PETITIONER: GOURI SHANKAR JHA Vs. RESPONDENT: THE STATE OF BIHAR AND ORS. DATE OF JUDGMENT20/01/1972 BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. KHANNA, HANS RAJ CITATION: 1972 AIR 711 1972 SCR (3) 129 1972 SCC (1) 564 CITATOR INFO : R 1974 SC 871 (3) R 1975 SC1465 (6) D 1983 SC 439 (15) ACT: Habeas Corpus-Remand order-Magistrate can pass order if for some reason the accused cannot be produced-Order sheet showing wrongly that person in custody was produced before magistrate-Such wrong entry does not mean that remand order was not in fact passed. Code of Criminal Procedure, 1898-Ss. 167, 344-Scope of-Power under s. 34 can be exercised even before submission of charge-sheet. HEADNOTE: In the appeal against the order of the High Court dismissing the appellant's petition for a writ of habeas corpus the appellant urged that he was not produced before a magistrate within 24 hours after his arrest as required by s. 167 of the Code of Criminal Procedure or even later; that he was never informed of the grounds for his arrest; that no custody warrant was ever issued warranting the jail authorities to keep the appeal]ant in jail custody; that the remand orders passed by the magistrate were tinder s. 167 and not under s. 344 of the Code, as the latter section did not apply at the stage of investigation and that even if s. 344 applied the magistrate could not order detention for more than 15 days in the whole. He also urged that the Jail Superintendent did not produce before the High Court the jail records but only produced his report, thus disabling the appellant from establishing his case. Dismissing the appeal, HELD : (1) The order sheet produced before the High Court showed that the appellant was produced before the magistrate within 24-hours after his arrest and that the magistrate remanded him to jail custody. Though the order sheet had entries showing that on subsequent occasions when remand orders were made the appellant was produced before the magistrate, the High Court has found that the Magistrate had wrongly recorded that the appellant was produced before him on those occasions. However, the wrong entries made by him do not mean that the remand orders were not in fact passed by him though he did so in the absence of the appellant. Such orders can be lawfully passed if an accused person cannot for some reason or the other be brought before the magistrate. [134 E-F] Rai Narain v. Superintendent, Central Jail, New Delhi, Writ Petition No. 330 of 1970, decided on Sept. 1, 1970, referred to. (ii) The facts negative the suggestion of the appellant being kept in ignorance of the reasons for his arrest. [135 F] (iii) There is no reason to think that the magistrate ordered the appellant to lie taken into jail custody without custody warrant. [136 A] (iv) S. 167 operates at a stage when a person is arrested and either an investigation has started or is yet to start, but is such that it cannot be completed within 24 hours. Section 344, on the other- hand, shows that investigation has already begun and sufficient evidence has been obtained raising a suspicion that the accused person may have committed the offence 130 and further evidence may be obtained, to enable the police to do which a remand to jail custody is necessary. The fact that s. 344 occurs in the Chapter dealing with inquiries and trials does not mean that it does not apply to cases in which the process of investigation and collection of evidence is still going on. Therefore, it is not as if the stage at which the Magistrate passed the remand orders was still the stage when s. 167 applied and not s. 334. The Magistrate, provided he complied with the condition to the Explanation, was competent to pass remand orders from time to time subject to each order being not for a period exceeding 15 days. The Magistrate had satisfied that Condition. [136 G] View contra in Artatran v. ATR 1956 Orissa 129 disapproved. A Lakshamanrao v. Judicial Magistrate, A.I.R. 1971 S.C. 186, Chanaraatn v. State, (1953) 3 B.L.J.R., 323 and Ajit Singh v. State, (1970) 76 Crl.L.H. 1075, referred to The appellant was content with the production of the superintendent's report. No prejudice was caused to the appellant's case since the jail record could not have proved anything more than what the jail superintendent's report proved. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 123 of
1968.
Appeal by special leave from the judgment and order dated
May 3, 1968 of the Patna High Court in Criminal W.J.C. No.
17 of 1968 and Criminal Miscellaneous Case No. 447 of 1968.
