- (1.) The accused Lokendra Singh has applied for bail in Case Crime No. 799 of 1993, under S. 302/34, IPC, P.S. Kotwali, District Bijnor. The bail application has been rejected on merits twice. The present bail application is pressed on the technical ground that the remand order passed by the learned Sessions Judge is not valid under S. 309(2) Cr. P.C. inasmuch as the reasons for adjournment of the case have not been given and secondly, the proper authorisation order has not been passed.
(2.) Notices were issued and remand orders and order-sheet were summoned, from the Superintendent, Jail. The order-sheet in S.T. No. 365/93 State v. Ashok of the Court of IVth Addl. Sessions Judge right from 22-12-93 to 6-2-95 has been filed bythe learned counsel for the applicant. On most of the dates, only cryptic reasons for adjournment have been noted and there does not appear to be proper authorisation order. But on some of the dates, in short form, the reasons have been given. For instance, on 21-1-94, the order-sheet shows that the Presiding Officer was on leave. This order was repeated on 19-12-94 also. So, I think the reasons for adjournment, although cryptic in nature, are sufficient in law. The provisions of S. 309(2), Cr. P.C. are only meant to show how the proceedings in the Court are going on. Similarly, on 1-2-95, the order-sheet shows that the accused were present in the Court. But the witnesses did not turn up and prosecution applied for adjournment of the case. That application was allowed. The case was transferred to some other Judge, where 15-2-95 has been fixed for evidence. This way, the order shows briefly that the reasons for adjournment were there and the case was adjourned. Therefore, I find that the provisions of S. 309(2), Cr. P.C. have been complied with. The original warrants were summoned from Superintendent, Jail, i.e., dated 13-7-94. It is addressed to Superintendent, District Jail, Bijnor. Then the details of the case have been given. There is a direction to the Superintendent in these words :"You are hereby required to receive the said accused (Lokendra Singh) into your custody and produce him before the said Court as required on the reverse."This order has been signed by Magan Narain Kulshrestha, District and Sessions Judge, Bijnor. It bears the seal of the Court also. But unfortunately the dates on the reverse have not been signed by the learned Sessions Judge. However, a photo-copy of the warrant of custody under S. 309, Cr. P.C. dated 13-7-94 has been filed by the learned counsel for the opposite party, where in the entries on the reverse on two dates, namely, 13-7-94 and 1-2-95 to 15-2-95 have been signed by the learned Judge. The result is that by a subsequent order of remand, the irregularity, if any, stands cured.
(3.) My attention has been invited to a ruling of this Court Radhey Shyam v. State of U.P. (1994 UP Cri R 587). Paragraph 11 of this ruling is very relevant. It is quoted in full :-"A plain reading of clause (b) quoted above shows that subject to the provisions of bail the learned Magistrate is duty bound to remand the accused until commitment and similarly after commitment to the Court of Sessions the accused are remanded to custody during and until the conclusion of trial. I am of the view that once the Magistrate grants a remand, the accused during and until the conclusion of trial, it is not necessary for the Sessions Judge to pass fresh orders of remands under Sec. 309(2), Cr. P.C. My view is fortified by the case of Pushpendra Singh v. Superintendent District Jail, 1984(21) ACC 245, in which a Division Bench consisting of H. N. Seth and R. A. Mishra, JJ. held that provisions contained in S. 209(b) of the Code is mandatory and shall be followed by a Magistrate while committing the case to the court of Session. It is a special provision not only impowering the Magistrate to remand the accused to custody during and until the conclusion of the trial but commanding him to do so. The Division Bench further held that if the Magistrate has passed an order under S. 209(b) of the Code remanding the accused to custody during and until the conclusion of trial, it is not necessary for the Sessions Court to remand them again. In the case of Pushpendra (supra), the argument advanced on behalf of the petitioner was that since an order had been passed under S. 309(2), Cr. P.C. it would render the proviso under S. 209(b) of the Code illegal. A Division Bench held that even though the Sessions Court had jurisdiction to pass an order of remand under S. 309(2), Cr. P.C. but since there was already an order of remand passed under Sec. 209(b) the order of Sessions Court was not necessary".Before me, the order of remand passed by the committing Magistrate has not been challenged. The learned Judge has also relied upon two other rulings and has quoted them in paragraphs 12 and 13, which need not be reproduced. In paragraph 14, he says that, he is bound by the Division Bench observations noted above. I find myself in respectful agreement with the views expressed and interpretation. made by the learned single Judge (supra).;