Rajeev Kumar vs State of JHARKHAND and Another

D.N. Upadhyay

Even in the second round, when the case is called out, none appears on behalf of the petitioner.

This writ petition is, accordingly, dismissed for non prosecution.

This writ petition arises out of Sahebganj (T) PS Case No. 216 of 2009.

Learned counsel for the petitioner submits that the petitioner seeks permission to withdraw this writ petition.

This writ petition is, accordingly, dismissed as withdrawn, as prayed for.

Issue notice to the respondent No.2 for which requisites etc. under registered cover with A/d as well as ordinary process must be filed within a week.

This Criminal Writ petition has been filed in connection with Chutia PS case No. 36 of 2010 with a prayer to give direction to the respondents to start investigation in the aforesaid case which was filed by him.

None appears on behalf of the petitioner.

Learned counsel appearing on behalf of the State has submitted that after institution of the case, investigation was going on and the case lodged by the petitioner was found to be true. Since the submission advanced by the learned counsel for the State indicates that investigation was going on, I do not feel inclined to keep this writ petition pending.

Accordingly, this writ petition is dismissed giving liberty to the petitioner to file a protest petition in the court below if he will be aggrieved with the investigation.

This Criminal Writ Petition has been filed by the petitioners for quashing the order dated 29.8.2009 passed by the learned Sessions Judge 1st, Rajmahal, in Cr. Revision No. 50 of 2009 as well as order dated 12.10.2009 passed by the learned Magistrate in connection with PCR case No. 650 of 2008 with a prayer to set aside both the orders.

It is submitted that previously, the learned Magistrate after concluding the enquiry did not find the evidence true and dismissed the complainant vide order dated 13.5.2009 where-after the complainant preferred Criminal Revision No.50 of 2009 which was accordingly allowed in favour of the complainant/respondent No.2 Learned Magistrate without holding further enquiry or examining the complainant or his witness(es) passed the aforesaid order dated 12.10.2009 directing the petitioners to face trial for the offence punishable u/s 436 IPC and issued non bailable warrant of arrest. The impugned orders are illegal and arbitrary and therefore liable to be set aside.

Learned counsel for the State has submitted that the learned Magistrate while passing the order dated 29.8.2009 in Cr. Revision No. 50 of 2009 has given his opinion that prima facie the evidence adduced by the complainant during enquiry and the statement of the complainant recorded on S.A constitute offence u/s 436 IPC and therefore the case was remanded back to the court of learned Magistrate for re-evaluation of the statement of the complainant and the witnesses and to pass an appropriate order.

I have gone through the impugned orders. I do not find that the order dated 29.8.2009 passed by the learned Magistrate in Cr. Revision No. 50 of 2009 is not appropriate and legal, because the learned Magistrate has passed the impugned order only on the basis of the direction given by the learned Sessions Judge in Cr. Revision No. 50 of 2009. Learned Magistrate has not discussed the statement of the complainant recorded on SA and the evidence adduced during enquiry. No opportunity was given to the complainant to adduce further evidence, if he so desired, and therefore, I feel inclined to set aside the impugned order dated 12.10.2009 passed in PCR case No. 650 of 2008 with the direction that the learned Magistrate shall re-inquire into the matter, if it is so needed, and he shall passed an appropriate order after perusal of the statement of the complainant recorded on SA and the evidence recorded during enquiry.

With the above observation and direction, this writ petition is disposed of.

This criminal writ petition has been filed by the petitioner with a prayer for setting aside the order dated 10.9.2010 passed by the learned CJM, Latehar in G.R. No. 591 of 2009 arising out of Mahuatanr PS Case No. 36 of 2009. It is further prayed that unless petitioner is not remanded in that particular case, he could not be able to file bail application or the case will not proceed ahead.

At present, the petitioner in this case is lodged in Gumla Jail in connection with a case lodged in Dumri Police Station in which case, he has been granted bail, but only on the strength of production warrant issued in connection with Mahuatanr PS Case No. 36 of 2009, he has been detained in custody.

Learned counsel for the State has opposed the prayer.

I have perused the order dated 19.01.2010 and 10.9.2010 passed by the learned CJM in connection with G.R No. 591 of 2009. Only on the basis of production warrant, a person cannot be detained in custody and he is required to be produced before the court concerned at the earliest opportunity available, so that the case in which his presence is required may proceed further.

Order dated 19.01.2010 indicates clearly that the concerned investigating officer of Mahuatanr PS Case No. 36 of 2009 has filed requisition for remand of the petitioner in this case and the learned CJM has been placed to allow the prayer and has sent the production warrant to Gumla Sub Jail. Grounds stated by the CJM based on the submissions of the learned APP do not appear to be correct, because the investigating officer himself has filed the requisition for remand of the petitioner in that particular Mahuatanr PS Case No. 36 of 2009. The petitioner also does not deny his identity being that of Joseph Ekka, son of John Ekka.

Now the question arises when a person is remanded to judicial custody by any Magistrate in connection with any case, and his appearance is required in any other case pending in another district, whether his physical appearance for his first remand in that case is essential ?

In this context, recent amendment in the provision of section 167(2)(b) of the Code of Criminal Procedure, which has been given effect from 31.12.2009, is as follows :

No Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage.

It is not disputed in the instant case that the petitioner is in judicial custody at Gumla jail in connection with Dumri PS case No.48 of 2009 and the investigating officer of the Mahuatanr PS Case No. 36 of 2009 has made prayer for his remand in that case at Latehar. If that being so, there will be two options; first, that the accused person whose remand is required in connection with another case in another district should be produced under proper escort before the concerned court or he may be remanded through video conferencing in that particular case, because in any case, the said accused will be handed over to the investigating officer for producing him before the concerned court in which case his appearance is required. Further more, the aforesaid amendment which has been given effect to speed up trial by using electronic device, shall become infructuous if it is not properly applied. Therefore, I feel that if a person who is in judicial custody in connection with any case can be remanded in another case in which his appearance is required in another district through video conferencing for further progress of that particular case.

With the above discussions, either the S.P. Gumla, should provide proper escort for production of petitioner in connection with Mahuatanr PS Case No. 36 of 2009 before the learned CJM Latehar, or the CJM concerned shall take appropriate steps to get the petitioner remanded in connection with Mahuatanr PS Case No. 36 of 2009 through video conferencing.

With the above observations and direction, this writ petition is allowed and the impugned order dated 10.9.2010 is set aside.