VEERENDRA SINGH Vs. SUPERINTENDENT DISTRICT JAIL FAIZABAD

JUDGEMENT

(1.) The petitioner who is under detention in connection with the trial of a murder case registered against him as Crime No 50 of 1994, Police Station Khandasa, District Faizabad, seeks intervention of this Court under Art. 226 of the Constitution of India for release by way of a writ of habeas corpus on the averments that his detention was unauthorised and illegal. It was pleaded that on taking the cognizance of the matter on the basis of a charge-sheet filed on 27-6-1994 the Chief Judicial Magistrate, Faizabad cancelled the warrant under Sec. 167, Cr. P.C. and remanded the petitioner to judicial custody on the basis of a warrant prepared under S. 309, Cr. P.C. even though no specific order was passed on the order-sheet. Thereafter the case as fixed for 9-7-94 and again for 11-7-1994 but the petitioner was not produced in court on 9-7-1994, that he was produced on 11-7-1994 but no specific order regarding detention was passed on the order sheet and that even though he was produced in court on later dates and also supplied with the copies under S. 207, Cr. P.C. yet neither the commitment proceedings were concluded nor any specific orders passed on the order-sheet authorising the detention. It was contended that since the requisite documents under S. 207, Cr. P.C. were given to the petitioner on 5-8-1994, therefore, the detention under S. 309, Cr. P.C. also came to an end at that very moment in the absence of a legal authorisation on the order-sheet because on the supply of documents under S. 207, Cr. P.C. the learned Magistrate had to do nothing except to pass order of commitment. The incidence of petitioner's detention is not disputed by the respondents. The only bone of contention revolves around the validity and legality of the detention.

(2.) The learned counsel for the petitioner made a strenuous effort to impress upon us the necessity of petitioner's production before the Chief Judicial Magistrate at the time of taking cognizance of the case on 29-6-1994 because it was on that date that the earlier warrant under S. 167, Cr. P.C. was cancelled and detention was ordered under S. 309, Cr. P.C. The relevant order in this context is Annexure-I which incidentally contains a clerical error showing the date of passing the order as 29-7-1994 instead of 29-6-1994 (it is common ground that the order was actually passed on 29-6-1994 and not 29-7-1994 as depicted in this document). It was argued that the orders passed subsequent thereto in the petitioner's absence were illegal and that otherwise too his detention under S. 309, Cr. P.C. could not be authorised for a period of more than fifteen days at a time. Reliance was placed on the cases of Mustaq alias Mustafa v. Jail Superintendent, Lucknow, 1993 UP Cri R 392; Ran Vijai Singh v. Superintendent, District Jail, Faizabad, 1993 UP Cri R 394;Vashisht Muni v. Superintendent, District Jail, Faizabad, 1993 Lucknow LJ 165 and Wali Mohammad v. State of U.P., 1994 Lucknow LJ 148.

(3.) The parties are not at issue on the point of validity and withdrawal of the remand order under S. 167, Cr. P.C. by the learned Magistrate at the time of taking cognizance on 27-6-1994 when the charge-sheet was filed and on 29-6-1994 when the accused appeared before him. What irritated the petitioner was that he was not produced in court on 27-6-1994 and that the cognizance was taken in his absence. The submission is devoid of force because under the scheme of Criminal Procedure Code it is the case on which the cognizance is taken by the learned Magistrate and not of the accused. The order Annexure-1, date 29-6-1994 (wrongly shown as dated 29-7-1994) reveals in unambiguous terms that all the accused including the petitioner were called from the judicial lock up after taking cognizance of the case on 27-6-1994 and that they were actually produced before him on 29-6-1994. Of course that order also refers to the issuance of petitioner's detention under Sec. 309, Cr. P.C. but then the Court was to look into the substance rather than the format of the order; a simple misquotation of any provision of procedural law would not vitiate the entire process. After taking cognizance of the case triable by a Court of Sessions, the learned Magistrate was required to ensure the compliance of S. 207, Cr. P.C. by way of furnishing certain copies to the accused and till the completion of such proceeding, he could order their detention in judicial lock up by virtue of S. 209, Cr. P.C. as applicable to the State of Uttar Pradesh. Of course there is a general provision enabling such arrangement even under S. 309, Cr. P.C. but in its wisdom the Legislature incorporated certain amendments in the relevant provisions of S. 209, Cr. P.C. in so far as they apply to the State of Uttar Pradesh. For the proper appreciation of the point in issue we would like to reproduce the provisions as they exist on the book in consequence to S. 6 of U.P. Act No. 16 of 1976 :-