State of U.P. vs Udai Bhan Singh Alias Doctor Singh

Ravindra Singh, J.

The State of U.P. has moved Criminal Misc. Application No. 13434 of 2011 against the order dated 8.4.2011 passed by learned Additional Sessions Judge, Court No.3, BhadohiGyanpur in S.T.No. 97 of 2007, whereby the application filed by the respondent Udai Bhan Singh alias Doctor Singh permitting him to attend the Tilak and Marriage ceremonies of his sister''s daughter in police custody has been allowed and the Jail Superintendent Mirzapur has been directed to release the accused respondent Udai Bhan Singh alias Doctor Singh from the jail on 25.4.2011 at 11.00 A.M. in the police custody to attend the Tilak and Marriage ceremonies of his sister''s daughter upto 29.4.2011, after attending the marriage ceremony, the respondent Udai Bhan Singh alias Doctor Singh be admitted to the jail on 30.4.2011 at 5.00 P.M.and the order dated 23.4.2011 passed by the learned Additional Sessions Judge, Court No.,3 BhadohiGyanpur whereby the application filed by the side of the prosecution showing the difficulties in making the compliance of the order dated 8.4.2011 and having the prayer not to release the respondent Udai Bhan Singh alias Doctor Singh in police custody, has been rejected.

The Criminal Misc. Application No. 13566 of 2011 has been filed by Smt. Ram Lali Mishra with a prayer to quash same order dated 8.4.2011 passed by learned Additional Sessions Judge, Court No. 3, Bhadohi Gyanpur in S.T.No. 97 of 2007.

The Criminal Misc. Application No. 13868 of 2011 has been moved by the State of U.P. against the order dated 22.4.2011 passed by learned Additional Sessions Judge, Court No. 3, Bhadohi Gyanpur in S.T.No. 60A of 2007 whereby the application filed by the accused respondent Sandeep Singh alias Pintu Singh having the prayer that he may be permitted to attend the marriage of his phupheri sister Deep Shikha Singh scheduled on 29.4.2011 at Bhaghal Chhawni, Gopiganj, District Sant Ravi Das Nagar ( Bhadohi) in police custody has been allowed with a direction prayer that after attending the marriage, he shall be admitted to Central Jail, Fatehgarh on 30.4.2011 at 5.00 P.M.

In the above mentioned applications, the issue involved is common, therefore, the above mentioned applications are being disposed of by a common order.

The facts, in brief, of this case are that the respondent Udai Bhan Singh alias Doctor Singh is detained in the district jail, Mirzapur, he is facing the proceedings of the trial of S.T.No.97 of 2007 under section 307, 120B I.P.C., Police Station Gopi Ganj, pending in the court of learned Additional Sessions Judge, Court No.3 Bhadohi Gyanpur, the accused respondent Sandeep Singh alias Pintu Singh is detained in Central Jail, Fatehgarh, District Farrukhabad, he is facing the proceedings of S.T.No. 60A of 2007 under section 307, 120B I.P.C., Police Station Gopi ganj, District Sant Ravi Das Nagar. Both the accused respondents have been detained in district Jail Mirzapur and Central Jail Fatehgarh, respectively , by the State Government. The accused respondent Sandeep Singh alias Pintu Singh is nephew of accused respondent Udai Bhan Singh alias Doctor Singh. The Tilak and Marriage ceremony of Deep Shikha Singh, who is sister''s daughter of the accused respondent Udai Bhan Singh alias Doctor Singh and phupheri sister of the accused respondent Sandeep Singh alias Pintu Singh is scheduled on 29.4.2011, prior to that the Tilak ceremony is also scheduled. To attend these ceremonies, the accused respondents moved an application in the court of learned Additional Sessions Judge,Court No. 3 Bhadohi Gyanpur who has allowed them to attend the above mentioned ceremonies in the police custody vide orders dated 8.4.2011 and 22.4.2011, respectively. The accused respondents are having criminal antecedents, they are involved in many other Criminal cases also , in those cases also, they are detained in jail, the accused respondent Udai Bhan Singh alias Doctor Singh has been convicted, the order of conviction has become final, on these grounds, the application was moved in the court of learned Additional Sessions Judge, Court No.3 BhadohiGyanpur not to release the accused respondent Udai Bhan Singh alias Doctor Singh in police custody to attend the marriage ceremony, the same application has been rejected on 23.4.2011.