B. C. Ghose, S. N. Misra and A. K. Nag, for the appellant.
D. Goburdhun, for the respondent.
The Judgment of the Court was delivered by-
Shelat, J. This appeal, by special leave, is. against the
dismissal by the High Court of Patna of the Writ Petition
and an application under S. 561A of the Code of Criminal
Procedure, for a writ of habeas corpus and an order of a
like nature. filed by the appellant. Both of them were
heard together as they contained common allegations and both
were dismissed by a common judgment.
In the two aforesaid proceedings, the case of the appellant
was that he was arrested on February 18, 1968, that since
then he had been detained in custody without being informed
of the grounds for his arrest and detention and also without
having been produced before a Magistrate either within 24
hours after his detention as required under the Code, or
even thereafter. On February 21, 1968, he was removed to
Darbhanga jail where he was threatened that he would be
falsely involved in several cases of dacoity unless he made
certain incriminating statements which the police wanted him
to make. He made two applications from jail one on February
25, 1968, and the other on February 28,
131
1968 to the Sub-Divisional Magistrate. The first was not
received at all by the Magistrate, while the second was
received but after ‘a long time, and was rejected. He also
alleged that thereafter he made two further applications,
one dated March 22. 1968 and the other dated March 27, 196,8
wherein he applied for directions to the police to ‘furnish
him with particulars of offences charged against him and for
bail, but that he received no order on either of them. On
these allegations, he claimed release forthwith from
detention and the quashing of the criminal proceedings
against him.
In the counter-affidavit filed by the State before the High
Court, it was stated that one Bilat Sahni and one Baleshwar
Paswan made confessions before the Magistrate at Samastipur
on 23rd and 24th January, 1968 confessing their own guilt
and implicating the appellant and certain other persons, in
about eight dacoity cases, all having been committed in that
locality, Thereupon, the appellant was arrested on February
17, 1968 He was produced before the Sub-Divisional
Magistrate of Samastipur on February 18, 1968, but was
remanded to police custody by the said Magistrate for four
days on an application by the police therefore. On February
21, 1968, the appellant was once again produced before the
same magistrate and on an application by the police he was
remanded to jail custody. The affidavit alleged that the
appellant was involved in as many as nine dacoity case;
wherein remand orders had been passed from time to time and
that that was how he had, since February 21, 1968, been
detained as an under trial prisoner. On April 19, 1968, an
identification parade was held in connection with one, of
the said nine cases whereat the relevant complainant
identified the appellant. The case of the State was that
the appellant was one of the three leaders engaged with
certain hardened criminals in the aforesaid several dacoity
cases, that it Was not true that he was unaware of the case
against him or that he was not produced before the
magistrate or that he was kept in prison without proper
remand orders having been passed by the Magistrate.
Five contentions were raised before the High Court, viz.,
(1) that the appellant was never produced before any
magistrate within 24 hours after his arrest or even
thereafter; hence his detention was in breach of Art. 22 of
the Constitution, (ii) that although the order-sheet, in
respect of Laheriasarai Police Station Case No. 1 of 1968,
records that the appellant had been produced before the
Magistrate on several days set out therein, that order-sheet
had been falsely made; (iii) that the magistrates had no
power to detain the appellant in jail in excess of 15 days
in all, (iv) that even if he had the power to remand him in
excess of 15 days in all, the condition for passing such
orders was not
13 2
satisfied, and (v) that no remand order was factually ever
passed. None of these contentions was accepted by the High
Court, and the High Court, therefore, dismissed, as
aforesaid, both the applications on May 3, 1968.
Mr. Ghose, who appeared for the appellant before the High
Court and who appeared before us also raised the following
points: (1) that the appellant was not produced before any
magistrate either on February 18, 1968 or on any other date
thereafter, (2) that the appellant was never informed of the
,,rounds for his arrest, and detention thereafter, (3) that
no custody warrant was ever issued warranting the jail
authorities to keep the appellant in jail custody, and (4)
that assuming that the said remand orders were passed, the
appellant could not be kept in jail custody for more than 15
days in the whole. On the basis of these four points he
urged that the appellant’s arrest .and detention were
illegal and that therefore he was entitled to be released
forthwith and the criminal proceedings instituted against
him by the police quashed. Mr. Ghose also made a point that
the jail Superintendent did not produce before the High
Court the jail records which would show his having been
taken out of the jail for being produced before the
Magistrate when the magistrate decided the applications for
remand by the police and passed the remand orders said to
have been passed by him and that instead the jail
Superintendent produced his report, thus disabling the
appellant from establishing his case as laid in his writ
petition.
