This article has been published by Sneha Mahawar.
If you are a Bollywood fan, then you have definitely heard the famous dialogue “tareek pe tareek!” Well, these tareeks, or dates, are very normal in the Indian judicial scenario. Sometimes it takes years of court proceedings to reach the final judgment, even after the policy of the Indian judicial system requires it to be heard without any delays, to meet the saying that “justice delayed is justice denied.” We also witness unnecessary remands made by the courts in certain cases from time to time. Thus, to discourage unnecessary adjournments by the judges, Section 309 of the Code of Criminal Procedure, 1973, comes into play. In this article, the author will discuss the provision mentioned above in detail while also going through various case laws.
The Code of Criminal Procedure, 1973, is a procedural law that outlines the procedures to be followed in a criminal case as well as responsibilities for the effective, efficient, and fair administration of justice. The primary goal of a judicial system is to administer quick and fair justice.
Section 309 of the Code of Criminal Procedure, provides that every investigation or trial must proceed as quickly as possible. The Section directs the courts to expeditiously proceed with criminal cases on a day-to-day basis until all witnesses present have been examined. Furthermore, it gives the magistrate the authority to remand the accused to judicial custody if necessary following the taking of cognizance of the offence or the commencement of the trial.
This section also governs the power of criminal courts to postpone or adjourn proceedings, emphasising the need to avoid indefinite stays of action in order to prevent evidence loss due to elapsed time and unnecessary harassment of the accused. Positively, Section 309 of the Code of Criminal Procedure provides for quick investigations and trials. The said provision applies to all criminal proceedings. In exceptional circumstances, a court may postpone a case after providing justification.
What does Section 309 CrPC say
Section 309(1) CrPC
A plain reading of Section 309(1) CrPC says that if the court determines that a delay in the court proceedings beyond the following day is required, it should record the reasons for the same. Otherwise, every inquiry or trial must proceed day by day until all witnesses present have been cross-examined.
However, there is one exception to the above power of the court. It is that the inquiry or trial must be concluded within two months of the date the charge sheet was filed if the offence in question relates to the offences mentioned under Section 376, Section 376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section 376DA, or Section 376DB of the Indian Penal Code, 1860. This proviso for sub-section (1) was inserted in the CrPC through the CrPC Amendment Act, 2008.
The Criminal Law Amendment Act, 2013, replaced sub-section (1) and the proviso with a new sub-section (1) and proviso. The trial must be conducted on a daily basis in accordance with the new sub-section (1), and adjournments should only be permitted when “absolutely necessary” and for reasons that will be noted. The new proviso states that the investigation into the offences listed there must be finished within two months of the chargesheet’s filing.
Illegality of detention order
According to the Supreme Court in Ram Narayan Singh v. The State of Delhi (1953), this Section mandates that any order made by a court under this section must be in writing and requires a magistrate to “remand by warrant the accused in custody” if he decides to adjourn a case. It was decided that the accused’s continued custody after the order of adjournment was unlawful when a magistrate conducting a trial adjourned a case by order in writing, but there was nothing in writing on the record to indicate that he had also made an order remanding the accused to custody.
According to State (CBI) v. Dawood Ibrahim (1997), the Court that takes cognizance of an offence in which the accused was subsequently arrested during an investigation may, in the exercise of its authority under Section 167, order the accused’s detention in police custody.
It was observed in another case, Mahesh Chand v. State of Rajasthan (1985), the accused was not entitled to be released on bail since the detention order was illegal.
In yet another judgment, Lokendra v. State of U.P. (1996), bail was requested in a murder case on the grounds that the remand order was invalid under Section 309(2) of the Criminal Procedure Code and that proper reasoning for detention had not been established. The Allahabad High Court denied bail and held that the reasons considered need not be specific; rather, they should only explain why the case was adjourned on a particular date. The fact that the presiding officer was absent or had been moved was sufficient. The Court ruled that the current detention order was legal and that the accused could not benefit from any prior technical mistake.
