MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave has been directed against an order passed by the High Court on October 8, 1996, whereby, the S.H.O., Police Station Muzaffarabad was directed to register a case against the appellant under section 219, Penal Code and any other section which he finds applicable in the circumstances of the case and put up challan before the Court of law for his trial. It was also directed that the appellant shall be handed over to S.H.O., Police Station Muzaffarabad on the same day. A further direction was issued to the Registrar High Court that he shall also cause appropriate disciplinary proceedings to be taken against the appellant.
2. The precise facts, culminating into the present appeal, are that a case under sections 467, 468, 471, 409 and 109, A.P.C. Read with section 5(2) of the Prevention of Anti-Corruption Act was registered against one Muhammad Azam Durrani, at Police Station Anti-Corruption, Muzaffarabad, who was apprehended by the police and was produced before the Sessions Judge/Anticorruption Judge, Muzaffarabad on 27-7-1996. Since the police submitted an incomplete challan on the aforesaid date, so a request was made by the police to remand the accused to judicial custody and to adjourn the case to 10-8-1996. The request made by police was acceded to and the learned Judge remanded the accused to judicial custody uptill 10-8-1996. On 10-8-1996 the Sessions Judge/Anti-Corruption Judge was not on the headquarter, the clerk of the Court (appellant) adjourned the case to 11-8-1996. However, it was recorded in the order dated 10-8-1996 that the remand order could be given only by the learned Sessions Judge/Anti-Corruption Judge and the file may be placed before him on his arrival on the following day. On 11-8-1996 the Sessions Judge/Special Judge Anti-Corruption remanded the accused to judicial custody and ordered to produce him on 25-8-1996. On 25-8-1996 the Sessions Judge/Anti-Corruption Judge on the request of Police remanded the accused to judicial custody and adjourned the case to 8-9-1996.
On 8-9-1996 the Sessions Judge being on leave the case was adjourned by the appellant and the accused was sent to judicial custody and fixed the next date as September 22, 1996. On an application moved by the police for seeking judicial remand of the accused on 8-9-1996 there appears a note of appellant that the Sessions Judge/Special Judge Anticorruption was on leave for one month, therefore, the matter may be put up before Additional Sessions Judge. There is another note as well on the said application that as the Additional Sessions Judge is also on leave the matter was brought to the notice of Registrar. High Court on telephone on whose direction the application was attached with the file. On 22-9-1996 the Sessions Judge was also on leave and the case was adjourned by the appellant, however, it was recorded in the order that S.H.O., Anti- Corruption through his application requested Sub-Judge/Traffic Magistrate, Muzafarabad for passing an order of remand of accused but he refused to issue the order in this regard. However, the Sub-Judge/Traffic Magistrate intimated on telephone that docket may by issued and he would remand the accused to custody. It is also recorded in the order that on telephone permission was sought from Registrar High Court. The application submitted by Inspector Anti-Corruption with a note of the 'Reader' that on account of leave of Sessions Judge/Special Judge the matter may be brought to the notice of Additional Session Judge or the High Court or any Magistrate. Then again the application appears to have been marked to Sub-Judge/Traffic Magistrate 1st Class.
3. The High Court vide its order, dated September 30, 1996, on account of the remand orders made by the appellant in absence of or on leave of Sessions Judge/Anti-Corruption Judge/ Additional Sessions Judge or any Magistrate found the confinement of accused Muhammad Azam Durrani as illegal but at the same time did not set him free instead released him on bail in view of his being involved in the case. The High Court taking notice of illegal exercise of authority by the clerk of the Court issued a notice to the appellant to appear in the Court and explain as to why he should not be proceeded under law for having passed the order without any authority of law. The appellant filed his explanation before the High Court on October 2, 1996, wherein he stated that on account of absence of or on leave of Sessions Judge/Anti-Corruption Judge/Additional Sessions Judge he ordered in routine to remand the accused in judicial custody. It was further stated by the appellant that he contacted the Registrar High Court, and Deputy Registrar on telephone and with their permission ordered the detention of the accused in judicial custody. The High Court in para. No.4 of the impugned judgment made the following observations:--- "The power to postpone or adjourn the proceedings and remand of an accused to the custody is vested in a Court under section 344, Cr.P.C., and every order made under this section by a Court other than the High Court shall be in writing signed by the Presiding Judge or Magistrate. The clerk who remanded the accused of the custody was admittedly neither the Magistrate nor the Court nor was he competent to order the remand of the accused to the judicial custody. The order passed by him being contrary to law resulted in illegal confinement of a person."
4. The High Court, not being satisfied with the explanation furnished b the appellant ordered to initiate proceedings against him in the manner indicated in the earlier part of this judgment.