We may at this stage dispose of Mr. Ghose’s last point in
regard to the non-production of the jail record before the
High ,;Court. It is true that the appellant did ask for
production of that record first in the writ petition, and
then on April 22, 1968 to which date the hearing of the writ
petition was adjourned. But the order-sheet maintained by
the High Court in connection with the writ petition and the
said application under s. 561A of the Code shows that when
the writ petition came up for admission, the learned Judges
called for the record of the Magistrate’s Court and report
from the jail superintendent regarding the dates on which
the appellant was said to have been produced before the
Magistrate for the purpose of the hearing of the remand
applications. It appears that on April 22, 1968, to which
date the writ petition was made returnable, neither the
record of the Magistrate’s Court nor the report of the jail
Superintendent had arrived. On that day, the appellant made
an application for his production in Court at the time of
the hearing and for the production of the jail record. The
High Court, how-ever, rejected the prayer for his production
in Court and as regards the jail record ordered as follows:
133
so far as the production of the record of the
jail is concerned, an express reminder by
telegram may be sent to the Superintendent of
jail to send the report already called for
immediately, if possible by a special
messenger. A reminder may also be sent to the
Court concerned to send the records
immediately, if possible, by a special
messenger.”
The High Court does not seem to have pressed for the produc-
tion of the jail record as it presumably thought that the
Court’s record would show the dates when the appellant was
produced before it and the Superintendent’s report would
make that point clear. It ‘appears from that order that
the appellant also was content with the production of the
Superintendent’s report and did not press for the calling of
jail record. The judgment of the High Court also shows that
that was also the case when the High Court heard the writ
petition and the said s. 561A application. Neither the
order-sheet nor the judgment of the High Court seems to
warrant the allegations made in para 28 of the Special Leave
Petition that repeated prayers were made for the production
of the jail record. In any event, no prejudice appears to
have been caused to the appellant’s case since the jail
record could not have proved anything more than what the
jail Superintendent’s report proved.
The report, which was before the High Court, clearly pointed
out that the appellant was remanded to jail custody on
February 21, 1968 by the Sub-Divisional Magistrate, Sadar in
the case under s. 395 of the Penal Code. The next date for
his appearance was fixed on March 5, 1968, but the appellant
refused to go to the Magistrate’s Court on that day as also
on March 20, 1968 and April 4, 1968, on the ground that
the identification parade for him had not yet been held and
his going to and appearing in the Court would expose him to
possible witnesses. ‘Me Magistrate, therefore, had to
postpone his production before him to April 18, 1968 when
the appellant was produced and once again remanded to jail
custody till the, next date, that is, May 2, 1968. The
report of the jail Superintendent, thus, frankly conceded
that the appellant could not be produced on the dates above-
stated and that the Magistrate, therefore, had to pass
remand orders in his absence. It is clear from the report
that the appellant himself had refused to appear and be
present before the Magistrate when he heard the remand
applications. therefore, cannot legitimately make a
grievance that those orders were passed in his absence.
Those orders could be passed validly in his absence if his
presence at the time could not be secured. This has been
held by the majority judgment of this
134
Court recently in Rai Narain v. Superintendent, Central
jail, New Delhi. (1)
We now proceed to consider the remaining points in the order
in which Mr. Ghose raised them. The first point urged
before us was that the appellant was not produced before a
magistrate within 24 hours after his arrest as required by
S. 167 of the Code of Criminal Procedure, or even later and
that therefore his arrest and the detention were bad in law.
The order-sheet of the Laheriasarai Police Station Case No.
1(i)68 produced before the High Court shows that the
appellant was produced before the Magistrate on February 18,
1968, that is, within 24 hours after his arrest and that the
Magistrate remanded him to jail custody on the application
by the police until March 5, 1968. So far there is no
difficulty because these entries in the order-sheet are
corroborated by the report of the Superintendent of jail.
