11 September 1970
Supreme Court


Case number: Writ Petition (Civil) 330 of 1970






DATE OF JUDGMENT: 11/09/1970


CITATION:  1971 AIR  178            1971 SCR  (2) 147  1970 SCC  (2) 750  CITATOR INFO :  F          1971 SC 186  (7,13)  R          1972 SC 711  (7)  F          1973 SC 850  (1)  R          1974 SC 871  (3)

ACT: Code   of   Criminal  Procedure,  1898,  s.   344-Magistrate remanding arrested person to judicial custody-Further remand when not made in presence of prisoner whether illegal.

HEADNOTE: R  was arrested on August 20, 1970 under ss. 107/117 of  the Code  of  Criminal Procedure and was  remanded  to  judicial custody  by the City Magistrate Lucknow.  A petition  for  a writ of habeas corpus was filed in this Court and on  August 22,  1970 this Court ordered him to be transferred to  Tihar Central Jail Delhi for personal appearance before the Court. R’s  original remand as ordered by the City  Magistrate  was till  August  28,  1970.   On  that  date  at  4  p.m.   the Superintendent  Central Jail.  Delhi sought directions  from the  court  in view of the fact that the remand was  due  to expire at midnight.  The court ordered that in the situation that had arisen R should be remanded back to the custody  to which  he  belonged,  that he may be taken  to  U.P.  if  so desired to be produced before the court at the next hearing, and that if no fresh remand orders were received by midnight R  was  to be set at liberty at midnight.  The  same  day  a wireless  message was received by the  Superintendent  Delhi Central Jail from the District Magistrate Lucknow, informing him that the City Magistrate Lucknow had extended R’s remand up  to September 1, 1970.  The following day  a  telegraphic message  was  received  from  the  City  Magistrate  Lucknow informing  the  Superintendent  that R  was  ordered  to  be remanded  to  judicial  custody  till  September  10,  1970. Simultaneously  this  Court  was informed  by  the  District Magistrate that the remand of R was extended up to September



10,  1970.   R  filed another  petition  before  this  Court challenging  the legality of the fresh remand orders  mainly on the ground that they were made behind his back. HELD  :  Per Hidayatullah, C.J., Bhargava, Mitter,  Ray  and Dua, JJ.-Even if it he desirable for the Magistrates to have the  prisoner  produced before them when they remit  him  to further   custody,  a  magistrate  can  act  only   as   the circumstances  permit.  Indeed courts trying cases may  find it necessary to order a remand in the absence of an  accused e.g. when an accused is so seriously ill that the trial  has to  be  adjourned and he cannot be brought to court  and  in such  case  an order made without production of  accused  in court will not be invalid. [151 H] Prisoners  who  are under trial, are  brought  before-  this Court  on ’rule nis and are kept in custody of  this  Court. This  is a transferred custody on behalf of the  Magistrate. The Magistrate cannot recall the prisoner from this  Court’s custody by his order and he is only required to intimate  to the  jail authorities the prisoner, and this Court that  the original remand has been extended while adjourning the case. This  is sufficient compliance with the requirements of  the law in such special circumstances.  To expect the Magistrate to do more under s. 344 of the Code in such 148 circumstances is to expect an impossibility from him and the law does not contemplate an impossibility. [152 F] In  the present case the prisoner did not want bail or  seek to appear by counsel.  He relied only on the technical  plea that  he was not produced before the Magistrate.  There  was no  reason for this Court to order his release when  he  was held  on  proper remand by a Magistrate ,and there  were  no circumstances justifying his release. [151 G; 152 D] In re Venkataraman, 49 Cr.  L. J, 41, Anonymous case, 2 Weir 209  and  Ram Narain Singh v.State of Delhi,  [1953]  S.C.R. 652, referred to. Per Shelat and Vaidialingam, JJ. (dissenting) : It stands to reason that an order of remand will have to be passed in the presence  of the .accused.  Otherwise the position  will  be that a magistrate or court will be passing orders of  remand mechanically   without  having  heard  the  accused  for   a considerably  long  time.  When the accused  is  before  the Magistrate  when  the  remand order is passed  he  can  make representation  that  no remand order should be  passed  and also  oppose any move for a further remand.  The  fact  that the person concerned does not desire to be released on  bail or  that he can make representations to the  Magistrate  are beside  the point.  For instance in cases where a person  is sought  to  be  proceeded against under  Ch.   VIII  of  the Criminal  Procedure  Code,  it  would  be  open  to  him  to represent that the circumstances had materially changed  and a further remand had become unnecessary. [160 H-161 D] It was no answer that in the present case the petitioner was brought  to  New Delhi under the orders of  this  Court  and hence  the City Magistrate had to pass the remand  order  at Lucknow.. The U.P. authorities had made no representation on August 27, 1970 when the writ petition was adjourned.   They also  did not take the prisoner to Lucknow as  permitted  by this  Court.  In the result it must be held that the  orders of  remand  dated 28th and 29th August, 1970 passed  by  the City Magistrate, Lucknow were illegal. [161 F-162 A] Case law referred to.




