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PETITIONER: STATE OF BIHAR

       Vs.

RESPONDENT: KAMESHWAR PRASAD VERMA

DATE OF JUDGMENT: 17/04/1963

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. GUPTA, K.C. DAS DAYAL, RAGHUBAR

CITATION:  1965 AIR  575            1963 SCR  (2) 183  CITATOR INFO :  RF         1976 SC1207  (544)

ACT: Habeas  Corpus--Release  and  rearrest--Legality--Principles applicable--Code of Criminal Procedure, 1898 (V of 1898), s. 491.

HEADNOTE: Bipat Gope was convicted under ss. 323 and 324 read with  s. 511  of  the Indian Penal Code and sentenced to  six  months rigorous  imprisonment by the High Court on  appeal  against acquittal, but, was not taken into custody and on the ground of  serious  illness was kept in the  Hospital  under  Armed Guards.   On  application  moved by the  respondent  and  on recommendation  of the medical authority he was released  by the  District Magistrate under the jail Manual  Rules.   The Appellant  contended that his release was conditional  under r. 549 of the jail Manual Rules, which was challenged by the respondent.   A  nonbailable warrant for arrest  was  issued against  him upon which he moved the High Court  under  Art. 226  of the constitution and was directed to appear  at  the preliminary hearing.  He presented an application before the District Magistrate praying for his appearance and an oppor- tunity  to  present  his case before the  High  Court.   The District   Magistrate   passed  no  order   but   from   the respondent’s  petition in the High Court, it  appeared  that Senior Deputy Collector, Patna, ordered his arrest and  sent him  to  jail  and  his  petition  in  the  High  Court  was withdrawn.  The High Court allowed the respondent’s petition and ordered his release from custody.  The High Court  held, that the order of release passed by the District  Magistrate was an unconditional release and therefore, he could not  be rearrested.   Against  that order, State came in  appeal  by special  leave.   The appellant contended that  the  release must  have been under Rule 549 of the jail Manual Rules  and not under any other rule. Held, that the State did not make it clear under which  rule he  was  released  and under what lawful  authority  he  was rearrested and thus in absence of such lawful authority, the detention was illegal and the appeal must fail. Eshugbayi  Eleko v. Officer Administering the Government  of

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Nigeria and Anr., (1931) A. C. 662, applied. 184

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 242  of 1960. Appeal  by special leave from the judgment and  order  dated June 2, 1958, of the Patna High Court in Cr.  Misc. 124/58. S. P. Verma for the appellant. A . S. R. Chari, D. P. Singh, B. K. Garg, S.C. Agarwal,  and M. K. Ramanurthi, for the respondent. 1962.  April 17.  The Judgment of the Court was delivered by KAPUR, J.-The State of Bihar has brought this appeal against the  judgment  and order of the High Court of Patna  and  it arises out of proceedings under Art. 226 of the Constitution and  s.  491 of the Criminal Procedure Code for  a  writ  of habeas corpus in the matter of detention of one Bipat  Gope. The present respondent was the petitioner in the High Court. Bipat  Gope,  a  resident  of the  district  of  Patna,  was convicted  under  s  323 & s. 324 read with s.  511  of  the Indian,  Penal Code and sentenced on November 29,  1957,  to six  months’  rigorous  imprisonment by the  High  Court  on appeal  against  acquittal  under  s. 417  of  the  Code  of Criminal  Procedure but he was not taken into  custody  till January 6, 1958 and even then he was kept under armed  guard in  the Patna Medical College Hospital in one of the  paying wards,  on  the  ground that he was seriously  ill.   On  an application  by the respondent and on the recommendation  of the appropriate medical authority Bipat Gope was released by the District Magistrate on March 11, 1958 under the rules of the  Jail Manual when his unexpired period  of  imprisonment was  four  months  and three days.  The  contention  of  the appellant State is that he was                             185 released  under  R.  549 which is  the  rule  providing  for conditional   release  of  prisoners  but   the   respondent challenges  the  factum  of release under  this  Rule.   The sureties for Bipat Gope were called upon to produce him  but as  they had failed to do so notices were issued to them  by an  order  dated  April 27, 1958, to show  cause  why  their surety  bonds  should not be forfeited.  By the  same  order nonbailable warrant for arrest was ordered to be issued. On  April 29, 1958, Bipat Gope moved a petition  under  Art. 226-against  the  order of the District Magistrate  and  the High  Court directed on May 1, 1958, that Bipat Gope  should appear  on Monday following which was May 5, 1958, when  the petition was to be taken up for preliminary hearing. On  May  1, 1958, Bipat Gope appeared in the  Court  of  the District  Magistrate, Patna and made an application  stating that  he had filed the above mentioned petition in the  High Court  and  that  he had to appear there on  Monday  and  he prayed that he be allowed an opportunity to present his case to  the  High Court and to avoid. his  maltreatment  at  the hands of the police of which he was apprehensive.  There  is no order on the record showing what the District  Magistrate did but from the respondent’s petition in the High Court  it appears that the application before District Magistrate  was taken  up by the Senior Deputy Collector Patna, who  ordered Bipat  Gope to be taken into custody and sent him  to  jail. The  earlier petition of Bipat Gope filed in the High  Court was withdrawn on May 2, 1958. The High Court heard the petition filed by the respondent on May  5,  1958,  and  after some  amendments  were  made  the

