Sarvesh Narain Shukla vs State of U.P. and Another

Ravindra Singh, J.—This application has been filed by Sarvesh Narain Shukla with a prayer to set aside the order dated 4.4.2007, passed by the learned Chief Judicial Magistrate, Bhadohi, whereby the case of the accused O.P. No. 2, Udai Bhan Singh alias Doctor Singh has been committed to the Court of Sessions and the accused has been sent to District Jail, Gyanpur by issuing the custody warrant in Case No. 817 of 2007.

Heard Sri G.S. Chaturvedi, senior advocate, assisted by Sri A.K. Dwivedi, learned Counsel for the applicant, learned A.G.A. and Sri Dileep Kumar, Sri Rajiv Gupta and Sri P. K. Singh and Sri A.K. Singh, learned Counsel for O.P. No. 2.

It is contended by the learned Counsel for the applicant that the learned Chief Judicial Magistrate, Bhadohi, has passed the committal order of the accused Udai Bhan Singh alias Doctor Singh on 4.4.2007 in Case No. 817 of 2007 under Sections 147, 148, 307/120B, I.P.C. and 7th Criminal Law Amendment Act and on the same day custody warrant for detaining the accused in District Jail, Gyanpur, has been prepared by the learned Chief Judicial Magistrate, Bhadohi in some other cases also as Case No. 2516/2006, 374 of 2007 and 1211 of 2005. The custody warrant was prepared for detaining the above-mentioned accused in District Jail, Gyanpur. The custody warrant prepared in four cases directing the above mentioned accused to detain in District Jail, Gyanpur, are illegal because the above mentioned accused was brought from the District Jail, Lucknow, in pursuance of Warrant B and he was produced in the court of learned Chief Judicial Magistrate, Bhadohi. The learned C.J.M. was under obligation to send the above mentioned accused to District Jail, Lucknow, as provided in Form 36 of Scheduled II of Cr. P.C. which is reproduced as under:

Form No. 36 Orders Requiring production In Court of Person In Prison For Answering To Charge of Offence (See Section 267)

To

The Officer in Charge of the Jail at

Whereas the attendance of (name of prisoner) at present/ detained in above mentioned prison, is required in this Court to answer to a charge of (State shortly the offence charged) or for the purpose of a proceedings (State shortly the particulars of the proceeding) ;

You are hereby required to produce the said... under safe and sure conduct before this Court on the day of...19...by...a.m. thereto answer to the said charge, or for the purpose of the said proceedings, and after this Court has dispensed with his further attendance, cause him to be conveyed under safe and sure conduct back to the said prison.

And you are further required to inform the said...of contents of this order and deliver to him the attached copy thereof.

Dated this...day of...19...

(Seal of the Court)

(Signature) Countersigned (Signature)

According to the language of Form 36 the accused, who was sent back to the same Jail from where he was brought and produced to the Court concerned, therefore, all the four custody warrants prepared by the learned Chief Judicial Magistrate, Bhadohi, are illegal and liable to be set aside and the accused Udai Narain Shukla alias Doctor Singh may be sent to District Jail, Lucknow from District Jail, Bhadohi.

In reply of the above contentions, it is submitted by the learned A.G.A. and the learned Counsel for O.P. No. 2 that O.P. No. 2 Udai Bhan Singh alias Doctor Singh was detained in District Jail, Lucknow in Case No. 764 of 2005 under Sections 120B, 307, 302, 336 and 506, I.P.C. pending in the court of learned Special Judicial Magistrate (Pollution/C.B.I.) Lucknow, but the proceedings of the abovementioned court have been stayed by the learned Supreme Court. The O.P. No. 2 Udai Bhan Shukla alias Doctor Singh was accused in four criminal cases pending in the court of learned Chief Judicial Magistrate, Bhadohi, in which he was summoned by the learned Chief Judicial Magistrate, Bhadohi, for his appearance from the District Jail, Lucknow through Warrant-B in pursuance of Warrant-B an application was moved in the court of learned Special Judicial Magistrate Pollution/C.B.I.), Lucknow, for producing O.P. No. 2 in the court of learned Chief Judicial Magistrate, Bhadohi, but the learned Magistrate concerned rejected that application on the ground that Hon''ble Supreme Court has stayed the proceedings. The said order was challenged by O.P. No. 2 by way of filing the Criminal Misc. Application No. 487 of 2007 before Lucknow Bench of this Court, in which following order was passed on 14.3.2007.

