Allahabad High Court
Mohammad Daood Qureshi (In Jail) vs State Of U.P. on 12 October, 1992
Equivalent citations: 1993CRILJ1437
ORDER Surya Prasad, J.
1. This is a criminal revision against the judgment and order dated 12-2-92 passed by the learned Special Judge, Moradabad in Session Trial No. 748-A/84 State v. Mohammad Daood under Sections 394/397, I.P.C. Police Station Hajrat Nagar Garhi, District Moradabad.
2. The facts giving rise to this criminal revision briefly stated are as under:--
The revisionist Mohammad Daood Qureshi was one of the accused in Session Trial No. 748/84 State v. Asad. During trial Mohammad Daood Qureshi absconded. Consequently his case was separated from the original Session Trial No. 748/84 and was numbered as Session Trial No. 748-A/84 State v. Daood. The revisionist Mohammad Daood Qureshi was charged under Sections 394/ 397, I.P.C. in Session Trial No. 748-A/84. After framing charges, he absconded. He was, however, arrested in Bombay in connection with N.D. & P.S. Special Case No. 801/89. State (D.C.B. C.I.D.) v. Mohd. Daood. He moved several applications before the Special Judge, Moradabad, who ultimately passed an order under Section 267, Cr. P.C. and the 'B-Warrant' in Form No. 36 was sent to Bombay. Consequently the revisionist Mohd. Daood, who was confined at the relevant time in Nasik Road Central Prison, Nasik, was ultimately transferred on 1-12-90. He reached Moradabad on 3-12-1990 and was produced before the Special Judge, Moradabad on 3-12-90 itself. The Special Judge, Moradabad passed an order remanding him (revisionist Mohammad Daood) in judicial custody. A copy of that order has been marked as Annexure-C. A-1 to the counter-affidavit.
3. The revisionist had been absconding for more than six years. Consequently the Session Trial No. 748-A/84 could be started only when the revisionist was brought to Moradabad on 'B-Warrant'. The Special Judge, Moradabad remanded him from time to time in the judicial custody during trial.
4. The revisionist filed a Criminal Misc. Writ Petition No. 10870/91 Mohammad Daood v. State of U.P. in the Hon'ble Court. The prayers made in this writ petition, have been quoted in paragraph 4 of the counter-affidavit. The same are reproduced as under:--
It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to:
(i) issue a writ, order or direction in the nature of mandamus directing the Supdt. Central District Jail, Moradabad not to transfer the petitioner from Moradabad to Bombay in pursuance of the warrants which he received from the Court of City Sessions Court, Greater Bombay for the production of the petitioner before him some time in the month of January, 1991;
(ii) issue a writ, order or direction in the nature of mandamus directing the respondent No. 2 to release the petitioner the moment he receives the release order in Crime No. 96 of 1983 P. S. Hazrat Nagar Ganhi, Moradabad under Section 392/397, I.P.C.;
(iii) issue any other writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the cases;
(iv) Award the costs.
5. The revisionist also filed a Habeas Corpus Petition No. 24268/91 Mohammad Daood alias Mohammad Salim Qureshi v. Adhichhak Janpad Karagar, Moradabad in the Hon'ble Court. The prayers made in the Habeas Corpus petition have been quoted in paragraph 6 of the counter-affidavit. The same are reproduced as under:--
vLrq lEekuuh; U;k;ky; ds le{k orZeku ;kfpdk ds ek/;e ls ;kph fuEufyf[kr mi'ku ,oa vuqrks"k gsrq lfou; ;kpuk ,oa izkFkZuk djrk gS % 1- ;g fd lEekuuh; U;k;ky; cUnh izR;{khdj.k izÑfr ds ;kfpdkns'k] vkns'k funsZ'k ds ek/;e ls mÙkjoknh djs vknsf'kr funsZf'kr djus dh egrh Ñik djs fd lEekuuh; U;k;ky; ds le{k ;kph dks l'kjhjlns[k mifLFkr dj oknh dh fu:fn dh vkSfpR;rk] cS/kkfudrk] ;qfur;qfurd <ax ds fy;s djsa A 2- ;g fd lEekuuh; U;k;ky; cUnh izR;{khdj.k izÑfr ds ;kfpdkns'k] vkns'k funsZ'k ds ek/;e ls ;kph dh fu:f) ,oa vfHkj{kk ds fof/kd izfØ;k ds izfrdwy dkjkfHkj{kk ls eqDr ,oa Lora= djus gsrq mÙkjoknh x.k dks vknsf'kr] funsZf'kr djus dh egrh Ñik djsa A 3- ;g fd lEekuuh; U;k;ky;
