S.C.MATHUR, J. - (1.) THIS application for bail has been pressed on behalf of Uma Kant alias Nangu only on the ground that no proper warrant remanding the applicant to jail custody was prepared and, therefore, the detention of the applicant in jail is illegal and consequently he is entitled to be enlarged on bail. The applicant is being prosecuted under Sections 395/397 of the I.P.C. The prosecution is pending in the Court of the 4th Additional Sessions Judge, Lucknow, the Sessions trial number being 123 of 1978.
(2.) IN view of the fact that the validity of the custody warrant issued in the present case was challenged, the original custody warrant was sent for and was produced before me by Sri Abdi, the learned Deputy Government Advocate. This custody warrant instead of being on the pro forma prescribed by this Court under the General Rules, Criminal 1957, has been prepared on a plain sheet of paper. On the obverse side of this custody warrant the following writing appears : From the above it would be seen that on the obverse side of the warrant there is direction to the Jailor, Lucknow to receive the applicant in his custody and to produce him on the date mentioned on the reverse side of the warrant. On the reverse side of the warrant four vertical columns have been made. What is contained on the reverse side, is as follows : - (Against each remand there are initials of the Judge in the last column.) From the above it would be seen that in the first column the number of remands is mentioned while in the second column the date of the remand is given and in the third column the date on which the accused is to be produced before the Court, is entered. In the fourth column the Magistrate has put his initials.
(3.) THE first argument of the learned counsel for the applicant was that a warrant for remand had to be on the pro forma prescribed by this Court and it could not be on a plain piece of paper. Since the case is pending in the Court of Session, Section 309(2) of the Criminal Procedure Code, 1973 will apply for granting remand to the applicant. This Sub -Section reads as follows : - "(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 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 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. Explanation 1. - If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand; Explanation 2. - The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused." Under the above provision the remand is to be granted by a warrant. There is no requirement under section 309 that the warrant of remand must be on the prescribed pro forma. It is true that this Court has prescribed a pro forma for granting remand to an under -trial but if the requirements of that pro forma have been substantially incorporated in the warrant of remand actually issued, in my opinion, that would be sufficient compliance with the requirements of law and the remand will not be invalidated merely because the prescribed pro forma had not been used and instead the remand warrant had been prepared on an ordinary piece of paper. The next argument of the learned counsel was that if the prescribed pro forma was not used, the language employed in the prescribed pro forma should be exactly reproduced on the ordinary paper on which the warrant of remand is prepared. The learned counsel for the applicant produced the prescribed pro forma. The obverse side of this prescribed pro forma is divisible into two parts. The left hand side of the pro forma contains the following in the English language : - "H.C.J.VIII -47 (WARRANT FOR INTERMEDIATE CUSTODY ON REMAND ((S. 344, Criminal Procedure Code, 1898) (The Jailor of (Whereas of charged with and has been remanded to take his trial before the Court of You are hereby required to receive the said into your custody and produce him before the said Court as required on the reverse. Magistrate (Dated day of " On the right hand side the Hindi translation of the English language appearing on the left side is contained. The reverse side of the pro forma contains 4 columns. The headings of these four columns are as follows : - ;