ORIGINAL JURISDICTION : Writ Petition No. 330 of 1970. Petition  under Art. 32 of the Constitution of India  for  a writ in the nature of habeas corpus. D. P. Singh, for the petitioner. The respondent did,not appear..                            ORDER By  majority, we hold that the custody of Mr. Raj Narain  is valid  and that he is not entitled to release on  his  fresh petition. We   shall give our reasons later. The Judgment of M. HIDAYATULLAH, C.J., V. BHARGAVA, G. K. MITTER,  A.  N.  RAY and 1. D. DUA,  JJ.  was  delivered  by HIDAYATULLAH,  C.J. Dissenting Opinion of J. M.  SHELAT  and ,C. A. VAIDIALINGAM, JJ. was given by VAIDIALINGAM, J. Hidayatullah,  C.J.  Mr.  Raj Narain M.P.  was  arrested  on August 20, 1970 under ss. 107/117, Criminal Procedure Code, 149 and was remanded to jail custody under warrant issued by the City  Magistrate, Lucknow.  A petition for a writ of  habeas corpus  for his release is pending in this Court, and  under our orders, August  22,  1970,  he has been  transferred  to Tihar Central Jail Delhi. His   original   remand,,   as ordered by the City Magistrate, was till August 28, 1970. On  August  28, 1970, we were informed at 4  p.m.  that  his ,remand would expire at midnight of the 28th August,,  1970, and  that the Superintendent, Central Jail, Delhi would  not be able to detain Mr. Raj Narain thereafter.  The  following intimation  from  the Superintendent was  received  in  this connection by the Registry :               "Sub : Production of Shri Raj Narain,               M.P. in the Supreme Court, Writ               Petition No. 315 of 1970.               Sir,               I  have  the honour to state,  that  Shri  Raj               Narain,  M.P.  was received in  this  jail  on               transfer  from  District  Jail,  Lucknow,  for               production in Supreme Court in connection with               his  Writ  Petition in the  nature  of  Habeas               Corpus.  He was produced in the Court on 25th,               26th  and 27th August 1970.  Now it  has  been               ordered  by the Supreme Court"  dated  27-8-70               that he is not to be produced in the Court and               that  he may be kept in Delhi.  Orders of  the               Court are reproduced below :               "Shri  Raj  Narain’s  petition is  not  to  be               listed  tomorrow and he is not to be  produced               in Court tomorrow.  He may however be kept  in               Delhi."               2.Judicial remand of Shri Raj Narain has  been               granted  upto 28-8-70 by the  City  Magistrate               and   Magistrate  1st  Class,  Lucknow,   vide               enclosure copy of the order dated 21-8-70.  In               other words his judicial remand expires today.               You   are,  therefore,  requested  kindly   to               intimate whether Shri Raj Narain is to be kept               in Delhi Jail after 28-8-70 as per your orders               or his further judicial remand is to be  taken               from the said Court.               Clarification sought may kindly be given today               per bearer.               Yours faithfully," 150  The Court, thereupon, made the following order :               "It   has  been  represented  to  us  by   the               Superintendent  of Jail that Mr. Raj  Narain’s               remand expires at midnight and that as he  has



