Patna High Court
Subhash Mahto vs State Of Bihar And Ors. on 21 July, 2000
Equivalent citations: 2001(49)BLJR282, 2001CRILJ1094
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
ORDER
1. In this writ application filed under Articles 226 and 227 of the Constitution of India, the petitioner claimed himself to be under illegal detention and prayed for his release from the jail custody in connection with Sessions Trial No. 124/2000 arising out of Gambaria P.S. Case No. 31/99 pending in the Court of Sessions Judge, West Singhbhum, Chaibasa.
2. The petitioner's case is that he was for the first time remanded to jail custody by order dated 6-7-99 and thereafter there is no order of remand and the petitioner remanded in jail custody without any valid order of remand. It is contended that even on the date of commitment i.e. on 9-5-2000 no order was passed remanding the petitioner to jail until conclusion of the trial as required under Section 209 of the Code of Criminal Procedure.
3. Mr. K.M. Verma, learned counsel for the petitioner, submitted that the custody of the petitioner in jail has neither been authorised by the Additional Chief Judicial Magistrate nor by the Sessions Judge as contemplated under Section 209 or under Section 309, Cr.P.C. which is mandatory provision of law. It is contended by the learned counsel that the order on the remand warrant and in the ordersheet is the authority on the basis of which a person is detained in jail custody and in absence thereof the detention of the petitioner in jail custody has become absolutely unconstitutional, illegal and without jurisdiction.
4. In order to decide the only point raised by the learned counsel for the petitioner as to whether the detention of the petitioner is illegal in absence of a valid order of remand, we think it desirable to state the relevant facts of the case which have been stated in the writ petition and the facts available in the records.
5. On the basis of FIR a criminal case was instituted against the petitioner and other accused persons under Sections 302/34/120B, IPC and Section 27 of the Arms Act. The prosecution case is that there was professional rivalry between the deceased and this petitioner over the submission of a tender in the Indian Bottling Plant of displaced persons of whom the deceased was the President. In 1999 the petitioner and others had filled up the tender. It was alleged that in order to get the tender the murder of the deceased was committed with pre-plan conspiracy and for the alleged murder the petitioner had paid Rs. 1.00 lac to one Sunil Kumar and the petitioner has confessed his guilt before the police regarding the commission of murder at his instance and further that there is a confessional statement of one Sunil Kumar that he had received the amount for the murder of the deceased.
6. On the basis of FIR the petitioner was arrested from his house and thereafter he was taken into custody on 16-7-1999 by a valid order of remand. The petitioner, thereafter time to time produced in Court and the case was finally committed to the Court of sessions by order dated 9-5-2000. It is worth to mention here that after the petitioner was taken into custody by a valid order of remand, he moved an application for grant of regular bail which was rejected by the learned Sessions Judge on 22-11-99. The petitioner then moved this Court for regular bail in Cr. Misc. No. 917/99 (R) which was rejected by this Court on 15-12-1999. The petitioner again renewed the prayer for bail before this Court by filing a fresh bail petition being Cr. Misc. No. 2913/2000(R) which was again rejected on 25-4-2000. As stated above, thereafter the case was committed to the Court of Sessions on 9-5-2000. After commitment of the case to the Court of Sessions the petitioner has filed the instant writ petition challenging the detention of the petitioner as illegal in absence of valid order of remand.
7. On the facts of the case narrated hereinabove, we shall consider the point raised by the petitioner. At the very out-set we must mention here that the petitioner has made out a case under Section 209 or under Section 309 of the Code asserting that the continuance of the petitioner in custody in violation of the provisions of Section 209 or 309 of the Code is illegal and unconstitutional inasmuch as even after the case was committed, no valid order of remand was passed by the Court. In our view also, at this stage the petitioner cannot take recourse to Section 167, Cr.P.C. as it is well settled that the said provision is applicable at the stage of investigation and as soon as the case is committed to the Court of Sessions, Section 209 of the Code comes into operation.
8. Now the question arises whether the detention of the petitioner can be said to be illegal detention for the alleged non-compliance of the provisions of Section 209 or Section 309 of the Code of Criminal Procedure. For better appreciation Sections 209 and 309, Cr.P.C. are quoted hereinbelow :-
209. Commitment of case to Court of Session when offence is triable exclusively by it.-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-
(a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail remand the accused to custody until such commitment has been made;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.
309. Power to postpone or adjourn proceedings.-(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 :
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time :
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing.
Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.
Explanation 1.-If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.
Explanation 2.-The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused.
9. From bare reading of the provisions of Section 209 of the Code, it is manifest that Section 209 of the present Code provides 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 commit the cases to the Court of Session. The object of Section 209 is to expedite the trial of sessions cases. The committing magistrate had no power to discharge the accused nor he has power to take oral evidence save where a specific provision like Section 306 enjoins. The words "subject to the provisions of Criminal Procedure Code relating to bail" as used in the aforesaid section, contemplates that this section empowers the commtting magistrate to remand accused to custody during and until conclusion of trial subject to the provisions relating to bail. Accordingly, while committing the case to the Court of Session the Magistrate shall remand the accused to custody. At this stage it is worth to look into the order dated 9-5-2000 passed by the Additional Chief Judicial Magistrate committing the case to the Court of Session. In the said order the Magistrate after holding that the offence committed by the petitioner and other accused persons is under Section 302, IPC which is exclusively triable by the Court of Session, committed the case accordingly to the Court of session. The relevant portion of the order reads as under :-
Under such circumstances, the case of Pagla Mahali, Sekh Khurshid and Pramod Singh alias Suresh Singh is bifurcated and the case of accused Sunil Singh, Subash Mahato, Sadhu Mahto, Diku Hembram, Sonu Singh, Satyanarayan Mahato alias Makru, Mukesh Singh and Surya Patel alias Suryakant Patel is committed to the Court of Sessions. The entire record along with CD. be also sent to the Court of Session for needful. Notify the public prosecutor of a commitment of this case to the Court of Session. Prepare the supplementary record of the case of accused Pagla Mahali, Sekh Khurshid and Pramod Singh, fixing their case on 25-5-2000 awaiting E.F. regarding accused Pramod Singh alias Suresh Singh.
