- (1.) J. C. Gupta, J. This is second bail application moved on behalf of the ap plicant, who is the principal accused of the case in which murder was committed in Mundera Bazar in district Gorakhpur. The applicant is said to have caused the death of the deceased by firing. His application on merits has already been rejected by this court by the order dated 8-8-97. In this second bail application bail is being claimed on a technical ground that the applicant has become entitled to be released on bail on account of his deten tion in jail without there being any order of remand of the committing Court.
(2.) THE learned Counsel referred to the cases of Sharafat Ullah v. State of U. P, 1995 U. P. Cr. R. 610; 1995 JIC 856 (All) (LB); Jameel Ahmad v. . Union of India and others, 1992 LLJ 180; Dinesh Singh v. State of U. P, 1993 U. P. Cr. R. 112; Ran Vijay Singh v. Supdt. District jail, Faizabad and others 1993 U. P. Cr. R. 394; Bechan Misra v. State of U. P, 1993 U. P. Cr. R. 548; Izhar Ahmad v. State, 1977 (14) ACC 335; Dargahi v. Super intendent District Jail, Barabanki and others, 1994 LLJ 20; Muzzaffar Hussain v. Superintendent Jail, Moradabad and another 1981 LLJ 78; Urooj Abbas v. State of U. P, 1973 Crlj 1458 (FB), and a few unreported decisions in support of his ar gument that since in the present case the accused is in detention without a proper and legal order of remand of the commit ting Court, he is entitled to bail irrespec tive of the serious charges made against him. Sri Mahendra Pratap, A. G. A. ap pearing for the State on the other hand argued that in the present case there is no dispute that the accused was being remanded to judicial custody under valid orders made under the provisions of Sec tion 167, Cr. P. C. It is further pointed out by Sri Mahendra Pratap that charge sheet in the present case has already been sub mitted and the Committing Court has taken cognizance on 24-6-97 and on 28-6-97 the applicant was brought in custody before the Committing Court and case was adjourned to 10-7-97 and on this date again accused was produced in custody before the same court. The case was again adjourned and on all subsequent dates ac cused was produced in custody before the court of the Magistrate by the Superinten dent of Jail. He further argued that once the Committing Court has taken cog nizance, accused could not be released on bail on the ground of some irregularity or illegality committed while passing orders of remand under Section 209, Cr. P. C. He further argued that in any view of the mat ter in the present case the custody warrant prepared by the Committing Magistrate under Section 209, Cr. P. C. and sent to Su perintendent of Jail authorised him to detain the accused in custody upto the next date of his production in court, until the conclusion of commitment proceedings. Under proviso (a) to Section 167 (2) of the Code of Criminal Procedure, the Magistrate has been empowered to authorise the detention of accused in judi cial custody, if he is satisfied that adequate grounds exist for doing so, but the Magistrate shall not authorise the deten tion of the accused person in custody for a total period exceeding 90 days in respect of an offence punishable with death, im prisonment for life or imprisonment for a term of not less than ten years while in other case the detention shall not be for a period exceeding 60 days. A plain reading of the provisions of Section 167 (2), Cr. P. C. makes it clear that the order of remand under these provisions is not to be passed in a routine manner as before remanding the accused to custody, the Magistrate is to be satisfied that adequate grounds exist for doing so. In other words the Magistrate is required to go through the case diary and other relevant papers to satisfy himself that further detention of the accused in custody is necessary. Under these provisions the Magistrate is not bound in every case to remand the accused to cus tody and he may refuse the prayer of the investigating agency to remand the ac cused to judicial custody. No such cor responding provision is however to be found in Section 209, Cr. P. C. relates to the commitment proceedings in respect of an offence triable exclusively by Court of Ses sion. In the State of Uttar Pradesh clauses (a) and (b) appearing in the main enact ment have been substituted by the amend ment made by U. P. Act No. 16 of 1976. The amended Section as applicable to the State of Uttar Pradesh lays down that when in a case instituted on a police report or other wise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable ex clusively by the Court of Session, he shall- (a) as soon as may be after complying with the provisions of Section 207, commit the case to the Court of Session; (b) subject to the provisions of this Code relating to bail, remand the accused to custody until commitment of the case under clause (a) and thereafter during, and until the conclusion of trial.
(3.) A bare perusal of this provision indicates that in respect of offences triable exclusively by the Court of Session, and where the accused is in custody, the Magistrate has no option but to remand the accused to custody until commitment of the case under clause (a) and thereafter j under clause (b) during, and until the conelusion of trial. There is marked a distinction between the provisions of Section 167 (2), Cr. P. C. and Section 209 with regard to the powers of the Magistrate of f passing remand orders in relation to an accused who is produced in custody before j him. Unlike the provisions contained in Section 167 (2), Cr. P. C. , the Magistrate under Section 209 has no power to refuse remand or not to remand the accused of custody. There is a mandate in Section 209, Cr. P. C. that the Magistrate shall remand the accused to custody until commitment of the case to the Court of Session. It is also clear that unless compliance of the! provisions of Section 207, Cr. P. C. is made, case cannot be committed to the Court of Session and until it is done, the accused shall be remanded to custody, subject to the provisions of the Code relating to bail. After charge sheet is submitted and cog nizance is taken by the Magistrate, he has to proceed in the manner provided under Section 209, Cr. P. C. The very fact that ac cused is produced in custody before the Magistrate and then is sent to jail custody under a custody warrant and then again produced on the next date would tan tamount to remanding the accused to cus tody within the meaning of this Section. In the present case accused was produced on 28-6-97 after the submission of charge sheet and was sent to jail under a custody warrant and then was again produced on 10-7- 97 and when the case was adjourned, he was sent back to jail under the order of the Magistrate and then was produced on the next date under his orders. This itself indicates that the accused was being remanded to custody as contemplated by the provisions of Section 209, Cr. P. C. In none of the cases referred to on behalf of the applicant, this aspect of the matter has been considered. In any view of the matter, the original custody warrant was summoned from the court of Magistrate. On a close examination of the same and in the light of other facts and circumstances appearing in the case, this court is satisfied that there is no illegality in the said warrant which may entitle the applicant to bail. The mere fact that the language used in the said warrant is not happily worded by itself would be not sufficient to conclude that there has been no proper and legal authorization to the Superintendent of Jail to keep the accused in custody espe cially in the light of attending circumstan ces and the various orders passed by the learned Magistrate for the production of accused before him leaves no room of doubt that the accused -was being remanded to custody as per the provisions of Section 209, Cr. P. C.;