             been ordered to be kept in Delhi, it would  be               necessary  for us to say in whose custody  and               under  whose orders he has to be  detained.  A               similar  situation had arisen in the  case  of               Mr. Madhu Limaye when his remand expired  and,               he  became  a free man, because we  could  not               keep him under our orders in detention  beyond               the period originally fixed by the Magistrate.               The  same situation has arisen now and we  can               only make this order that he shall be remanded               back  to the custody to which he  belongs  and               that he may be taken to U.P. if so desired, to               be  produced  before us on the’ next  date  of               hearing  to  be fixed in this  case.   If  the               fresh  remand  order is not  received  by  the               Superintendent  of the Jail by  midnight,  the               petitioner  shall not be detained as  directed               by this Court, and he shall be set at  liberty               at midnight." The,  same  day  a  wireless message  was  received  by  the Superintendent,   Tihar  Central  Jail  from  the   District Magistrate Lucknow.  It stated :               "Habeas Corpus Petition No. 315/70 Date, 28-3-               70.  Shri Raj Narain M.P. remanded to  further               jail custody upto September 1st (1-9-70) under               orders of C.M. Lucknow dated 28-8-70.  Note in               the Jail Warrant and inform him." The  following  day  the  message  was  corrected  to   read September  tenth  instead  of  September  first.   The  City Magistrate Lucknow .also telegraphed to the  Superintendent, Tihar Central Jail the .following message:               ".  . . Reference Habeas Corpus  Petition  No.               315/  70 dated August 28, 1970 Tiem  (sic)  PM               Shri Raj Narain M.P. remanded to further  jail               custody  upto  Sept.   Ten  Nineteen  Seventy.               Note in the jail warrant and inform him." simultaneously   this   Court  was  informed   by   District Magistrate  that remand of Mr. Raj Narain M.P. was  extended to September 10, 1970 by the City Magistrate. Mr. Rajnarain made an application in the nature of a  habeas corpus   petition  stating  that  the  remand  orders   were communicated to him on the morning of the 29th and therefore his  detention  after  midnight  of  28th  was  illegal  and unsupported by any order 151 of  remand.  Further, that in any case, as he  was  remanded behind his back, his remand is illegal and he is entitled to be released.  The question is whether the custody of Mr. Raj Narain  became illegal at midnight of August 28,  1970.   In our opinion it did not. Mr. Raj Narain’s counsel relied upon the case reported in In re Venkataraman,(1) where it was held that an illegality was committed  by a Magistrate in remanding a  prisoner  without having  him  before  him and asking him  whether  he  wished anybody  to represent him and giving him an  opportunity  of showing  cause why he should not be further  remanded.   The ruling  restates, what was said in an old case  reported  in Anonymous(2)  where  it was ruled that  just  as  commitment required  the presence of a prisoner, so  did  recommitment. The  earlier  case  contains no discussion  and  is  opinion stated on a reference by the Magistrate. In  Ram Narain Singh v. State of Delhi(1) it was ruled  that an  adjournment required an order in writing and so  did  an order  of remand.  The case dealt with an adjournment  under s.  344 of the Code of Criminal Procedure and as  there  was



nothing  to  show  that the Magistrate  had  made  an  order remanding the prisoner to custody, the detention was held to have  become  illegal.  In that case the last order  by  the Magistrate adjourning the case, was made on 9th March,  1953 but  there  was no order of remand.  The only order  was  an endorsement on the warrant ’Remanded to Judicial (sic)  till 11th March 1953".  This warrant was not produced earlier and there was nothing on the court’s record to show an order  of remand.   All  that the Court had done was  to  adjourn  the case.   This  Court refused to take notice  of  the  warrant produced after the Court rose for the day because it was not produced  earlier  and  there was no order  on  the  Court’s record showing a remand.  The detenus were, therefore set at liberty. The  facts here are different from the case cited.  Mr.  Raj Narain  did not want bail or seek to appear by counsel.   He complained   of  nothing  except  his  detention  which   he described  as illegal for the technical reason that  he  was not  produced before the Magistrate.  If ’he wanted bail  he could  have  asked us as he was in our  custody.   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.   Where  the  prisoner’s custody is transferred to a (1) 49 Cr. L.J. 41. (3) [1953] S.C.R. 652. (2) Weir 209. 152 superior Court such as this the Magistrate can only  adjourn the  case at the same time extending the period  of  remand. It is for this Court to see that the custody by it continues under proper orders and if this Court is satisfied that  the prisoner  is  in  proper custody under  a  proper  order  of remand,,  the  prisoner will not be, released.   This  Court does not order detention and cannot extend the remand.   Its custody  is  coterminus  with  the  remand  ordered  by  the Magistrate.  If the Magistrate extends the period of  remand and  communicates  the  order  to  the  person  having   the immediate  custody of the prisoner with intimation  to  this Court  and  the prisoner, nothing more is expected  of  him. The  object  of  production  of  the  prisoner  before   the Magistrate  is more than answered by his  production  before this  Court because the prisoner has the protection  of  his interests transferred from the Magistrate to this Court. There  is no reason why we should order the release  of  Mr. Raj Narain when we are satisfied that he is held on a proper remand  by  a  Magistrate and  there  are  no  circumstances justifying  release by us.  To expect the Magistrate  to  do more  under s. 344 of the Code in such circumstances  is  to expect  an  impossibility  from him and  the  law  does  not contemplate  an  impossibility.  Indeed,  similarly   courts trying cases may find it necessary to order a remand in  the absence of an accused, e.g. when an accused is so  seriously ill  that  the trial has to be adjourned and  he  cannot  be brought  to  court and in such case the order  made  without production of accused in court will not be invalid. Prisoners,  who  are under trial, are  brought  before  this Court  on rule nisi and are kept in custody of  this  Court. This  is a transferred custody on behalf of the  Magistrate. The  Magistrate cannot recall the prisoner from our  custody by his order and he is only required to intimate to the jail