A petition is filed on behalf of accused Sunil Singh, Diku Hembram, Satyanarayan Mahato alias Makur to allow them to remain on the previous bail. Their prayer is hereby allowed. Accused Subhash Mahato, Sadhu Mahato, Mukesh Singh and Surya Patel alias Suryakant Patel are sent back to jail custody. Jail Superintendent is permitted to send Surya Patel alias Suryakant Patel to Jamshedpur jail who is wanted in connection with G.R. case No. 1181/94 pending in the Court of G.P. Tiwary, J.M. Ist Class, Jamshedpur.
10. From the order aforesaid, it is clear that after committing the case to the Court of Session the Magistrate allowed some of the accused persons to remain on the previous bail and sent back the petitioner Subhash Mahato and other accused persons to jail custody.
11. The contention of the petitioner is that while passing the order of commitment on 9-5-2000 the Magistrate has not passed any order of remand in compliance of Section 209 of the Code. In our view, the submission of the learned counsel has no force. As noticed above, the Magistrate has very categorically recorded in his order to the effect that the petitioner along with others are sent back to jail custody. Merely because the word 'remand' has not been used, it does not mean that the petitioner was taken into custody on 9-5-2000 without any valid order of remand. Even assuming that there is some irregularities in the procedure whereby the petitioner was taken into custody after commitment, it will not make the detention of the petitioner illegal. It is well settled that Section 209 of the Code empowers the committing Magistrate to remand the accused to custody during and until the conclusion of the trial subject to the provisions relating to bail. The period of Judicial custody of the accused, therefore, is not indefinite nor it can be said arbitrary as the custody is for the period starting with the commencement of the sessions trial and lasts till its conclusion. The period has been made subject to the condition that the applicant may be permitted to bail provided the applicant satisfied the Court that he is entitled to be bailed out.
12. Section 309, Cr.P.C. deals with the postponement of the commencement or adjournment of any enquiry or trial and also for remand of the accused where such postponement or adjournment is made a power of the Magistrate are thus regulated for postponement and adjournment by this section.
13. As noticed above, the Magistrate while passing the order of commitment dated 9-5-2000 has clearly directed that the petitioner along with others should be kept in judicial custody and the Superintendent of Jail was accordingly permitted to send some of the accused persons to Jamshedpur Jail who are wanted in connection with the other case. Thus, we are of the view that detention of the petitioner by the Magistrate while committing the case to the Court of Session is neither illegal nor arbitrary or unconstitutional.
14. Learned counsel for the petitioner lastly drawn our attention to the report called for from the Additional Sessions Judge, Saraikela and submitted that admittedly the petitioner was firstly remanded to judicial custody on 16-7-1999 by an order of remand and, thereafter, no remand order was passed. According to the learned counsel, therefore, the detention of the petitioner without any valid order of remand after 16-7-99 was illegal and unconstitutional. In our opinion, the submission of the learned counsel has no leg to stand for the reason stated hereinafter. As noticed above, the petitioner was taken into custody by a valid order of remand on 16-7-99. The petitioner moved Sessions Court with a prayer for bail which was rejected on 22-11-99. The petitioner then moved this Court twice for bail vide Cr. Misc. No. 917/99(R) and Cr. Misc. No. 2913/2000(R) which applications were rejected on 10-1-2000 and 25-4-2000 respectively. In those bail applications the petitioner never challenged his detention as illegal and in violation of Section 167 or Section 309, Cr.P.C. rather in both the bail applications the petitioner accepted that after his arrest he was remanded to custody and hence he is entitled to be released on bail on the ground set forth in those applications. The case of the petitioner was finally committed to the Court of Session. It is only after that the petitioner has filed this instant writ application challenging his detention as illegal. In that view of the matter also, we are of the view that the petitioner cannot be allowed to raise this question after his bail application was rejected twice on merit and that too after the case was committed to the Court of Session and the petitioner was remanded to jail custody by a valid order of remand.
15. Besides the above, it is well settled that a Court is required to examine the availability of the right of compulsive bail on the date it is considering the question of bail and not barely on the date of presentation of the petition for bail. This well settled principle has been considered by the Apex Court in a series of decisions. Reference may be made to Sanjay Dutt's case (1994) 5 SCC 410 : (1995 Cri LJ 476) and State of M.P. v. Rustam 1995 Supp (3) SCC 221.
16. As noticed above, on the date when this writ application was filed by the petitioner, he was remanded to judicial custody by the Court while the case was committed to the Court of Session and, therefore, the right as such was not available to the petitioner.
17. Taking into consideration the entire facts and circumstances of the case, we are of the opinion that this writ application has no merit and the same is accordingly rejected.