V.P.Mathur - (1.) THIS bail application has been moved in unusual circumstances. The bail is not claimed on merits of the case, but it is claimed on account of technical illegalities which the applicant alleges to have occurred in the matter of his detention. It is contended that Mashooq Ahmad, the applicant, is in detention since 17-5-85 in criminal case no. 2987 of 1985. On 19-7-85 the applicant and others, present before the Chief Judicial Magistrate, were made to put their signatures on a blank paper and no order of custody was passed in the presence of the applicant. On 29-7-85 the Chief Judicial Magistrate, Allahabad, gave copies of the Charge sheet to three of the accused. These papers were incomplete and illegible and an application moved by the counsel of the applicant bringing this fact to the notice of the Chief Judicial Magistrate was directed to be filed with the direction that the case has already been committed to the Court of Session on 29-7-85. No correct copies were given. Even the Session Court did not issue correct copies of the documents. The order of committal was passed the same day. The record was received in the Court of Session on 2-8-85 when the case was registered as Session Trial No. 440 of 1985 and 9-8-85 was fixed for appearance of the accused. On that date, however, the accused were not present before the court. Meanwhile, the case was transferred for disposal to the court of Third Additional Session Judge, Allahabad, where it was received on 22-8-85 and then in the presence of the accused 10-9-85 was fixed for orders. THIS date was subsequently changed from time to time.
(2.) THE contention of the applicant is that in the first place there was no compliance of the provisions of Section 207 of the Criminal Procedure Code as copies of the documents were not supplied and this will affect the order of committal. In the present petition this aspect of the matter cannot be considered. Section 207 of the Criminal Procedure Code simply lays down that the Magistrate shall without delay furnish to the accused copies of the documents mentioned in the Section. Section 209 deals with commitment of the case to the Court of Session when the offence is exclusively triable by it If sub-section (1) lays down that the commitment has to be made after complying with the provisions of Section 207 of the Criminal Procedure Code. Thus if the applicant feels that the provisions of Section 207 of the Code have not been complied with and hence the commitment of the case to the Court of Session is illegal, he is free to take such action as the law permits him to do, but that would not be a ground to seek bail and none could be granted on that account. The only point that has been agitated before me in support of the present bail application is that there has been no compliance of the provisions of Sections 209 (b) and 309 of the Criminal Procedure Code and hence the detention of the applicant throughout is illegal and bail should be granted to him. Section 209 (b) of the Code lays down that when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall subject to the provisions of the Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial. Similarly Section 309 of the Criminal Procedure Code may also be quoted as under :- 309. (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. (2) 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. " In the present case the admitted position is that the committal order dated 29-7-85, so far as it is relevant for the purpose of the present applicant if translated into English, shall read as follows- " The case against the accused persons..............................Mashooq and ............is triable under sections 147, 148, 149, 307, 302. 379 and 411 IPC and it is triable exclusively by the Court of Session. Hence it is committed for trial to that Court..................These accused persons are directed to appear in the Session Court on 9-8-85 and till then the remand is accepted. They shall be summoned from the Jail accordingly. Information of this commitment shall also be given to the Public Prosecutor tat Allahabad."
(3.) THE first point for decision is whether it amounts to a valid order of remand. As I have mentioned above, the provision of remand is under section 209 (b) of the Criminal Procedure Code, which requires that the accused have to be remanded to custody during, and until the conclusion of, the trial. It is contended that since no such order has been passed, the remand is illegal and the detention of the accused will also became illegal. It is further said that specific order of remand should be passed and mere endorsement on the warrant, even if it is drawn out, would not validate the detention. Reliance was placed upon the case of Ram Narain Singh v. State of Delhi, AIR 1953 SC 277, in which it was held that detention of a person in custody after expiry of the remand order without any fresh order of remand committing him to further custody while adjourning the case under section 344 (old) CrPC is illegal. THE decision was pronounced in a case arising out of a petition for a writ of habeas corpus, and the involved persons bad been arrested and were being prosecuted for the alleged defiance of an order prohibiting meeting and procession in the area in question and the detenu is alleged to have been guilty under section 188 of the Indian Penal Code. Another case upon which reliance was placed was a Division Bench case of this Court in the matter of Tej Bahadur Singh v. State of U. P., 1977 ACrR 267 wherein it was held that if the order of remand is not passed by the Magistrate for custody in Jail, the Jail Authorities will have no power to detain the petitioner and the petitioner's continuance in Jail shall be illegal.;