Section 309(2) CrPC
A general understanding of Section 309(2) CrPC is that the court may decide that the delay is necessary or advisable at the start of an inquiry or trial after taking cognizance of the offence or after the court trial has begun. Further, on the basis of the decision to delay, it may occasionally, for reasons to be recorded, postpone or adjourn the same on the terms it sees fit for the amount of time it considers reasonable and may, by a warrant, remand the accused if in custody.
As noted in the case of Emperor v. Md. Ebrahim (1941), a case cannot be postponed indefinitely under this clause. A sine die adjournment is a prolonged delay. The goal of criminal law is to swiftly bring those who have been accused to justice so that they can be punished if they are proven guilty and released if they are found innocent. The Public Prosecutor, who is the proper person to bring the matter before the court, can be contacted directly if the Government wishes to submit a petition or request to the court for an adjournment.
However, the following condition must be fulfilled if the judge remands an accused to custody:
- No Magistrate may hold an accused person in custody pursuant to Section 309 of the CrPC for a period longer than fifteen days at a time.
The judgment in M. Sambasiva Rao v. Union of India (1973) noted that, in all, Section 167 of the CrPC allows for 15 days. Under that clause, the total length of the remand cannot exceed 15 days. According to this clause, the magistrate may order the accused to be held in prison for up to 15 days at a time, and there is no cap on the number of times this can be done. It is incorrect to claim that a remand order is defective because the accused has not been before the magistrate.
It was noted in A. Narayan Reddy v. State of Andhra Pradesh (1992) that when further orders of remand are passed without the production of the accused prior to taking cognizance, the defendant is entitled to bail. However, it was determined that the detained accused was entitled to the grant of bail and that he could petition the High Court under the Cr.P.C. or under Article 226 of the Constitution of India to secure his release when successive orders of remand were issued by the Court without the production of the accused before taking cognizance.
It was observed in Bombay Municipal Corporation v. Suresh Gupta (1986) that the provisions of this Section are not met by an order that permanently stays criminal prosecution. While the judgment in Rabindra Naik v. State of Orissa (1994) noted that it was deemed legal to keep the accused in custody for an additional 15 days while he was away.
- Furthermore, unless there are exceptional circumstances that must be documented in writing, the judge shall allow no delay in cases where witnesses are present, without their examination.
The Supreme Court in Mohd Khalid v. State of W.B. (2002), while relying on the judgment given in State of U.P. v. Shambhu Nath Singh (2001), observed that the court should not grant liberal adjournments in cases where the witnesses are present. The Supreme Court ruled that the trial court shouldn’t have deferred the case on request if the witness was present and his or her initial cross-examination was complete.
In Himachal Singh v. State of Madhya Pradesh (1990), in a trial before the Special Judge, the defence attorney for the accused requested a postponement due to the Senior Counsel’s illness, but the Madhya Pradesh High Court denied the request. The Court also cross-examined the witnesses, which the attorney was unprepared to do, and after that, the Court released the witness. It was decided that the case hearing should have been postponed to give the advocate more time to be ready for the cross-examination.
- The next condition is that no adjournment shall be granted by the court only to allow the accused to raise objections to the proposed punishment that would be applied to him.
The main goal is to reduce the number of adjournments. However, this does not imply that the proviso prevents the court from adjourning the case even when doing so would serve the interests of justice. The court is not forbidden from giving an adjournment in important situations involving life or death to fulfil the necessity of justice as stated in Section 235(2) of the Code, even though it may not give the accused the right to one.
It is customary to record both the conviction and the punishment on the same day. The court does not have to hear from the accused on the issue of sentencing when a conviction under Section 302 is recorded and the sentence of life in prison is requested to be awarded. The third proviso to Section 309(2), however, does not prevent the court from granting an adjournment to allow the accused to present evidence in opposition to the proposed sentence when the death penalty is being considered. If the accused is out on bail, the Sessions Court or Special Court must order that they be brought into prison right away and held in custody until the sentencing issue is resolved.
