Onkar Singh and Others vs State

H.N. Kapoor, J.—This revision is directed against the order of the Judicial Magistrate, Ghaziabad dated 1-12-1975 committing the Applicants to the court of session for trial in a case u/s 302 IPC. By this commitment order four persona were committed to the court of session, namely, Ranvir, Rishipal, Onkar and Brijpal. Ranvir alone was present in court on the date of commitment. Rishipal was absent but his attendance had been exempted through counsel. Onkar and Brijpal were in jail. They were not brought before the Magistrate on the date of commitment. The commitment order has been challenged by Onkar Singh and Brijpal only who were in jail.

Learned Counsel for the Applicants has argued that u/s 209 Code of Criminal Procedure, it is mandatory that the accused should either appear or be brought before the Magistrate and only then he can commit the accused to stand their trial before the court of session Section 209 Clauses (a) and (b) of the Code of Criminal Procedure are as follows:

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 sessions, he shall-

(a) commit the case to the court of session;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;

Learned Counsel for the Applicants has argued that in the case of Kamlesh Kumar Dikshit v. State Habeas Corpus Petition No. 3643 of 1975 decided on 5-8-1975 a Division Bench of this Court had held that detention of the accused in that case was illegal as he had appeared before the court only once and was then sent to jail, and further remands were granted u/s 167 Code of Criminal Procedure without his being brought before the court and he was ultimately committed u/s 209 Code of Criminal Procedure without having been brought before the court when he was in jail. His argument is that the same provision will apply with regard to the Commitment order u/s 209 Code of Criminal Procedure in the absence of the accused when they were in jail and were not brought before the Magistrate. I have carefully perused the judgment in that case. The Division Bench mainly considered the provisions of Section 167 Code of Criminal Procedure. Proviso (b) to Sub-Section (2) of Section 167 Code of Criminal Procedure is as follows:

No Magistrate ''shall authorise detention in any custody under this section unless the accused is produced before him.

There can be no doubt that this provision is mandatory and the orders passed u/s 167 Code of Criminal Procedure remanding the accused to jail custody from time to time in his absence were illegal. When the accused was not brought before the court at the stage of Section 209 Code of Criminal Procedure also, the Division Bench took the view that his detention remained illegal throughout and so he was ordered to be set at liberty. The Division Bench, nowhere held that the commitment order was also illegal. On the other hand, it was observed that the order directing the accused to be set at liberty would not stand in the way of the Respondents in initiating appropriate proceedings before the appropriate authorities for re-taking the Petitioner into custody in accordance with law. This would imply that he could be retaken into custody and remanded to custody u/s 309 Code of Criminal Procedure, by the Sessions Judge as the case had been committed.

In that case, the learned Judges also took the scope of Section 465 Code of Criminal Procedure into consideration. No doubt, in their opinion, the detention being illegal from the stage of Section 167 Code of Criminal Procedure was not curable. They also took the view that Section 465(1) Code of Criminal Procedure did not, in term, apply to the consideration of Habeas Corpus Petition as the Court exercised jurisdiction under Article 226 of the Constitution of India and not sitting as a Court of appeal, confirmation or revision. Section 465(1) Code of Criminal Procedure reads as follows:

Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, or any error or irregularity in any sanction for the prosecution unless in the opinion of that court, a violation of justice has in fact been occasioned thereby.

It has now been held by that very Bench consisting of H.N. Seth and G.D. Srivastava, JJ. in the case of Laksbman Brahmin v. State 1975 AWG 439 that commitment u/s 209 Code of Criminal Procedure is a mechanical process and the commitment proceedings do not amount to an enquiry. No prejudice was, therefore, caused to the Applicants by their non-production in court at the time of -commitment as they were in jail and had already appeared before the Magistrate or brought before him earlier. There also appears to be force in the argument of the learned Asstt. Govt. Advocate that the object of Section 209 Code of Criminal Procedure is that the commitment order should not be passed when the accused is absconding or has never been brought before the court at all.

Under the circumstances of this case, in my opinion, non-production of the Applicants before the Magistrate at the time of commitment u/s 209 Code of Criminal Procedure when they were in jail, is a mere irregularity and is curable u/s 465(1). I am also satisfied that no prejudice has been caused to the Applicants on account of this irregularity.

The revision is accordingly dismissed.