authorities,  the prisoner and this Court that the  original remand has been extended while adjourning the case.  This is sufficient  compliance with the requirements of the  law  in such special circumstances. It was for these reasons that we held the present custody of Mr. Raj Narain pending the decision of his main petition  to be  proper  and  rejected the application  for  his  instant release. Vaidialingam  J. We regret our inability to agree  With  the order  just  pronounced by the learned  Chief  Justice  with regard to the validity of the remand order dated August  28, 1970,  in question.  We now proceed to give our reasons  for such disagreement. 153 In this petition for Habeas Corpus the petitioner prays  for immediate release on the ground that the remand order  dated August  28, 1970, passed by the City Magistrate, Lucknow  is invalid  and  that his detention after the midnight  of  the 28th  August,  1970,  is illegal.  He  further  attacks  his detention  on  the  ground  that  it  is  contrary  to   the directions  given by this Court on August 28, 1970, in  Writ Petition No. 315 of 1970. The  circumstances  leading  to the filing  of  the  present petition  may  be briefly stated thus : The  petitioner  has already  filed  a writ petition No. 315 of 1970  for  Habeau Corpus  challenging  his arrest on August 20, 1970  and  his detention in the District Jail, Lucknow.  He raised  various grounds against the legality of his arrest and detention and prayed  for  being released forthwith.  He also  prayed  for striking  down  certain sections of the  Criminal  Procedure Code as violative of the Constitution.  The City Magistrate, Lucknow  in  his counter-affidavit has stated  that  he  had issued  the warrant for the arrest of the  petitioner  under ss.  107  and 112 Cr.P.C. and that when the  petitioner  was produced  before him on August 20, 1970 at 9 A.M. he  orally explained to the petitioner the contents of the notice under s.  112 Cr.P.C., a copy of which had already been served  on him; and that the petitioner filed a lengthy reply  thereto. It  is  further stated by the City Magistrate  that  as  the petitioner  did not make any application for being  released on  bail during pendency of the inquiry, he was remanded  to jail.   The  City Magistrate has also  maintained  that  the proceedings  initiated against the petitioner are legal  and valid  and  the provisions of the  Criminal  Procedure  Code challenged   by   the  petitioner  are  also   valid.    The contentions raised by the parties in this writ petition  are pending  adjudication by this Court.  But it may  be  stated that  the  order  of remand passed on August  20,  1970  was effective till August 28, 1970. In  Writ Petition No. 315 of 1970, the petitioner  impleaded the  State  of U.P., the District Magistrate,  Lucknow,  the Superintendent  of District Jail, Lucknow and the  Union  of India as respondents.  On August 21, 1970 when the said writ petition  came  up  for  preliminary  hearing,  this   Court directed "issue of rule nisi returnable on August 25,  1970" and  further ordered that the petitioner was to be  produced before  the Court on that day.  The  petitioner  accordingly was  transferred  from the District Jail,  Lucknow,  to  the Central  Jail,  New Delhi, for being  produced  before  this Court.  He was produced in this Court on the 25th, 26th  and 27th  August, 1970.  On August 27, 1970, this  Court  passed the following order:               "Shri  Raj  Narain’s  petition is  not  to  be               listed  tomorrow and he is not to be  produced               in Court tomorrow. He may, however, be kept in