The Criminal Misc. Application No. 13566 of 2011 has been filed along with urgency application on 24.4.2011( Sunday) , considering the urgency, the Hon''ble the Chief Justice nominated the bench of Hon''ble A.K.Tripathi, J, His Lordship has passed the order on 24.4.2011 at his residence, by which the operation of the orders dated 8.4.2011 and 23.4.2011 was stayed. Thereafter, these matters have come before this Court which is regular court.

Heard Sri A.K.Sand, learned Additional Government Advocate for the State of U.P., Sri G.S.Chaturvedi, Senior Advocate assisted by Sri Anil Tiwari, Sri Rajesh Chandra Dwivedi, Sri L.K.Dwivedi on behalf of Smt. Ram Lali Mishra. Sri Satish Trivedi, Senior Advocate, Sri U.N.Sharma, Senior Advocate assisted by Sri S.P.Singh Parmar appearing on behalf of respondent Udai Bhan Singh.

It is contended by learned A.G.A.and Sri G.S.Chaturvedi, learned Senior Advocate that the impugned orders dated 8.4.2011 and 23.4.2011 in S.T.No. 97 of 2007 and the order dated 22.4.2011 in S.T.No. 60A of 2007 passed by learned Additional Sessions Judge, Court No.3, BhadohiGyanpur are illegal because the impugned orders releasing the accused respondents to attend the marriage ceremony in police custody have been passed neither under the provisions of section 439 Cr.P.C.nor under the provisions of section 309 Cr.P.C.. There is no other provision under the code of criminal procedure to release the accused respondent in police custody from the jail, both the accused persons are facing the session trials arising out of the same crime No. 654 of 2006 under sections 307, 120B I.P.C., police station Gopiganj,district Sant Ravi Das Nagar ( Bhadohi).

The accused respondents are detained in the jail in some criminal cases also. The accused respondent Udai Bhan Singh alias Doctor Singh has been convicted for life imprisonment in an offence of murder, the order of conviction has become final but no other court, where the Criminal cases of the accused respondents are pending ,have passed such order, releasing them in police custody from the jail to attend the marriage ceremony, even the State Government in a criminal case in which the accused respondent Udai Bhan Singh alias Doctor Singh has been convicted, has not passed any such order, in such circumstances, the execution of the impugned orders dated 8.4.2011 and 22.4.2011 releasing the accused respondents from the jail concerned may not be given effect because the learned Additional Sessions Judge, Court No.3, Bhadohi Gyanpur was having the jurisdiction to pass impugned orders, only the criminal case which was pending before his court.

