HARBINDER SINGH Vs. STATE

JUDGEMENT

(1.) The petitioner is involved in case under Section 302 Indian Penal Code (F.I.R. No. 40/82, Police Station R. K. Puram), for having committed fratricide on 26th January, 1982. He is seeking bail through this application, his prayer for bail having been rejected by an Additional Sessions Judge vide order dated 12th May, 1982.

(2.) The facts germane to the decision of this application are not in controversy. The petitioner was arrested by the police on 2nd February, 1982 and was produced before a Metropolitan Magistrate on 3rd of February, 1982. He was remanded to police custody in the first instance and thereafter he was remanded to judicial custody from time to time uptil 6th April, 1982. However, the petitioner was not produced before the Court on that day. Since it happened to be a holiday the Investigating Officer appeared before the Duty Magistrate and submitted an application for the production of the petitioner on the next following day viz. 7th April, 1982, which was allowed and the petitioner was accordingly produced before the concerned Magistrate on 7th April, 1982. He was then remanded to judicial custody upto 7th April, 1982, on which day he was again remanded to judicial custody upto 2nd May, 1982. The police submitted report under Section 173, Code of Criminal Proceducre (for short the Code) on 1st May, 1982 and an order was made by the Magistrate that he be produced on 3rd May, 1982. However, the petitioner, was not produced before the concerned Magistrate on 2nd May, 1982, on which date the remand accorded on 20th April, 1982, was to expire.

(3.) The submission of the learned counsel for the petitioner precisely is that detention of the petitioner became illegal on 6th April, 1982, in the absence of any valid order of remand to judicial custody and as such the learned Magistrate was not competent to grant further judicial remand on 7th April, 1982, which the petitioner was produced before him and the only course open to the Magistrate was to direct release of the petitioner on bail. It is contended that a further remand in direct contravention of Section 167(2) of the Code could not be made and the Court could not validate the illegal detention by making an order of further remand. On a parity of reasoning, it is urged that the detention of the petitioner from 2nd May, 1982 to 3rd May, 1982, was illegal, in the absence of any specific order of remand and as such this afforded a sufficient ground to the petitioner to ask for his release on bail. The contention raised is that Section 309(2) of the Code does not over-ride the mandatory provisions of Section 167(2) and as such the illegal detention could not be validated by an order under Section 309(2) granting further remand of the petitioner to judicial custody after the challan had been put in. Reliance in this context has been placed by him on Noor Mohd. v. State, ILR (1978) II Delhi 442, Izhar Ahmad v. State, (1978) Cr.L.J. 58, Bashir and others v. State of Haryana, AIR 1978 SG 55 and Mantoo Majumdar and anothor v. The State of Bihar, AIR 1980 SG 847. Reference in this context has also been made to Article 21 of the Constitution of India which lays down that no person shall be deprieved of his life or personal liberty except according to procedure established by law. However, as shall be presently seen none of those authorities is of any help to the petitioner.