Shiv Kumar vs State of U.P. and Another

B.K. Rathi, J.—I have heard Sri S. C. Pandey, learned Counsel for the revisionist and the learned A.G.A.

In this revision, various orders which have been passed on the order sheet adjoining the Case No. 1640 of 1999 and after committal in S.T. No. 171 of 1999, State v. Shiv Kumar and six Ors. S.T. No. 171 of 1999, u/s 498A, 304B, I.P.C. and 3/4, D.P. Act pending in the Court of Ist Additional Sessions Judge, Bhadohi, have been challenged. All the orders have been challenged on one ground that the revisionist, Shiv Kumar is in jail. That he is detained in jail but no order for remand to judicial custody was ever passed to detain revisionist in custody. The other accused of this case are on bail. The only argument of the learned Counsel is that he is in jail without any order of remand to the judicial custody u/s 309 or 209, Cr. P.C. and, therefore, the custody of the revisionist is illegal. The request made by the revisionist is that he may be enlarged on bail for the reason that he is in illegal detention.

Record of the S.T. No. 171 of 1999 has been summoned and has been perused by me. In this case, the revisionist was on remand granted u/s 167, Cr. P.C. during investigation. The charge was received on 7.10.1999 on that day, the learned C.J.M., Bhadohi, ordered that the case be registered. The revisionist and other accused are in jail. The copies be prepared. However, on receipt of the charge-sheet neither he has taken cognizance of the case nor he has ordered that a remand order u/s 309(2), Cr. P.C. be prepared. There is no order in the entire order sheet of the learned Chief Judicial Magistrate, Bhadohi, remanding the accused to judicial custody u/s 309(2), Cr. P.C. Various dates were fixed in the case and ultimately the case was committed to the Court of Sessions on 17.11.1999. It was ordered that he be produced before Sessions Judge on 17.12.1999. The other accused who were on bail were also directed to appear in the Court of Sessions Judge on that day. However, to my utter surprise, even on that date, no remand order was passed by the learned Chief Judicial Magistrate, Bhadohi, under Clause (b) Section 209, Cr. P.C. as amended in U. P. The commitment order was received by the Court of Sessions Judge on 18.11.1999 and according to the order of the Magistrate, 17.12.1999 was fixed for appearance. The case was transferred to Ist Additional Sessions Judge where it is proceeding. From that date till today, no remand order was passed, but the revisionist continues to be in custody which is naturally illegal being without any remand order authorizing detention.

In the circumstances mentioned above, I have no option but to say that the custody of the revisionist is illegal. However, the question that arises is whether the accused should be released on bail. The learned Counsel for the revisionist has referred to several cases. The first case is Sajid and Anr. v. State of U. P. 1995 (Supp) ACC 433. In this case, the order of remand u/s 209, Cr. P.C. was not found proper and, therefore, in criminal revision the revisionist was enlarged on bail. The other authority is Raj Pal Singh v. State of U. P. XXXII 1995 ACC 155. The facts of this case are similar to the case of Sajid and Anr. (supra), and the accused was released on bail in the revision filed against the order of judicial custody passed without application of mind. The third decision referred to is Rajesh Mishra v. State of U. P. XXXI 1994 ACC 197. This is a very detailed judgment of Hon''ble Mr, Justice A. S. Tripathi and he has considered the several decisions and held that there was no proper remand order. He, therefore, held that detention of the accused is illegal and released the accused on bail in a criminal revision.

I am unable to follow these authorities as after carefully going through them, I find that no doubt in all the three cases, the accused were released on bail in criminal revision on the finding that there was no legal remand order. However, no law was laid down that in a case if an accused is in illegal custody, he is entitled to be released on bail. Therefore, there is no law laid down in these cases to be followed. Only on the basis that in the cited cases, the accused were released on bail. I am not inclined to release the revisionist on bail. The following two important questions were not at all considered in any of the cases:

(1) Whether the accused can be released on bail on the ground that his custody is illegal?

