- (1.) S. N. Sahay, J, This is a petition under Article 226 of the Constitution, for issuing a writ of habeas corpus for the release of the petitioner.
(2.) THE case of the petitioner Afaq Ahmad is that he is involved in Case Crime No. 1248 of 1993 under Section 302, I. P. C. and Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act) relating to P. S. Kotwali, district Unnao. THE petitioner surrendered in the court of II Addl. Sessions Judge, Unnao on November 9, 1953, on November 11, 1993 he was remanded under Section 167, Cr. P. C by the II Addl. Sessions Judge, Unnao till November 24, 1993. He was again remanded on November 24, 1993 up to December 7, 1993. THE charge-sheet was submitted in the court of II Addl. Sessions Judge, Unnao on December 7, 1993. THE copies were served on the accused persons on December 21, 1993 and the petitioner was remanded from December 21, 1993 to February 1, 1994. He was again remanded from February 1, 1994 to March 1994. THE charge was framed on March 4, 1994 and the next date was fixed as April 16, 1994. THE case was ordered to be sent to the court of Chief Judicial Magistrate, Unnao on April 1, 1994. On that date the learned Chief Judicial Magistrate stayed the proceedings in view of the order, dated April 5, 1994 passed by this court in Writ Petition No. 1717 (MB) of 1994. THE next date was fixed as July 16, 1994. THE case was adjourned from time to time and on September 2, 1994 the next date was fixed as September 18, 1994 and it was directed that necessary information may be obtained with regard to the stay order. THE petitioner has contended that the Court of II Addl. Sessions Judge, Unnao is not competent to take cognizance of the case unless it is committed to the Court of Session by a Magistrate and hence the proceedings on the basis of the cognizance taken by the said court on December 7, 1993 are illegal. THE petitioner has also contended that after April 1, 1994 no order granting remand to the petitioner has been passed by any court and the Magistrate is also not competent to grant remand unless he takes cognizance. Thus, according to the petitioner, his detention is illegal and without any authority of law. A short counter-affidavit has been filed on, behalf of the respondents. It is stated in the counter- affidavit, which is sworn by Sri Hari Har Nath Pandey, Deputy Jailor, District Jail, Unnao, that the petitioner was received in the jail on November 9, 1993 under the warrant issued by the II Addl. Sessions Judge in Case Crime No. 1248 of 1993 of P. S. Kotwali, district Unnao and the petitioner was remanded from time to time. On December 7, 1993 again a warrant under the signature of II Addl. Sessions Judge was issued and remand has been granted from time to time. On July 13, 1994 the petitioner was remanded till August 17,1994 and lastly the petitioner was remanded on September 2, 1994 by the Chief Judicial Magistrate, Unnao up to September 20, 1994. In the aforesaid circumstances, it is claimed that the petitioner is in lawful custody of respondent No. 3 under judicial remand. The learned counsel for the petitioner has urged at the hearing of the writ petition that the learned II Addl. Sessions Judge was not competent to take cognizance of the case without the case being committed to the Court of Session in accordance with law and, therefore, all further proceedings including the remand of the petitioner are illegal. He has relied on the judgment dated April 1, 1994 rendered by a Division Bench of this court in Writ Petition No. 60 (HC) of 1994, Irfan v. State of U. P. and others. That writ petition was filed for a writ of habeas corpus by Irfan, who is also an accused in Crime No. 1248 of 1993 of P. S. Kotwali, Unnao. In that writ petition it was argued on behalf of the petitioner that the case of the petitioner is covered by the judgment of this court delivered in Criminal Revision No. 237 of 1993, Pappu Singh and others v. State of U. P. and others, decided on February 4, 1999. A perusal of this judgment goes to show that Special Judge has no jurisdiction to try the case unless it has been committed to him under the provisions of Section 209, Cr. P. C. and he has no power to grant remand under the provi sions of Section 167, Cr. P. C. The contention of the petitioner was upheld and the writ petition was allowed by the Division Bench and the petitioner Irfan was directed to be set at liberty forthwith, if not required in any other case. In this connection, the following observations were made : "as the controversy in the present case is covered by the judgment of the court to which view we fully agree, therefore, it can be safely said that the petitioner's detention is illegal because the Special Judge has no jurisdiction to take cognizance of the case without it being committed to him under the provisions of Section 209, Cr. P. C. but the cognizance had to be taken by the Magistrate and thereafter the committal could have been made by him and in such circumstances the remand can only be given under Section 167, Cr. P. C. The Special Judge had no such power to grant the remand also. "
(3.) IT may be mentioned that in the case of Pappu Singh cited above, learned Single Judge took the view that a Special Court specified under Sec tion 14 of the Act is essentially a Court of Session and it can exercise only such powers as a Court of Session possesses and it could not be able to take cognizance of any offence because of the restrictions placed upon it by the provisions of Section 193, Cr. P. C. In that case, it not being a Court of Magistrate, would not be competent to take cognizance of an offence under the provisions of Section 190, Cr. P. C. As a result in taking of the cognizance, the provisions of Section 190, Cr. P. C. would apply and it is only a Magis trate who can take cognizance of an offence under the provisions of the Act and cognizance taken by Addl. Sessions Judge is not in accordance with law. Learned Government Advocate has submitted that a contrary view has been taken by the Kerala High Court in Director General of Prosecu tion, 1993 Cr LJ 760. He has strenuously urged that learned Addl. Sessions Judge was competent to take cognizance without the case being committed to the Court of Session by a Magistrate under Section 209, Cr. P. C. and the remand of the petitioner from time to time is perfectly legal and valid. He has, accordingly, contended that the detention of the petitioner in jail in pursuance of the remand orders, referred to above, is quite legal and no interference can be made.;