1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3267 of 2009 (Nana s/o Rohidas Ingole vs. The State of Maharashtra) -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr. G.P.Shinde, Advocate for the applicant. Mr.D.R.Korde, APP, for respondent State. ... CORAM: K.U.CHANDIWAL, J. DATE:15/10/2009 P.C.:- 1. The accused who is in custody from 13.5.2009 in Crime No.49/2009, registered at Hatta Police Station for the offense under Sections 302, 120-B read with Section 34 of IPC, has urged to release him on bail. 2. The Counsel submits that investigation is completed. Chargesheet is filed. The FIR of Smt.Sunita Ingole, widow of the deceased, is tailor made and 2 should not be accepted. That apart, his main grievance is that, when the chargesheet is sent by Police to the learned Judicial Magistrate, First Class, it was obligatory for the Police to produce the accused for compliance of Sections 207 to 209 of Cr.P.C. and having not done so, the detention of the accused is illegal and hence the accused is entitled for bail. 3. Learned Counsel, in order to stress his point, has relied to the judgment of the learned Judge of Allahabad High Court in the matter of Izhar Ahmad Vs. State ( 1978 CRI.L.J. 58). The learned Single Judge, while dealing with such eventuality was required to take a note of the Division Bench decision of Allahabad High Court rendered in Habeas Corpus Writ Petition No.3643/1975. In the said decision, the Division Bench had interpreted provisions of Section 209 of Cr.P.C. and Division Bench remarked as under: 3 " A plain reading of Section 209 shows that an order for remanding an accused to Jail custody during and until the conclusion of the trial, can be made only when the accused appears or is brought before the Magistrate. No order remanding an accused to Jail custody under clause (b) of Section 209, can be made in his absence or behind his back. " 4. A plain reading of Section 209 shows that an order for remanding the accused for jail custody during and until conclusion of the trial can be made only when accused appears or is produced before the Magistrate. No order remanding the accused under jail custody under clause (b) of Section 209 of Cr.P.C. can be made in his absence or behind his back. 5. The view taken by Allahabad High Court is not in tune with the view taken by this Court reported in the matter of Biharilal Minatilal Yadao and others Vs. State of Maharashtra ( 1999(3) Mh.L.J. 769). Learned 4 Brother Judge has observed in said judgment, after dissecting entire scheme in terms of Sections 207, 170, 2(g) of Cr.P.C., 309(2), 209 and 167(2) and observed that in the said case, chargesheet was put up before the learned Judicial Magistrate, First Class. He has issued production warrant which itself shows that the order of Magistrate as to issuance of production warrant for the accused and adjourning the matter was a step after taking cognizance of the offense as the process against the accused under Section 204(1) can be issued by the Magistrate, who takes cognizance of the offense under Section 190 Cr.P.C. The Bench has observed, "It is not much disputed that production of accused before the Court is not necessary while passing the order under Section 309(2) of Cr.P.C." Taking these aspects into consideration I find that the recourse taken by the learned Counsel to the judgment in the matter of Izhar Ahmad (of Allahabad High Court), need not be 5 taken into consideration in the light of the specific observation and judgment of this Bench in the matter of Biharilal. 6. The Counsel also took recourse to the judgment in the matter of Sandip Kumar Dey V. The Officer- in-charge, Sakchi P.S.Jamshedpur and others (1974 CRI.L.J. 740 ( V. 80 C 242)(1). In fact, in the said judgment, the Apex Court has observed that the order of remand passed in absence of a prisoner in the Court is not vitiated, only it is highly unsatisfactory. The Apex Court observed, remand orders cannot be passed mechanically and Magistrate passing order of remand ought, as far as possible, to see that the prisoner is produced before the Court when the remand order is passed. This judgment was with reference to earlier pronouncements of Apex Court in the matters reported in (1) AIR 1971 SUPREME COURT 178 ( Raj Narain Vs. Superintendent, Central Jail New Delhi and another), (2) AIR 1972 SUPREME COURT 711 ( Gauri 6 Shankar Jha V. State of Bihar and others), and (3) AIR 1973 SUPREME COURT 851 (Sockleeting Tea Co. Vs. Govt.of Assam ). In situation, the objection of the learned Counsel is turned down. 7. Then comes the right of bail as sought and canvassed. Though the accused has coined to be innocent person and not committed the offense, the record rebels against the accused as, prima facie, there is circumstantial evidence against the accused. Even their names figure in the report of Sunita w/o Chandu Ingole. There were controversies between the accused and the deceased and the accused had challenged the deceased to eliminate him. Taking these aspects into consideration, I do not see any merit. Bail application rejected. The observations are prima facie in nature. (K.U.CHANDIWAL) JUDGE ... agp/3267-09crapl