JUDGMENT
T. Ramabhadran, J.
1. This is an application under Article 226 of the Constitution as well as Section 491, Cr. P. C. praying for the Issue of a writ in the nature of habeas corpus directing the release of the applicant Radhey Shyam, Bharti, who happens to be a practising lawyer of district Shahjahanpur.
2. The applicant was arrested at 5 a. m. on 27-2-1963 by opposite party No. 3 Sri Saiduddin, S. O. Police Station Sadar Bazar in the city of Shahjahanpur, and confined in the district Jail Shahjahanpur. The same day at 5 P. M. opposite party No. 2 Sri C. 8. Negi, City Magistrate Shahjahanpur came to the district jail and read out a notice under Bee. 112 Cr. P. C. calling upon the applicant to show cause why he should not be ordered to execute a personal Bond of Rs. 5,000/- and furnish two sureties in a like amount to, keep the peace fox-one year.
The applicant, as the record shows, denied the contents of the notice. A further order under Section 117 (3), Criminal P. C. was then passed by the City Magistrate directing the applicant to execute a personal bond for the amount mentioned above and furnish two sureties to Keep the peace till the conclusion of the enquiry. Since the applicant did not furnish the required sureties he was directed to be Kept in jail. On 19-3-1963 the applicant was released from custody on his furnishing the necessary surety bonds.
3. In this petition it has been contended that the arrest and the detention of the applicant in the jail were illegal and accordingly the applicant, prayed firstly that the proceedings pending against Mm under Section 107 Cr. P. C. in the court of the City Magistrate, Shahjahanpur, be quashed and further that a writ of habeas corpus be issued to the City Magistrate, directing that the applicant be set at liberty.
4. The application has been opposed on various grounds, inter alia, it has been stated in the affidavits of the opposite parties 2 and 3 that the applicant was inciting certain students of Gandhi Falzeam Degree College, Shahjahanpur, into committing overt acts and creating a troublesome atmosphere in the college premises.
The applicant admittedly was arrested at about 5,30 a. m. on 27-2-1983 by opposite party No. 3 Sri Saiduddin and presented before opposite party No, 2 Sri C. S. Megi, City Magistrate, with a prayer for remand, which was granted by the Magistrate for one day. The opposite parties admitted that a case under Section 107 Cr. P. C. was instituted against the applicant, A preliminary order under Section 112 Cr. p. c. was read over to the applicant in jail at about 5 p. m. on the day of his arrest. A further order under Section 117 (3) Cr. P. C was also passed soon after the incident. Since the applicant failed to furnish the requisite sureties he was directed to be detained in jail.
5. Sri S. C. Khare, for the applicant urged vehemently that the arrest and the detention of the applicant were mala fide and illegal. He argued that the orders under Sections 112 and 117 (3) Cr. P. C. were illegally passed simultaneously when the City Magistrate, opposite party No, 2 came to the jail. Reliance was placed in this connection on two earlier decisions of this Court reported as Shravan Kumar Gupta v. Superintendent District Jail Mathura and Prabhakar Nath V. District Magistrate, Allahabad .
In the former case, a Division Bench of this Court observed:
Section 161 Cr. P. C. merely authorises arrest by police without warrant from a Magistrate and is not a provision of law under which a person can be detained by the jail authorities in their custody..
Section 167 only permits a Magistrate to order remand to jail custody when a case relating to the commission of any cognizable or non-cognizable offence is being investigated and the order is to be for the period during which the investigation remained pending. Where the persons were arrested and were being detained in connection with the proceedings for prevention of breach of the peace under Section 107, Cr. P. C., and not on any allegation or suspicion that they had committed any offence as defined in the Code of Criminal Procedure, Section 167 Cr. P. C. is not applicable.
In the latter case, another Division Bench of this Court indicated.
…. Section 112 and Section 117 provide two different procedures for two different ends and therefore, a Magistrate has no jurisdiction to pass an order under Section 117 (3) along with one under Section 112….. An emergency order under Section 117 (3) can only be made when the Magistrate has started to enquire into the truth of that information under Section 117 (1) and in the course of that enquiry, he considers that immediate measures are necessary.
6. Mr. Khare accordingly requested the court to hold that both the arrest and the detention of the applicant were illegal and, therefore, to issue a writ in the nature of habeas corpus.
7. The learned State Counsel, on the other hand, rightly pointed out that in the present case the orders under Sees. 112 and 117 (3) Cr. P. C were not passed, simultaneously. The record shows that when the order under Section 107 read with Section 112 Cr. P. C. was read over to the applicant the latter denied its contents and added that the allegations made by the Station Officer Sadar Bazar were false and he (the applicant) had not delivered any lecture in the College premises and further was away at katra on the night of 25-2-1963. Shri Katju, accordingly, urged that the decision would not apply to the instant case. There Is force in this contention.
8. As regards the arrest of the applicant Sri Katju brought to our notice a ruling of the Kerala High Court reported as Chakkappan v. State of Kerala . Therein Sankaran, C. J. after referring to observed:
….The scope of Section 167 (2) cannot be limited to a case where the accused has been arrested and a case registered against him for the actual commission of a cognizable offence. The provision can be applied even where the arrest is under Section 151 of the Code.
9. With great respect to the learned Judges’ who decided the case of Shravan Kumar Gupta AIR 1857 AU 189 we find ourselves unable to agree with the view that the scope of Section 167 (2) Cr. P. C. is confined to cases where an accused has been arrested and a case has been registered against him for the commission of a cognizable or non-cognizable offence. We respectfully agree with the view of Sankaran, C. J. in the Kerala case cited above that the provision
(See 167 (2) Cr. P. C.) would be applicable, even if the arrest is made under Section 151 Cr. P. C.
We may also refer to the case of Naik Ram Pandey v. District Magistrate Allahabad 1960 All L 3 227 wherein another Division Bench of this Court doubted the correctness of the view expressed in Shrawan Kumar’s case (reported above), regarding the scope of Section 167(2) Cr. P.C.
10. It accordingly follows that neither of the two contentions advanced by Sri Khare has any force. Even if we assume for the sake of argument that the detention of the applicant, from the time of his arrest till the time the order under Section 107 read with. Section 112 Cr. P. C. was read over to him the same evening at the jail was illegal, the position obviously changed once the subsequent order under Section 117 (3) Cr. P. C. was passed. In the case of Naranjan Singh Nathawan v. State of Punjab (I) AIR 1962 S C 106 their Lordships were pleased to observe:
….If at any time before the Court directs the release of the detenu, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. The question Is not whether the later order validates the earlier detention but whether In the face of the later valid order the Court can direct the release of the petitioner.
11. The proceedings under Section 107 Cr. P. C. are still pending against the applicant. In view of what has been stated above, we are unable to see’ any valid ground, either to quash the proceedings pending under Section 107 Cr. P. C. against the applicant or to issue a writ in the nature of Habeas corpus as prayed for.
12. The application, accordingly, falls and is dismissed. No order as to costs.