Mohd. Tahir vs State of U.P.

S.K. Verma, J.—Heard learned Counsel for the parties. No counter affidavit has been filed. Learned Counsel for the applicant has argued that the remand order dated 221295 extending the remand for sixty days is illegal because remand was allowed for collecting further material evidence and that the remand was allowed for sixty days although the Magistrate did not have power to grant remand for more than fifteen days. It has further been argued that no remand orders were passed on 19296; 12396 and 20396 and the custody of the applicant became illegal. It has also been argued that the Sessions Judge after committal did not passed any order of remand under Section 309 (2) of Cr. P.C.

In support of these aforesid contentions learned Counsel for the applicant has relied on the decision In re, Madhu Limaye, AIR 1969, SC 1014 ; Ram Vibhuti Singh v. Superintendent District Jail, Faizabad, 1995 JIC 784 (LB) ; Mujeeb v. State of U.P, 1992 ALJ 285 ; Ahmad Nabi v. State, 1986 AWC 75 ; Rajesh Mishni v. State of �/./?, 1994, ACC197 :1994 JIC 305 (All) and Vashishth Muni v. Superintendent District Jail, Faizabad and others, 1993 UP Cr R159 (DB) (LB).

In reply learned Counsel for the complainant and learned AGA have placed reliance on a Full Bench decision of this Hon''ble Court in Sunder Lal v. State, 1983 ACC 140; Kami Sanyal v. District Magistrate, Darjeeling, AIR 1974 SC 510 ; a full bench decision of this Court in Surjeet Singh v. State, 1984 ALJ 375 and the decision of this Court in Mashooq v. State, 1987 ALJ 329.

After hearing learned Counsel for the parties and considering the aforesaid decisions I find that the controversy relates to the order of remand under Section 309 (2) of Cr. P.C. The Full Bench decision of our Court 1973 Cr. LJ 1458, Urooj Abbas v. State of U.P. laid down the law that there is no need for the Magistrate to record any order of remand on the file of the case nor is there any need or requirement compelling the court to record reasons for remanding the accused to jail. Once the case is being adjourned in certain contingencies, the Magistrate or the court concerned has got discretion to remand the accused to jail and so by a warrant of remand, the accused if remanded to jail that is sufficient compliance irrespective of the fact that the remand warrant is stereotype.

. 5. The learned A.G.A submitted that even if there was any error in passing remand orders before filing of chargesheet or commital, the illegal dentention if any stood cured on the date the case was committed to the Court of Sessions. Reliance has been placed on the decision of Full Bench of this Court in Surjeet Singh v. State of U.P (supra). This decision does not solve the controversy because the court has to consider on the date of filing of the chargesheet and the date when the case was transmitted to the Court of Sessions for trial, whether there was an order of remand according to law. At the moment there have been divergent views on this point that whether remand order passed by the courts requires reasons and application of mind by the court before passing the order. A Division Bench of this Court in Deepak Shorn v. District Superintendent of Jail, Lucknow in Writ Petition No. 236 of 1992 connected with three other writ petitions has referred the following three questions to a larger Bench of Five Judges:

(1) Whether under Section 309 (2), Cr. P.C. the power of the courts to adjourn or postpone the enquiry or trial of a case as well as to remand the accused to jail custody by a warrant is controlled by the expressions and conditions referred to therein i.e. "for the reasons to be recorded" and "on terms as it thinks fit"?

(2) Whether the law laid down by the Full Bench in the case of Urooj Abbas v. State, 1973 Cr LJ 1458 to the effect that there is no need to record an order of remand in writing separately in the Order sheet nor there is any need to the reasons there for in writing for remanding the accused to jail has been correctly been laid down ?

(3) Whether the interpretation placed on Section 309of the Cr. P.C. in Urooj Abbas vide 1973 Cr. L.J. 1458 is in consonance with the principles of law enshrined under Articles 14 and 21 of the Constitution?

After hearing learned Counsel for the parties and considering the legal position I find that since similarly placed accused persons who were detained in jail on the basis of remand order not strictly in accordance with law as contemplated in the decision of the Supreme Court in AIR 1969 SC 1014 In re, Madhu Limaye have already been enlarged on bail, the applicant also cannot be treated differently. Hence applicant is liable to be enlarged on bail.

Let applicant Mohammad Tahir involved in Case Crime No. 399 of 1995, under Section 302, IPC, Police Station Delhi Gate, district Aligarh be releasd on bail, on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate concerned Aligarh.