The accused respondent Udai Bhan Singh alias Doctor Singh is involved in many criminal cases, in those cases also, he is in jail ( judicial custody). Accused Udai Bhan Singh alias Doctor Singh is involved in 26 criminal cases. He is in judicial custody in S.T.No. 162 of 2000 under sections 147, 148, 149, 302, 379, 411 converted into section 396, 307, 412 I.P.C.in which he has been convicted for life imprisonment on 24.4.2004, S.T.No. 190 of 2001 under section 3(1) of U.P.Gangsters and Anti Social Activities ( Prevention) Act, pending in the court of learned Special Judge, Gangsters Act, Mirzapur, S.T.No. 308 of 2007 under section 3(1) of U.P.Gangsters and Anti Social Activities ( Prevention) Act, pending in the court of learned Special Judge, Mirzapur, S.T.No. 183 of 2006 under section 3(1) of U.P.Gangsters and Antisocial Activities ( Prevention) Act, pending in the court of learned Special Judge , Gangsters Act, Varanasi, S.T.No. 99 of 2007 under sections 147, 148, 149, 302, 307, 332 , 427 I.P.C.and 7 Criminal Law Amendment Act pending in the court of learned Ist Additional Sessions Judge, Bhadohi, S.T.No.97 of 2007 under sections 147, 148, 307, 120B I.P.C.and 7 Criminal Law Amendment, pending in the court of 2nd Additional Sessions Judge, Bhadohi, S.T.No. (R.C.) 3(5) of 2003 under section 302, 307, 326 I.P.C. pending in the court of Special Judge , C.B.I. New Delhi, Case No. 1311 of 2005 under section 26 Arms, pending in the court of C.J.M.Bhadohi, S.T.No.7792 of 2005 under section 302/120B I.P.C.pending in the court of learned Additional Sessions Judge,Varanasi and Case No. 1298 of 2002 under sections 147, 148, 149, 323, 504, 506 I.P.C.pending in the court of learned Judicial Magistrate, Mirzapur.

From the side of the prosecution, an application was moved in the court concerned by the Jailer /Incharge Superintendent, District Jail, Mirzapur for seeking the direction for execution of impugned order mentioning therein that the accusedrespondent Udai Bhan Singh alias Doctor Singh in judicial custody in other criminal case and he was having a danger to his life, having the apprehension of his absconding from the police custody also and it was prayed that he may not be permitted to attend the marriage ceremony but such application was also rejected by learned Additional Sessions Judge, Court No. 3 BhadohiGyanpur on 23.4.2001, it shows that the learned Additional Sessions Judge, Court No. 3 BhadohiGyanpur has not passed the impugned orders deliberately ignoring the provisions of law, to give undue benefit to accused respondents, the same order has been passed in respect of accused respondent Sandeep Singh alias Pintu Singh also, who is also historysheeter and is in judicial custody in about 10 cases of the different places including Almora ( Uttarakhand) and New Delhi. The order dated 22.4.2011 is of the same nature which has been passed in case of accused respondent Sandeep Singh alias Pintu Singh, the same is also illegal. Therefore, the impugned orders dated 8.4.2011, 22.4.2011 and 23.4.2011 may be set aside.

In reply of the above contention it is submitted by Sri Satish Trivedi, learned Senior Advocate and Sri U.N.Sharma, learned Senior Advocate appearing on behalf of accused respondent Udai Bhan Singh alias Doctor Singh that the accused respondent was facing the proceedings of the trial. The trial court was competent to pass the impugned orders on'' humanitarian ground'' and the trial court is having the power to regulate the custody of under trial prisoner also, the accused respondent has been ordered to release in police custody, to attend the marriage ceremony of his sister''s daughter because the respondent was only karta dharta and without his participation the marriage of his sister''s daughter cannot be properly solemnized, for directing the accused respondent to attend the marriage ceremony in police custody , the judicial custody of the accused respondent in some other Criminal cases even the order of conviction for life imprisonment in a case of murder may not affect the execution of impugned order of release. The impugned order releasing the accused respondent may be treated to be passed in exercise of the powers conferred under section 439 Cr.P.C., such order may come in the category of short term bail,, the impugned order releasing the accused respondent in police custody for a short period to a particular place may be passed in light of the provisions of 309 Cr.P.C. also, the trial court has not committed any error in passing the impugned orders, the applications filed on behalf of the State as well as Smt. Ram Lali Mishra is devoid of the merits, the same may be dismissed.