(2) Whether the bail order can be passed in revision ignoring the provisions of Chapter XXXIII, Cr. P.C. regarding bail?

Without considering the above two questions, it is not proper to grant bail to the accused in a criminal revision. The ground of bail has been mentioned under Sections 436 and 439, Cr. P.C. but they are conspicuous by the assence of any provision to grant bail on the ground of illegal custody. Illegal custody of the accused has not been recognised by law to be a ground for bail nor it was ever considered to be ground for bail. Therefore, the accused cannot be released on bail because he is found in illegal custody for want of proper remand.

Secondly, this Court exercises the power of revision under Chapter XXX, Cr. P.C. and Sections 397 to 401, Cr. P.C. are relevant. Section 397, Cr. P.C. provides that where exercising the power under that section of examining the record, the High Court or Court of Session may "direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record." The careful reading of the provision reveal that under this provision, the bail can be ordered only in the case where sentence has been awarded and the power u/s 397, Cr. P.C. is exercised against the order awarding sentence. In any other cases, there is no provision for grant of bail while exercising power of revision.

I, therefore, find that neither the bail can be granted on the ground that there is illegal custody nor bail can be granted in revision against illegal remand. The remedy open for illegal custody is in writ petition for habeas corpus under Article 226 of the Constitution of India. This Court while exercising power of revision, except in the cases where the revision against the order of sentence cannot order for release on bail of the accused. There are different provisions of bail contained under Sections 436 to 439, Cr. P.C. in which alone the bail can be granted.

Learned Counsel for the revisionist has referred to certain other cases also which, in my opinion are against the arguments of the learned Counsel for the revisionist but it is proper to refer to them. The first is Vashist Muni v. Superintendent District Jail, Faizabad and Ors. 1993 UP CR 159. This was a petition under Article 226 of the Constitution of India. In this case the detention was found illegal and for want of proper order of remand and therefore, the Petitioner was directed to be set at liberty. The other case referred to is Rafi Ahmad v. Adhikshak Janpad Karagar and other 1992 UP CR 531. In this case also the remand order was found to be illegal and therefore, it was ordered that the revisionist, who is in illegal custody shall be set at liberty. The third case referred to is Ram Narayan Singh v. State of Delhi and Ors. 1953 CriLJ 1113. This is a decision of the Hon''ble Supreme Court. In this case, also a writ petition under Article 32 of the Constitution of India was filed. The detention was found without remand order. The Hon''ble Supreme Court ordered that the Petitioners be set at liberty.

All the above three cases, therefore, are against the arguments of learned Counsel for the revisionist. In all these three cases, the writ petition for habeas corpus under Article 226 of the Constitution of India were filed and it was ordered that the accused be set at liberty. In no cases the revisionist was released on bail. Therefore, these cases confirm my view expressed above.

In view of the above, no relief can be given to the revisionist in this revision. He may file a petition for habeas corpus under Article 226 of the Constitution of India. The revision is accordingly dismissed.

However, I shall be failing in my duty if proper guidance is not issued to the Chief Judicial Magistrate, Bhadohi. The learned Sessions Judge, Bhadohi, will look into the matter and call for explanation of the Chief Judicial Magistrate, Bhadohi, as to why he did not order for taking cognizance of the case when the charge-sheet was received and he did not prepare warrant u/s 309(2), Cr. P.C. on receipt of the charge-sheet and the case was adjourned for preparation of the copies, and why he did not prepare warrants u/s 209(b), Cr. P.C. (as amended in U.P.) remanding the accused to custody until commitment of the case under Clause (a) and thereafter during and until the conclusion of the trial. The explanation shall be obtained within a month and shall be forwarded with the comments of Sessions Judge, Bhadohi, to the Registrar General of the High Court to be placed before me. The office is directed to send the copy of this order to the learned Sessions Judge, Bhadohi, immediately along with record of the S.T. No. 171 of 1999.