Vinod Prasad - (1.) -Ram Chandra has filed this bail application seeking his release on bail under Section 439 (1), Cr. P.C. after losing from both the courts below in Crime Number 111 of 2005 under Sections 323, 504, 506, 436, 452, 201, 120B, 376 and 302, I.P.C., Police Station Ghanghata district Sant Kabir Nagar.
(2.) THE prosecution case against the applicant as is perceptible from the F.I.R. (Annexure-1), lodged by Smt. Murati Devi, (widow of Ram Chandra) informant on 21.4.2005, at 4 a.m., at P.S. Ghanghata district Sant Kabir Nagar, which was registered as Crime Number 111 of 2005 under Sections 323, 504, 506, 436, 452, 201, 120B, 376 and 302, I.P.C., are that on the intervening night of 20/21.4.2005 she came out of her house on hearing the shout of thief when Virendra Singh, Amar Nath Pradeep, and the present applicant Ram Chandra entered into her house saying that her daughter Roma is a debauch and that they had come there after murdering Harish Chandra son of Vishram. THE informant pleaded that her daughter is very chaste but she was assaulted by Pradeep and Verendra and thereafter the miscreants abducted Roma from the back door of the house. THEy pushed informant and the two daughters of Roma namely Ambika and Anchal aged about 9 and 6 years respectively and also bolted the door of the house from outside. After this informant heard shrieks of Roma that she was being raped and she was crying for help. As it was night no body came to her rescue. THE accused set Roma, to fire and made their escape good threatening informant that if she will not leave the place she will also be burnt to death. Roma died because of burn injuries and the household articles of the informant were also burnt. THE informant got the F.I.R. scribed through Shatrughan and lodged it at the police station as has been mentioned above. THE autopsy report of Roma, the deceased was performed on 21.4.2005 (Annexure-2) showed that her body was extensively burnt and the cause of her death was ante-mortem burn injuries. However no opinion about rape could be given as the body was badly burnt. On the said allegations that counsel for the applicant has applied for the release of the applicant on bail. I have heard Sri Daya Shankar Misra, learned senior counsel for the applicant in support of this bail application and the learned A.G.A. in opposition. In this bail application the only ground which has been urged by the learned counsel is that remand order under Section 309, Cr. P.C. is not in accordance with law and therefore the applicant should be released on bail. He contended that at the stage of committal under Section 207, Cr. P.C. the Magistrate can remand the accused to custody and until such commitment has passed order under sub-clause (a) of Section 209, Cr. P.C. and thereafter under sub-clause (b) remanded him to custody until conclusion of trial. He submitted that under Section 309 (2), Cr. P.C. the session's court could remand the accused to custody at the time of adjourning the case. He contended that this remand cannot be for more than 15 days and in the present case there is nothing to show that the accused was remanded to custody for 15 days only but infact the order sheet does not contain any order of remand. He drew the attention of the court on the order sheet. He relied upon a judgment in Urooj Abbas v. State of U. P., 1973 Cr LJ 1458.
(3.) LEARNED A.G.A. contrarily submitted that the accused is one of the main assailant who is guilty of gang rape and murder of an innocent lady in the most gruesome manner and she was charred to death by burning her. There is an eye-witness account for the same and the remand order does not require any detailed order and the same was passed in accordance with law and only fifteen days remand were granted and in this respect he pointed out to annexure appended alongwith the supplementary-affidavit and the remand date sheet sent to him by the Investigating Officer alongwith the instructions on this bail application. He contended that the accused does not deserve to be released on bail and his bail application deserves to be dismissed. I have considered the submissions canvassed at the bar by the rival sides. The contentions raised by the counsel for the applicant though seems to be attractive but in fact, in essence, is devoid of merit. It has been held in Urooj Abbas v. State of U. P., 1973 Cr LJ 1458 in para 17 thereof as follows : "It is only a postponement or adjournment which requires an order in writing and the reasons thereof, and not the act of remanding, which, if I may say so, can be evidenced by a mere warrant of remand signed by the Magistrate.";