PETITIONER: A. LAKSHMANARAO Vs. RESPONDENT: JUDICIAL MAGISTRATE, 1ST CLASS, PARVATIPURAM & ORS. DATE OF JUDGMENT: 24/11/1970 BENCH: DUA, I.D. BENCH: DUA, I.D. SIKRI, S.M. BHARGAVA, VISHISHTHA CITATION: 1971 AIR 186 1971 SCR (2) 822 1970 SCC (3) 501 CITATOR INFO : R 1972 SC 711 (12) R 1975 SC1465 (6) ACT: Code of Criminal Procedure, 1898, s. 344(1A)-Validity-Power to adjourn and power to remand-Whether guidelines absent- Order of remand whether must be made in presence of accused to be valid. HEADNOTE: The petitioner was arrested on July 17, 1970 and was produced before a first class Magistrate next day when he was remanded to judicial custody under s. 167(2) Cr. P.C. for 15 days. He was informed at the time of remand that his arrest was in connection with a case relating to dacoity and murder and conspiracy to commit the same. Although a charge-sheet had been submitted against about 148 persons accused in the case the petitioners' name was not among them, because as the police later explained, investigations against him had not been completed. The petitioner objected to a second remand on August 1, 1970 but that very day the prosecution filed a supplementary charge-sheet including his name. Remand was then extended upto- August 6 and thereafter upto August 20, 1970. On the last mentioned date he was not produced before the magistrate because of alleged want of escort and the remand was extended in his absence. In a petition under Art. 32 of the Constitution the petitioner challenged his detention from August 1 onwards. The remand order of August 20 was challenged on the ground that it was made in his absence and it was urged that the law does not permit remand without actual production of the accused before the Court. The constitutional validity of s. 344(1A) and of the Explanation to the section was also challenged. HELD : (1) In view of this Court's decision in Rai Narain's case it could no longer be urged that the production of an accused before the magistrate for the purpose of remand was a necessary requirement. though as a rule of caution it is highly desirable that the accused should be personally produced before the magistrate so that he may if he so chooses make a representation against his remand. The order of remand dated August 20, 1970 was in the circumstances not contrary to law so as to render the petitioner's custody illegal justifying his release by this Court on habeas corpus. It was still open to the petitioner to apply for bail to the appropriate court in accordance with law. Rai Narain v. Supdt. Central Jail, New Delhi, [1971] 2 S.C.R. 147 applied. [826 G-827 C] (ii)Sub-section (1A) of s. 344 of the code vests in the court seized of a criminal case, power to postpone the commencement of or adjourn any inquiry or trial before him by order in writing stating the reasons therefore from time to time on such terms as the court thinks fit and for such time as it considers reasonable. When the case is so postponed or adjourned the court may also by a warrant remand the accused, if in custody. The discretion to adjourn being vested in a court of law has to be exercised judicially on well recognised principles and is therefore immune from challenge on the ground of arbitrariness or want of guidelines. The judicial power to postpone or adjourn the proceedings is to be exer- 823 cises only it from the absence of witnesses or any other reasonable cause the court considers it necessary or desirable to do so. It has to record its reasons for so doing. Similarly the discretion to order remand of the accused is to be exercised judicially keeping in view all the facts and circumstances of the case including the nature of the charge the gravity of the alleged offence, the area of investigation, the antecedents of the accused and all other relevant factors which may appropriately help the court in determining whether to keep the accused in custody or to release him on bail. Reasonable cause for remand according to the explanation covers a case where sufficient evidence is obtained to raise suspicion about the complicity of an accused person in the offence and it appears likely that more evidence may be obtained by remand. [828 C-E] Further, both the order of adjournment as well as the order of remand are subject to review by the superior courts in accordance with law. The challenge to the validity of s. 344(1A) on the ground of want of guidelines must therefore fail. [829 H-830 A] (iii)The suggestion that the explanation could not extend the substantive provisions of sub-s. (1A) has merely to be stated to be rejected because the explanation merely serves to explain the scope of the expression reasonable cause. [829 E] (iv)The argument that since s. 344 falls in Ch. 24 Cr. P.C. which contains general provisions as to inquiries and trials and therefore it cannot apply to a Case at the stage of investigation and collection of evidence is negatived by the express language of sub-s. (1A) and the explanation. Under sub-s. (1A) commencement of the inquiry or trial can also be postponed. This clearly seems to refer to the stage prior to the commencement of the inquiry. The explanation makes it clear beyond doubt that reasonable cause as mentioned in sub-s. (1A) includes the likelihood of obtaining further evidence during investigation by securing a remand. Indeed a postponement of an inquiry on trial also seems to be within the contemplation of the general provisions as to inquiries and trials. [829 C-D] [Plea to reopen Rai Narain's case rejected.] JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 513 of 1970.
