JANKI Vs. STATE

JUDGEMENT

(1.) R. C. Deo Sharma, J. This is an application for grant of bail on various grounds. No ground on merits has been pressed in this case and the learned counsel for the applicant has confined himself to making submissions on points of law. It will appear that the applicant was to be prosecuted in a case under Sections 147, 149 and 302,i. P. C. The charge sheet in the case was submitted on the ninetieth day but the papers required to be supplied to the accused under Section 207 Cr. P. C. had not been enclosed with the charge sheet. It is stated that till now the copies have not been supplied and accordingly the case has not been committed to the Court of Session although almost one year has expired. It has also been contended that the accused was transferred to Gonda jail in the month of December and a date was fixed for his appearance or February 5, 1982 which was much beyond fifteen days for which a remand could be granted under Section 309 Cr. P. C. Other contentions were also raised which are not necessary to be referred to because the matter can be disposed of on points already stated.

(2.) ATTENTION has been drawn by the learned counsel for the applicant to the provisions of Sections 267 and 269 Cr. P. C. Since the Court at Gonda had summoned the accused to appear in a case pending against him there, a requisition was sent to District Jail and in compliance the accused had been sent to Gonda while the case at Barabanki is still pending. According to Section 269 (b) Cr. P. C. if the accused is under committal for trial or under remand pending trial the officer incharge of the prison shall abstain from carrying out the Courts order and shall send to that Court a statement of reasons for so abstaining. Since the accused was to stand his trial at Barabanki and proceedings for committal were pending, it was not necessary for the accused to be sent to Gonda. Again under Section 309 (2) Cr, P. C. a remand for more than 15 days could not have been granted. Although sub-section (2) refers to a stage where cognizance has been taken or trial has commenced but in terms it also applies to cases where an enquiry or trial is pending. It was argued by the learned counsel for the State that in such circumstances Section 167, Cr. P. C. should apply and under the proviso to sub-section (2) of Section 167 a Magistrate could grant a longer remand beyond fifteen days. A perusal of Section 167 Cr. P. C, will indicate that it applies to the stage prior to submission of a charge-sheet but it is not meant to be applied to cases beyond ninety days where after a person becomes entitled to be released on bail if charge sheet has not been submitted. In this view of the matter Section 30y Cr. P. C. is applicable to the case. It has not been disputed and the order sheet of the case pending at Barabanki will also indicate that on 19th December 1981 it was observed that the accused could not come from the district jail because he had in the meantime been transferred to Gonda in connection with some other case and therefore, 5th of February was fixed in the case. Thereafter dates were fixed in March and April and it is stated that till now the accused had neither been produced before the Court at Barabanki nor the case has been committed to the Court of Session. It was on this basis that it was contended that the custody of the accused has become illegal and he should be set at liberty. In the alternative, a request for bail has been made on account of the circumstances indicated above. Without therefore deciding the question whether in the circumstances a petition for habeas corpus should lie or a request for bail can be made, I am of the view that looking to the totality of the circumstances indicated above the applicant deserves to be enlarged on bail in this case pending at Barabanki. The applicant shall accordingly be released on bail on his furnishing adequate personal bond and sureties to the satisfaction of the Chief Judicial Magistrate Barabanki. .