JUDGMENT
Patra, J.
1. These eight applications-(Crl. Misc. 62/69 and 95/69 being by the same person) have been filed praying that this Court should issue directions in the nature of habeas corpus under Section 491 Cr. P. C, to produce the petitioners before this Court and set them at liberty.
2. All the petitioners excepting the one in Cr. Misc 77 of 69 were arrested by the police of Gunupur Police Station of Gunupur Sub-division in Koraput district on charges under Sections 120B/399 -I. P. C. on different dates between 30-1-1969 and 2-2-1969, and were duly produced before the Sub Divisional Magistrate at Gunupur, who remanded them to custody till 14-2-69, A proceeding under Section 109 Cr. P. C. having been initiated against the petitioner in Crl. Misc. 77/69, he was arrested by the Gunupur Police on 2-3-69 and was duly produced before the Magistrate at Gunupur, who remanded him to custody pending further
investigation. It appears from the record that besides these petitioners a large number of other persons, about 52 in all, were also arrested on charges under Sections 120B/399, I. P. C. As there was insufficient accommodation in Gunupur Sub-jail, these petitioners were transferred to be lodged in Koraput District Jail on 6-2-1969. They were produced -before the Sub Divisional Magistrate at Koraput on the 14th February, 1969. On that very day, the other accused persons involved in this case who had been kept at Gunupur Jail were produced before the S. D. M., Gunupur. On the same day, the Investigating Officer filed an application in Gunupur court praying for further remand as investigation was not complete. The Court directed that charge sheet should be filed by 27-2-1969 and also directed that the remands in respect of not only the accused persons actually produced before him, but also the accused persons who were transferred to Koraput jail should be extended till 27-2-1969. On 19-2-69, the charge sheet was filed before the S. D. M. at Gunupur. Meanwhile, on 14-2-69, the petitioners were produced before the Sub Divisional Magistrate at Koraput who remanded them to custody till 20-2-69. On 28-2-69, the petitioners were produced before the S. D. M. at Koraput who remanded them to custody till 8-3-69. The order sheet shows that this was done in pursuance of a wireless message received from the S. D. M., Gunupur. On 8-3-69, in the absence of any further instructions from the S. D. M., Gunupur, the Magistrate at Koraput extended the remand till 22-3-69. Thereafter, no further instruction appears to have been received by the Magistrate at Koraput, from the Magistrate at Gunupur, and in the absence thereof, he went on remanding the petitioners from time to time to 22-3-1969, 5-4-69, 16-4-69 and 17-4-69. On the last mentioned date, the petitioners were forwarded in custody to Gunupur. It is not disputed, that after-being taken to Gunupur, the petitioners were produced before the S. D. M. at Gunupur who obviously under Section 344 Cr. P. C. has remanded them to jail custody.
3. These, in short, are the facts of the case. The present applications were submitted by the petitioners while they were still in Koraput Jail complaining that they were being illegally detained there. The three short points that arise for consideration in these cases are —
(1) Whether the detention of the petitioners in Koraput Jail under orders of the Magistrate at Koraput is illegal.
(2) if the aforesaid detentions are illegal whether in view of the fact that they were subsequently produced before the Gunupur Magistrate, who has jurisdiction to try them and under whose orders
they are at present remanded to Jail custody, their present detention can still be illegal; and
(3) assuming that their present detention is legal, whether the petitioners are entitled to be released merely by reason of the fact that at the time they made these applications they were held in illegal custody.
4. Section 167 Cr. P. C. provides that whenever any person is arrested and detained in custody of the Police and it appears that the investigation cannot be completed within the period of twenty-four hours and there are grounds for believing that the accusation or information is well founded, he must be produced within 24 hours of the arrest before a Magistrate who from time to time may authorise the detention of the accused person in such custody, for a term not exceeding fifteen days in the whole. Such a Magistrate need not always be the Magistrate who has jurisdiction to try the case. But if any detention beyond the period of 15 days from the date of arrest is sought, that can be ordered only by the Magistrate having jurisdiction to try the case and this power can be exercised by the Magistrate not under Section 167 Cr. P. C., but under Section 344 Cr. P. C. What has happened in these cases is that the original production of the accused persons was before a Magistrate who has jurisdiction to trv the case, namely, the Magistrate of Gunupur. Thereafter, the petitioners were transferred to the Koraput Jail and were produced before the Magistrate who admittedly had no jurisdiction to try the case and it is under his orders that the petitioners were being ordered to be detained from time to time. They were ultimately produced before the Magistrate Gunupur sometime about the 24th of April, 1969, The learned Advocate General appearing for the State sought to justify such detention in Koraput Jail on the ground that although the accused persons were being produced before the Magistrate at Koraput, the latter in extending the remands was acting on instructions from the Magistrate at Gunupur. Whether actual production of the accused before the Magistrate entitled to pass an order of remand is necessary or not is a question which is not free from doubt. A Division Bench of the Madras High Court in AIR 1948 Mad 100 In Re: M. R. Venkatraman, had taken the view that a Magistrate commits illegality in issuing an order of remand without having the prisoner produced before him. Thadani C. J. in AIR 1952 Assam 167, Prabhat Malla v. D. C. Kamrup had taken the view that neither Article 22 of the Constitution of India nor Section 167 Cr. P. C. requires the production of art