Petition under Art. 32 of the Constitution of India for writ
in the nature of habeas corpus.
The petitioner appeared in person.
P. Ram Reddy and P. P. Rao, for the respondent.
The Judgment of the Court was delivered by
Dua, J. The petitioner, A. Lakshmanrao, an Advocate
practicing at Narasipatnam in the district of Visakhapatnam
in the State of Andhra Pradesh has applied under Art. 32 of
the Constitution for a writ of habeas corpus on the
following averments
The petitioner, while going home from the court, was
arrested on 17th July, 1970 at about 12.30 in the afternoon.
He was not shown any warrant at the time of his arrest. He
was produced before a Judicial Magistrate, First Class, on
18th July and
824
remanded to judicial custody under s. 167 (2), Cr. P.C. for
15 days. At the time of remand he was informed by the
Magistrate that he was accused of offenses under ss. 120-B,
121-A 122 read with 302 and 395, I.P.C. in Crime No. 3 of
1970 (known as Parvatipuram Naxalite Conspiracy Case). This
crime had been registered in January, 1970 in which more
than 148 persons were sought to be proceeded against. The
names of only 148 accused persons were specifically
mentioned. The petitioner and one Dr. C. Ramadass were not
specifically named. They were apparently included in the
expression “others”. On 30th March, 1970 a report was filed
by the Investigating Officer describing it as a preliminary
charge-sheet in which it was stated that the investigation
in the case had not been completed and several accused
persons had yet to be traced. This report, according to the
averments, does not fall under S. 173(1), Cr.P.C. Even in
this preliminary charge-sheet the names of the petitioner
and Dr. Ramadass were not included. On 1st August when the
period of the petitioner’s first remand expired, again no
charge-sheet was separately filed against him and Dr. C.
Ramadass. The prosecution, however, sought extension of the
period of remand.. When the petitioner objected to further
remand a second preliminary charge-sheet was presented to
the court on that very day specifically including the
petitioner’s name. His remand was thereupon extended upto
6th August and thereafter upto 20th August. On 20th August
he was not produced in the court because of want of escort
and the order of remand was made in his absence. He has
expressed ignorance about the period of this remand.
The present petition dated 22nd August, 1970 was forwarded
to this Court through the Superintendent. Central Jail,
Rajahmundry (Andhra Pradesh). The petitioner challenges the
remand orders from the 1st August onwards and claims that
his detention is illegal and that he is entitled to be set
at liberty. The remand order dated 20th August, 1970 which
was made in his absence because he could not be produced
before the court on the ground of lack of escort is
challenged on the further ground that the law does not
permit remand orders without the actual production of the
accused before the court:
According to the petitioner who himself argued his case, s.
344(1A), Cr.P.C. does not contain any guidelines for the
court in the matter of remand orders and he added that this
section is otherwise too inapplicable to the investigation
stage of criminal cases. When his attention was drawn to
the explanation to s. 344, according to which the likelihood
of further evidence being obtained by the remand in cases of
suspicion against an accused person raised by the evidence
already obtained, he contended that the
825
explanation could not, as a matter of law, serve to extend
the scope of the substantive provision contained in sub-s.
