Skip to content


Ahmed and ors. Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Cr. Misc. Bail Application No. 644/77
Judge
Reported in1979WLN(UC)393
AppellantAhmed and ors.
RespondentState of Rajasthan
Cases ReferredCourt (Kana v. State of Rajasthan and
Excerpt:
.....remand of accused to judicial custody--court put seal on one paper instead of preparing individual remand warrants--held, detention is not illegal;the learned sessions judge has directed that the accused should be remanded to the judicial custody. this order was to be complied with the preparing authorisation, orders of remand to be sent to jail instead of preparing individual remand warrants, court concerned put a seal on the paper only and mentioned that the accused be remanded to the judicial custody. it is not possible to read endorsements on the paper attached to the warrant of remand in isolation from the order sheets of the court produced before me. although it is true that in matters of custody and detention that law should be followed and obeyed intelligently, yet at the same..........the learned counsel for the parties and have also carefully perused the record of the case and the jail warrants and authorisation.8. although there is no doubt that the order of remand to jail by a warrant as contemplated by section 309 of the code of criminal procedure has been given in this case in a perfunctory manner, yet on reading of the order sheets dated october 29, 1979, a certified copy of which has been product before this court, it is clear that the learned session. judge has directed that the accused should be remanded to the judicial custody. this order was to be complied with by preparing authorisation, orders of remand to sent to jail instead of preparing individual remand warrants, court concerned put a seal on one paper only and mentioned that the accused be remanded.....
Judgment:

G.M. Lodha, J.

1. Ahmed S/o Sitab, Chander S/o Chhotey Khan, Sitab S/o Chhotey Khan, Shiraf S/o Sitab have filed this bail application. This application came up before me and after hearing the parties I have passed order dated October 29, 1979. In pursuance of this order the Jail record was summoned. This record shows that the order of remand to Jail in the prescribed form under Section 344 Criminal Procedure Code was sent on May 16', 1979 under the signature of Munsif and Judicial Magistrate First Class, Kishangarh Bas (Alwar) for remanding the accused till further orders and to cause him to produce before this Court on May 30, 1979 A separate remand form has been used for each of the accused. Thereafter it appears that on September, 1979 in pursuance of the commitment order, an order was passed by the Munsif and Judicial Magistrate that the accused should be produced before the District and Sessions Judge Alwar on 9-10-1979, Later on District & Sessions Judge by order dated October 9, 1979 sent the accused to jail for being produced on October 29, 1979. On October 29, 1979 again according to the endorsement the accused were sent for being produced from Jail, on November 27, 1979. The endorsements of seal are contained only on the annexed paper to the order of remand in relation to the accused Saraf and so far as the other papers are concerned attached to the other orders of remand forms, there is no such seal of endorsement and there is no endorsement for 9.10.1979 for the other accused. However, Mr. Garg Public Prosecutor has produced today the certified copy dt. 29-10-79 which is as under:

^^U;k;ky; & ls'ku tt vyoj] ls'ku dsl ua0 108@79 ljdkj cuke ljkZQ vkfn vUMj lsD'ku 02 vkb ih lh ih0 ih0 gkftj gSA eqyfteku ls'kc jks'ku bZ'kkd] jlwy bZy;kl cjtekur gkftj gS Aog ;knnk'r is'k gqbZ A vly 'kNk;yh rych ij gkbZdksVZ xbZ gqbZ gS vc ogkW ls vkus dh izrh{kk ckdh eqyfteku xsj fgjklr mifLFkr gS A lkZ;kdk okfil vkus dh izrh{kk es rkjh[k 27&11&70 dks is'k gks A eqyfteku tks tsy es gS mudk U;kf;d fgjklr es fjekUM eUtwj fd;k tkdj mudks iqu% U;kf;d fgjklr es Hkstk tkrk gS A

29&10&79 A b0iz0 flga ftyk ,oa ls'ku U;k;k/kh'k

vyoj jktLFkku

In the above there is no specific order of remanding the accused to custody who are in Jail and the case was adjourned to November 27, 1979.

2. Dr. Tiwari learned Counsel for the accused-applicants submits that order sheet of the court file cannot be treated as a warrant for remand as contemplated by Section 309 of the Code of Criminal Procedure. According to him, warrant means written authorisation to the Jailor to receive accused in custody He relies upon the judgment of Allahabad High Court passed in Sayeed Ahmed v. State AIR 1978 Cri. L. J. 541.

3. Dr. Tiwari has also invited my attention to the judgment of this Court passed in Chhitar and Ors. v. State of Rajasthan (S.B. Cr. Misc. Bail Application No. 233/1977) decided on April 24, 1979.

