DILIP PANDURANG KAMATH Vs. STATE OF MAHARASHTRA

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, reported in 1983 Cri.L.J. 1231, Urooj Abbas v. State of Uttar Pradesh, reported in 1973 Cri.L.J. 1458 (F.B.), Raghavendra Singh v. State of Uttar Pradesh & Ors., reported in 1976 Cr.L.J. 1782, Surendra Tiwari v. State of Uttar Pradesh & Ors., reported in 1994 Cri.L.J. 805 and Ram Narayan Singh v. The State of Delhi & Ors., reported in AIR 1953 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.) SECTION 309(2) of the Code of Criminal Procedure provides that "if the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody provided that no Magistrate shall remand an accused person to custody under this Section for a term exceeding fifteen days at a time." Plain reading of this provision would disclose that the same gives ample power to the Court to adjourn the matter whenever the circumstances of the case demand, and in such case the accused is already under order of arrest and is found to have been remanded to the lock up, he can again be directed to such lock up. Undoubtedly, in terms of the said provision of law the Courts have to take proper precaution to ensure that the accused, who is in custody, is sent back to the concerned lock up. The provision of law comprised under Section 309(2) of the Code of Criminal Procedure nowhere speaks of any specific format in which the warrant of remand is required to be issued. It also does not speak about necessity of signature of the Magistrate ordering issuance of warrant of remand. Undoubtedly, in order to enable to continue the custody of such person, it would be necessary for the Court to pass an appropriate order for remand of such person. It is pertinent to note that the petition nowhere alleges absence of such order of remand.