Dilip Pandurang Kamath vs The State of Maharashtra and Central Bureau of Investigation

R.M.S. Khandeparkar, J.—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 u/s 309(2) of the Code of Criminal Procedure and thereby a personal liberty guaranteed under Article 21 of the Constitution is denied to him.

Placing reliance in the decisions in the matters of Manohari Vs. State of Rajasthan, , Urooj Abbas Vs. State of Uttar Pradesh, , Raghavendra Singh Vs. State of U.P. and Others, , Surendra Tiwari Vs. State of U.P. and Others, and Ram Narayan Singh Vs. The State of Delhi and Others, , 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 u/s 309(2) of the Code of Criminal Procedure.

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 reported in 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.

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 u/s 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.

Only the grievance which was strenuously canvassed on behalf of the petitioner is that there was no warrant of remand with signature of the Judge. In other words, though there might be have been order for issuance of warrant of remand but actual order of warrant which was issued did not bear the signature of the Magistrate. In other words, the factum of issuance of order for remand is not in dispute and what is sought to be disputed is the existence of signature of the Judge on such order. Once the factum of issuance of order for remand is not disputed anywhere in the petition, merely because there is some irregularity in relation to the procedure followed for issuance of such order for the purpose of its compliance that itself would not render the order of warrant of remand of the accused to be bad in law.

In the facts and circumstances of the case, therefore, the contention which is sought to be raised regarding the alleged defects in the warrant of remand is totally without any substance, besides there is no necessary foundation laid in the petition to canvass the said point which is sought to be canvassed on behalf of the petitioner.

The Apex Court in Ram Narayan Singhs case (supra) had observed that "As we have already observed, we have the order of the trying Magistrate merely adjourning the case to 11th." Referring to the said observation, it was sought to be contended on behalf of the petitioner that the Apex Court in no uncertain terms has held that mere order of the Magistrate without necessary signed document of warrant of remand would not empower the authorities to execute such order against the petitioner and custody of the petitioner in the absence of remand order could be bad and he would be entitled for release from the custody forthwith.

As already stated above, undoubtedly, the Apex Court had observed in the above referred decision that the order of the Magistrate was merely adjourning the case to 11th, and on such mere order being passed the accused was sought to be taken in custody. The order of the Magistrate was regarding the adjournment and not regarding the remand. Obviously, the facts of the case before the Supreme Court were totally different from that of the case in hand, and the observations given in those facts of the case cannot be applied to the facts of the case in hand unless it is shown as to how the facts of that case are similar to the facts of the case in hand. One of the glaring differentiations is that in the case in hand the fact of existence of the order for remand of the petitioner is not disputed and what is disputed is the existence of the signature on such order. Whereas, in the case before the Apex Court, there was no order of remand in existence at all.

As rightly submitted by the learned Special Public Prosecutor that even the Roznama of the case in hand dated 10th March, 2006 clearly discloses that the accused/petitioner was directed to be taken in custody and to be produced on the date of argument in the case in hand before the trial Court. Being so, the facts of the case in hand are totally different from those of the case before the Apex Court.

In Manoharis case (supra), the facts were similar to the facts of the case before the Apex Court in Ram Narayan Singhs case (supra). In that case, there was also no order of remand of the accused.

In Surendra Tiwaris case (supra) , it was held that if the detention itself is in violation of the Constitutional mandate, the subsequent order will not validate the detention. The decision is totally on a different issue than the one under consideration in the matter in hand.

In Urooj Abbass case (supra), it was held that the statutory requirement of a separate order in writing with reasons therefore is only in respect of postponement or adjournment of the inquiry or trial and not in respect of remanding the accused to jail custody for which mere issuance of order of remand is sufficient. In other words, what is required to be seen is whether in substance the Court had made up its mind to remand the accused to the custody. If the same is revealed from the records either in the form of order or otherwise merely because the warrant of remand is not signed by the Judge, that itself cannot be said to be a justification for discharge of the accused or for releasing him from the custody.

For the reasons stated above, therefore, and as no other points are sought to be canvassed, we find no case for interference. Besides, as rightly pointed out by the learned Special Public Prosecutor that the petitioner has sought to raise the same point earlier in the Writ Petition No. 1483 of 2005 which was disposed of by this Court by a reasoned order on 14th October, 2005 which has been reported in 2005 All MR (Cri) 207. Only difference is that the point was relating to the period between 5th May, 2005 to 8th June, 2005. Such a difference is hardly of any relevancy as the point of law which was sought to be raised was the same. This Court has already answered the said point in favour of the prosecution and has rejected the contention of the petitioner.

In the result, therefore, the petition fails and is hereby dismissed. Rule is discharged.