write of habeas corpus directing petitioner's release irrespective of the fact whether his detention in connection with other two cases is legal or not. In these circumstances, we refrain from going into the question about the validity of petitioner's detention in connection with other two cases notwithstanding that learned Counsel for the petitioner had strenuously argued before us that his detention in connection with those cases was also vitiated.

25. Before parting with this case, we may add that learned Counsel appearing for the petitioner also challenged the action of the Chief Judicial Magistrate in remanding the petitioner in jail custody without setting him at liberty on 10th Sept., 1980 (as he claims petitioner's detention till that date was illegal) on the ground that action of the respondents has resulted in contravention of Article 21 of the Constitution. He, therefore, insisted that we should record a finding on the question as to whether or not petitioner's detention up-till 10th Sept., 1980 was legal and, if we find that it was not legal, to direct his release forthwith. As pointed above, petitioner's detention is perfectly in accordance with provisions contained in Section 209 of the Cr. P.C. The petitioner has in this petition not questioned the vires of the section. In the circumstances we fail to understand as to how the action of the respondents has resulted in contravention of Article 21 of the Constitution.

26. During the course of his submission learned Counsel for the petitioner did not develop any argument to show to us as to how Article 22 of the Constitution is attracted at the stage where the Magistrate while committing an accused, who had either appeared or who had been brought before him, to Sessions, proceeds to remand him to custody during and until conclusion of the trial.

27. We may also mention that during the course of his submission learned Counsel for the petitioner covered a very wide field and besides the cases already mentioned he also cited before the cases of -

1. Ram Narain Singh v. State of Delhi : 1953CriLJ113 .

2. Bir Bhadra Pratap Singh v. D.M., Azamgarh : AIR1959All384 .

3. Ram Manohar Lohia v. State of Bihar : 1966CriLJ608 .

4. In re: Madhu Limaye AIR 1969 SC 1014 : 1969 Cri LJ 1440.

5. A. Laxman Rao v. Judicial Magistrate, Parvatipuram : 1971CriLJ253 .

6. Madhu Limaye v. Ved Murti AIR 1971 SC 2481 : 1971 Cri LJ 1715.

7. Madhu Limaye v. S.D.M., Monghyr : 1971CriLJ1720 .

8. Gauri Shankar Jha v. State of Bihar : 1972CriLJ505 .

9. Natabar Parida v. State of Orissa : AIR1975SC1465 .

10. Raghuvendra Singh v. State of Uttar Pradesh 1976 Luck LJ 37.

11. Sayeed Ahmad v. State 1978 Cr LJ 541 (All).

12. Smt. Maneka Gandhi v. Union of India AIR 1978 SC 597.

13. Kussainara Khatoon v. State of Bihar : 1979CriLJ1036 .

14. Hussainara Khatoon v. State of Bihar : 1979CriLJ1052 .

15. Mantoo Majumdar v. State of Bihar : 1980CriLJ546 .

In none of these cases the question regarding the scope of the power of a Magistrate to, while committing an accused to Sessions, remand him to custody during and until conclusion of the trial has been considered and there is nothing in the ratio of any of these cases which runs counter to the line of reasoning adopted by us for coming to the conclusion that the petitioner had been validly remanded to custody in connection with Sessions Trial No. 366 of 1980.

28. In the result, we find no merit in any of the submissions made by the learned Counsel appearing for the petitioner. The petition fails and is dismissed.


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