Patna High Court
Case Details
Patna High Court Cr.Misc. No.32832 of 2013 (5) dt.01-11-2013 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.32832 of 2013 ====================================================== Hare Ram Pandey, S/O-Sri Ramadhar Pandey, resident of village-Nandpur, P.S.-Brahmpur, District-Buxar Versus .... .... Petitioner/s The State Of Bihar .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Vindh Keshari Kumar ( Sr. Advocate) Mr. Suraj Bansh Ray (Advocate) For the State : Mr. N. N. Tiwary (A.P.P.) ====================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA C.A.V. ORDER 5 01-11-2013 I have already heard both the parties. Petitioner has prayed for bail in Brahmpur P.S. Case No. 30 of 2011 registered under Sections 147, 148, 149, 447, 307, 302 of the Indian Penal Code and 27 of the Arms Act. Earlier the prayer for bail of the petitioner was twice rejected by this Court but again petitioner sought bail on the ground that petitioner is in jail custody since long but up till now his case has not been committed to the court of Sessions and he has been illegally detained in judicial custody. It is submitted on behalf of the petitioner that petitioner was arrested in Ara Nawada P.S. Case No. 157 of 2011 and was lodged in Ara Jail on 26.03.2011. Subsequently,
Legal Reasoning
Patna High Court Cr.Misc. No.32832 of 2013 (5) dt.01-11-2013 the learned Chief Judicial Magistrate, Buxar issued production warrant against the petitioner in connection with the present case and the production warrant was received by the jail authorities on 28.03.2011 but petitioner was never produced before the Chief Judicial Magistrate, Buxar in connection with present case by the jail authorities and accordingly, he was never remanded in the above stated case nor his case was committed to the court of Sessions and, therefore, he has been unauthorizedly detained in jail custody. It is further contended by him that when this court took notice of the aforesaid fact and asked the I.G., Prison to submit a report, the petitioner was produced before the concerned court and accordingly, he was remanded in the above stated case on 01.09.2013. It is further contended by him that admittedly charge sheet has already been submitted and the cognizance of the offence has also been taken but after submission of charge sheet and before taking of cognizance petitioner was never produced before the concerned court though he was detained in jail in connection with the above stated case and, therefore, there is violation of Section 309 (2) of the Cr.P.C. and on the aforesaid ground petitioner is entitled to be released on bail. In support of his contention, he referred a decision Devindrappa and another vs. State of Patna High Court Cr.Misc. No.32832 of 2013 (5) dt.01-11-2013 Karnataka reported in 2004 Criminal Law Journal 1506. He also relied upon a decision of Pawan Kumar Jaiswal Vs. The State of Bihar reported in 1999(2) PLJR 364. It is further contended on behalf of the petitioner that speedy trial is a valuable right of an accused but the petitioner has been deprived of the aforesaid valuable right because he has been detained in judicial custody for near about more than two and half years without any progress in his trial and even his case has not been committed to the court of Sessions and, therefore, on the aforesaid ground also petitioner is entitled to be released on bail. Learned counsel for the petitioner heavily relied upon a decision of Sita Ram vs. State of U.P. reported in 1987 Criminal Law Journal 645 in which the Hon’ble Allahabad High Court has held at para 7 as follows :- “It is a sad and distressing commentary on our judicial system that committal proceedings in the present case were not concluded by the Chief Judicial Magistrate, Jaunpur within a period of nine months without any valid reason, particularly when the case had been taken up by the Magistrate on as many as 20 dates which has occasioned a denial of justice to the applicant. Under the circumstances as shown above, if the applicant is further detained in jail, it will Patna High Court Cr.Misc. No.32832 of 2013 (5) dt.01-11-2013 amount to awarding him punishment before the commencement of his trial”. The Hon’ble Allahabad High Court further held at para 8 of the aforesaid judgment as follows:- “ on over-all consideration of the entire facts and circumstances of the case, I am of the view that the applicant deserves to be released on bail”. On the other hand, learned Additional Public Prosecutor opposed the bail on the ground that petitioner is said to be main shooter and he has already been remanded in the case. There are two provisions for remand in Criminal Procedure Code. First is Section 167 of the Cr.P.C. which relates to the period of investigation and second is Section 309 of the Cr.P.C. which relates to after investigation. No doubt, according to Section 309 (2) of the Cr.P.C., if a person is detained in custody after submission of the charge sheet without taking cognizance, the aforesaid detention is unauthorized but in the present case, admittedly, petitioner has already been remanded in the aforesaid case. It is an admitted position that cognizance of the offence has already been taken. In the case of Lokendra Vs. State of U.P. reported in 1996 Patna High Court Cr.Misc. No.32832 of 2013 (5) dt.01-11-2013 Criminal Law Journal 67, a Bench of Hon’ble Allahabad High Court having relied upon full bench decision of Allahabad High Court in case of Surjeet Singh vs. State of U.P. (1984 ACC 69) came to the conclusion that even if custody has been technically found to be illegal as proper remand orders were not passed, but if subsequently a valid remand order is passed, the defect of illegal custody if any stands cured and rectified. Therefore, in my view, in the present case, the remand of the petitioner has already been cured and rectified and petitioner cannot say that his detention is unauthorized and illegal. So far as non commitment of case of the petitioner by the learned Judicial Magistrate is concerned, admittedly, he was not produced by the jail authorities before the learned Magistrate and that was the reason his case was not committed to the court of Sessions. Moreover, there is no provision in the Cr. P.C. on the basis of which it can be said that delay in committal proceeding shall give right to a person to seek bail on the aforesaid ground. On the basis of aforesaid discussions, I am of the opinion that this petition is devoid of merit and must be dismissed. Accordingly, this petition stands dismissed. Patna High Court Cr.Misc. No.32832 of 2013 (5) dt.01-11-2013
Legal Reasoning
However, Sri Laxmi Kant Mishra, Judicial Magistrate, 1st Class, Buxar shall take all possible steps to commit the case of the petitioner to the court of Sessions as early as possible. The learned Sessions Judge, Buxar shall ensure the commitment of case of the petitioner to the court of Sessions without any further delay. Let copy of this order be sent to Sri Laxmi Kant Mishra, Judicial Magistrate 1st Class, Buxar as well as learned Sessions Judge, Buxar for needful. SHAHZAD/- (Hemant Kumar Srivastava, J)