- (1.) R. B. Mehrotra, J. Heard learned counsel for the petitioner and learned Additional Government Advocate for the State.
(2.) BY means of present Habeas Corpus petition the petitioner has prayed this court, to issue a writ, order or direction in the nature of Habeas Corpus, for setting the petitioner at liberty. The main ground of attack is that the petitioner was committed to sessions trial by the Magistrate vide his order dated 22- 12-1993 directing that the accused are committed to the court of Sessions and the file of the case may be transmitted to the Court of Sessions Judge within a week. According to the petitioner, the Magistrate thereafter passed an order that the accused are remanded to jail custody during and until conclusion of the Sessions trial. The exact words used by the Magis trate are quoted herein below : On 22-12-1993, the file was placed before the Sessions Judge who directed that papers for committing the accused in the court of Sessions, received, Sessions trial be registered and the accused may be produced in court on 4-2-1994. On 4-2-1994, the Sessions Court directed that accused Kamal Singh and Balbir Singh present the remaining accused be summoned from jail. 16-2-1994 is fixed for charge. The contention is that since the Sessions Judge did not pass any a fresh remand order the detention of the petitioner in jail custody thereafter is without any valid remand order as such is without authority of law. According to petitioner's counsel the order of remand passed by the Magistrate exhausted itself on the day the accused presented himself before Court of Sessions. We have considered the above contention. The learned counsel for the petitioner relied upon Vashisht Muni v. Superintendent District Jail, Faizabad and others, reported in 1993 LLJ 165, wherein the Division Bench of this Court has taken a view that the warrant of remand authorising the Superintendent of jail to keep the petitioner in custody during the cone of entire enquiry till its conclusion cannot be held to be a valid warrant of remand under Section 309 of the Code.
(3.) LEARNED counsel for the petitioner cited another decision reported in AIR 1971 SC 186 - A. Lakshmanrao v. Judicial Magistrate, First Class, Parvatipuram and others, where the court construing provision of Section 344, Cr PC (old) made certain observations which are not relevant in the present context. The point raised by the petitioner in the present writ petition is covered by the decision in Sundar Lal v. The State, reported in 1983 Crlj 736, wherein the Full Bench of this court has held that if the Magistrate passed an order under Section 209 (b) remanding the accused to jail custody during and until conclusion of the trial at the time of committing the case to Sessions, subsequently therein the Sessions Judge need not pass an order of remand during the course of the trial, the order passed by the Magistrate remanding the accused to jail custody during and until conclusion of the trial is valid because the accused cannot be stated to be in detention in jail custody without authority of law. Another Division Bench decision of this court in Abdul Jabbar v. Superintendent of District Jail, Meerut and another, reported in 1984 Crlj 847, held that if the Magistrate while committing the accused to the court of Sessions remands the accused in judicial custody by directing that the accused shall during and until the conclusions of the sessions trial be remanded in judicial custody, that remand is a valid order and in our view of the said order it cannot be held that the accused was in custody without authority of law. The court further held that if the learned Chief Judicial Magistrate had mentioned that the accused be produced before the Sessions Judge on certain days, it cannot be said that he was authorising the detention only up to that date. The Supreme Courts' decision cited above by the petitioner's counsel is no authority for the question involved in the present case, there it was not a case where an accused under Section 209 (b), Cr PC was remanded in jail custody during the course of Sessions trial. The observations of the Supreme Court were only in reference to the provisions of Section 345, Crpj (old), as such, the said decision of the Supreme Court is of no help to the petitioner in the present case. However, learned counsel for the petitioner submitted that there is conflict of decisions of this Court by two different Benches, quoted above. We are of the view that the matter on the point, is covered by the decision of Full Bench. The present petition is misconceived. The petitioner is in detention. It cannot be said his detention is without authority of law.;