Ram Narayan Singh Vs. The State of
Delhi & Ors  INSC 19 (12 March 1953)
SASTRI, M. PATANJALI (CJ) MUKHERJEA, B.K.
DAS, SUDHI RANJAN HASAN, GHULAM BHAGWATI,
CITATION: 1953 AIR 277 1953 SCR 652
CITATOR INFO :
F 1969 SC1014 (12,13) D 1971 SC 178 (6,35,37)
F 1971 SC2197 (7) R 1974 SC 510 (3) E 1976 SC1207 (70)
Criminal trial-Adjournment of case-No order
remanding accused to custody--Legality of detention--Criminal Procedure Code,
1898, s. 344-Habeas corpus.
In habeas corpus proceedings the Court is to
have regard to the legality or otherwise of the detention at the time of the
return and not with reference to the institution of the proceedings.
Section 344 of the Criminal Procedure Code
requires a Magistrate, if he chooses to adjourn a case, " to remand by
warrant the accused if in custody " and provides further that every order
made under this section by a Court other than a High Court shall be in writing.
Where a trying Magistrate adjourned a case by an order in writing but there was
nothing in writing on the record to show that he made an order remanding the
accused to custody: Held, that the detention of the accused after the order of
adjournment was illegal.
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
ORIGINAL JURISDICTION: Petition No. 54 of
Petition under Article 32 of the Constitution
for a writ in the nature of habeas corpus.
Jai Gopal Sethi and Veda Vyas (S. K. Kapur,
A. K. Datt, A. N. Chona, B. Pathnaik and A. AT. Sinha, with them) for the
C.K. Daphtary, Solicitor-General for India
(Porus A.Mehta, with him) for the respondents.
1953. March 12. The Judgment of the Court was
delivered by the Chief Justice.
PATANJALI SASTRI C. J.-This is a petition for
a writ of habeas corpus filed by one ham Narayan Singh on behalf of four
gentlemen, namely, Dr. S. P. Mukerjee, Shri N. C. Chatterjee, Pandit Nandial
Sharma and Pandit Guru Dutt Vaid, who are the real petitioners in the case.
These persons were 653 arrested on the evening of the 6th March, 1953, and they
are now being prosecuted for alleged defiance of an order prohibiting meetings
and processions in the area in question, an offence punishable under section
188 of the Indian Penal Code.
Their detention is sought to be justified on
the basis of two remand orders, the one alleged to have been- passed by Mr.
Dhillon, Additional District Magistrate, Delhi, at about 8 p. m. on the 6th
March, 1953, and the other alleged to have been passed by the trying Magistrate
at about 3 p. m.
on the 9th March while adjourning the case on
the representation made before him that a habeas "pus petition was being
moved in this Court.
Various questions of law and fact have been
argued before us by Mr. Sethi on behalf of the petitioner, but we consider it
unnecessary to enter upon a discussion of those questions, as it is now
conceded that the first order of remand dated the 6th March even assuming it
was a valid one expired on the 9th March and is no longer in force. As regards
the order of remand alleged to have been made by the trying Magistrate on the
9th March, the position is as follows:-The trying Magistrate was obviously
proceeding at that stage under section 344 of the Criminal Procedure Code,
which requires him, if he chooses to adjourn the case pending before him,
" to remand by warrant the accused if in custody," and it goes on to
provide: 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. The order of
the Magistrate under this section was produced before us in compliance with an
order of this Court made on the 10th March, which directed the production in
this Court as early as possible of the records before the Additional District
Magistrate and the trying Magistrate together with the remand papers for
inspection by Counsel for the petitioner. The order produced merely directs the
adjournment of the case till the 11th March and contains no direction for,
remanding the accused to custody till that date. Last 85 654 evening, four
slips of paper were handed to the Registrar of this Court at 5-20 p. m. On one
side they purport to be warrants of detention dated 6th March and addressed to
the Superintendent of Jail, Delhi, directing the accused to be kept in judicial
lock-up and to be produced in court on the 9th March 1953. These warrants
contain on their back the following endorsements: Remanded to judicial till
11th March, 1953" In a question of habeas corpus, when the lawfulness or
otherwise of the custody of the persons concerned is in question, it is obvious
that these documents, if genuine would be of vital importance, but they were
not produced, notwithstanding the clear direction contained in our order of the
10th March. The court records produced before us do not contain any order of
remand made on the 9th March. As we have already observed, we have the order of
the trying Magistrate merely adjourning the case to the 11th. The
Solicitor-General appearing on behalf of the Government explains that these
slips of paper which would be of crucial importance to the case, were with a
police officer who was present in court yesterday, but after the Court rose in
the evening the latter thought that their production might be of some
importance and therefore they were filed before the Registrar at 5-20 p. m. We
cannot take notice of documents produced in such circumstances, and we are not
satisfied that there was any order of remand committing the accused to further
custody till the 11th March. It has been held by this Court that in habeas
corpus proceedings, the Court is to have regard to the legality or otherwise of
the detention at the time of the return and not with reference to the
institution of the proceedings. The material date on the facts of this case is
the 10th March, when the affidavit on behalf of the Government was filed justifying
the detention as a lawful one. But the position, as we have stated, is that on
that date there was no order remanding the four persons to custody. This Court
has often reiterated before that those who 655 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. That has not been done in this case. The petitioners now before us
are therefore entitled to be released, and they are set at liberty forthwith.
Agent for the petitioner: Ganpat Rai Agent
for the respondents: G. H. Rajadhyaksha.