B.N. Katju, J.@mdashThe applicant field an application for bail on 26-8-1983 u/s 439 CrPC. It is stated in the application that a charge sheet was submitted against the applicant on 31-1-1983 under Sections 302/149/148/147 IPC in the Court of Munsif Magistrare III, Haldwani. The case of the applicant was committed to the Court of Sessions on 26-2-1983 u/s 209 CrPC and on the same day a warrant was issued by the learned Magistrate in which it was mentioned that the applicant be produced before the Court of Sessions on 10-3-1983. In the aforesaid warrant it was not mentioned that the applicant was remanded to custody during and until the conclusion of the trial.
2. It is mentioned in the order sheet of the II Additional Sessions Judge, Nainital that on 1-3-83 the committal order dated 26-2-1983 was received from the Court of III Additional Munsif Magistrate Haldwani along with the calender and the record of the case against the applicant and it was ordered that the case be registered and the file be put up for fixing the date of hearing in the near future. The case was again put up for orders on 16-4-1983, 19-4-1983 and 17-5-1983 but no custody warrant was issued against the applicant directing his detention in jail during this period. It was on 14-6-1983 that for the first time a custody warrant u/s 309(2) Code of Criminal Procedure was issued by the learned Judge for detaining the applicant in custody till 27-6-1983 and for his production before the Court on that date. Subsequently on the same custody warrant orders were passed by the learned Judge on 27-6-1983, 23-7-1983, 25-7-1983, 22-8-1983 and 23-8-1983 directing the production of the applicant in court on subsequent dates of hearing.
3. It is clear from the above mentioned facts that no custody warrant was issued for the detention of the applicant in jail u/s 309(2) Code of Criminal Procedure between 10-3-1983 and 14-6-1983. It, therefore, follows that the detention of the applicant in jail during this period was illegal and unlawful.
4. It was contended on behalf of the applicant before one of us who heard the bail application of the applicant while sitting single that the applicant could not be remanded by warrant to custody on 14-6-1983 and thereafter on 23-7-1983, 25-7-1983, 22-8-1983 and 3-8-1983 u/s 309(2) Code of Criminal Procedure as he was not in legal custody on 14-6-1983. The detention of the applicant in jail is thus illegal. The applicant is, therefore, entitled to be released on bail. In support of his contention the learned Counsel for the applicant relied on Hari Prasad Dubey Tyagi v. District Magistrate Farrukhabad U.P. 1976 ALJ 62 in which it has been held by a Division Bench of this Court:
The custody contemplated u/s 309(2) must, in the circumstances, mean legal custody. The power u/s 309(2) Code of Criminal Procedure to remand the undertial to custody cannot be exercised if at the time of making of the order the undertrial is not in legal custody.
The above mentioned view of this Court has been followed by this Court in Mahesh Chandra Alias Pappu v. Adhikshak Janpad Karagar, Nainital, 1983 LLJ 141 Raghvendra Singh v. State 1983 ALJ 611 and Kamlesh Kumar Dixit v. State 1982 LLJ 4 : 1981 AWC 630.
5. As the single Judge who heard the bail application of the applicant was unable to agree with the view taken by this Court in the above mentioned cases he referred the under mentioned question for decision by a Full Bench :
Whether the word ''custody'' used in Section 309(2) Code of Criminal Procedure means imprisonment both legal and illegal ?
We are required to answer this question. Section 309(2) Code of Criminal Procedure is as follows:
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.
A plain reading of the above mentioned section shows that the power to remand the accused by a warrant is given to the court if the accused is in custody. The aforesaid section does not mention that the accused must be in legal custody when the power to remand by a warrant can be exercised. In the above mentioned cases it is only mentioned that ''custody'' means legal custody. No reason has been given in them for holding that custody means legal custody. The cardinal principle of interpretation of statutes is that words used in a statute must be given their ordinary normal and grammatical meaning. Their ordinary meaning must neither be enlarged nor restricted unless it is necessary for harmonious construction. In London Rubber Co. Ltd. v. Durex Products Incorporated AIR 1963 SC 1982 it has been observed:
Indeed, it is the duty of the court to give full effect to the language used by the legislature. It has no power either to give that language a wider nor narrower meaning than the literal one, unless other provisions of the Act compel it to give such other meaning.