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petition  was  allowed  and Bipat Gope  was  ordered  to  be released  from custody.  The High Court held that the  order of  release  by  the  District  Magistrate  of  Patna  above referred to was an order for, his unconditional release  and therefore he could not be rearrested.  It 186 is against that order that the State has come to this  Court by  special  leave, its application under Art.  134  (1)(c)- having been dismissed by the High Court. On the petition under Art,. 226 filed by the respondent, the High  Court issued a, rule calling upon the appellant  State to show cause why a writ of habeas corpus should not  issue. It is unfortunate that no return was filed by the State  and it  is not clear from the record as to how exactly or  under what  authority Bipat Gope was taken into custody and  under what  authority the jailor was detaining him in  jail.   The order of the District Magistrate shows that a non-  bailable warrant  was  ordered  to be issued,  The  petition  of  the respondent  shows  that Bipat Gope was  arrested  under  the order  of the Senior Deputy Collector ; what  authority  the Senior  Deputy  Collector  had  of  ordering  Bipat   Gope’s rearrest is not clear from this record.  The High Court  has stated  that Bipat Gope surrendered on May 1, 1958, to  whom he  surrendered  is  not clear.  It is also  stated  in  the petition that non-bailable warrant of arrest was ordered  to be  ’withdrawn  and  the record was  sent  to  the  District Magistrate  for confirmation who withdrew  the  non-bailable warrant  ordered to be issued.  When the record was sent  to the  District Magistrate for confirmation and that was  done by the District Magistrate thereafter is also not shown.  In the  absence  of a properly drawn up return  accompanied  by proper  documents  it  is not possible   to  find  out  what exactly happened in regard to the rearrest of Bipat Gope and it is for that reason that the filing of a proper return  is necessary and is insisted upon in most jurisdictions. It was argued on behalf of the appellant that the release of Bipat  Gope was under R. 549 of the Jail Manual Rules  which are   issued  under  the  Prisons  Act  and  that   releases thereunder  are conditional.  The appellant was  anxious  to get the 187 opinion  of this Court as to the true meaning and extent  of Rule  549  under which, according to the  appellant,  Bipat Gope was released.  On this record it is not clear as to the rule  under  which  he was released.  It  appears  from  the petition   of  the  respondent  under  Art.  226  that   the respondent made an application for the release of Bipat Gope on the ground that he was seriously ill.  There are, on  the record  certificates  by  Dr.  V. N. Sinha,  F.  R.  C,  S., Professor  of Clinical Surgery at the Patna Medical  College stating  the disease Bipat Gope was suffering from and  that he  was  riot  improving under the treatment  he  was  being given.  It was also stated therein that he would improve  if he  was released This was on February 21, 1958.   The  Civil Surgeon of Patna on March, 1, 1958, again enquired from  Dr. V.  N. Sinha if the prisoner (Bipat Gope) was in  danger  of death from illness.  Upon this on March 3,               "The  complications  of the disease i.  e.  of               ventral  hernia, peotic under and  strees  and               strain syndrome sometime prove fatal".               and  on March 5, 1958, it was stated  that  he               was  in  danger  of death but  was  likely  to               improve  if released.  The  superintendent  of               District  Jail,  Patna, sent a letter  to  the               District  Magistrate giving all these  various