accused person before the Magistrate on the occasion of a subsequent remand. For the disposal of the present applications, it is unnecessary to decide these questions, because, on facts we find, as revealed from the order sheet of the Court of the Magistrate at Koraput, that although he puported to act under instructions from the S. D. M. at Gunupur in extending the remand of the petitioners till 8-3-69, he had no such instructions thereafter till the petitioners were sent back to Gunupur sometime after 17-4-1969: The detention of the petitioners during this period was clearly illegal and it was during this period that the petitioners have filed the present applications for their release. It is, however, not disputed that after their retransfer to
Gunupur Jail the petitioners were produced before the Magistrate at Gunupur who acting under Section 344 Cr. P. C. has remanded them to Jail custody,
5. Mr. Palit, appearing amicus curiae for the petitioners contended that since the detention of the petitioners during the period preceding their production before the Magistrate at Gunupur on the 24th of April, 1969 was illegal, the order of remand passed by the Gunupur Magistrate in the absence of fresh arrests of the petitioners is not legal. We are unable to accept this contention. It is not always necessary that to enable a Magistrate to pass an order of remand under Section 344 Cr. P. C., the accused person concerned must have been arrested by the Police. There may be cases where a person accused for a cognizable offence may surrender himself in Court and it cannot be said, that in such a case, the Magistrate cannot commit him to Jail custody. If a person is illegally detained. he is entitled to make an application to the High Court under Section 491 Cr. P. C. as has been done in these cases, and one of the powers the High Court would exercise in such a case is to direct that person concerned may be brought before the Court to be dealt with according to law. In these cases, the Police themselves produced the petitioner before the Magistrate at Gunupur to be dealt with according to Section 344, Cr. P. C. The preceding illegal detention of the petitioners cannot affect the powers of the Magistrate to take action under Section 344 Cr. P. C. Mr. Palit has not been able to produce before us any decision where a contrary view has been taken. We, therefore, hold that the detention of the petitioners at the present moment is legal.
6. The question then arises, whether by reason of the fact that the detention of the petitioners was illegal at the time they made these applications, they are entitled to be set at liberty, notwithstanding the fact that they are held in legal custody from 24th April 1969 onwards. There is nothing in Section 491 Cr. P. C. to persuade us to hold the view that notwithstanding the legal detention of the petitioners at the present moment, they are to be released merely because of the antecedent illegality in their detention. We are fortified in this conclusion by a decision of the Federal Court in AIR 1945 FC 18, Basanta Chandra v. Emperor. The appellant in that case was arrested on 27th March 1942 under an order dated 19th March, 1942 made by the Governor of Bihar in exercise of his power under Rule 26 of the Defence of India Rules. The application under Section 491 Cr. P. C. was filed on 23th April 1943. Before the matter was heard in the High Court, an Ordinance had been promulgated on the 15th January, 1944 and thereafter the application was dismissed by the High Court. On appeal, the Federal Court held that the new Ordinance did not take away the power of the High Court to deal with the matter and accordingly on 23rd May, 1944 remitted the case back to the High Court for disposal. On the 3rd July, 1944 the Governor of Bihar passed two orders. By the first, he cancelled the order of detention dated 19th March 1942 and by the second, he directed the detention of the appellant on the ground that it was necessary so to do "with a view to preventing him from acting in a manner prejudicial to the maintenance of public order and the efficient prosecution of the war". When the application again came on for hearing before the High Court, reliance was placed on behalf of the State on the order dated 3rd July, 3944, and it was contended that it was unnecessary in the circumstances to enquire into the validity of the order of the 19th March, 1942. The High Court dismissed the application. On appeal before the Federal Court, it was contended that it was not open to the High Court to base its decision on the subsequent order of 3rd July, 1942 (which the Federal Court considered to be legal order), and that the legality of the detention of the appellant should be decided on the basis of the detention order dated 19th March. 1942. Repelling these contentions, their Lordships observed:--
“The analogy of civil proceedings in which the rights of parties have ordinarily to be ascertained as on the date of the institution of the proceedings cannot be invoked here. If at any time before the Court directs the release of the detenue, 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 lor 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.”
In later decisions of the Supreme Court AIR 1952 SC 106, Naranian Singh v. State of Punjab 1, AIR 1953 SC 277, Ram Narayan Singh v. State of Delhi, Their Lordships held that in habeas corpus proceedings, the Court is to have regard to the legality or otherwise of the detention at the time of the return, namely, the date on which the State shows cause in answer to the rule issued and not with reference to the institution of the proceedings. It is, therefore, clear that the legality of the detention of the petitioners cannot be determined with reference to the dates on which they have made these applications. Whether the relevant date is the date on which the State shows cause in answer to the rule as indicated by the Supreme Court or the date on which this Court passes the final order as indicated by the Federal Court, it is immaterial so far as the present proceedings are concerned, because, even by the time the State showed cause in these proceedings, the petitioners are being held in lawful custody by virtue of orders under Section 344 Cr. P. C. passed by the Magistrate at Gunupur.
7. In the result, the applications are dismissed.
G.K. Misra, C.J.
8. I agree.