The order-sheet, however, has entries dated March 5, 1968,
March 20, 1968 and April 4, 196 8 when remand orders are
shown to have been made, each for a period of 15 days, and
further that the appellant was produced before the
Magistrate on each of those three occasions. That, as the
High Court has rightly observed, was not correct as the jail
Superintendent’s report clearly showed that the appellant
had refused to go from the jail for fear that he would be
seen or be shown to probable witnesses. No reason has been
shown as to why we should not agree with the aforesaid
observation of the High Court, viz., that the Magistrate had
wrongly recorded that the appellant was produced before him
and that the remand orders were passed in his presence. The
wrong entries made by him, however, do not mean that the
remand orders were not in fact passed by him though he did
so in the absence of the appellant. Such orders, as already
pointed out, can be lawfully passed if ail accused person
cannot for some reason or the other be brought before the
Magistrate. It is, therefore, not possible to say that
remand orders were not passed or that consequently his
detention in the jail was without a valid basis. In the
High Court no such contention, viz., that remand orders were
not passed on those three dates appears to have been
raised. Indeed, the allegation that the appellant was never
produced before the Magistrate is belied by an elaborate
order made by the Magistrate on March 28, 1968 when the
appellant was represented by counsel. At that stage his
counsel did not argue that the appellant was never produced
before the Court or that no remand orders were ever, passed.
The argument urged at that time was that the proceedings at
that stage attracted s. 167 of the Code, that the stage had
not yet reached when s. 344 would operate and that therefore
the Magistrate bad no power to remand the appellant to jail
custody for more than 15 days in the whole. That contention
was
(1) Writ Petition No. 330 of 1970, dcc. on September 1,
1970.
135
rejected by the Magistrate holding that there was an inquiry
before him, and that therefore, s. 344 applied and he was
competent, therefore, to pass remand orders from time to
time so long as each of those orders was not for a period in
excess of 15 days. By that very order, the Magistrate
rejected the bail application made by the appellant’s
advocate holding that the investigation in the cases of
dacoity in which the appellant was concerned was going on at
that stage and that release of the appellant on bail would
hinder its progress.
The next contention was that the appellant was never
informed of the grounds of his detention and that that being
so, his detention was invalid. Paras 3, 4 and 35 of his
writ petition did not charge that at the time of his arrest
he was not informed of the grounds for his arrest and that
even when he filed his writ petition he was not informed of
those reasons, and that that constituted breach of Art.
22(1). This allegation is without any foundation. All
throughout, his case was that the police had tortured him
and threatened to involve him in a number of dacoity cases
unless he made certain incriminating statements which they
wanted from him. What were those incriminating statements
which the police were trying to get from him ? From the fact
that the police were wanting him to make those statements,
he must have realised that those statements were related to
the cases for which he had been arrested. Next, in the
application he made from jail to the Magistrate on February
28, 1968, he alleged that the senior Sub-Inspector of Police
came to him on February 19, 1968, first abused him and then
later on asked him “to admit that offence and promised that
by doing so I would be discharged”. According to that
application he refused to admit the offence whereupon he was
assaulted by the police. It also appears that he knew that
an identification parade was going to be held and therefore
had refused to be taken out of jail for being produced
before the Magistrate. All these facts negative the
suggestion of his being kept in ignorance of the reasons for
his arrest or the cases charged against him.
The third contention was that no valid custody warrant was
issued by the Magistrate enabling the jail authorities to
detain the appellant in the Darbhanga jail and licence the
detention must be held to be without any legal authority.
In support of the argument, counsel pointed out the custody
warrant dated February 18, 1968 which according to him must
be deemed to have been cancelled is at the foot of it there
is the Magistrate’s endorsement that the appellant was
instead remanded to police custody. Assuming that to be so,
there is nothing to show that on February 21, 1968 when the
Magistrate ordered the appellant to be taken into jail
custody, a fresh custody warrant had not been issued by him.
