RAGHAVENDRA SINGH Vs. STATE OF U P

JUDGEMENT

(1.) THIS petition was moved for a relief to quash the proceedings pending against the petitioner in the court of the Chief Judicial Magistrate Unnao and for setting the petitioner at liberty. Learned Counsel appearing for the petitioner has made a statement that he does not press the first part of the relief but will confine the petition to the second part, namely, the relief to set the petitioner at liberty. He has contended that he prays only for a writ in the nature of habeas corpus.

(2.) THE petitioner was taken into custody at Lucknow on August 9, 1975 and is in jail since then. A criminal prosecution is pending against the petitioner in the court of the Chief Judicial Magistrate, Unnao. A charge sheet in the case was filed on 9-10-1975. The case was then adjourned to 22-10-1975. The accused who was in jail did not appear in court as he was not brought to court by the authorities. The Magistrate went on adjourning the case and fixed 10-11-1975, 9-121975, 9-1-1976 and has now fixed 14-2-1976 for the hearing of the case. On each occasion he ordered the production of the accused but it appears that on no date the accused was produced in court. The result of this has been delay in dispensation of justice and the case could not proceed against the petitioner. The detention of the petitioner in these circumstances is being challenged by the petitioner.

(3.) SECTION 309 (2) of the Ode of Criminal Procedure permits a court to adjourn the hearing of a trial from time to time for reasons to be recorded and also permits the court to remand the accused if in custody by a warrant of remand. The trial could not proceed because of the absence of the accused and hence there was reasonable ground for the postponement of the trial. But the orders passed by the Magistrate do not indicate that he ever applied his mind about keeping the accused in custody. There is no order directing the accused to be kept in custody. The warrant of intermediate custody on the basis of which the petitioner is said to be detained, was produced before us on the last occasion. It contained a warrant directing the remand of the accused to custody for the period 10th August to 23rd August 1975. Thereafter there is no warrant of remand for keeping the accused in custody. Under Section 309 of the Code of Criminal Procedure the custody of an ac-used can be maintained and continued only by a warrant issued by the Magistrate. Without such a warrant, the custody cannot be uglified. As there is no warrant of remand issued by a magistrate directing the continuance of the custody, the custody of the petitioner must be held to be without authority of law. The petitioner is, therefore, entitled to be released as in the return no other authority for detaining the petitioner has been shown.