BHOLENATH J DHAMANKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) CERTAIN points and issues, involving and concerning power and procedure or rather practice followed and prevailant by and or in the Courts of Magistrates (including J. M. F. C. as also Metropolitan Magistrates in Metropolitan Cities) with regard to passing orders for remand, of the accused involved in the offences, exclusively triable by the Sessions Court, till the passing of the order of committal of such cases by them (i. e. by Magistrates) to the Sessions Court, are raised and canvassed in these groups of applications before this Court in the light and context of provisions of Sections 167 (2), 173 (3), 207, 208, 209 and 309 (2) of Code of Criminal Procedure, 1973 (Hereinafter "the Cr PC. " in brief.)

(2.) THE applicants, involved in various offences exclusively triable by the Sessions Courts and who have been earlier denied bail, on merits, by the Sessions Courts as also by this Court, who are detained as under trials in the Prisons, have sought their release on bail, inter alia on the grounds : i) That there is a failure on the part of the learned Magistrates, before whom the applicants were initially produced for the purpose of remand under Section 167 of the Cr PC and who remanded them to the custody during the prescribed period of 60/90 days and till the submission of Police Reports/charge Sheets under Section 173 (3) of the Cr PC to pass proper and legal orders of further remands. In asmuchas, it is urged, that the learned Magistrates have not "taken cognizance of the offences against the applicant as required under Section 309 (2) of Cr PC and have simply adjourned the matters. In the circumstances these are no valid remand orders against them and their detention is therefore illegal which would entitle them to be released on bail. ii) It is urged that since the offences against them (i. e. the applicants) being exclusively triable by the Sessions Court, the Magistrates have no power to take cognizance thereof so as to remand them in Custody under Section 309 (2) of Cr PC and purported remand orders made against them are illegal without power and jurisdiction and consequently their detention under such "illegal orders" has become illegal, which would entitle them to be released on bail. iii) That there is inordinate, unexcusable and unexplained delay in committing their cases to the Sessions Courts which has resulted in their prolonged continuous detention for no fault of theirs, and therefore they should be released on bail. iv) That in case of applicant in Criminal Application No. 2201 of 1994, no committal order is made till date although he (i. e. the applicant) was arrested on 17/03/1992 charge sheet was filed on 2/05/1992. It is asserted that his detention therefore is illegal and he should be let out on bail. v) That orders committing the cases to the Sessions Courts have not been properly and validly passed as required under Section 209 of Cr PC.

(3.) BEFORE I embark on examination and consideration of the aforesaid issues raised and also the factual aspects in each of the cases, it is necessary to point out, that such issues were also raised and agitated in the past, in this Court before some of my brother Judges sitting singly. In some cases, as the applicants have brought to my notice, orders for release on bail were passed the plea of "default" whereas, in some relief for bail was rejected. I propose to refer such decisions later on.