B. N. Katju, J. - (1.) THE applicant filed an application for bail on 26-8-1983 under section 439 CrPC. It is stated in the application that a charge sheet was submitted against the applicant on 31-1-1983 under Sections 302/149/148/147 IPC in the Court of Munsif Magistrate III, Haldwani. THE case of the applicant was committed to the Court of Sessions on 26-2-1983 under Section 209 CrPC and on the same day a warrant was issued by the learned Magistrate in which it was mentioned that the applicant be produced before the Court of Sessions on 10-3-1983. In the aforesaid warrant it was not mentioned that the applicant was remanded to custody during and until the conclusion of the trial.
(2.) IT is mentioned in the order sheet of the II Additional Sessions Judge, Nainital that on 1-3-83 the committal order dated 26-2-1983 was received from the Court of III Additional Munsif Magistrate Haldwani along with the calender and the record of the case against the applicant and it was ordered that the case be registered and the file be put up for fixing the date of hearing in the near future. The case was again put up for orders on 16-4-1983, 19-4-1983 and 17-5-1983 but no custody warrant was issued against the applicant directing his detention in jail during this period. IT was on 14-6-1983 that for the first time a custody warrant under section 309 (2) CrPC was issued by the learned Judge for detaining the applicant in custody till 27-6-1983 and for his production before the Court on that date. Subsequently on the same custody warrant orders were passed by the learned Judge on 27-6-1983, 23-7-1983, 25-7-1983, 22-8-1983 and 23-8-1983 directing the production of the applicant in court on subsequent dates of hearing. It is clear from the above mentioned facts that no custody warrant was issued for the detention of the applicant in jail under section 309 (2) CrPC between 10-3-1983 and 14-6-1983. It, therefore, follows that the detention of the applicant in jail during this period was illegal and unlawful. It was contended on behalf of the applicant before one of us who heard the bail application of the applicant while sitting single that the applicant could not be remanded by warrant to custody on 14-6-1983 and thereafter on 23-7-1983, 25-7-1983, 22-8-1983 and -3-8-1983 under section 309 (2) CrPC as he was not in legal custody on 14-6-1983. The detention of the applicant in jail is thus illegal. The applicant is, therefore, entitled to be released on bail. In support of his contention the learned counsel for the applicant relied on Hari Prasad Dubey Tyagi v. District Magistrate Farrukhabad JJ. P., 1976 ALJ 62 in which it has been held by a Division Bench of this Court ; " The custody contemplated under section 309 (2) must, in the circumstances, mean legal custody. The power under section 309 (2) CrPC to remand the undertial to custody cannot be exercised if at the time of making of the order the undertrial is not in legal custody." The above mentioned view of this Court has been followed by this court in Mahesh Chandra Alias Pappu v. Adhikshak Janpad Karagar , Nainital, 1983 LLJ 141, Raghvendra Singh v. State, 1983 ALJ 611 and Kamlesh Kumar Dixit v. State, 1982 LLJ 4 = 1981 AWC 630.
(3.) AS the single Judge who heard the bail application of the applicant was unable to agree with the view taken by this Court in the above mentioned cases he referred the under mentioned question for decision by a Full Bench ; "Whether the word 'custody' used in Section 309 (2) CrPC means imprisonment both legal and illegal ? " We are required to answer this question. Section 309 (2) CrPC is as follows : "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." A plain reading of the above mentioned section showsthat the power to remand the accused by a warrant is given to the court if the accused is in custody. The aforesaid section does not mention that the accused must be in legal custody when the power to remand by a warrant can be exercised. In the above mentioned cases it is only mentioned that 'custody' means legal custody. No reason has been given in them for holding that custody means legal custody. The cardinal principle of interpretation of statutes is that words used in a statute must be given their ordinary normal and grammatical meaning. Their ordinary meaning must neither be enlarged nor restricted unless it is necessary for harmonious construction. In London Rubber Co. Ltd. v. Durex Products Incorporated, AIR 1963 SC 1982 it has been observed : "Indeed, it is the duty of the court to give full effect to the language used by the legislature. It has no power either to give that language a wider nor narrower meaning than the literal one, unless other provisions of the Act compel it to give such other meaning. " The meaning of word 'custody' given in Black's Law Dictionary, Fifth Edition, at page 347 is : " The care and control of a thing or person. The keeping, guarding, care, watch, inspection, preservation or security of a thing, carrying with it the idea of thing being within the immediate personal care and control, of the person to whose custody it is subjected. Immediate charge and control, and not the final, absolute control of ownership, implying responsibility for the protection and preservation of the thing in custody. Also the detainer of a man's person by virtue of lawful process or authority. The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical., of imprisoning or of taking manual possession.........." ;