Patna High Court
Hari Om Prasad vs State Of Bihar And Ors. on 23 March, 1999
Equivalent citations: 1999(47)BLJR2064, 1999CRILJ4400
Author: A.K. Prasad
Bench: R.A. Sharma, A.K. Prasad
JUDGMENT A.K. Prasad, J.
1. By this petition of habeas corpus the petitioner, who is confined in jail at Sakchi, Jamshedpur, in Sessions Trial No. 115/98, arising out of Sonari P.S. Case No. 66/97, pending on the file of 3rd Addl. Sessions Judge, Jamshedpur under Sections 302/34 and 120-B, of the I.P.C. and under Section 27 of the Arms Act, seeks his release on the ground that his detention is illegal and not authorised by any proper order of remand in the case.
2. The essential facts giving rise to the writ petition lie in a small compass and are these :-
The petitioner was produced after arrest before the Chief Judicial Magistrate, Jamshedpur in Sonari P.S. Case No. 66/97 and he was remanded to jail custody on 3-7-1997. The case was ultimately committed to the Court of Session on 7-4-1998 by the C.J.M., Jamshedpur (vide Annex-ure-1 to the writ petition and Annexure-3 to the supplementary affidavit). It is alleged in the writ petition that at the time of commitment no order was passed by the C.J.M. authorising his further detention and custody in jail in the case which is illegal, unconstitutional and in violation of the provisions of law. It is further alleged in the writ petition that Sessions Judge, East Singhbhum at Jamshedpur did not pass any remand order in the case after commitment and 3rd Addl. Sessions Judge, at Jamshedpur to whose file the Sessions case travelled on transfer, too did not pass any order authorising the detention of the petitioner in jail custody and he simply passed order of adjournment of the case on same dates as is apparent from the order sheet of the case records (vide certified copies of ordersheet of the sessions case annexed to the supplementary affidavit) and there has been flagrant violation of the mandate of the provisions of Section 309 of the Code of Criminal Procedure. It is further stated that 3rd Addl. Sessions Judge, simply made endorsement of some adjourned dates on the documents which cannot be treated as warrant authorising the detention of the petitioner in jail custody in the sessions case.
3. The gist of the prosecution case is not set out in the writ petition. The certified copy of the F.I.R. has also not been filed by the writ petitioner.
4. A report was called for in the matter and received which is at Flag 'B' of the record from learned 3rd Addl. Sessions Judge, Jamshedpur. He has mentioned in the report that the petitioner-accused was remanded in the case by Chief Judicial Magistrate, Jamshedpur on 3-7-1997 (vide Xerox copy of warrant of intermediate custody which is Annexure-A to the report) and the case was committed to the Court of Sessions by him on 7-4-1998 and warrant of commitment was issued directing the jail authority to receive the accused into custody for production before the Court of Sessions when required (xerox copy of warrant of commitment is Annexure-B to the report). Learned 3rd Addl. Sessions Judge has clarified in para 3 of the report, on the basis of the case record which runs as under:-
3. Now, it is most pertinent to mention that subsequent to the order passed on 7-4-1998, one application was filed before the Chief Judicial Magistrate on behalf of the concerned accused as well as accused Deepak Yadav pointingout certain mistakes in the aforesaid order dated 7-4-1998. As regards the concerned accused, it was mentioned therein that he was also produced from jail custody on the said date i.e. 7-4-1998 along with few other accused but his name was not mentioned and in fact he was also sent back to jail custody. This matter was heard by the Chief Judicial Magistrate on 21-4-1998 and he noticed that there were clerical mistakes in the order dated 7-4-1998 and then he observed that unfortunately it is not mentioned due to clerical mistake that accused-Hari Om Prasad was remanded to custody since he is in jail, in fact he was remanded to custody. So the prayer of the learned defence counsel is allowed.
A photocopy of the order dated 21-4-1998 passed by the Chief Judicial Magistrate is annexed herewith and is marked as Annexure-C.
5. The learned 3rd Addl. Sessions Judge has further explained in the report that a fresh order or repeated orders of remand in the sessions case by the Sessions Court are not required to be passed as in terms of Section 209(b), Cr.P.C. when a Magistrate commits the case to the Court of Sessions he remands the accused to custody during and until the conclusion of the trial and Section 209 of the Cr.P.C. Being a special provision it will continue to govern the cases committed under it notwithstanding that such cases may in turn be dealt with in the general provisions of Section 309, Cr.P.C. He maintained that detention of the petitioner in custody is not bad in law.
6. A counter-affidavit sworn by Superintendent of Police, Sakchi Jail, Jamshedpur, respondent No. 2 has been filed. He has asserted therein that on 7-4-1998 the case was committed to the Court of Sessions and warrant of commitment was issued by Chief Judicial Magistrate authorising jail authorities to produce the petitioner-accused before the Court of Sessions from the custody when so required (vide Annexure-A to the counter-affidavit). He has further asserted that there were some defects in the order of commitment dated 7-4-1998 arising out of inadvertence which was rectified by Chief Judicial Magistrate, on an application made on behalf of the petitioner-accused himself on 21-4-1998 which fact has been suppressed by the writ petitioner and he cannot be allowed now to agitate that no remand order was passed against him on 7-4-1998. His further stand in the counter-affidavit is that fresh and repeated orders of remand are not necessary to be passed by the Sessions Court in view of Section 209(b), Cr.P.C. because an order of remand passed at the time of commitment is valid until the conclusion of trial. According to the respondent No. 2 the petitioner is in custody on the basis of a valid order and the habeas corpus petition is not maintainable.