             Delhi." 235 Sup.  C.I./71 154 Though the State of Uttar Pradesh appeared before us through Counsel on August 27, 1970, when the above order was passed, it  was  not  brought to our notice that  the  remand  order passed  by the City Magistrate, Lucknow, on August 20,  1970 was  expiring  by midnight of August 28, 1970 nor  were  any directions in that connection sought for from this Court  at that  time.  It was only on August 28, 1970, at 4 P.M.  when the Court was about to rise for the day that a letter of the Superintendent,  Central Jail, New Delhi of the  same  date, received  by the Assistant Registrar of this Court,  seeking directions  regarding  detention  of  the  petitioner,   was brought to our notice.  That letter has been set out by  the learned  Chief Justice in his order.  It is clear from  that letter that the judicial remand of the petitioner ordered by the  City Magistrate, Lucknow would expire on that  day  and orders  were  solicited  whether the  petitioner  is  to  be detained  further under orders of this Court or whether  his further  judicial  remand  is  to be  taken  from  the  City Magistrate, Lucknow. When a person under detention has come with a grievance that his  detention  is illegal and invalid and seeks a  writ  of Habeas  Corpus  and  is  produced  before  this  Court,  the prisoner  comes  directly under the custody of  this  Court. But no orders would be passed by this Court which would have the  effect  of detaining, a prisoner beyond the  period  of detention already ordered and which order is complained off. In  an  appropriate  case,  during  the  operation  of   the detention order under challenger this Court may release  the prisoner  on  bail  or  otherwise  either  with  or  without conditions,  pending adjudication of his grievance  by  this Court. On  the  letter of August 28, 1970, of  the  Superintendent, Central  Jail,  New Delhi, this Court made an order  on  the same day which has been set out in full in the order of  the learned Chief Justice.  From that order the following points emerge:               (i)   Mr.  Rai  Narain  was  remanded  to  the               custody to which he belongs, namely, the  U.P.               authorities;               (ii)  The U.P. authorities were at liberty  to               take   the  petitioner  to   Lucknow               pending  fixation of the further date for  the               hearing of his writ petition.               (iii)If  the  Superintendent of  the  Central               Jail,  New Delhi, does not receive  the  fresh               order  of  remand by midnight  of  August  28,               1970, the petitioner should not be detained as               directed  by this Court and that he should  be               set at liberty at midnight. At  this stage it may be stated that if the  respondents  in Writ  Petition  No.  315 of 1970, who  were  represented  by counsel, had 155 brought  to  our notice on August 27, 1970 (when  this  Writ Petition  was  adjourned to a later date)  that  the  remand order of the City Magistrate was expiring on August 28, 1970 and  had sought directions, this Court would have,  on  that date  itself, passed an order similar to the one, which  was actually passed in the evening of August 28, 1970.  In. that case  the  respondents would have had ample  opportunity  to take the petitioner to Lucknow, for producing him before the City  Magistrate  for  a  further order  of  remand,  if  he



considered it necessary. However,  the position is that the petitioner was not  taken to   Lucknow  nor  produced  before  the  City   Magistrate. Instead,  he was kept in the Central Jail, New  Delhi.   The City  Magistrate, Lucknow, passed two orders, viz.,  ode  on August  28,  1970 and another on August 29, 1970,  Both  the orders  have been quoted in the order of the  learned  Chief Justice.   By the first order, which is stated to have  been communicated   by  wireless  message,  the  petitioner   was remanded to further jail custody upto September 1, 1970.  By the second order which was communicated by telegram, he  was remanded to further jail custody upto September 10, 1970. The  petitioner has in the present writ petition prayed  for the  issue of a writ of Habeas Corpus directing his  release on the ground that his further detention is illegal.  He has attacked his detention after midnight of August 28, 1970  as illegal and contrary to the directions given by this  Court. He has stated that no orders of remand were communicated  to him  before  midnight of August 28, 1970 and  that  the  two remand  orders are quite inconsistent with each other.   The more  serious ground of challenge in respect of  the  remand orders is that they are illegal as they have been passed  by the  City Magistrate, without his being produced before  the City Magistrate and behind his back. On  August  31,  1970, this Court issued  a  notice  to  the Superintendent,  Central Jail, New Delhi, to produce  before the  Court  on September 1, 1970, the warrants  under  which "Mr.   Raj  Narain is presently detained." On  September  1, 1970,  on  behalf  of the  jail  authorities,  the  wireless message  received  on August 28, 1970 and  the  telegram  of August 29, 1970 were brought to our notice. As  we were inclined to hold that the remand orders had  not been passed according to law and in consequence the  further detention  of the petitioner was illegal, this Court  passed on the same day the following order:               "By majority, we hold that the custody of  Mr.               Raj  Narain  is  valid  and  that  he  is  not               entitled to release on his fresh petition.  We               shall give our reasons later." 156 The petitioner’s grievance that the two orders passed by the City   Magistrate  on  28-th  and  29th  August,  1970   are inconsistent, has considerable force.  It is strange that  a remand   order  extending  the  petitioner’s  custody   upto September  1,  1970, was followed within  hours  by  another order extending it to a still further period upto  September 10,  1970.   There  is  nothing  to  show  why  this  became necessary.  Prima ’facie, it looks as if the Magistrate  had not judicially applied his mind on the question of how  long the  petitioner’s custody should be extended.  Prima  facie, it would also, show that the magistrate was passing an order of  remand in a mechanical manner without  even  considering the  period for which his remand orders are to have  effect. This  certainly shows non-application of judicial mind  even where the personal liberty of a citizen is involved. But  we are not prepared to rest our decision on  the  above circumstance  alone.  The petitioner has further  stated  in his petition that he received intimation only in the morning of August 29,  1970 about the order of remand passed by  the City Magistrate, Lucknow.         If the City Magistrate was inlaw  entitled  to  pass an order of  remand  on  August 28,1970,  without the person detained being produced  before him, the mere fact that it was made known to the  petitioner in the morning of August 29, 1970 may not make the order  of detention  invalid.  But we are upholding the contention  of