- The following are the further conditions:
- No party may request an adjournment unless the circumstance is out of the party’s control;
The High Court’s decision in State (Delhi Administration) v. Vishwanath Lugnani (1981) not to adjourn the case was deemed reasonable after the prosecution spent an unreasonable amount of time calling witnesses and questioning them.
- The pleader of a party may not be excused from appearing because of an engagement in another court;
- The court may also record the statement of the witness and pass orders, dispensing with the examination-in-chief or cross-examination of the witness, as per the requirements of the case. This may be done by the court when a witness is present in court but a party or his pleader is not present, or the party or his pleader, though present in court, is not ready to examine or cross-examine the witness.
The Supreme Court in the case of Thana Singh v. Central Bureau of Narcotics (2013) determined in a case involving the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, that although the amended clause was added to the statute book in 2009, the notification necessary to make the alteration effective had not been made. The fourth proviso deserves to be informed right away, the Supreme Court stated.
Explanation of Section 309
Explanation 2 of Section 309 says that, in proper circumstances, the payment of certain costs by the prosecution or the accused may be one of the conditions on which an adjournment or delay is granted.
This certainly gives the court the right to impose costs on the party that has incurred needless expenses as a result of the other side’s actions. If there are exceptional conditions, this will be done.
The party requesting the delay is responsible for covering the costs. When a case hearing is postponed due to a transfer request, the magistrate is not permitted to award the adjournment costs.
An order in Ichab Sheikh v. Khirode Kumar Ghose (1944) requiring the accused to pay the complainant’s costs in cases where the accused requested an adjournment due to illness left the magistrate with no choice but to adjourn the case, even though he might issue a warrant for the accused’s arrest.
Scope and objective of Section 309 CrPC
Section 309(1) of the Code of Criminal Procedure states that every inquiry or trial must be completed as soon as possible. For example, once the witness examination begins, it must continue every day until all of the witnesses present have been examined unless the court decides that a postponement beyond the next day is required for reasons to be noted.
According to Section 309(2), if the court finds it necessary or advisable to postpone or adjourn any inquiry or trial after taking cognizance of an offence or the commencement of a trial, it may do so from time to time. The court can set the terms and time for the next hearing as it sees fit. However, the court must record the reasons for postponing or adjourning any inquiry or trial. The accused may be remanded with a warrant by the court if he has already been taken into custody. However, no Magistrate may hold an accused person in custody under Section 309 for more than fifteen days at a time.
Further, if there are witnesses present, no adjournment or postponement may be made without special reasons being specified in writing. Furthermore, no adjournment shall be granted solely for the purpose of allowing the accused to show cause against the sentence proposed to be imposed on him.
In accordance with Explanation 1 to Section 309 of the Code, remand is a reasonable cause if there is enough evidence to raise a suspicion that the accused may have committed an offence and it appears likely that more evidence will be obtained by a remand. The terms of an adjournment or postponement may, in appropriate circumstances, include the payment of costs by the prosecution or the accused, according to Explanation 2 of Section 309 of the Code.
The objective of enacting Section 309 of the Code was to discourage pointless adjournments. The policy of the law is that criminal cases should be resolved as soon as possible. It was stated in Janikamma v. Appanna (1957) that it is a fundamental rule of criminal law that criminal prosecution should be completed as soon as possible and without undue delay. The intention is to keep the accused from being harassed unnecessarily and to keep evidence from being lost due to the passage of time.
Applicability of the section
The section applies to all cases involving criminal trials and inquiries about suspects in custody after arrest. The main purpose of this section is to expressly direct courts to conduct speedy trials. There are currently crores of pending cases in our country, with the primary cause being lengthy delays in their trials and inquiries. However, the section does not entirely require the judiciary to resolve cases anyhow, it also provides that hearings can be adjourned in certain circumstances, and the concerned judge must record the reasons for the same.
