NARAIN PASI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This application under S.482, Cr. P.C. has been referred to a larger Bench by a learned single Judge at the stage of admission on the ground that there was an apparent conflict of views in regard to the question which shall be elaborated presently. The two decisions which have led to the reference are reported in 1982 UP Cri R 259 : 1981 Lucknow LJ III Tej Babu Singh v. State and 1983 All Cri C 9, (Bhole v. State).

(2.) The application is directed against the order dated 6-4-1989 passed by the Chief Judicial Magistrate, Mirzapur remanding the applicants to the custody of the police under S.167(2), Cr. P.C. subject to the following safeguards :

(3.) The relevant facts are that the applicants are accused in Crime No. 14 of 1989 under S.302, I.P.C. The incident is said to have taken place on 9-1-1989. An F.I.R. was lodged in connection therewith and the applicants were named therein. In connection with a case under S.60 Excise Act the applicants were arrested on 17-1-1989 and lodged in the District Jail, Ghazipur. In pursuance of a 'B' warrant issued by the Chief Judicial Magistrate, Mirzapur on 7-2-89 to the District Jail, Ghazipur, the applicants were forwarded to Jail at Mirzapur where they are lodged since. On 5-4-1989 the Station Officer, Kotwali (Dehat), Mirzapur, made an application before the Chief Judicial Magistrate, Mirzapur for granting three days remand in police custody to facilitate the recovery of a gun and a katta stated to have been used in the commission of the offence under S.302, I.P.C. The applicants filed an objection against that application stating that they were not willing to furnish any evidence of recovery or discovery of any gun or katta. The Chief Judicial Magistrate considered the application as well as the entries in the case diary and thereupon passed the impugned order remanding the applicants to the police custody. The court observed that from a perusal of the case diary it was established that the applicants had clearly admitted before the investigating officer that they could help in the recovery of the katta and the gun used in the commission of the offence. The katta and the gun constitute a vital piece of evidence in the case and there appeared to be a strong possibility of the recovery of the same. On these findings the Chief Judicial Magistrate passed the impugned order.