the petitioner that the City Magistrate had no power to pass an  order  of remand without the person in  detention  being produced before him, and as such the order passed on  August 28, 1970 is illegal, irrespective of the time as to when  it was made known to the petitioner. Now  coming  to the question of the legality  of  the  order passed  by  the  Magistrate  remanding  the  petitioner   in detention,  without  his being produced before  him,  it  is necessary  to  refer to certain provisions of  the  Criminal Procedure  Code.  Such a question came up before this  Court in Tlaangdingliana v. State of Assam(1) but was not  decided as it was not necessary in that case to do so. The  Criminal  Procedure Code contemplates  the  period  for which a person can be detained in custody prior to the  com- mencement of an inquiry or trial and that is broadly divided into  two stages.  The first stage is the maximum period  of 24  hours. (See Sec. 61 Cr.P.C.) For this period the  Police have  the  power to detain a  person  during  investigation. Under Art. 22(2) of the Constitution, however, every  person who is arrested and detained (1)  W.P. No. 171 of 1969 decided on Sept. 25.1969. 157 in  custody shall be produced before the nearest  magistrate within  a  period of 24 hours of such arrest  excluding  the time mentioned therein and no such person shall be  detained in  custody beyond the said period without the authority  of the  magistrate.  If the investigation. cannot be  completed within 24 hours, the person arrested and detained in custody must  be  forwarded to the nearest  magistrate  as  provided under s. 167(1) Cr.P.C. Under s. 167(2) when, accused person is  so forwarded, the magistrate, whether he has or  has  no jurisdiction to try the accused may authorise the  detention of  the accused in such custody as he thinks fit for a  term not  exceeding  15 days in the whole.  This  is  the  second stage  of detention for 15 days.  If the magistrate to  whom the  accused has been forwarded has not jurisdiction to  try the case or commit it for trial, and if he considers further detention  unnecessary, that magistrate has to  forward  the accused  magistrate  having  such  jurisdiction.   Under  s. 167(3) the magistrate authorising. detention in the  custody of the Police is bound to record his reasons for so doing. But  the fact to be noted in s. 167(2) is, that the  accused who is suspected or alleged to have committed an offence and who  has to be tried by a court has to be forwarded  to  the nearest  magistrate whether he has jurisdiction to  try  the case  or  not.  For the purpose of enabling  the  Police  to complete  the investigation, the magistrate before whom  the accused  is  so be produced has got power to  authorise  the detention  of the accused for the maximum  period  mentioned therein.   If  the aforesaid  magistrate  considers  further detention  unnecessary, the accused has to be  forwarded  to the   magistrate  having  jurisdiction.   Before  both   the magistrates  referred to in this sub-section, production  of the  accused  is  essential.  And this is  the  position  in respect  of  a  person against whom  the  commission  of  an offence is alleged. It  may happen that the 15 days detention ordered  under  s. 167(2)   is   not  found  sufficient  for   completing   the investigation. It   could not have been contemplated by  the Legislature  that  under  such  circumstances  the  arrested person  must  be  released.  Therefore  it  must  have  made provisions  for continuing the arrested  person’s  detention after  15 days in suitable cases and there is  no  provision permitting  further remand barring that contained in s.  344 Cr.   P.  C. We have already referred to the fact  that  the