Adjournment of cases for petty reasons
The courts are overloaded with cases, and cases are still pending as a result of adjournments that were granted on dubious grounds. The court has the authority to adjourn and postpone the hearing under Section 309 of the Code. This postponement is typically granted after the court considers the justification for doing so on a case-by-case basis.
A number of case laws discussed various reasons for adjournments, such as the inability of the council to conduct a case, the need for a reasonable time to prepare for the case, the sickness of either party, his council, or his witnesses, etc. On the other hand, courts have the right to refuse an adjournment for a variety of reasons, including the non-examination of the witness present in court, the inability of counsel to appear because they are representing clients in other proceedings, the abuse of the court process, etc.
The Supreme Court stated that there are no clear guidelines governing the court’s authority to grant or deny an adjournment in the case of Sukhpal Singh v. Kalyan Singh (1962). However, the court should grant it based on reasonable grounds and after considering the facts and circumstances of each case. The reasoning for the adjournment must therefore be recorded. Currently, corruption and power play a crucial role. These factors can be easily used to delay a trial and obtain an adjournment of proceedings on various grounds, even if the request is unreasonable. They thus undermine the intent behind the provisions of law.
The Malimath Committee also advised courts to refrain from using adjournments to postpone both the trial and the administration of justice. In order to deal with this situation, the committee suggested that the exceptional requirements that must be met in order for adjournments to be granted be clearly defined.
A procedure that did not guarantee a reasonably quick trial would violate Article 21
Though there have been cases where the Supreme Court has directed the dropping or discontinuing of proceedings where the delay has harmed the ends of justice, it was only in the case of Hussainara Khatoon v. Home Secretary, State of Bihar (1979) the Court declared that speedy trial, by which we mean reasonably expeditious trial, is an integral and necessary part of the fundamental right to life and liberty enshrined in Article 21. Since then, the Court has developed extensive case law on speedy trials, but it has never specified what constitutes a reasonable time frame for completing trials.
In contrast, a Supreme Court Constitution Bench of five judges declined to set time limits beyond which no criminal proceeding should be allowed to continue in Abdul Rehman Antulay v. R.S. Nayak (1991), when it was requested that they do so because, without such limits, the exposition of Article 21 in the Maneka Gandhi and Hussainara Khatoon cases would remain a mere illusion and a platitude. According to the court, it is “neither advisable nor practicable” to set a time limit for criminal trials.
Later decisions of the Supreme Court, namely Common Cause, a Registered Society v. Union of India (1996) and Raj Deo Sharma v. State of Bihar (1998), established time limits within which certain IPC offences must be tried. In these cases, the court ordered that the accused be released on bail or that the case be dismissed if the trial was not finished within the specified time. However, in P. Ramachandra Rao v. State of Karnataka (2002), a seven-judge Constitution Bench overruled these judgments. The Court emphasised the significance of a speedy trial in criminal cases, acknowledged that it was still elusive in practice, and noted that it was outside of its purview to set guidelines as to the time frame within which a trial ought to be completed.
The court observed that regardless of how broadly we interpret Articles 32, 21, 141, and 142 of the Constitution, making such directives apply to all cases in the present and future amounts to legislation, which, in our opinion, cannot be done by judicial directives and within the scope of the judicial law-making power available to constitutional courts. The line between the two is thin but perceptible; courts can declare the law, interpret it, and close gaps in the law that are obvious, but they cannot enter the area of law that it was not intended for.
Meaning of the word remand and its relevance here
Remand implies “to commit an accused person back to custody” or “to send a soldier back to his post.” Remanding a case in civil law refers to returning it to the original lower court.
The phrase “the case is thus remanded back to the trial court” is sometimes used inaccurately instead of the term “remand.” That’s not an appropriate usage of the term. Simply stating that the case has been remanded to the trial court will do.
Both a verb and a noun are used with the term “remand.” It means “to re-commit an accused person to the same custody from which he was released” in the context of this sentence. “Remand,” when used as a noun, refers to a judicial order for recommitment. For instance, the accused is being held on remand, i.e., without bail.