(1A). On this premise the petitioner questioned the vires
of s. 344(1A) and (2) and the explanation.
In the counter-affidavit sworn by the Judicial- Magistrate
in whose court the case against the petitioner is pending,
while referring to the proceedings held on 1st August, 1970,
it is affirmed that the petitioner and Dr. C. Ramadass were
produced in court and it was submitted by them that since
their names had not shown in the preliminary charge-sheet
the court had no power to extend the period of reman. On
that very day the prosecution filed a second preliminary
charge-sheet in which the petitioner and Dr. C. Ramadass
were shown as accused nos. 149 and 150 suspected of having
committed offences under ss. 120-B, 121A, 122 read with 302
and 395, I.P.C. The Court thereupon passed an order of
remand in respect of both of them. A bail application filed
on behalf of the petitioner and Dr. C. Ramadass was
thereafter argued by the petitioner and the matter was
adjourned to 6th August, 1970 for orders when that
application was disposed of.
On behalf of the other respondents a lengthy affidavit has
been sworn by S. Veeranarayanareddi, Deputy Superintendent
of Police, Crime Branch, C.I.D., Government of Andhra
Pradesh, Hyderabad. It is affirmed in this affidavit that
the petitioner is an-active Naxalite and along with others
is accused of charges under ss. 120-B read with ss. 302,
395, 397, 399, 364, 365, 368 and 386, I.P.C. in P.R.C. No.
3/70, pending in the Court of the Judicial First Class
Magistrate, Parvatipuram Taluk. A separate complaint under
ss. 121-A and 120-B read with 121, 122, 123 and 124A, I.P.C.
is also stated to have been filed against the aforesaid
persons including the petitioner in the same court in P.R.C.
8 of 1970. These two cases are known as Parvatipuram
Naxalite Conspiracy Cases and relate to 46 murders, 82,
dacoities, 99 attacks on police and 15 abductions committed
by the accused persons in Andhra Pradesh. The accused
persons are also alleged to have committed several offences
of the types just mentioned in the Agency Tracts of Orissa
bordering Andhra Pradesh. The Government of Andhra Pradesh
had on account of the gravity of the situation declared
certain areas affected by the Naxalite menace in Srikakulam
and Warangal Districts as disturbed areas Under s. 3 of the
Andhra Pradesh Suppression of Disturbances Act, 1948. In
the affidavit certain incidents have been traced from 1964
and it is affirmed that as a result of various political
developments certain volunteers were recruited from various
parts of Andhra Pradesh and the petitioner helped them in
creating revolutionary bases in the agency tracts of
Visakhapatnam District. There is also reference to one of
the accused persons having become an approver and another
having made a confes-
826
sional statement. After stating various facts discovered
during investigation it is affirmed that the investigation
of this case is limited not only to the State of Andhra
Pradesh but it extends to several States where naxalite,
movement has spread, including West Bengal and Orissa, and
as many as 900 witnesses have already been examined during
the course of investigation which has taken nearly nine
months. Sanction of the State Government has also been ob-
tained for the prosecution of the petitioner and the other
accused persons under s. 196, Cr.P.C. On 12th October, 1970
the investigation was completed and a final charge-sheet
filed in the court of the Judicial Magistrate in P.R.C. No.
3 of 1970. The separate complaint against the petitioner
and other accused persons mentioned earlier was also filed
in the court of the Judicial Magistrate under ss. 121A, 120B
read with 121, 123 and 124A, I.P.C. on the same day. It is
admitted that the preliminary charge-sheet is not covered by
s. 173(1), Cr.P.C. But it is averred that it is only a
report pending further investigation seeking extension of
remand under s. 344, Cr.P.C. The long period of
investigation has been ascribed to the fact that there was
an organised attempt on the part of the accused and their
followers to thwart the, efforts of the authorities in
bringing the accused to book. It is admitted that the peti-
tioner is lodged in Central Jail, Rajahmundry and that on
20th August, 1970 he could not be produced before the court
for lack of escort. The; remand is also admitted to have
been extended by the Magistrate, respondent No. 1, from time
to time on 3rd and 17th September and 1st October, 1970.