City  Magistrate  has  in  his  counter-affidavit  in   writ Petition  No. 315 of 190 stated that the petitioner did  not offer  any bail during the pendency of the inquiry in  which case  s.  344 squarely applies.  Section  170  Cr.P.C.  also refers  to  the accused under custody being forwarded  to  a magistrate empowered to take cognisance of the offence  upon a police report.  This section 158 also, insists upon the production of the accused before  the magistrate. A remand under S. 344 Cr.P.C. is to be distinguished from  a remand  under s. 167(2) Cr.P.C. Section 344 is more  general than s. 167(2).  But s. 344 itself contains the  limitations for  passing  an  order  of  remand  under  that  provision. Section 344 gives power to the court to postpone or  adjourn the  inquiry  or trial under the circumstances  and  in  the manner  indicated  therein.   The first proviso  to  s.  344 states that no magistrate shall remand an accused Person  to custody under that section for a term exceeding 15 days at a time.   The  accused  is entitled  to  participate,  in  the inquiry  or  trial and he will be present before  the  court concerned and it is in his presence that the order of remand under  the  first  proviso  will be made  by  the  Court  or magistrate  concerned.   The accused being  present  at  the inquiry  or  trial  before a magistrate  or  court,  in  our opinion,  it is implicit in s. 344 that the order of  remand under the first proviso has to be made in his presence. The  matter can be considered from another aspect.  We  have already  stated  that even in respect of an accused  who  is alleged  to have committed an offence and with reference  to which  offence  investigation  is  being  conducted  by  the police, the production of the accused before the magistrates mentioned  in s. 167(2) Cr.P.C. is absolutely essential  for the purpose of the police obtaining the necessary orders for detaining  the  accused,  beyond  the  period  of  24  hours referred  to  in s. 61 Cr.P.C. Under s. 344  Cr.P.C.,  which deals with inquiry or trial in respect of an offence alleged to have been committed by an accused, the remand order under the proviso is to be passed in the presence of the  accused. In  this  case even according to the averments made  by  the City  Magistrate in his counter-affidavit in  Writ  Petition No.  315  of 1970, the petitioner had been arrested  on  the basis  of  a  warrant issued by him under ss.  107  and  112 Cr.P.C. and that the petitioner did not offer to be released on  bail pending- the inquiry.  A reading of s. 107  Cr.P.C. will  clearly show that the inquiry referred to by the  City Magistrate  with  reference  to the  petitioner  is  not  in respect  of  an  offence  alleged  to  have  been  committed already,  but  is only for the purpose of  deciding  whether action is to be taken for prevention of the offence referred to  therein.   When  an  accused  who  is  alleged  to  have committed  a crime has to be produced before the  magistrate when  an order of remand is passed under s. 344 Cr.P.C.,  in our  opinion, it stands to reason that a person who has  not committed any offence but is sought to be proceeded  against under Chapter VIIII Cr.P.C. and is proposed to be  detained, must be before 159 the  court  at the time when the latter passes an  order  of remand under s. 344 Cr.P.C. We will now refer to the case law on this aspect., In 1867 2 Weirs  409 the Madras High Court had to answer  a  reference made  by  a  magistrate whether a person has  to  be  placed before  a magistrate on each occasion of fresh remand  being given.   The  names  of the parties are  not  given  in  the



Report.   In High Court dated June 10, 1867 it is stated  as follows :               "The  High Court observe that to remand is  to               recommit  to  custody and that  a  magisterial               commitment  requiring  the  presence  of   the               prisoner,  the  recommitment of  the  prisoner               also requires that presence." This decision was given under s. 344 of the Criminal  Proce- dure Code as it then stood. In  Crown  v. Shera and others(1) it was held  that  it  was illegal  to remand person on the application of the  police, when the prisoner is not produced in Court. In Re.  M. R. Venkataraman and others(2) a Division Bench of the Madras High Court had to consider the legality of a  re- mand  order passed by the magistrate under ss. 167  and  344 Cr.P.C.  without the prisoners having been  produced  before him.  In dealing with this question the High Court  observes at page 281 as follows :               "........   it  does  seem  certain  that   an               illegality was committed by the Magistrate  in               issuing an order of remand without having  the               prisoners produced before him and asking  them               whether they wished anybody to represent their               cause  and  giving  them  an  opportunity   of               showing  cause why they should not be  further               remanded.   We trust that  the  Sub-Magistrate               issued   this  order  through  oversight   and               because  as he later said, the prisoners  were               at  Trichinopoly  and  he did  not  have  much               notice  that  a request for a  further  remand               would be made.  However that may be, we  agree               with  the learned Counsel for the  petitioners               that  an illegality involving a breach of  the               provisions of the Criminal Procedure Code  was               committed;  and we trust that our  order  will               serve  as a warning to the Magistrate  not  to               re-peat this illegality." In Ram Narayan Singh v. The State of Delhi and ors. (3) this Court bad to deal with the validity of the detention of an (1)  1867 Punjab Record-Judicial 72. (3)  [1953] S.C.R. 652. (2) I.L.R. [1948] Madras 279. 160 accused.   Even  at  the outset we may state  that  in  that decision, this Court was dealing with a case, where no order of  the  magistrate  remanding the accused  to  custody  was placed  before  this Court.  Therefore, on facts  that  case stands  on a different footing, but the principle laid  down by that decision, in our opinion, is apposite.  At page  654 this Court observes as follows :               "This  Court has often reiterated before  that               those  who feel called upon to  deprive  other               persons  of  their  personal  liberty  in  the               discharge  of what they conceive to  be  their               duty,  must strictly and scrupulously  observe               the forms and rules of the law." It  will be noted that this Court has emphasised  that  when the personal liberty of a person is sought to be  restricted or curtailed, rules of the law, as well as the forms must be scruplously observed. More recently the Delhi High Court in the decision  reported in  Ram  Rishi  Anal  v.  Delhi  Administration,  Delhi  and others(3)  had  to  deal with the legality of  an  order  of remand  passed by the magistrates without the accused  being produced before them.  There were certain other illegalities



