JAINATH ALIAS JALNU Vs. STATE OF U P

JUDGEMENT

(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.

(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.