ijekns'k izÑfr ds ;kfpdkns'k] vkns'k funsZ'k ds ek/;e ls ;kph dks tuin dkjkxkj eqjknkckn ls vU;= fdlh nwljs dkjkxkj esa vUrfjr ;k fu:) djus gsrq mÙkjoknh dks fuf/kfVr djus dh egrh Ñik djsa A 4- ;g fd lEekuuh; U;k;ky; orZeku ;kfpdk ds yEcu vof/k rd vH;kUrjdky esa oknh dks tuin dkjkxkj eqjknkckn ls vU;= fdlh nwljs izkUr ds dkjkxkj ls varfje djus dh fufeRr mÙkjoknhx.k dks fuf"kf)r djus dh egrh Ñik djsa A 5- ;g fd lEekuuh; U;k;ky; U;k;k dh n`f"V esa vU; dksbZ ;kfpdkns'k] funsZ'k] vkns'k] mi'ku o vuqrks"k ;kph ds i{k esa ikfjr o iznku djus dh egrh Ñik djsa A 6- ;g fd ;kph dks ;kfpdk dk lEiw.kZ O;; ,oa fo'ks"k {kfriwfrZ Hkh mÙkjoknhx.k ls fnykus dh egrh Ñik djsa A
6. On 28-10-91 the Hon'ble Court passed an order in Habeas Corpus Petition No. 24268/91 to the effect that the petitioner i.e. the revisionist shall not be transferred from District Jail, Moradabad to any other jail outside Moradabad. A copy of that order has been marked as Annexure-6 to the affidavit filed by the revisionist.
7. The Special Judge, Moradabad passed the impugned order dated 12-2-92 acquitting the revisionist in Session Trial No. 748-A but not releasing him from the jail. The revisionist felt aggrieved of the impugned order and therefore preferred this revision against the same.
8. Heard the learned counsel for the parties at length and perused the record.
9. The first question which arises for consideration is whether the revision is maintainable or not.
10. While referring to Section 374(2), Cr. P.C. the learned Additional Govt, Advocate has argued that the revisionist-applicant ought to have filed an appeal against the impugned judgment and order dated 12-2-92 under the said sections instead of filing the present revision against the same and therefore, the revision is not maintainable. Section 374(2), Cr. P.C. reads as under: --
Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years (has been passed against him or against any other person convicted at the same trial) may appeal to the High Court.
11. Section 374, Cr. P.C. itself bears the heading "APPEALS FROM CONVICTIONS". This heading is significant, significant in the sense that an appeal may be filed only against the conviction.
12. A bare reading of Sub-sections (1) and (2) of Section 374, Cr. P.C. would make it abundantly clear that a person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction or by a Sessions Judge or an Additional Sessions Judge may appeal to the Supreme Court or the High Court as the case may be. In the instant case the revisionist Mohammad Daood has been acquitted and not convicted by the learned Special Judge, Moradabad in the aforementioned Session Trial No. 748-A/84 State v. Mohammad Daood under Sections 394/397, I.P.C. and therefore, the question of his filing an appeal against the impugned judgment and order does not arise.
13. The learned counsel Sri D. S. Misra for the revisionist has argued that the State or the complainant can file an appeal under Section 378, Cr. P.C. against the acquittal. He has further argued that since the revisionist Mohammad Daood was accused and he has been acquitted the present revision is the only proper and valid remedy for relief prayed for on his behalf. He has, in the same continuation, referred to the words "sentence or order" occurring in Section 397(1), Cr. P.C. and has expressed that the present revision is maintainable. His contention appears to be correct. The above posed question is answered in the affirmative.
14. The second question which crops up for consideration is whether the learned Special Judge, Moradabad has committed illegality in passing the impugned order in the aforesaid Session Trial Section 354(1)(d), Cr. P.C. reads as under:--
(d) if it be a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty.
15. The above clause of Sub-section (1) of Section 354, Cr. P.C. is mandatory and provides that while recording the finding of acquittal, the trial Court has to necessarily pass order for setting the person concerned, who has been acquitted, at liberty. But the learned Special Judge, Moradabad has not at all passed the order setting the revisionist Mohammad Daood at liberty forthwith, who was accused in the Session Trial No. 748-A/ 84 despite the fact that he recorded a clear finding of his acquittal therein. Therefore, he has clearly committed illegality in not doing so. His contention appears to be correct and therefore, the second posed question is answered accordingly.
16. The third question which calls for consideration is whether the detention of the revisionist Mohammad Daood in the District Jail, Moradabad after his acquittal in the said session trial is illegal.