pointed out in that judgment.  The learned Chief Justice has held  in that decision that passing of remand  order  behind the back of an accused, is illegal.  In the judgment of  the Delhi High Court there is no reference to the decision cited by  us  earlier  except the decision of this  Court  in  Ram Narain Singh v. The State of Delhi and others(4). From  the decision of this Court, referred to above,  it  is clear that the authorities seeking to curtail the liberty of a  subject must strictly and scrupulously observe the  forms and  rules  of  the  law.  The  various  provisions  of  the Criminal  Procedure  Code, referred to by us,  as  also  the decisions  quoted  above  lead to the  conclusion  that  the accused must be present before the magistrate or court  when an order of remand is passed.  In fact the decisions  quoted by  us  clearly  lay down that an  order  of  remand  passed without  the accused being produced, is illegal.  We are  in agreement with those decisions. It stands to reason that an order of remand will have to  be passed  in  the  presence of  the  accused.   Otherwise  the position will be that a magistrate of court will be  passing orders  of  remand  mechanically without  having  heard  the accused  for  a considerably long time.  If the  accused  is before the magistrate when a (1) 1967 Delhi Law Times,, 126. (2) [1953] S.C.R. 652. 161 remand  order is being passed, he can  make  representations that  no remand order should be passed and also  oppose  any move  for a further remand.  For instance he may  rely  upon the inordinate delay that is being caused by the prosecution in  the matter and he can attempt to satisfy the court  that no  further remand should be allowed.  Again it may be  that an  accused.  on  a former occasion  may  have  declined  to execute a bond for getting himself released; but on a  later occasion  when  a further remand is  being  considered,  the accused  may  have  reconsidered the  position  and  may  be willing  to execute bond, in which case a remand order  will be   totally  unnecessary.   The  fact  that  ,,the   person concerned does not desire to be released on bail or that  he can  make written representations to the magistrate are,  in our opinion, beside the point.  For instance, in cases where a  person  is sought to be proceeded against  under  Chapter Vill  of the Criminal Procedure Code, it would ’be  open  to him to represent that circumstances have materially  changed and  a  further  remand has  become  unnecessary.   Such  an opportunity  to make a representation is denied to a  person concerned  by his not being produced before the  magistrate. As the magistrate has to apply his judicial mind, he himself can take note of all relevant circumstances when the  person detained is produced before him and decide whether a further remand is necessary.  All these opportunities will be denied to  an  accused  person if he is  not  produced  before  the magistrate  or  the court when orders’ of remand  are  being passed. It is no answer that the petitioner was brought to New Delhi under the orders of this Court and hence the City Magistrate had  to pass the remand order at Lucknow.  We  have  already mentioned that no representation was made nor any directions asked on August 27, 1970, on behalf of the respondents  when Writ  Petition No. 315 of 1970 was adjourned.  Under  orders of August 28, 1970" this Court released the petitioner  from its  custody  and restored him to the original  custody  and even permitted him to be taken to Lucknow. pending  fixation of  a fresh date of bearing of his case.  The Uttar  Pradesh authorities  concerned  did  not  avail  themselves  of  the



opportunity  to take him back to Lucknow for being  produced before  the magistrate concerned.  On the other  hand,  they were  content to have an order of remand of the prisoner  in New Delhi passed by the magistrate sitting in Lucknow.  Such an  order,  as  we  have held.  is  illegal  and  hence  the detention  of  the petitioner on the authority  of  such  an illegal  order of remand is also illegal.  Such a  situation has ’been brought about by the Uttar Pradesh authorities for which they have to thank themselves. 162 Li  the result we hold that the orders of remand dated  28th and  29th  August,  1970  passed  by  the  City  Magistrate, Lucknow, are illegal.  We further hold that the detention of the  petitioner  in the Central Jail, New Delhi,  after  the midnight of August 28, 1970 on the authority of the  illegal orders  of  remand  is also  illegal.   In  consequence  the petitioner  should  be set at liberty forthwith.   The  writ petition is allowed. G.C. 163