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