Only three sections of the Criminal Procedure Code (Cr.P.C.) employ the term “remand,” Section 209(a), “remand during committal procedures,” Section 209(b), “remand till the conclusion of trial,” and Section 309(2), “remand when the investigation or trial is postponed.” At the post-cognizance stage, all of the aforementioned regulations are applicable. The word “remand” was appropriately selected by the Code’s creators in both Sections because, in both of these cases, the offender is returned to the same legal custody from which he was previously released.
In Gourishankar v. State of Bihar (1972), the Supreme Court declared that such remand after the initiation of an investigation or trial can only be to “judicial custody” and not police custody, interpreting Section 309 CrPC. In State of Kerala v. Sadanandan (1984), Justice Bhaskaran Nambiar of the Kerala High Court expressed the same opinion regarding Section 309. In paragraph 6 of CBI v. Anupam J. Kulkarni (1992), the Kerala High Court’s judgment was appreciated.
Difference between Section 167 and 309 CrPC
The Code’s Section 167 discusses a person’s custody throughout the inquiry phase, which can either be judicial custody or police custody. If a person is arrested at a later date while the investigation is ongoing, this Section does not apply to them. However, when the court takes cognizance of the situation, Section 309 applies to custody, and only judicial custody may be involved.
Police may only conduct investigations while a person is being held in custody with the judicial magistrate’s approval. Only with the court’s permission can someone who is being held in custody be questioned. Section 309(2) is applied if the court takes cognizance of the case; otherwise, Section 167 is applied during the investigative stage. In the case of CBI v. Dawood Ibrahim Kaskar (1997), the same was reiterated. The Hon’ble Apex Court ruled that there is no way to dispute the distinction between detention in custody under Section 167 and the remand and custody mentioned in the first proviso of Section 309(2). While detention under the latter pertains to the stage of inquiry and can initially be either in police custody or court custody, remand under the former relates to a stage after cognizance and can only be in judicial custody.
While an accused person is in the custody of the concerned magistrate when they are in judicial custody, the police have physical custody of them when they are in police custody. In the former, the accused is kept in a police station holding a cell while in the latter, a jail.
The investigating agency would be denied the chance to question a person arrested during further investigation, even if it could persuade the court, upon the production of sufficient materials, that his detention in its police custody was necessary for that purpose. If Section 309(2) is interpreted to mean that after the court takes cognizance of an offence, it cannot exercise its power of detention in police custody under Section 167. Therefore, the phrase “accused if in custody” in Section 309(2) refers to an accused who was present in court at the time that the charge was filed against him or when the investigation or trial was going, and not to an accused who is afterward detained during a subsequent investigation.
The first classification of accused can only be remanded to judicial custody in light of Section 309 (2), but the second classification of accused would be controlled by Section 167 for the duration of the ongoing investigation.
The custody provisions under Section 309 CrPC and Section 167 CrPC are very distinct. Prisoners awaiting trial are designated for the detention described in Section 309. This was observed in the cases of In re Nagendra Nath (1923) and Babubhai Parshottamdas Patel v. State of Gujarat (1982).
Key judicial pronouncements on Section 309 CrPC
Vinod Kumar v. State of Punjab (2015)
The Supreme Court expressed its serious distress about the use of dilatory strategies and the non-application of Section 309 in Vinod Kumar v. State of Punjab (2015) and declared that it was not desirable to give adjournments for unacceptable grounds. The Chief Justices of all High Courts received instructions in this regard while summarising the duties of the Court during the trial.
Akil @ Javed v. State of NCT of Delhi (2013)
The Supreme Court rejected the practice of prolonging adjournments during trials in Akil @ Javed v. State of NCT of Delhi (2013). It emphasised the urgent need for the court handling cases involving significant offences to continue the trial on a daily basis in de die in diem until the conclusion of the trial as required by Section 309.
