Legal Provisions of Section 309 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Power to postpone or adjourn proceedings:
The section contains directions to the Courts to conduct criminal proceedings expeditiously on day to day basis until all the witnesses in attendance have been examined. It authorises the Magistrate to remand the accused to judicial custody if necessary after taking cognizance of the offence or commencement of the trial.
ADVERTISEMENTS:
This section also regulates the powers of the criminal Courts to postpone or adjourn the proceedings and emphasises that stay of proceedings for indefinite period should be avoided so as to eliminate the chances of loss of evidence by passage of time and unnecessary harassment to the accused.
The Court may postpone the inquiry or trial after taking cognizance of the offence if the Court deems it advisable to do so. Similarly, on commencement of the trial, the Court may from time to time adjourn it when utmost necessary. But in both the cases, it has to record reasons for postponement or adjournment, as the case may be.
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Whereas witnesses are in attendance, 110 adjournments shall be granted, without examining them except special reasons to be recorded in writing by the Court. The Court was fully justified in refusing to grant adjournment in case for the examination of witnesses at the instance or prosecution, when the prosecution took years to adduce a part of evidence.
ADVERTISEMENTS:
The Supreme Court in M.S. Sheriji v. Slate of Madras, observed that the public interests demand that criminal justice should be swift and sure and that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have gone too dim to trust.”
In yet another case, the Apex Court held that it is absolutely essential that persons accused of offences should be speedily tried, so that in cases where bail is refused, the accused persons have not to remain in jail longer than is absolutely necessary.
The Supreme Court in Ambika Prasad v. State, held that the examination of witnesses should not be adjourned for months together and such adjournments should not exceed two or three months at the most. The Court should ensure speedy disposal of trial and adjournments should be avoided as far as possible.
In R.D. Upadhyaya v. State of Andhra Pradesh the Supreme Court expressed deep concern for the plight of women prisoners whose children also were lodged in jail along-with their mothers, and directed the Courts that cases of such women prisoners should be decided expeditiously and their cases need to be disposed of on priority basis.
ADVERTISEMENTS:
Sub-section (2) empowers the Court to remand the accused but if the Court happens to be that of a Magistrate, he shall not remand an accused person to custody for a term exceeding fifteen days at a time, but no limit has been set to the number of such successive remands. However, there is no such inhibition on the Sessions Court.
Any custody in pursuance of an order of remand for a term exceeding fifteen days becomes illegal and the detained accused becomes entitled for the grant of bail or to secure his release by filing a writ under Article 226 of the Constitution.
Proviso 3 to Section 309 (2) which has been inserted by the Amendment Act of 1978 clarifies that no adjournment should be granted only for the purpose of enabling the accused to show cause against the sentence proposed to be imposed on him.
The Code, no doubt, entitles an accused to have an opportunity of being heard on the question of sentence under Section 235 (2), but this should not lead to undue delay in disposal of the case. Therefore, this proviso to Section 309 (2) does not allow the accused to ask for an adjournment to be heard on the point of sentence, but the Court is not prohibited from granting such adjournment in serious cases of imprisonment for life or the sentence of death in the interest of justice.
An order of remand passed in the absence of accused will not be invalid and the Court can pass an order of remand of the accused under Section 309 (2) even if the accused is not present in the Court. Such occasion may arise due to the serious illness of the accused or some other reasons which prevent his attendance in the Court.
In the well known Bihar Blinded Prisoners Case, the accused persons were not produced before the Court ever since their first production before the Magistrate and they continued to remain in jail without any remand order. The Supreme Court held that the detention of prisoners was contrary to law and illegal.
Section 309 does not prohibit the Court which commits an accused to Sessions Court to direct his being detained during the trial until it is finally concluded. This will help the Sessions Judge in smooth conduct of the trial as he will not be required to confer every time when he adjourns or postpones the trial, on any one such authority for detention of the accused person.
Where a Magistrate, in course of a trial adjourned the case by a written order but did not make an order to remand the accused to judicial custody, it was held that the detention of the accused after the adjournment order was illegal.
But illegality of detention order does not entitle the accused to be released on bail. In a murder case where the accused who was in judicial custody sought his release on bail on the ground that the remand order was invalid under Section 309 (2), CrPC as reasons for adjournment were not given and also proper authorisation for detention was not made, the High Court of Allahabad rejected the application for bail and held that the section did not contemplate detailed reasons to be given and a mere noting that the case was adjourned on a particular day because the Presiding Officer was on leave or he had been transferred was sufficient to comply with the provisions of Section 309. It is not necessary for the Court to record reasons for remanding the accused though it has to give reasons for adjournment.
In Syed Askari Hadi Ali Augustine Imam v. State (Delhi Adm.) the prayer of the accused for stay of criminal proceedings against him in respect of forgery of will on the ground pendency of probate proceedings was not granted by the Court.
The Court held that criminal case was instituted against the accused much prior to initiation of probate proceeding. On appeal, the Supreme Court upheld the order the Court below and refused to interfere in view of the conduct of appellant and stage in which probate proceeding was pending. The appeal was therefore, disallowed.