The court, it is pleaded, is empowered to pass an order of
remand even in the absence of the accused under s. 344,
Cr.P.C. unlike the remand order under s. 167, Cr.P.C.
Incidentally, in this counter-affidavit there is a reference
to the prejudicial activities in which the petitioner has
been indulging in connection with Naxalite movement. The
initial non-inclusion of his name in the array of accused
persons’ has been explained on the ground that sufficient
corroboration of the approver’s testimony incriminating the
petitioner was not forthcoming at that stage.
In so far as, the question of- legality of the remand order
dated 20th August, 1970 without producing the petitioner
before a Magistrate is concerned, the point is concluded by
a recent judgment of this Court in the case of Rai Narain v.
Supdt. Central Jail, New Delhi(1). In that case this Court
by majority expressed the view that as a matter of law
personal presence of an accused person before a Magistrate
is not a necessary requirement for the purpose of his remand
under s. 344, Cr.P.C., at the instance of the police, though
as a rule of caution it is highly desirable that the accused
should be personally produced before the Magistrate so that
he may,
(1) (1971) S.C.R. 147
827
if he so chooses, make a representation against his remand
and for, his release on bail. The Court on a review of the
decided cases, observed
“There is nothing in the law which required
his personal presence before the Magistrate
because that is a rule of caution for
Magistrates before granting remands at the
instance of the police. However, even if it
be desirable for the Magistrates to have the
prisoner produced before them, when they
recommit him to further custody, a Magistrate
can act only as the circumstances permit.”
The order of remand dated 20th August, 1970
was in the circumstances not contrary to law
so as to render the petitioner’s, custody
illegal justifying his release by this Court
on habeas corpus. It is unnecessary to point
out that it was and still is open to the,
petitioner to apply for his release on bail to
the-appropriate court in accordance with law
there being no illegal obstacle in his way in
this respect.
The challenge to the constitutional validity
of s. 344(1A), Cr.P.C. is also in our opinion
misconceived. Section 344 reads
” (1) In every inquiry or trial, the
proceedings. shall be held as expeditiously as
possible and in particular, when the
examination of witnesses, has once begun, the
same shall be continued from day to day until
all the witnesses in attendance have been
examined, unless the Court finds the
adjournment of the same beyond the following
day to be necessary for reasons to be
recorded.
(1-A) 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
therefore, 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:
Provided that no Magistrate shall remand an
accused person to custody under this section
for a term exceeding fifteen days at a time
Provided further that when witnesses are in
attendance. no adjournment or postponement
shall be granted, without examining them,
except for special reasons to be recorded in
writing.
828
(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.’
Explanation.-If sufficient evidence has been
obtained to raise a suspicion that the accused
may have committed an offence, and it appears
likely that further evidence may be obtained
by a remand, this is a reasonable cause for a
remand.”
Sub-section (1-A) was originally numb.-red as sub-s. 1 The
present sub-section (1) of s. 344 was added by the Amending
Act 26 of 1955 when the original sub-section (1) was
renumbered as sub-section (1-A). The impugned sub-section
vests in the court seized of a criminal case power to
postpone the commencement of or adjourn any inquiry or trial
before him by order in writing stating the reasons therefore
from time to time on such terms as the court thinks fit and
for such time as it considers reasonable. When the case is
so postponed or adjourned the court may also by a warrant
remand the accused, if in custody. This judicial power to
postpone or, adjourn the proceedings is to be exercised only
if from the absence of witnesses or any other reasonable
cause the court considers it necessary or advisable to do
so. Reasonable cause for remand according to, the
explanation to this section covers a case where sufficient
evidence is obtained to raise a suspicion about the
complicity of an accused person in the offence and it
appears likely that more evidence may be obtained by remand.