Hon''ble Alok Singh, J.

In furtherance of this Court''s order dated 27.2.2007, a report has been received from the Presiding Officer of the court of Special Judicial Magistrate, (Pollution / C.B.I.) Lucknow, saying that he has take over the charge of the Court only on 24.2.2007. This report further says that his predecessor had passed an order in respect of Warrant-B on an application dated 7.9.2006. As the proceedings of the case had been stayed by the Hon''ble Supreme Court, there was no justification for passing any order and both the parties were directed to let the Court know about the progress of the case pending in the Supreme Court, the report says.

On the other hand no counter-affidavit has been filed on behalf of the sole opposite party, i.e., C.B.I. despite the seeking time on the last occasion.

Heard and perused the record.

Admit.

Having heard to the fact that the proceedings of four cases mentioned in the aforesaid earlier order have concededly not been stayed by the Hon''ble Apex Court, it is provided as an interim measure that the learned lower court shall pass appropriate orders in respect of Warrants-B, received in respect of the aforesaid four Courts concerned in pursuance of Warrant-B and those cases may proceed further.

Learned Counsel for C.B.I. prays for and is granted a further time of three weeks to file objection/counter-affidavit, if any.

List thereafter for hearing.

14.3.2007 Shaakir/C.M.C. 487-7.

In pursuance of the order dated 18.3.2007, O.P. No. 2 was produced in the court of learned Chief Judicial Magistrate, Bhadohi on 4.4.2007, in all the four cases, the order was passed by the learned Chief Judicial Magnate, Bhadohi, but in any of the case, the personal attendance was not dispensed with of O.P. No. 2 was required to appear in the Court concerned on the subsequent dates m such circumstances, the custody warrant of O.P. No. 2 was prepared for detaining him in District Jail, Gyanpur. The language of Form 36 is very clear, the accused shall be sent back to the Jail from where he was brought and produced in case his personal attendance is dispensed with. Therefore, the learned Chief Judicial Magistrate concerned did not commit any error in preparing the custody warrant for detaining O.P. No. 2 in District Jail, Gyanpur. The impugned order dated 4.4.2007 and the custody warrant are not suffering from any illegality or irregularity. The present application is misconceived.

It is further contended that O.P. No. 2 was transferred from the District Jail, Gyanpur to District Jail, Lucknow on a B-Warrant in Case No. 764 of 2005 pending in the court of Special Judicial Magistrate (Pollution/ C.B.I.) Lucknow, his transfer was not on administrative ground as such the order was not illegal. In such circumstances, he was not required to send again O.P. No. 2 to District Jail, Lucknow.

Considering the facts and circumstances of the case and submissions made by the learned Counsel for the applicant and the learned A.G.A. and learned Counsel for O.P. No. 2 and from the perusal of the order dated 4.4.2007 and the custody warrants prepared by the learned Chief Judicial Magistrate, Bhadohi and the record including the impugned custody warrant, it appears that in the present case O.P. No. 2 was produced in the court of learned Chief Judicial Magistrate, Bhadohi in four criminal cases on a Warrant-B in pursuance of the order dated 14.3.2007, passed by the Lucknow Bench of this Court, O.P. No. 2 was transferred from District Jail, Gyanpur to District Jail, Lucknow on B Warrant in Case No. 764 of 2005 pending in the court of learned Special Judicial Magistrate (Pollution/C.B.I.) Lucknow. The learned Chief Judicial Magistrate, Bhadohi, has passed the remand order issuing custody warrant for detaining O.P. No. 2 in District Jail, Bhadohi, because his presence was required on the next date fixed in four criminal cases and his attendance was not dispensed with. Therefore he was not required to send back to the District Jail, Lucknow, as provided by Form No. 36 and the O.P. No. 2 was not transferred to District Jail, Lucknow, on administrative ground. The learned Magistrate has not committed any error in preparing the custody warrant sending O.P. No. 2 in District Jail, Gyanpur. There was no illegality in the order dated 4.4.2007. Therefore for prayer for quashing the impugned order dated 4.4.2007 of the custody warrant prepared for detaining O.P. No. 2 in District Jail, Gyanpur, is refused.

Accordingly this application is dismissed.