5. Mr. Ghulam Mustafa Mughal, the learned counsel, arguing the case on behalf of appellant, submitted with vehemence that the appellant should not have been proceeded against for the acts done by him in good faith as no malice could be attributed to him. On account of absence of the Presiding Officer or due to leave, the appellant was left with no option except to send the accused to judicial custody. The learned counsel strenuously argued that the order of registration of criminal case as well as the initiation of disciplinary action against appellant under the Efficiency and Discipline Rules was uncalled for. The appellant, according to the learned counsel, made his best efforts to secure the remand of the accused in absence of Presiding Officer from Additional Sessions judge, or any Magistrate and even contacted the Registrar High Court and the Traffic Magistrate but failed to get the same so he could not have been blamed fur the acts done by him in good faith. Mr. Shiraz Kiyani, the learned Advocate---General, frankly conceded that in the circumstances of the case there was no allegation that the appellant acted corruptly or maliciously.
6. We have given our due consideration to the arguments addressed at Bar and perused the relevant record. To have a correct perception of the matter it will be useful to reproduce section 344 of Code of Criminal Procedure, which reads as under:--- "Power to postpone or adjourn Proceedings. ---(1) If, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons thereof, from time to time, 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: Remand. ---Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time.
(2) Every order made under this section by a Court other than a High Court shall be in writing signed by the Presiding Judge or Magistrate. " .
7. There is a general misconception or misunderstanding in the mind of most of judicial officers and the members of legal fraternity that an accused cannot be remanded to judicial custody for a period of more than 15 days at a time. Even in the Court of Sessions Judge the normal practice is that the accused are not sent to judicial custody for a period of more than 15 days at a time. In fact this is not the requirement of section 344, Cr.P.C., section 344, Cr.P.C. Places no such embargo or fixes the period of the remand by Sessions Judge/Special Judge. However, where the Magistrate has to remand an accused to custody under section 344, Cr.P.C., he cannot remand an accused to custody for a term exceeding 15 days at a time but no such limitation has been placed when a remand order is to be passed by a Court other than the Magistrate. When the accused are produced before the Court of Sessions Judge and the learned Sessions Judge considers it necessary or advisable to postpone the commencement or adjourn the trial, he may, if he thinks fit, by order in writing stating the reasons, therefore, from time to time, postpone or adjourn the same for such time as he may consider reasonable and may by a warrant remand the accused, if in custody.
8. In a case reported as 'Shadi Khan v. Muhammad Saleem and 3 others' PLD 1978 SC 38, the necessary facts were that a case was registered against respondents therein under sections 302, 307 read with 34, P.P.C. The High Court had earlier dismissed the bail application of the respondents on merits by its order, dated 22nd of February, 1977. Thereafter, the respondents again applied for bail and a learned Single Judge in the Lahore High Court, by the order, dated 16th of November, 1977, allowed them bail on the ground that they were being held in judicial custody without any order of remand in violation of section 344, Cr.P.C. On appeal before the Supreme Court it was observed at page 40 of the report in the following manner:--- "Section 344 empowers the Court to postpone the commencement of or adjourn any inquiry or trial. It further authorises the Court to do so from 'time to time' and 'for such time as it considers reasonable'. Accordingly, having taken cognizance of the offence under section 193(1) the Sessions Judge postponed the commencement of the trial till such time as the case was fixed for hearing as it was not possible to give any firm date in every case on account of a large number of cases having been sent to the Court of Session pursuant to the deletion of the committal proceedings from the Criminal Procedure Code. In this context even if the period was not specified still the interregnum must be regarded as reasonable and a sufficient compliance of the words 'from time to time'. They should not be given a rigid meaning for in doing so it would lead to an impossible situation necessitating the production of number of accused in Court and thereby causing hindrance to the trial of the cases. On this view of the matter there is no occasion for postponing the commencement of the trial now and again. Therefore it will be out of place to stress the significance of the words 'from time to time which enable the Court to do so as occasion arises.
On the interpretation that we have given it cannot be held as proposition that the case cannot be adjourned sine die for provisions are to be construed to advance justice. As such it is not possible to affirm the view taken in Saif-ur-Rehman v. The State PLD 1978 Lah. 314."
From the above authority it becomes abundantly clear that except the Magistrate, the Court of Sessions Judge and Special Judge are competent to remand the accused to judicial custody for a period of more than 15 days at a time and the inquiry or trial may be postponed or adjourned for such time as the Court considers reasonable but as said earlier the normal practice in Azad Jammu and Kashmir is that even in the Court of Sessions Judge the accused is remanded to judicial custody not for a period of more than 15 days. In the instant case on 27-7-1996 the initial remand was ordered by the learned Sessions Judge and the case was adjourned to 10-8-1996.
Similarly on 25-8-1996 the order of remand was given by the learned Sessions Judge himself.