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             particulars.   Upon  that a note was  made  by               Judicial Peshkar in which he stated:               In this connection Jail Manual Rule 548(1) and               (2)  and  (3) and Rule 549 may be  seen.   The               District  Magistrate has power to  pass  order               for  the  release  of  the  prisoner,  if  the               petitioner’s  sentence  does  not  exceed  six               months  under  the  above  Rules.   From   the               sentence sheet of release from the Jail autho-               rity  it appears that the prisoner has only  4               (four)  months  and 3 (three)  days  unexpired               period of sentence.  These rules may kindly be               seen and necessary orders passed". 188 The order of the District Magistrate was ’-,Allowed  release in  the circumstances.  It is not clear from this as to  the Rule’ under which Bipat Gope was released.  It was contended on  behalf of the appellant that the release must have  been under  R. 549 and not under any other, Rule and in support reliance is placed on the release order of Bipat Gope  which is in Form No. 105.  That Form mentions Rules 548, 549  and 552 and the Rule which was not appropriate had to be  scored out  but  none of these Rules was scored out.   But  at  the bottom of the Form there is a declaration of two persons who started that they are willing to take. charge of Bipat  Gope and bound themselves to surrender him at any time before the date of his expiry i. e. July 9, 1958 if required to- do so. Here it may be stated that the support of the relevant Rules is set out in’ Form 105 as follows:-               "(i) Rule 549-There is no hope of his recovery               either  in  or  out of  Jail;  I  consider  it               desirable  that he be allowed the  comfort  of               dying at home.               (ii)  Rule  549--The prisoner is in danger  of               death from illness and there is probability of               his recovery if he is released". On  the basis of the order of the District Magistrate  which is referred to above dated March 7,1958 and Form 105. it was submitted that the release must have been under R. 549.  The orders  on the record do not make that clear.   Neither  the order of the District Magistrate nor the Form 105 shows that Bipat Gope was released under R. 549 and not under any other Rule.   The  State  has not cared to make it  clear  in  any return made on an affidavit filed as to the Rule under which Bipat Gope was released and then it is not shown as to  what lawful authority there was for his rearrest. 189 In  this  connection  the  observations  of  Lord  Atkin  in Eshugbayi Eleko v. The Officer Administering The  Government of Nigeria (1) are appropriate and applicable:               "In  accordance with Britain jurisprudence  no               member of.the executive can interfere with the               liberty  or  property  of  a  British  subject               except  on the condition that he  can  support               the  legality of his action before a Court  of               justice.   And it is the tradition of  British               justice  that  Judges should not  shrink  from               deciding such issues in the face of the execu-               tive". It is the same jurisprudence which has been adopted in  this country  on  the basis of which the courts of  this  country exercise  jurisdiction.  It has not been shown in this  case that  there was any lawful authority under which Bipat  Gope was  rearrested and in the absence of such lawful  authority Bipat  Gope’s detention cannot be supported and is  illegal.

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In  the’ circumstances the remedy under Art. 226 is  rightly applicable to the facts of this case. We therefore dismiss this, appeal. Appeal dismissed. (1)  (1931) A.C. 662 670. 190