4. Mr. Garg, Public Prosecutor has invited my attention to the signed endorsement attached to the warrant of remand, which is as under:

vfHk;qDr dk U;kf;d fgjklr es fjekUM eatwj fd;k tkrk gS o mDr vfHk;qDr dks fnukad 29-10-79 dks izLrqr fd;k tkos A

fnukad 9&10&1979 g0vkB fnukad 9&10&79 A

ftyk ,oa ls'ku U;k;k/kh'k] vyoj

2&eqy; dk U;kf;d fgjklr es fjekUM eatwj fd;k x;k o vfHk;qDr dks fnukad 27&11&79 dks izLrqr fd;k tkos A fnukad 29&10&79

g0 iz0 flag

ftyk ,oa ls'ku U;k;k/kh'k] vyoj A

These two endorsements dated 9-10-79 and 29-10-79 are contained on paper which has been filed along with the order of remand of accused Saraf, dated May 16, 1979

5. It is true that there is no separate order of remand written on the analogous papers which are attached to the warrant of other accused. It is also true that in the rubber seals which have been put on 9-10 79 and 29-10-79 word used 'the accused' in singular and above it on the seal of 20-10-79 there is an endorsement by hand which only says in Hindi, which is short form of an accused. There is no doubt that this is all perfunctory and in criminal cases where the accused are to be remanded to custody by a warrant there should be clear and categorically authorisation mentioning the name of the accused clearly and his parentage and addresses should be mentioned and this warrant should be addressed to the incharge of the Jail concerned. The earlier order of remand to jail dated May 16, 1979 fulfils all these conditions. But later on the endorsement above is made in a perfunctory manner. Mr. Garg Public Prosecutor wants this Court to read order sheet dated October 29 1979 in order to show that detention is valid and Mr. Tiwari submits that only authorisation or order to send the accused in custody sent to Jail is to be seen in order to consider the validity of the detention.

6. Mr. Garg, Public Prosecutor has also invited my attention to the judgment of this Court passed in Kana v. The State of Rajasthan (S. B. Criminal Misc. Bail Application No, 470/79 decided on 24-8-79 in which it has been held that unless the present detention of the accused is proved to be illegal, accused is not entitled to be released on bail, because some period of his detention before the commitment to the Court of learned Sessions Judge was illegal .

7. I have given my thoughtful consideration to the arguments addressed by the learned Counsel for the parties and have also carefully perused the record of the case and the jail warrants and authorisation.

8. Although there is no doubt that the order of remand to jail by a warrant as contemplated by Section 309 of the Code of Criminal Procedure has been given in this case in a perfunctory manner, yet on reading of the order sheets dated October 29, 1979, a certified copy of which has been product before this Court, it is clear that the learned Session. Judge has directed that the accused should be remanded to the judicial custody. This order was to be complied with by preparing authorisation, orders of remand to sent to jail Instead of preparing individual remand warrants, court concerned put a seal on one paper only and mentioned that the accused be remanded to the judicial custody. It is not possible to read endorsements on the paper attached to the warrant of remand in isolation from the order sheets of the court produced before me. Although it is true that in matters of custody and detention the law should be followed and obeyed instrigently, yet at the same time the is required to strike a balance and therefore, the detention cannot be held to by illegal, simply because of omissions which have not gone to the root of the matter. When both are read together, then it becomes very clear that on Oct. 29, 1979 the Session, Judge has passed an order for remading all of the present accused to judicial custody and in compliance of that, warrants were sent with an endorsement on the paper attached to the remand form as mentioned above which again was signed by the Sessions Judge himself. I am therefore, convinced that the detention of the present accused applicant, at the moment is valid, irrespectively whatever happened in the past.

9. In Chhitar's case also I have taken the view that as no valid order of detention of the accused or warrant was produced before me for remanding the accused in Judicial Custody. they were entitled to bail. The judgments of Kana v. State of Rajasthan and Chhitar v. State of Rajasthan, are not contradictory as was suggested by the learned Public Prosecutor at some stage although he later on, realised that both of them emphasise the same legal position that an accused is entitled to be released on bail in case the detention is not held to be valid on account of absence of existing valid order or warrant of remand to be under Section 309 of the Code of Criminal Procedure. In the case of Chhitar no such order or warrant was produced before the Court showing that there was any valid warrant or order at the crucial time when the bail application was considered and decided and therefore, after an elaborate discussion if the law point, and accused were released on bail. In Kana's case a valid order of remand of accused to the Judicial Custody was produced before the court and was available, and the bail was sought on the ground that earlier detention was not legal. This Court therefore, rejected the bail application holding that when the present detention is valid, the earlier detention even if invalid cannot justify releasing the accused on bail now. Thus the principles enunciated in two judgments of this Court (Kana v. State of Rajasthan and chitar v. State of Rajasthan) are neither different nor in any way contradictory

10. As I have taken the view on account of the reasons mentioned above, that the present detention of the accused applicants in jail on the basis of the latest order of remand dated 29-10-79 and the endorsement made on the paper attached to the warrant of remand to jail is valid and cannot be declared invalid, the application for bail solely argued on this point cannot succeed and consequently it is rejected.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //