LAWS(ALL)-1981-3-17

NAKUL SINGH Vs. STATE OF U P

Decided On March 09, 1981
NAKUL SINGH Appellant
V/S
STATE OF UTTAR PRADESH Respondents

JUDGEMENT

(1.) THIS second bail application has been moved on the technical ground that while committing the accused on 25-8-1980 when the accused were in jail the Magistrate did not pass any order under Sec. 209 CrPC "remanding the accused to custody during and until the conclusion of the trial''. Further that an order of remand to custody under Sec. 309 CrPC had also not been passed by the court of Session itself even though the case had come up before it on a number of dates.

(2.) THE committal order in question is in Hindi and the relevant portion translated into English runs as follows :- "............THEse offences are triable by the court of Session. THErefore, the case of the accused is committed to the court of Session. THE accused persons are in jail. Copies have already been delivered to them. THE accused persons are directed to appear for their trial before the court of Session on 8-9-1980. "

(3.) THE warrants not having been perused it is not necessary to speculate what the same may have contained and it wits to be taken that there is no proper authority in the warrants for the detention] of the applicants in jail. It may, however, be added that even if a proper warrant authorising detention by remanding the accused to jail custody has been issued to the jail authorities the fact of having given such remand should appear from the record of the case also. Perhaps in a case where the record is ambiguous the warrant may suffice to uphold the legality of the detention but even such a situation is best avoided. THE Magistrate and Sessions Courts would, therefore, do well to pay due attention to the need for passing remand to custody orders under Sec. 209 or 309 CrPC wherever called for as well as to insist upon proper language for the custody warrants that are signed by them authorising detention in jail. THE best thing is for this language to follow the lines of the statutes and accord with judicial orders passed in the record. In the present case it cannot be said that proper remand orders or even warrants exist for detaining the applicants in jail. In such cases the detained persons) can invoke the jurisdiction under Article 226 of the Constitution by filing writ of Habeas Corpus. But is has judicially been recognised that if they refer to be under trial they can also apply for the lessor relief of release on bail. THE application is, accordingly, allowed. Let the applicant Nakul Singh and Nandu Singh (Crime No. 77/80 under Sec 302 IPC of P. S. Pailani, Banda) be released on bail on each of them furnishing a personal bond with two sureties to the satisfaction of Chief Judicial Magistrate Banda. --- Ordered accordingly.