DILIP PANDURANG KAMATH Vs. THE STATE OF MAHARASHTRA REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT AND CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) Heard. A short point for consideration in this matter is whether the detention of the petitioner from 10th March, 2006 onwards is illegal and unlawful for the want of warrant of remand in accordance with the provisions of Section 309(2) of the Code of Criminal Procedure, 1973. It is the case of the petitioner that the petitioner was arrested in July, 2004 in relation to the C.C. No. 91/PW/2004 arising out of C.R. No. 78 of 1998. It is his further case that he has been in the judicial custody and is lodged in Yerawada Central Prison, Pune, since his arrest. Further, it is the case of the petitioner that the judicial custody was extended from time to time. However, since 10th March, 2006, the petitioner is illegally detained without any such warrant of remand having been issued by the Magistrate under Section 309(2) of the Code of Criminal Procedure and thereby a personal liberty guaranteed under Article 21 of the Constitution is denied to him.

(2.) Placing reliance in the decisions in the matters of Manohari v. State of Rajasthan,1983 Cri. LJ 1231, Urooj Abbas v. State of Uttar Pradesh,1973 Cri. LJ 1458 , Raghavendra Singh v. State of Uttar Pradesh and Ors.,1976 Cr. LJ 1782, Surendra Tiwari v. State of Uttar Pradesh and Ors.,1994 Cri. LJ 805 and Ram Narayan Singh v. The State of Delhi and Ors., 1953 AIR(SC) 277, the learned advocate appearing for the petitioner submitted that the petitioner has been detained without complying with necessary requirements of Section 309(2) of the Code of Criminal Procedure, inasmuch as that the Magistrate ordering remand of the accused in judicial custody did not issue appropriate order under his signature in terms of the provisions of law comprised under Section 309(2) of the Code of Criminal Procedure.

(3.) The learned Special Public Prosecutor appearing for the respondent No. 2, placing reliance in the decision in the matter of Dilip Pandurang Kamath and Ors. v. State of Maharashtra,2005 ALL MR (Cri) 3017, submitted that the issue which is sought to be raised in the present case was already raised and rejected in the said reported decision. He further submitted that merely because the order of warrant of remand does not bear signature of the Judge, it will not vitiate the remand. Only the execution thereof can be said to be illegal, in a case where the facts thereof do not disclose that no order of remand was issued by the concerned Magistrate. According to the learned Special PP, the signature on the order of warrant of remand is a formality which undoubtedly is required to be complied with, however, merely because the signature is not found on such order, it would not render the order to be bad in law.