17. The revisionist Mohammad Daood has been in the District Jail, Moradabad since -3-12-1990 till today. There is no remand order by any Court for keeping him in jail custody by any Court. These facts cannot be said to be in dispute. In the absence of any remand order or valid recommittal order for keeping the revisionist in jail, the revisionist cannot be detained in jail even for a single moment. For this reliance is placed upon Tej Bahadur Singh v. State of U.P., 1977 ACC 273, wherein the Division Bench of this very Court has, inter alia, observed as under:--
The Superintendent, Naini Central Jail, Allahabad had no power to detain the petitioner in jail either in the discharge or in the purported discharge of his official duty in the absence of an order of remand by the Magistrate as his power to detain him in jail was dependent on the existence of an order of remand by the Magistrate. He has thus acted as a private person in detaining the petitioner in jail and the detention of the petitioner is clearly illegal. We are fortified in our view by the undermentioned observations of Beg, J. in the case of A.D.M. Jabalpur V. S. Shukla(J):
So long as the executive authorities of the State purport to act under the Act, their preliminary objection against further hearing will prevail unless, of course, the officer purporting to detain had, in fact, not been invested at all with any authority to act in which case the detention would, in my opinion, be on the same footing as one by a private person who has no legal authority whatsoever to detain.
18. In the case of Muzzaffar Hussain v. Supdt. Distt. Jail, Moradabad, 1981 Luc LJ 78, the Division Bench has referred to Tej Bahadur Singh's case (supra) and observed, inter alia, as under:--
The learned counsel for the State conceded before us that the remand papers received by him show that the petitioner has been detained in District Jail, Moradabad from October 30, 1977 up to this day and that during this period the petitioner has not been sent out of Moradabad. If that is so, it is obvious that even if any remand orders were passed by any Magistrate in connection with those 10 cases, they must have been passed without the petitioner being produced before the Magistrate concerned and, consequently, such remand orders, if any, are illegal.
In others words, there is no legal authority for the detention of the petitioner in the District Jail, Moradabad at present. As such the petitioner is clearly entitled to be set at liberty.
19. The learned counsel for the revisionist has argued that no Court has got any inherent power to remand any accused in jail. For this, he has placed reliance upon Natabar Parida v. State of Orissa, 1975 Cri LJ 1212 : AIR 1975 SC 1465, wherein it has been, inter alia, observed as under:--
It may be emphasised here that the Court will have no inherent power of remand of an accused to any custody unless the power is conferred by law. In the order under appeal the High Court without reference to...seems to have assumed that such a power existed. That is not correct.
20. The learned counsel for the revisionist has further argued that the production warrant issued under Section 267, Cr. P.C. commonly known as "B-Warrant" is not a custody warrant and on the basis of the "B-Warrant" the revisionist, cannot be detained in jail custody. He has placed reliance upon Writ Petition No. 7191 of 1986 Surendra Singh alias Arvind Singh v. Superintendent, District Jail, Gonda, decided on 30-10-86, wherein it has been observed, inter alia, as under:--
B-Warrants are not warrants by which the prisoner was remanded to custody.... It did not and could not authorise detention; it only authorised production of the petitioner if he continued to be in valid detention otherwise.
21. The learned counsel for the revisionist has further argued that the remand means sending back or re-committal in custody and therefore the stay of transfer order dated 28-10-91 is neither re-committal in custody nor sending back/keeping in jail custody. His contention appears to be correct. Therefore, the detention of the revisionist in jail after his acquittal in the aforesaid Session Trial No. 748-A/84 is further illegal.
22. In the result the impugned order dated 12-2-92 in Session Trial No. 748-A/84 State v. Mohammad Daood is modified to this extent that the revisionist-accused Mohammad Daood shall be set at liberty forthwith, if not wanted in any other case. This order shall, however, not bar the Court concerned from taking such steps as it may be entitled to take under the law to procure and secure the presence of the revisionist in connection with the abovementioned Writ Petition No. 24268/91 or in any other case.
23. The following sentences occurring in the impugned order stand deleted :
He had been summoned in this case from Bombay Prison under B-Warrant. Hon'ble High Court had ordered on 28-10-91 in Writ Petition No. 24268/91 that the petitioner Mohd. Daood shall not be transferred from the District Jail to any Jail outside Moradabad until further orders. In pursuance of the order passed by the Hon'ble High Court the accused shall remain confined in District Jail, Moradabad subject to decision by the Hon'ble High Court in the aforesaid writ petition. If the petition is dismissed, in that event the accused Mohammad Daood shall be sent to Bombay Prison.
24. This revision stands disposed of accordingly.