BUDHA SINGH Vs. STATE OF U P

JUDGEMENT

(1.) KUNDAN Singh, J. The first bail application bearing No. 7687 of 1996 was rejected on 3. 7. 1996 on merits.

(2.) THIS is second bail application on the additional ground that the 1st Addl. Sessions Judge, Kanpur Dehat, before whom Sessions Trial No. 91 of 1996 is pending, has not passed legal or proper remand order under Section 309 Cr. P. C. The learned counsel for the applicant relied on a Division Bench case of Lucknow Bench, Vashist Muni v. Superintendent, District Jail, Faizabad and others reported in 1993 L. L. J. 165. I considered the contention of the counsel for the applicant it is noticed that subsequently the Division Bench of this Court in the case of Veerendra Singh v. Superintendent District Jail, Faizabad and another, reported in 1995 J. I. C. 345 (All) (LB) considered the law regarding the remand orders enunciated in the case of Vashist Muni (supra) in the following words: "4. A bare perusal of the aforesaid clause (b) would leave no manner of doubt that the learned Magistrate could remand the petitioner to custody not only on the completing the commitment proceedings but also during the pendency of each proceedings and that such institution could be extended even until the conclusion of trial. Section 309 Cr. P. C. is of a general amplitude whereas Section 209, as amended in the State of Uttar Pradesh comes in the nature of a special law. It is besides the point that instead of an erroneous impression of its destroying the general provision of Section 309, Cr. P. C. it actually supplements it. The case law relied upon by the learned counsel for the petitioner is thus distinguishable inasmuch as it does not take note of the scope and play of the aforesaid amended provision of Section 209, Cr. P. C. in its application to the State of Uttar Pradesh. 5. Insofar as the absence of the accused at the time of taking the cognisance by the learned Magistrate and even at the time of passing the remand order on 9. 7. 1994 is concerned there is ample judicial authority for the proposition that having regard to the facts and circumstances of each case, mere absence would not vitiate the detention. For ready-hand reference one can look into the case of A. Lakshman Rao v. Judicial Magistrate Parvatipuram, AIR 1971 SC 186; Urooj Abbas v. State of U. P. , 1973 Cr. L. J. 1458. Similarly the absence of a specific order authorising detention by way of a formal warrant of detention could not invalidate or otherwise valid detention as held earlier by this Court in the cases of Rajdeo Shukla v. State of Uttar Pradesh, 1994 LLJ 163 and Sunder Lal v. State, 1983 (2) A. C. C. 140. "

(3.) THIS is a bail application. If the custody is illegal due to improper or illegal orders, the accused can invoke the powers of this Court by means of a habeas corpus petition. The bail application cannot be allowed even if the orders remanding the accused to jail custody are improper, irregular or illegal.