The court has in the exercise of its judicial discretion in
granting or declining postponement or adjournment of the
case and in ordering remand of the accused, to keep in view
all the relevant facts and circumstances of the case. The
petitioner strongly contended that this section clothes the
court with an unfettered, arbitrary and unguided power. A
plain reading of the section shows the untenability of the
submission. Apart from the fact that it is only when either
from the absence of a witness or some other reasonable cause
the court, considers it either to be necessary or advisable
to postpone the commencement of, the inquiry or trial or
adjourn the hearing of the case that the order can be made,
the court is also required to record the order in writing
giving the reasons why it thinks fit that the case should be
postponed or adjourned. It is further open to the court to
impose terms and to fix the period which cannot exceed 15
days at one time. This discretion being vested in a court
of law has to be exercised _judicially on well-recognised
principles, and is in our view immune from challenge on the
ground of arbitrariness or want of guidelines. In our
opinion, therefore, not only are the guidelines clearly
contained in the statute but the discretion being judicial
is required to be exercised on general principles guided by
rules of reason and justice on the facts of each case,
829
and not in any arbitrary or fanciful manner. It may also be
remembered that if the discretion is exercised in an
arbitrary or un-judicial manner remedy by way of resort to
the higher courts is always open to the aggrieved party.
The second limb of the challenge is based on the contention
that s. 344 falls in Chapter 24, Cr.P.C. which contains
general provisions as to inquiries and trials. According to
this submission this section cannot apply to a case which is
at the stage of investigation and collection of evidence
only. This argument appears to us to be negatived by the
express language both of sub-s. (1A) and the explanation.
Under sub-s. (1A) the commencement of the inquiry or trial
can also be postponed. This clearly seems to refer to the
stage prior to the commencement of the inquiry. The
explanation makes it clear beyond doubt that reasonable
cause as mentioned in sub-s. (1A) includes the likelihood of
obtaining further evidence during investigation by securing
a remand. The language of s. 344 is unambiguous and clear
and the fact that this section occurs in Chapter 24 which
contains general provisions as to inquiries and trials does
not justify a strained construction. Indeed, postponement
of an inquiry also seems to be within the contemplation of
the general provisions as to inquiries and trials. So this
challenge also fails.
The suggestion that the explanation could not extend the
substantive provisions of sub-s. (1A) has merely to be
stated to be rejected because the explanation merely serves
to explain the scope of the expression reasonable cause.
The last submission that there is in any event no guideline
for making a remand order and, therefore, the power to
remand an accused person under s. 344 is ultra vires being
arbitrary and’ unguided is wholly unacceptable. When a case
is postponed or adjourned and the accused is in custody the
court has to exercise its judicial discretion whether or not
to continue him in custody by making a remand order. The
court is neither bound to make an order of remand nor is it
bound to release the accused person. The period of remand
is in no case to exceed 15 days at a time. The discretion
to make a suitable order is to be exercised judicially
keeping in view all the facts and circumstances of the case
including the nature of the charge, the gravity of the
alleged offence, the, area of investigation, the antecedents
of the accused and all other relevant factors which may
appropriately help the court in determining whether to keep
the accused in custody or to release him on bail. The court
has to ensure the presence of the accused and’ a just, fair
and smooth inquiry and trial of the offence charged. The
order of remand is thus subject to judicial discretion and
the, order is also subject to review by the superior courts
in accordance,
830
with law. The power conferred being judicial the absence of
an express, precise standard for determination of the
question would not render the section unconstitutional.
Detention pursuant to an order of remand which appropriately
falls within the terms of s. 344 is accordingly not open to
challenge in habeas corpus.
After we had reserved orders the petitioner forwarded to
this ;Court through jail supplementary affidavit containing
written arguments. We have gone through the affidavit but
we do not find any new point requiring discussion. It only
discloses a further attempt to reopen the majority decision
of this Court in Rai Narain’s case (supra) by relying on the
minority judgment and by submitting that S. 344(1A), Cr.P.C.
offends Art. 19(1)(d) of the Constitution. All that we need
Say at this stage is that the majority view :is binding on
us.
This petition accordingly fails and is dismissed.
G.C. Petition dismissed.
831