The Magistrate, while passing that order, must have known
that the
136
jail authorities would not accept the appellant in jail
unless the police taking him there produced a custody
warrant. There is no reason to think first that the
Magistrate had not issued such, a warrant, and secondly,
that the jail Superintendent inducted the appellant in the
jail without such a warrant. The contention, in our view is
wholly without any basis.
The last contention of Mr. Ghose was, firstly, that the
remand orders passed by the Magistrate were under s. 167 and
not s. 344, as the latter section did not apply at that
stage, and secondly, that even if s. 344 applied, the
Magistrate could not order detention for more than 15 days
in the whole. Sec. 167 appears in Ch. XIV which deals with
information and investigation. As its language shows, it
deals with the stage when a person is arrested by the police
on information that an offence has been committed. In
providing that such a person must, in terms of s. 61, be
produced before a magistrate within 24 hours after his
arrest, the section reveals the policy of the legislature
that such a person should be brought before a magistrate
with as little delay as possible. The object of the section
is two-fold, one that the law does not favour detention in
police custody except in special cases and that also for
reasons to be stated by the magistrate in writing, and
secondly, to enable such a person to make a representation
before a magistrate. In cases falling under s. 167, a
magistrate undoubtedly can order custody for a period at the
most of 15 days in the whole and such custody can be either
police or, jail custody. Sec. 344, on the other hand,
appears in Ch. XXIV which deal with inquiries and trials.
Further, the custody which it speaks of is not such custody
as the magistrate thinks fit as in s. 167, but only jail
custody, the object being that once an inquiry or a trial
begins it is not proper to let the accused remain under
police influence. Under this section, a magistrate can
remand an accused person to custody for a term not exceeding
15 days at a time provided that sufficient evidence has been
collected to raise a suspicion that such an accused person
may have committed an offence and it appears likely that
further evidence may be obtained by granting a remand
Thus, s. 167 operates at a stage when a person is arrested
and either an investigation has started or is yet to start,
but is such that it cannot; be completed within 24 hours.
Sec. 344, on the other hand, shows that investigation has
already begun and sufficient evidence has been obtained
raising a suspicion that the accused person may have
committed the offence and further evidence may be obtained,
to enable the police to do which, a remand to jail custody
is necessary. The fact that s. 344 occurs in the Chapter
dealing with inquiries and trials does not mean that it does
not apply to cases in which the process of investigation and
137
collection of evidence is still going on. That is clear
from the very language of sub-s. 1-A under which the
magistrate has the power to postpone the commencement of the
inquiry or trial. That would be the stage prior to the
commencement of the inquiry or trial which would be the
stage of investigation. (see A. Lakshamanrao v. Judicial
Magistrate(1). Therefore, it is not as if the stage at
which the Magistrate passed the remand orders was still the
stage when s. 167 applied and not s. 344. The decision of
the Orissa High Court in Artatran v. Orissa(2), to the
effect that s. 344 does not apply at the stage of
investigation and can apply only after the Magistrate has
taken cognizance of and issued processes or warrant for the
production of the accused if he is not produced before him
cannot, in view of A. Lakshamanrao’s case(1) be regarded as
correct. The power under s. 344 can be exercised even
before the submission of the charge-sheet, (cf. Chandradip
v. State(3) and Ajit Singh v. State(4), that is, at the
stage when the investigation is still not over. If the view
we hold is correct that s. 344 operated, the Magistrate,
provided he complied with the condition in the Explanation,
was competent to pass remand orders from time to time
subject to each order being not for a period exceeding 15
days. There can be no doubt that the Magistrate had
satisfied that condition. The judgment of the High Court in
para 11 points out that the prosecution case was that the
appellant had himself made a confession before the police.
That was in addition to a confession by two others which
implicated the appellant in the commission of offences under
s. 395 of the Code.
In our view none of the contentions raised on behalf of the
appellant can be sustained. The appeal, therefore, fails
and has to be rejected.
K.B.N. Appeal dismissed. (1) A.I.R. 1971 S.C. 186. (2) A.I.R. 1956 Orissa 129.
(3)(1955)Bihar Law Journal Reports, 323.
(4) (1970) 76 Cr. L.J. 1075.
10-L864SupCI/72
138