DHARMENDRA TRIPATHI Vs. STATE OF U P

JUDGEMENT

(1.) I. M. Quddusi, J. By means of the present petition under Section 482 Cr. P. C. the petitioner has prayed for the quashing of the order dated 19-6-1996 passed by the Chief Judicial Magistrate, Bhadhohi passed in Criminal Case No. 135 of 1995, and to release the applicant on bail.

(2.) THE facts of the case in brief is that one Bhawani Prasad filed a first information report against the applicant which was registered as Case Crime No. 185 of 1995 under Section 302, 307 and 323 I. P. C. at police station Aurai district Bhadohi. In the aforesaid incident one Devi Prasad is shown to have been killed and Bhawani Prasad Upadhya is alleged to have sustained simple injuries. With regard to the aforesaid inci dent, the father of the applicant also lodged a cross report which has been registered as Case Crime No. 135-A of 1995 under Sec tion 395, 397 and 307 I. P. C. in which the applicant including 5 other persons have sustained injuries. THE case of the applicant is that since the applicant was lying in Hospital and, as such, the police took him into custody on the day of incident itself. THE investigation of the case was entrusted to the C. B. C. I. D. Varanasi Sector THE In spector of C. B. C. I. D. without completing the investigation has submitted a report that a detailed investigation is going on and the statement of the eye witnesses including Shesh Mani Shukla have not been recorded, the charge sheet is being submitted since 90 days are elapsing and further detailed inves tigation is going on. THE contention of the learned counsel for the applicant is that since the remand to judicial custody granted to the applicant expired on 17-6-1996 and thereafter the learned Magistrate did not grant any further remand and, as such, the applicant is entitled to be set at liberty as there is no valid order of remand to detain the applicant in jail. THE applicant also moved an application before the Chief Judi cial Magistrate containing precisely the same prayer which has been rejected by the learned Chief Judicial Magistrate on 19-6-1996. While rejecting the said application the learned Chief Judicial Magistrate took into consideration a report submitted by the Superintendent of District Jail under Sec tion 269 Cr. P. C. to the effect that since the applicant is in half coma, he could not be produced before the Court for taking remand. On 19-6-1996 the Chief Judicial Magistrate, Bhadohi who has taken cog nizance of the matter and was seized with the enquiry directed the Additional Chief Judicial Magistrate, Bhadohi to pass an order of remand to detain the applicant in district Jail Varanasi. Accordingly on 19-6-1996the A. C. J. M. Bhadohi remanded the applicant to the jail custody. THE contention of the applicant is that the Court which had taken the cognizance is alone entitled to grant remand after applying his mind judiciouly, and the order of remand has been passed mechanically by other Magistrate who has not taken cognizance of the case. It has been further submitted that the Chief Judicial Magistrate, Bhadohi was present in the Court on 19-6-1996 and in tact, he disposed of the application of the applicant in which the objection was raised that in the absence of valid remand order the applicant was entitled to be released on bail. It has been contended that the warrant purported to have been issued by the A. C. J. M. Bhadohi on 19-6- 1996 is illegal and without any authority of law as the CJ. M. who has taken cognizance and has decided the applicant's application cannot be abdicate his judicial function further and direct any other Magistrate during his presence to grant remand. THE contention of the applicant is that petitioner's remand having expired on 17-6-1996 and no other warrant or order of remand having been passed, the applicant's custody in jail on subsequent dates has become illegal which cannot be cured by issue of subsequent order of remand by any other Magistrate. THE contention of the learned counsel is that Section 269 Cr. P. C. only authorises the Superintendent of District Jail not to for ward any accused or produce him in Court but that section does not authorise the Jailor to keep a person in j ail in the absence of any valid order of remand and in view of the provisions of Section 167, 209 and 309 Criminal Procedure Code as well as U. P. Jail Manual and the Prisons Act a valid order of remand is the only authority to keep an accused in jail.

(3.) THE learned Additional Govern ment Advocate on the other hand submitted that the occurrence is of 28th June 1995 and the accused applicant was arrested on 3-7-1995 and the report was submitted by CB. C. I. D. on 30-9-1995 and as such the applicant is not entitled to the provisions of Section 167 Cr. P. C. It has been contended that remand of the applicant to jail custody after chargesheet under Section 209 Cr. P. C. and 309 Cr. P. C. being valid, the detention of the applicant cannot be said to be illegal; the bail application of the applicant having been rejected on merit by Hon. O. P. Jain, J. and parole having been granted to the ap plicant by him, no application containing the bail prayer could be entertained by any other Hon'ble Judge. THE next contention of the learned Additional Government Ad vocate is that during investigation remand ing the accused to jail custody under Section 167 Cr. P. C. is no illegality; that the ap plicant has concealed material facts from this Court; the scope of Section 482, Cr. EC. to interfere is very limited and no applica tion under Section 482 Cr. P. C. is main tainable if alternative remedy is available; and if detention of an accused in jail is illegal then the proper remedy is Habeas Corpus Petition under Article 226 of the Constitu tion.