24 November 1970
Supreme Court


Bench: DUA,I.D.
Case number: Writ Petition (Civil) 513 of 1970






DATE OF JUDGMENT: 24/11/1970


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