6. The meaning of word ''custody'' given in Black''s Law Dictionary, Fifth Edition, at page 347 is:
The care and control of a thing or person. The keeping, guarding, care, watch, inspection, preservation or security of a thing, carrying with it the idea of thing being within the immediate personal care and control, of the person to whose custody it is subjected. Immediate charge and control, and not the final, absolute control of ownership, implying responsibility for the protection and preservation of the thing in custody. Also the detainer of a man''s person by virtue of lawful process or authority.
The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession....
7. In Words and Phrases, Permanent Edition, at page 722 it is mentioned ;
Custody, in criminal law, is the same thing as detention, in civil law, and is synonymous with ''imprisonment''. Imprisonment is the detention of a person contrary to his will.
8. In
When is a person in custody, within the meaning of Section 439 Code of Criminal Procedure ? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court''s jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439.
In view of the normal meaning of the word ''custody'' actual or physical imprisonment of a person both legal and illegal amounts to his being in custody. By restricting the meaning of the word ''custody'' in Section 309(2) Code of Criminal Procedure to only legal imprisonment the normal meaning is obviously curtailed. It is not at all necessary for the harmonious construction of the provisions of the Code of Criminal Procedure to restrict the meaning of the word ''custody'' in Section 309(2) Code of Criminal Procedure to legal imprisonment only. In fact, grave consequences follow if this restriction is placed on the meaning of the word ''custody'' for once the custody of the accused becomes illegal by his being confined in jail without a valid order or warrant of remand due to mistake of the court it would become powerless to remand the accused to custody u/s 309(2) Code of Criminal Procedure and rectify its error. Even in cases where the accused is alleged to have committed an heinous offence and his being set at liberty is likely to lead to tampering of evidence or his absconding the court would be bound to set him at liberty which is not contemplated by the Code of Criminal Procedure. If, on the other hand, custody is given its normal meaning of physical imprisonment the court will have the power to rectify its error and make the custody of the accused legal by a valid warrant of remand u/s 309(2) Code of Criminal Procedure in all criminal cases the accused is either in prison or is on bail after his arrest during the inquiry and trial. The word ''custody'' in Section 309(2) Code of Criminal Procedure in our opinion, therefore, means physical imprisonment as distinct from being on bail. Even if the accused is in prison after his arrest in a criminal case without an order or warrant of remand by a competent Court he is in custody as distinct from being on bail. The word ''custody'' therefore embraces both legal imprisonment as well as illegal imprisonment.
Section 41(1)(e) is as follows:
41 (1) any police officer may without an order from a Magistrate and without a warrant, arrest any person.
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody.
Section 60(1) Code of Criminal Procedure is as follows ;--
60 (1) If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place in India.
9. In both the above sections the words ''lawful custody'' are used instead of the word ''custody''. Thus it is clear that where the legislature intended to restrict the ordinary meaning of the word ''custody'' to lawful custody it has done so. The fact that in Section 309(2) Code of Criminal Procedure the word ''lawful'' is not used along with the word ''custody'' shows that the legislature did not intend to restrict the ordinary meaning of the word ''custody'' to lawful custody only. In these circumstances it cannot be held that the word ''custody'' in Section 309(2) Code of Criminal Procedure means only legal custody. The court is, therefore, competent to remand the accused to custody u/s 309(2) Code of Criminal Procedure even if he is in illegal imprisonment. It can thus rectify its mistake and transform his illegal imprisonment into legal imprisonment.
10. We are, therefore, of the opinion that the word ''custody'' in Section 309(2) Code of Criminal Procedure means imprisonment both legal and illegal. With respect we are not in agreement with the view taken by this Court in Hari Prasad Dubey Tyagi v. District Magistrate Farrukhabad U.P., 1976 ALJ 62 Mahesh Chandra alias Pappu v. Adhikshik Janpad Karagar Nainital 1983 LLJ 141, Raghvendra Singh v. State 1983 ALJ 611, Kamalesh Kumar Dixit v. State 1982 LLJ 4 : 1981 AWC 630 and also by Rajasthan Huh court in
11. Our answer to the question referred to us for decision is, therefore, in the affirmative.
B.N. Katju, J.
12. In view of the decision of the Full Bench there is no merit in this application. It is accordingly rejected.
13. It may, however, be mentioned that the question as to whether the applicant was remanded by warrant to custody after 23-8-1983 has not been considered in this application.
