State of Bihar Vs. Kameshwar Prasad
Verma  INSC 102 (17 April 1963)
17/04/1963 KAPUR, J.L.
GUPTA, K.C. DAS DAYAL, RAGHUBAR
CITATION: 1965 AIR 575 1963 SCR (2) 183
RF 1976 SC1207 (544)
Habeas Corpus--Release and re arrest--Legality--Principles
applicable--Code of Criminal Procedure, 1898 (V of 1898), s. 491.
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 non bailable 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 opportunity 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petition in the High Court was withdrawn.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 Nigeria and Anr., (1931) A. C. 662, applied.
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 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
nonbailable 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 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 authority 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
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 re arrest.
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 executive".
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
In the' circumstances the remedy under Art.
226 is rightly applicable to the facts of this case.
We therefore dismiss this, appeal.
(1) (1931) A.C. 662 670.