However, on 8-9-1996 and on 22-9-1996, the appellant, the Reader of the Court, on account of leave of the learned Sessions Judge adjourned the case after taking precautionary steps as mentioned in the earlier part of this judgment. As in the remand orders recorded by the learned Sessions Judge himself, the period fixed on both of the dates was for 15 days, therefore, it could not have been said that the remand given was of a longer period and the accused could have been produced before the Court at any subsequent stage. The perusal of the order recorded by the Sessions Judge reveals that the accused was to be produced before the Court after the lapse of 15 days as ordered by the learned Sessions Judge in both the remand orders and on the production of the accused the Court was required under law to order for the detention or otherwise of the accused but in our view the appellant cannot be attributed any Malice or mala fide in adjourning the case and sending the accused to judicial custody after taking abundant cautions. The appellant did not readily commit the accused to judicial custody on both the dates i.e. 8-9-1996 or 22-9-1996. On the other hand on the application submitted by the police seeking the permission for judicial remand the appellant made a -note that the remand order could have been passed only by the learned Sessions Judge and in his absence by the learned Additional Sessions Judge.
Thereafter, as a matter of abundant caution he contacted the Registrar High Court and Traffic Magistrate and any other Magistrate for seeking the remand order. On his failure to get remand order from any one, the appellant issued the, remand order. We take judicial notice of the fact that it is a common and usual practice throughout in Azad Jammu and Kashmir that in absence of judicial officers or Magistrates, the under-trial prisoners are sent up to judicial lock-up by the clerks of the Court. In the circumstances of the case the only option for the appellant was either to set free the accused or to send him hack to the judicial custody. The bail application of accused Azam Durrani had earlier been rejected by the High Court. Had the appellant set the accused free then and there, the argument would have been strong enough, to attribute malice to him or to attribute that for some monetary gains he released the accused. There is no doubt that the remand order recorded by the appellant was unauthorised and, therefore, illegal but we have, from analysis of the record, found that the appellant all along had been taking extra cautions and whatever was within his control he adopted those measures and tried his best to secure remand of the accused from the Competent Authority but having failed so he even contacted the Registrar High Court and Traffic Magistrate on telephone and on their instructions sent the accused to judicial custody. Thus, in the facts and circumstances of the case, the order of registration of case against the appellant and initiation of proceedings under the Efficiency and ' Discipline Rules was not warranted by law and as such not sustainable.
9. The High Court vide its order impugned, feeling not satisfied with the explanation submitted by the appellant,- ordered for registration of the case against the appellant under section 219, A.P.C.
And any other section which was applicable in view of facts and circumstances of the case. As said earlier, it was further ordered that S.H.O., shall put up a challan against the appellant. On the basis of this direction, a case under sections 219 and 344, Penal Code, was registered and challan was put up against the appellant. The direction, issued by the High Court, was, in our considered view, not in consonance with the requirement of law. The High Court did not direct the concerned police to register the case against the appellant and to make an inquiry as to whether the allegations attributed to him were true or false. On the other hand a definite direction was given to put up a challan which certainly amounts to excess of powers. Section 219 clearly speaks of making or pronouncing a judicial proceeding, any order, verdict or decision which the accused knows to be contrary to law corruptly or maliciously. We have already dilated upon the matter that basic ingredient of the aforesaid section is making or pronouncement of an order corruptly or maliciously which ingredient is not only lacking but on the other hand there seems to be no mala fide or malice attributable to the appellant. Similarly section 344 of the Code prima facie applied to person who himself wrongfully confines any person for a period of 10 days or more. Even the essential ingredients of this offence are also missing in the case in hand. It goes without saying that the High Court is manned by the Judge of vast experience and of great integrity having a great deal of patience at their command but the order seems to have been passed with impulsion to firmly deal with the illegality committed by the appellant. We may not be understood to have approved the acts of the appellant and it is indeed correct that an order of remand under subsection (2) of section 344 is to be given by a Court in writing other than a High Court signed by the Presiding Judge or Magistrate but we cannot ignore the prevalent and normal practice in Azad Jammu and Kashmir that in absence of judicial officers, the accused are sent to judicial custody by the clerks and this practice is virtually applied like a rule of law. The most distinct feature of the case before us is that this case is not one of those cases where the accused was to be sent to judicial custody by any of the orders of the Court. When the initial orders dated 27-10-1996 and 25- 8-1996 were passed by the Sessions Judge himself the subsequent orders in the facts and circumstances of the case cannot be construed to be so much illegal orders as to declare the detention of the accused as absolutely illegal. Perhaps this was a reason that despite finding the detention of the accused Muhammad Azam Durrani as illegal by the High Court, he was not set free but was released on bail on account of a registration of serious case against him. It is the high time that the High Court, which exercises the supervisory jurisdiction even under the Interim Constitution Act of 1974, should adopt a uniform policy and issue directions to the Courts and Magistrates subordinate to it as to what course of action should be adopted and which measures should be taken when the judicial officers or the relevant Court is not available for sending the under-trial prisoners to judicial custody on account of their being on leave or their absence, from their duties for one or the other reasons and whether in such circumstances the detention of the under trial prisoners becomes illegal or not. A copy of this judgment shall be sent to the learned Chief Justice High Court for future course of action and his directions to the Courts subordinate to the High Court.
10. In the light of what has been stated above, by accepting the appeal, we set aside the impugned order of the High Court dated 8-10-1996. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.