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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

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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

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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

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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

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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

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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

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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

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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