- (1.) The first bail application bearing No. 7687 of 1996 was rejected on 3-7-1996 on merits.
(2.) This is second bail application on the additional ground that the I Addl. Sessions Judge, Kanpur Dehat, before whom Sessions Trial No. 91 of 1996 is pending, has not passed legal or proper remand order under Section 309, Cr. P.C.The learned counsel for the applicant relied on a Division Bench case of Lucknow Bench, Vashist Muni v. Superintendent, District Jail, Faizabad reported in 1993. Lucknow LJ 165. I considered the contention of the counsel for the applicant it is noticed that subsequently the Division Bench of this Court in the case of Veerendra Singh v. Superintendent District Jail, Faizabad reported in 1995 JIC (sic) : (1995 All LJ 1542) considered the law regarding the remand orders enunciated in the case of Vashist Muni (supra) in the following words : "4. A bare perusal of the aforesaid clause (b) would leave no manner of doubt that the learned Magistrate could remand the petitioner to custody not only on the completing the commitment proceedings but also during the pendency of each proceedings and that such institution could be extended even until the conclusion of trial. Section 309, Cr. P.C.is of a general amplitude whereas Section 209, as amended in the state of Uttar Pradesh comes in the nature of a special law. It is besides the point that instead of an erroneous impression of its destroying the general provision of Section 309, Cr. P.C.it actually supplements it. The case law relied upon by the learned counsel for the petitioner is thus distinguishable inasmuch as it does not take note of the scope and play of the aforesaid amended provision of Section 209, Cr. P.C.in its application to the State of Uttar Pradesh. 5. In so far as the absence of the accused at the time of taking the cognisance by the learned Magistrate and even at the time of passing the remand order on 9-7-1994 is concerned there is ample judicial authority for the proposition that having regard to the facts and circumstances of each case, mere absence would not vitiate the detention. For ready-hand reference one can look into the case of A.Lakshman Rao v. Judicial Magistrate Parvatipuram, AIR 1971 SC 186, Urooj Abbas v. State of U.P., 1973 Cri LJ 1458. Similarly the absence of a specific order authorising detention by way of a formal warrant of detention could not invalidate or otherwise valid detention as held earlier by this Court in the cases of Rajdeo Shukla v. State of Uttar Pradesh, 1994 Lucknow LJ 163 and Sunder Lal v. State, 1983 (2) All Cri C 140 : (1983 Cri LJ 736)."
(3.) The precise question again came up before the Division Bench of this Court in the case of Lokendra v. State of U.P., 1995 JIC 61 wherein the case of Vashist Muni v. Superintendent, District Jail Faizabad, (1993 Lucknow LJ 165) was cited by the learned counsel for the accused and it was held that if any remand order has been passed under Section 209(b), Cr. P.C.remanding the accused to jail custody during and until the conclusion of the trial at the time of committing the case to the Court of Session, the Sessions Judge is not required to pass an order of remand during the course of the trial. The detention of the accused in jail custody during and until the conclusion of the trial cannot be said to be without authority of law. The relevant extract is reproduced below : "6. The point raised by the petitioner in the present writ petition is covered by the decision in Sunder Lal v. The State reported in 1963 Cri LJ 736, wherein the Full Bench of this Court has held that if the Magistrate passed on order under Section 209 (b) remanding the accused to jail custody during 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 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 reported in 1984 Cri LJ 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 conclusion of 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 Court's 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. P.C.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, Cr. P.C.(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.";