Kanhaiya vs State of U.P.

Yashodanandan, J.—Applicant Kanhaiya is in custody in a State prison and is being prosecuted for offences punishable under Sections 147, 148, 149, 323 and 302, IPC. While he was in prison he applied for release on bail but the application for bail was first rejected by the learned Sessions Judge and, thereafter, when an application for bail was presented in this Court, it was rejected by Hon''ble Mohd. Hamid Hussain, J. He has now moved this petition for a writ of Habeas Corpus for directing his release from custody on grounds to be mentioned shortly.

The material allegations on which this petition is founded are that on 27-11-1978, Chief Judicial Magistrate, Azamgarh, who was conducting the committal proceedings against the Petitioner and some other co-accused, passed an order committing the Petitioner and his co-accused for trial before the Court of sessions for the offences mentioned in the order. It was mentioned in the order dated November 27, 1978 by the Chief Judicial Magistrate that all the accused, including Kanhaiya, were on bail and that:

The remand along with the chargesheet shall be sent to the Court of Sessions within seven days.

It is alleged in the petition, which is also accompanied by an affidavit, that on 27-11-1978 no remand order in respect of the applicant was prepared and sent to jail since the Applicant was mistakenly considered to be on bail. It is stated in the petition and the affidavit accompanying it that the order dated 9-12-1978, which purports to be an order committing the applicant and his co-accused for trial before the Court of sessions and which also purports to be a warrant to remand the applicant, there is no signature of the applicant on the order-sheet. It is further stated that:

The learned Sessions Judge also did not pass any remand order u/s 309 of the Code of Criminal Procedure.

When this petition was admitted for hearing, the Bench which entertained it passed an order granting two weeks'' time to learned State Counsel to file a counter-affidavit and the office was directed to procure the remand order from the jail authorities issued from time to time by the Court of the Chief Judicial Magistrate. In consequence of the order passed by this Court on 1-6-1979, the office has obtained from the Jailor, District Jail, Azamgarh, the warrant of remand dated 9-12-1978 issued by the Chief Judicial Magistrate. On the reverse of this warrant there are orders passed by the learned Sessions Judge who is conducting the trial of the applicant and his co-accused. A counter-affidavit has also been filed on behalf of the State wherein the material allegations contained in the petition are denied.

Learned Counsel appearing for the Petitioner has contended that the continued detention of the applicant in the prison is unwarranted by law because the purported warrant of remand dated 9-12-1978 under the signature of the Chief Judicial Magistrate does not bear the seal of the Court of the Chief Judicial Magistrate and further because on 9-12-1978 the Petitioner was not present before the Chief Judicial Magistrate when he passed the order in question. He further contended that there had been no compliance of Section 309, Code of Criminal Procedure since the learned Sessions Judge also while passing orders when the accused appeared before him for his detention in custody did not affix thereto the seal of the Court.

It is well established that in a writ of habeas corpus the Court is required to see as to whether the detention of the Petitioner is valid and legal on the date of return by the opposite parties. We are consequently concerned basically with the question as to whether the remand orders passed by the learned Sessions Judge on the various dates commencing from 9-5-1979 are legal and valid. We shall assume for the purpose of the case that the order passed by the Chief Judicial Magistrate dated 9th December, 1978 did not justify the detention of the Petitioner in jail. From the document produced from proper custody, it is clear that on 9-5-1979, 21-5-1979, 23-5-1979, 30-5-1979, and subsequent dates, the learned Sessions Judge before whom the trial is pending passed orders when the Petitioner appeared before him directing the Jailor of the Jail at Azamgarh to detain the applicant in custody and produce him on the dates mentioned in the various orders. These orders clearly complied with the requirement of Section 309 Code of Criminal Procedure.

The legality of these orders, however, has been challenged before us by Mr. Wali, learned Counsel appearing for the applicant, on the ground that the various orders purporting to be orders of remand to custody do not bear the seal of the Court and are consequently a nullity and do not justify the continued detention of the applicant.

In our opinion, there is no merit in this contention. No provision, either in the Code of Criminal Procedure or any other statutory rule, has been brought to our notice which requires the Courts below to append their seals to the various orders contemplated by the Code of Criminal Procedure dealing with the remand of an accused to custody. Section 70 of the Code of Criminal Procedure which deals with warrants of arrest specifically mentions that a warrant of the nature contemplated by that provision shall bear the seal of the Court. On the other hand, neither Section 209 nor Section 309 of the Code provide for any such requirement. Under the circumstances, it can reasonably be held that the framers of the Code while considering it essential that a warrant of arrest should bear the seal of the Court did not consider it necessary to provide for warrants of remand to custody to have the seal of the Court affixed thereon.

Learned Counsel appearing for the applicant invited our attention to Schedule II which indicates that the various Forms prescribed in that Schedule require the seal of the Court and contended that it must be consequently inferred that all orders issued by the Court must bear the seal of the Court. The mere fact that the various Forms prescribed in Schedule II require the seal of the Court does not warrant the conclusion that it is a mandatory requirement of the Code that the Forms must bear the seal of the Court and in the absence of the seal of the Court the orders passed would be rendered a nullity. In our opinion, in the first place, there is no statutory provision of law requiring an order of remand to bear the seal of the Court and in any event at best it is an irregularity to which Section 465(1) of the Code is attracted.

Under the circumstances, we do not find it possible to accept the contention that the applicant is being illegally detained in prison.

This petition, in our opinion lacks merit and is hereby dismissed.