Mohammad Daud Alias Mohd. Saleem v. Superintendent of District Jail (1992)
When a Court issued an order in Mohammad Daud Alias Mohd. Saleem v. Superintendent of District Jail (1992), directing the superintendent of the district jail to hold the accused until further orders, the order was declared unconstitutional because it did not comply with Section 309 of the Criminal Procedure Code. Further, it was decided that Section 309 of the Criminal Procedure Code does not allow for remand to detention to last indefinitely; rather, it must end when the adjournment does, and not after. The reasons for remanding the accused do not have to be recorded, but the reasons for adjournment must be stated. The warrant for remand to intermediate custody should typically be written in the appropriate proforma, the Court further noted.
- In State of Maharashtra v. Rasiklal K. Mehta (1978), the Bombay High Court stated that it is a fundamental rule of criminal law that criminal prosecutions should be concluded as quickly and without unnecessary delay as possible. The objective is to prevent the accused from being subjected to unnecessary harassment and the loss of evidence due to the passage of time. It is well known that if the prosecution is delayed indefinitely or for a very long time, crucial evidence may be lost due to the passage of time, making it impossible to present the evidence at the trial.
- It was determined by Lt. Col. S.J. Chaudhary v. State (Delhi Administration) (1984), that it is most expedient for the trial before the Court of Session to move forward and be handled continuously from its beginning to its conclusion. Not only will it lead to the expedition, but it will also eliminate manoeuvre and mischief. The trial should move forward on a daily basis in the interests of both the prosecution and the defence. It is crucial to understand that Sessions’ cases cannot be tried piecemeal. Except in cases where an adjournment is absolutely necessary, the trial must continue ‘de die in diem’ until it is finished once it has started.
- In the State of U.P. v. Shambhu Nath Singh (2001), the practice of courts adjourning cases without questioning witnesses when they are present has been condemned by the Supreme Court. It was observed that the trial court should understand that the witness is a responsible citizen who has other work to attend to in order to make a living and that a witness cannot be required to appear repeatedly just for the convenience of the concerned advocate. If an advocate requests adjournments to delay questioning witnesses without a valid reason, they are failing in their duty to protect the witnesses from intimidation and hardship. If an advocate uses filibuster tactics, this constitutes professional misconduct.
- In Mohd. Khalid v. State of West Bengal, (2002), the Supreme Court emphasised the importance of Section 309 Cr.P.C. provisions and stated that the trial court should not simply adjourn a case when a witness is present and his examination-in-chief is complete unless there are compelling reasons.
- The Supreme Court in Akil @ Javed vs State Of Nct Of Delhi (2012) ordered all trial court judges to strictly follow Section 309.
- In the case of Hirdeesh Sahu v. State of Madhya Pradesh (2021), the Madhya Pradesh High Court ordered all trial court judges to ensure strict adherence to Section 309 of the Cr.P.C., particularly in sensitive cases like murder, kidnapping, and rape. It further stated that the provision should be observed religiously, without fail, and cases should not be adjourned at the drop of a hat.
To conclude this article, we can say that Section 309 is a remedy and a step towards speedy trials. This provision does not allow unreasonable and unnecessary adjournments by the judiciary, which results in speedy justice. The Indian judicial system already has cases pending over several years and sometimes accused spend most of their punishment waiting in judicial custody itself. Section 309 gives certain relief in this aspect.
This provision permits speedy proceedings to bring charges against the guilty and deliver justice to the innocent. Not every person accused of committing a crime is automatically guilty. There are more and more false accusations, misrepresentations, misidentifications, and malicious prosecutions.
This section appears to be an excellent tool for ensuring that innocent people are not wrongfully punished. Similarly, even if someone has violated the law, they have the right to a fair trial and punishment rather than being held in custody for an extended period of time while their case is being investigated. Another significance of this section is that it may assist in the hearing of witnesses and the submission of relevant evidence as soon as possible, with no loss.
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