(1.) This revision under Sections 397/401 of the Code of Criminal Procedure, 1974, (for short the Code), is directed against the order dated 12.2.87 rejecting the prayer for bail in favour of the application the ground that the order of remand was not legal and hence the custody has become illegal. It appears that the applicant was sought to be prosecuted in Sessions Trial No. 476/86 for offence under Sections 147/148/323/324/325/307/302/149, I.P.C. The Magistrate passed an order Dt. 31.1.86 of remand of the accused to the court of sessions, but he did not mention the words in the order of remand T1that the applicant was being remanded to custody during and until the conclusion of the trial,T as required by Section 209 (b) of the Code, On 13.1 1.86 no remand was granted by the Sessions Judge, as on account of strike of the court employees record of the case could not be put up before the Sessions Judge. On 23.12.86 the learned Sessions Judge transferred the case to the III Additional Sessions Judge, Ghaziabad. On 5.1.87 the case was taken up and the applicant was produced before the Court and was remanded to the custody. Learned counsel for the applicant urged that as the Magistrate did not remand the accused to custody with specified words during and until the conclusion of the trial as required by Section 209(b) of the Code, the custody became illegal and the applicant was entitled to bail under Section 167(2). Reliance was placed on Nakul Singh v. State1. Learned counsel for the State, on the other hand, urged that the order of remand was not illegal, inasmuch as the learned Magistrate on 31.1.86, even though did not make a metion that the applicant was being remanded to custody during and until conclusion of the trial as required by Section 209(b) of the Code, the remand could not be granted by the learned Sessions Judge on 13.11.86 on account of strike by the employees of the court and on 23.12,86 the case was transferred to the court of Additional Sessions Judge fixing 5.1.87 and on that date the Sessions Judge remanded the applicant to custody. Even though the order of remand clearly states that the applicant was being remanded to custody during and until conclusion of the trial, but the custody warrant did contain a direction to the Jailor to keep the accused in custody and produce him on the date noted overleaf. This was substantial compliance of the provisions of the Code and in any case even if there was any irregularity, that can be cured by provision of Section 465(1) of the Code. Heard the learned counsel for the parties. The principal question for determination is as to whether the order passed by the Magistrate remanding the applicant to custody was proper, even though the words during and until the conclusion of the trial was not mentioned. In fact, under Section 167(2) of the Code the Magistrate at the first instance could grant remand for 15 days and in case the investigation relates to an offence punishable with death or imprisonment for life, the term of remand should not extend 90 days. It is not disputed that requirement of 15 days and 90 days was complied with, but the illegality was pointed out as the words during and until conclusion of the trial were not mentioned Section 167 finds place in Chapter XII (information to police and their powers to investigate). Section 209 provides procedure for commitment of accused to the court of sessions when the offence is exclusively triable by it, and it finds place in Chapter XVI (commencement of proceedings before Magistrates). Section 309 (power to postpone and adjourn the proceedings) finds place in Chapter XXIV (general provisions as to enquiries and trials). These three sections have to be read together. As section 167 was under Chapter XIV pertaining to information to police and their powers to investigate, there was no question of passing an order by the Magistrate under Section 167 while committing the accused to the court of sessions (in view of Section 209).
(2.) The trial starts only when the accused is committed to the court of sessions and not before that. Such order could have been passed only under Section 209. In this view of the matter, Section 167 was not applicable in such cases where the accused has been committed to the Court of Session. Even though Section 209 of the Code contains a provision that while committing the accused to the court of sessions, the Magistrate shall remand the accused to custody during and until conclusion of the trial, the order was passed to that effect, but it appears that by over sight the words during and until conclusion of the trial were not mentioned. But in the custody warrant the Jailor was directed to keep the accused in custody and produce him before the court of sessions on the date fixed. Similar was the order passed by the learned Additional Sessions judge on 5.1.87. In case the custody warrant did indicate a direction to the Jailor to keep the accused in custody and to produce him on the date noted overleaf, it means that the applicant was being remanded for that period and was to be produced on the date fixed. However, the intention of legislature appears to be that the learned Magistrate either under section 209 or under section 309 was not required to pass a separate order of remand nor any special form of the order was provided. The intention of legislature appears to be that the separate order or the form of order was not considered material, otherwise it must have been specifically provided.
(3.) In Nimeon Sangma & others v. Home Secretary, Government of Meghalaya, the Supreme Court has held that object of Sections 167, 209 and 302 was expeditious disposal of cases including investigation and trial. The object of these sections appears to be that there must be no delay in investigation or trial.