7. With the consent of the parties, this writ petition has been heard and is being disposed of at the stage of admission itself.
8. Learned counsel for the petitioner has challenged the validity of the petitioner's detention on the ground that at the time of the commitment of the case no order for remand to jail custody was recorded by the Chief Judicial Magistrate in the order-sheet dated 7-4-1998, which is in violation of the provisions of Section 2()9(b) of the Code of Criminal Procedure and the 3rd Addl. Sessions Judge never passed any order for remand of the petitioner to jail custody which is in breach of the mandate of law laid down under Section 309(2) of the Cr.P.C. and the petitioner is entitled to be set at liberty because his detention in jail custody is illegal.
9. Sri Amreshwar Sahay, learned Govt. Advocate, on the other hand, has contended that the petitioner has suppressed material facts regarding the rectification of clerical defects in the order dated 7-4-1998 at his instance and there was no requirement for the fresh remand order to be passed under Section 309(2) of the Cr.P.C. once at the time of commitment of the case the petitioner has been remanded to jail custody to be produced before the Court of Sessions under Section 209(b) of the Cr.P.C. which ensures during and until the conclusion of the trial.
10. It is true that in the order dated 7-4-1998 (Annexure-1 to the writ petition) recorded by the Chief Judicial Magistrate, there is no mention of the fact that the petitioner was produced from custody or that he was remanded to jail custody after commitment of the case. But in this order there is mention of the fact that the case of the petitioner too had been committed to the Court of Sessions. Annexure-B to the report dated 15-2-1999 submitted by 3rd Addl. Sessions Judge, Jamshedpur, which is warrant of commitment for intermediate custody in cases committed to the Sessions, it is manifest that Chief Judicial Magistrate had directed the jail authority to receive petitioner-accused into custody since his case had been committed to the Court of Sessions and to produce him before the Court of Sessions when so required (xerox copy of the same commitment warrant has been filed on behalf of Jail Superintendent which is Annexure-A to the counter-affidavit). Annexure-C to the report at Flag 'B' (which is xerox copy of the order dated 21-4-1998 passed by C.J.M., Jamshedpur in the case) reveals that on application made on behalf of the petitioner-accused, the clerical omission in the earlier order dated 7-4-1998 regarding production of the petitioner before the Court on 7-4-1998 and the fact that he was remanded to jail custody after commitment was rectified. This fact has been suppressed by the petitioner-accused in the instant writ petition.
11. To appreciate the matter in controversy one may extract hereunder the provision of Sections 209(b) and 309(2) of the Cr.P.C.
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)...
(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) and (d)...
309. Power to postpone or adjourn proceedings.-
(1)...
(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....
12. Section 209(b) of the Cr.P.C. 1973 commands the Magistrate to remand the accused to jail custody during and until the conclusion of the trial subject to the provision of the Code relating to bail and leaves no option with the Magistrate. In the instant case (vide Annexurc-B to the report and Annexure-A to the counter-affidavit) the petitioner-accused had been remanded to jail custody during and until the conclusion of the trial as laid down under Section 209(b) of the Cr.P.C.
13. Section 209 is the special provision which governs the remand of an accused to custody on commitment of a case to the Court of Sessions.Section 309 of the Code occurs under Chapter XXIV which lays down general provisions as to enquiries and trials. This section does not govern the remand of an accus;ed to custody on commitment of the case. It relates to a case of enquiry or trial. When a case is committed to the Court of Session it ceases to be a case under enquiry. The instant case was not triable by a Magistrate. Hence the general provision therein that no Mag-istrate shall remand an accused to custody under this section for a term exceeding 15 days at a time applies to a case where the case is inenquiry stage and not after its commitment. In the certified copy of the order-sheets of the sessions case the factum of production of the petitioner-accused on different dates has been recorded but without further order of remand, on the production warrant and custody warrant the adjourned dates of production of the petitioner-accused in the session case had been recorded.
14. It has been noticed above that the defect in the original order of commitment dated 7-4-1998 regarding production and remand of the petitioner-accused to custody after commitment was subsequently rectified by Chief Judicial Magistrate, Jamshedpur on the prayer of petitioner-accused vide order dated 21 -4-1998 (An-nexure-C to the report).
15. It is well settled that in habeas corpus proceedings the Court is to have regard to the legality or otherwise of the detention at the time of the return of the rule and not with reference to the institution of the proceedings.
16. Section 209 of the Code is a special provision which enables a Magistrate while committing the case of an accused to session to authorise his detention during and until the conclusion of the trial. It is special provision which deals with special type of cases and it will continue to govern the cases coming under it notwithstanding that such cases may in term be dealt with under Section 309 of the Cr.P.C. as well. The remand of an accused to custody in a case exclusively triable by Court of Sessions enures during and until the conclusion of the trial under Section 209(b) of the Code. There was direction of Chief Judicial Magistrate to the jail authority under the commitment warrant to receive the petitioner-accused into custody and to produce him before Court of Sessions when so required. Once the detention of an accused during and until conclusion of the trial has been duly authorised it would not be necessary for the Sessions Judge to, every time he adjourns or postpones the trial, confer on any one such authority for detention of the accused. This view finds support from two Division Bench authorities of Allahabad High Court reported in 1981 Cri LJ 802 (Rajendra Gosain v. Superintendent, District Jail, Banda) and 1984 Cri LJ 838 (Pushpendra Singh v. Superintendent, District Jail, Nainital).
17. In view of the discussions made above, I find that the detention of the petitioner in Sakchi Jail is in accordance with the procedure established by law.
18. In the result, the petition fails and is dismissed.