Murlidhar - (1.) THIS second bail application has been moved on the technical ground that while committing the accused on 25-8-1980 when the accused were in jail the Magistrate did not pass any order under Sec. 209 CrPC "remanding the accused to custody during and until the conclusion of the trial''. Further that an order of remand to custody under Sec. 309 CrPC had also not been passed by the court of Session itself even though the case had come up before it on a number of dates.
(2.) THE committal order in question is in Hindi and the relevant portion translated into English runs as follows :- "............THEse offences are triable by the court of Session. THErefore, the case of the accused is committed to the court of Session. THE accused persons are in jail. Copies have already been delivered to them. THE accused persons are directed to appear for their trial before the court of Session on 8-9-1980. " A certified copy of the ordersheet of the Sessions Court from 8-9-1980 to 6-1-1981 also produced before me. Although on some dates it has been noted that the accused were produced from custody or that they may be summoned from jail, there is no express order remanding them to jail custody for any period. The hearing of this application was delayed because the State was given opportunities to produce the warrants containing the authority for detention on the basis of which the accused applicants are being detained in jail. It is regrettable that inspite of a number of opportunities these warrants have not been forthcoming. In the circumstances the detention of the applicants in jail cannot but be held to be illegal. Under Sec. 209 CrPC the Magistrate is entitled to pass an order remanding the accused to custody during and until the conclusion of the trial. It is necessary that the Magistrate passes an unambiguous order to this effect. Merely mentioning that the accused persons are in jail and are committed for trial to the Court of Session cannot be treated as an order of remand to jail custody till the conclusion of the trial. It is well settled that statutory provisions and order affecting personal liberty have to be strictly construed. Therefore, the language of remand orders should as far' as possible be unambiguous. I am in agreement with the learned counsel for the applicants, that the order under Sec. 209 CrPC in the present case (quoted above) can at the most be interpreted to contain an order directing remand to custody till 8-9-1980. In that case further remand beyond 8-9-1980 would have had to be by the Sessions Court under Sec. 309 CrPC but the ordersheet shows lack of any order that can be properly construed as an order of remand to custody. Therefore, the detention of the applicants in Jail must be held to be illegal.
(3.) THE warrants not having been perused it is not necessary to speculate what the same may have contained and it wits to be taken that there is no proper authority in the warrants for the detention] of the applicants in jail. It may, however, be added that even if a proper warrant authorising detention by remanding the accused to jail custody has been issued to the jail authorities the fact of having given such remand should appear from the record of the case also. Perhaps in a case where the record is ambiguous the warrant may suffice to uphold the legality of the detention but even such a situation is best avoided. THE Magistrate and Sessions Courts would, therefore, do well to pay due attention to the need for passing remand to custody orders under Sec. 209 or 309 CrPC wherever called for as well as to insist upon proper language for the custody warrants that are signed by them authorising detention in jail. THE best thing is for this language to follow the lines of the statutes and accord with judicial orders passed in the record. In the present case it cannot be said that proper remand orders or even warrants exist for detaining the applicants in jail. In such cases the detained persons) can invoke the jurisdiction under Article 226 of the Constitution by filing writ of Habeas Corpus. But is has judicially been recognised that if they refer to be under trial they can also apply for the lessor relief of release on bail. THE application is, accordingly, allowed. Let the applicant Nakul Singh and Nandu Singh (Crime No. 77/80 under Sec 302 IPC of P. S. Pailani, Banda) be released on bail on each of them furnishing a personal bond with two sureties to the satisfaction of Chief Judicial Magistrate Banda. --- Ordered accordingly.;