SHIV KUMAR Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) I have heard Shri S. C. Pandey, learned counsel for the revisionist and the learned A. G. A.

(2.) 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 others, under Section 498-A, 304-B I.P.C. and Ss. 3, 4 of D. P. Act pending in the Court of 1st 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 under Sec. 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.

(3.) 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 under Sec. 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 under Section 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 under Sec. 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) Sec. 209 Cr. P.C. as amended in U.P. The commitment order was received for 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.