Considering the facts, circumstances of the case, submission made by learned counsel for the applicant and counsel appearing on behalf of the respondents and from the perusal of the record it appears that in the present case, the accused respondent Udai Bhan Singh alias Doctor Singh is involved in many criminal cases, he is in judicial custody, in some criminal cases, which are pending in different courts, he has been convicted for life imprisonment in a case of the murder, the order of conviction has become final, he is detained in district Jail Mirzapur, the accused respondent Sandeep Singh alias Pintu Singh is also in judicial custody in some criminal cases, which are pending in different courts, he is detained in Central Jail Fatehgarh, both the accused respondents moved the applications in the court of learned Additional Sessions Judge, Court No. 3, BhadohiGyanpur whereby they were facing trial in one case only with the prayer that they may be released to attend the marriage ceremony of Deep Shikha Singh, who is sister''s daughter of accused respondent Udai Bhan Singh alias Doctor Singh and is phupheri sister of accused respondent Sandeep Singh alias Pintu Singh, the same have been allowed by the learned Additional Sessions Judge, Court No.3, Bhadohi on 8.4.2011 and 22.4.2011, respectively. From the side of the prosecution, the application was moved not to release the accused respondent Udai Bhan Singh alias Doctor Singh showing that he was in judicial custody in some other Criminal cases also and he was previous convict, the State Government has not passed any order in this regard, the such application was also rejected by the learned Additional Sessions Judge, Court No.3 , Bhadohi Gyanpur on 23.4.2011.

From the perusal of the impugned orders it appears that the learned trial court has permitted the accused respondents to attend the marriage ceremony in police custody, the order for releasing the accused on bail or short term bail may be passed only under section 437/439 Cr.P.C.,as the case may be. In the present case the provisions of section 439 Cr.P.C. are relevant because the offence is triable by the court of session. The section 439 Cr.P.C. reads as under :

"439.Special Powers of High Court or Court of Session regarding bail.

(1) A High Court or Court of Session may direct

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that subsection.;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

(2)A High Court or Court of Session may direct that any person who has been released on bail under this chapter be arrested and commit him to custody."

The language of section 439 Cr.P.C.shows that the above mentioned order has not been passed in exercise of the powers conferred under section 439 Cr.P.C. because the applicant has not been released on bail or short term bail.

The next provision is section 309 Cr.P.C.,which reads as under :

"309. Power to postpone or adjourn proceedings.

(1) In every inquiry or trial the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.

(2) 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:

Provided further that when witnesses are in attendance no adjournment or postponement shall be granted, without examining them, except for, special reasons to be recorded in writing:

1[Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.]

Explanation1.If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.

Explanation 2.The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused.

Section 309 Cr.P.C. by which the trial court shall remand accused person to custody but the provisions of section 309 Cr.P.C. shall not be applicable in the present case because the trial court was not empowered to remand the accused respondents to police custody to a place other than jail. The trial court is empowered under section 309 Cr.P.C.to remand the accused to the jail. The impugned order has not been passed neither for expeditious disposal of the trial nor to protect the life of the accused respondents. The impugned orders have been passed only to perform the social obligation ignoring the fact that the accused respondents are in judicial custody in some other criminal cases also in which such orders have not been passed. The accused respondent Udai Bhan Singh alias Doctor Singh is convicted for life imprisonment for his release no order has been passed by the State Government. The trial court has committed error in passing the impugned orders dated 8.4.2011 in case of Udai Bhan Singh alias Doctor Singh and order dated 22.4.2011 in case of accused Sandeep Singh alias Pintu Singh, the trial court has committed error in passing the impugned orders dated 23.4.2011 also. The impugned orders show that the trial court has passed such orders deliberately so that the judicial custody warrants may not come in the way of execution of the impugned orders that is why the orders have been passed releasing the accused respondents in police custody. The impugned orders have been passed in the garb of the provisions of section 439 or 309 Cr.P.C.to give the benefit to the accused respondents which is not proper. The impugned orders dated 8.4.2011, 22.4.2011 and 23.4.2011 passed by the learned Additional Sessions Judge, Court No.3, BhadohiGyanpur are illegal and the same are hereby set aside.

Accordingly, all the above three applications under section 482 Cr.P.C.are allowed.