A. Lakshmanarao Vs. Judicial
Magistrate, 1st Class, Parvatipuram & Ors [1970] INSC 241 (24 November
1970)
24/11/1970 DUA, I.D.
DUA, I.D.
SIKRI, S.M.
BHARGAVA, VISHISHTHA
CITATION: 1971 AIR 186 1971 SCR (2) 822 1970
SCC (3) 501
CITATOR INFO :
R 1972 SC 711 (12) R 1975 SC1465 (6)
ACT:
Code of Criminal Procedure, 1898, s.
344(1A)-Validity-Power to adjourn and power to remand-Whether guidelines absentOrder
of remand whether must be made in presence of accused to be valid.
HEADNOTE:
The petitioner was arrested on July 17, 1970
and was produced before a first class Magistrate next day when he was remanded
to judicial custody under s. 167(2) Cr. P.C.
for 15 days. He was informed at the time of
remand that his arrest was in connection with a case relating to dacoity and
murder and conspiracy to commit the same. Although a charge-sheet had been
submitted against about 148 persons accused in the case the petitioners' name
was not among them, because as the police later explained, investigations
against him had not been completed. The petitioner objected to a second remand
on August 1, 1970 but that very day the prosecution filed a supplementary
charge-sheet including his name. Remand was then extended uptoAugust 6 and
thereafter upto August 20, 1970. On the last mentioned date he was not produced
before the magistrate because of alleged want of escort and the remand was
extended in his absence.
In a petition under Art. 32 of the
Constitution the petitioner challenged his detention from August 1 onwards.
The remand order of August 20 was challenged
on the ground that it was made in his absence and it was urged that the law
does not permit remand without actual production of the accused before the
Court. The constitutional validity of s. 344(1A) and of the Explanation to the
section was also challenged.
HELD : (1) In view of this Court's decision
in Rai Narain's case it could no longer be urged that the production of an
accused before the magistrate for the purpose of remand was a necessary
requirement. though as a rule of caution it is highly desirable that the
accused should be personally produced before the magistrate so that he may if
he so chooses make a representation against his remand. The order of remand
dated August 20, 1970 was in the circumstances not contrary to law so as to
render the petitioner's custody illegal justifying his release by this Court on
habeas corpus. It was still open to the petitioner to apply for bail to the
appropriate court in accordance with law.
Rai Narain v. Supdt. Central Jail, New Delhi,
[1971] 2 S.C.R. 147 applied. [826 G-827 C] (ii)Sub-section (1A) of s. 344 of
the code vests in the court seized of a criminal case, power to postpone the
commencement of or adjourn any inquiry or trial before him by order in writing stating
the reasons therefore from time to time on such terms as the court thinks fit
and for such time as it considers reasonable. When the case is so postponed or
adjourned the court may also by a warrant remand the accused, if in custody.
The discretion to adjourn being vested in a court of law has to be exercised
judicially on well recognised principles and is therefore immune from challenge
on the ground of arbitrariness or want of guidelines. The judicial power to
postpone or adjourn the proceedings is to be exercises only it from the absence
of witnesses or any other reasonable cause the court considers it necessary or
desirable to do so. It has to record its reasons for so doing. Similarly the
discretion to order remand of the accused is to be exercised judicially keeping
in view all the facts and circumstances of the case including the nature of the
charge the gravity of the alleged offence, the area of investigation, the
antecedents of the accused and all other relevant factors which may appropriately
help the court in determining whether to keep the accused in custody or to
release him on bail. Reasonable cause for remand according to the explanation
covers a case where sufficient evidence is obtained to raise suspicion about
the complicity of an accused person in the offence and it appears likely that
more evidence may be obtained by remand. [828 C-E] Further, both the order of
adjournment as well as the order of remand are subject to review by the
superior courts in accordance with law. The challenge to the validity of s. 344(1A)
on the ground of want of guidelines must therefore fail. [829 H-830 A] (iii)The
suggestion that the explanation could not extend the substantive provisions of
sub-s. (1A) has merely to be stated to be rejected because the explanation
merely serves to explain the scope of the expression reasonable cause. [829 E]
(iv)The argument that since s. 344 falls in Ch. 24 Cr. P.C.
which contains general provisions as to
inquiries and trials and therefore it cannot apply to a Case at the stage of
investigation and collection of evidence is negatived by the express language
of sub-s. (1A) and the explanation. Under sub-s. (1A) commencement of the
inquiry or trial can also be postponed. This clearly seems to refer to the
stage prior to the commencement of the inquiry. The explanation makes it clear
beyond doubt that reasonable cause as mentioned in sub-s. (1A) includes the
likelihood of obtaining further evidence during investigation by securing a
remand. Indeed a postponement of an inquiry on trial also seems to be within
the contemplation of the general provisions as to inquiries and trials. [829
C-D] [Plea to reopen Rai Narain's case rejected.]
ORIGINAL JURISDICTION: Writ Petition No. 513
of 1970.
Petition under Art. 32 of the Constitution of
India for writ in the nature of habeas corpus.
The petitioner appeared in person.
P. Ram Reddy and P. P. Rao, for the
respondent.
The Judgment of the Court was delivered by
Dua, J. The petitioner, A. Lakshmanrao, an Advocate practicing at Narasipatnam
in the district of Visakhapatnam in the State of Andhra Pradesh has applied
under Art. 32 of the Constitution for a writ of habeas corpus on the following
averments The petitioner, while going home from the court, was arrested on 17th
July, 1970 at about 12.30 in the afternoon.
He was not shown any warrant at the time of
his arrest. He was produced before a Judicial Magistrate, First Class, on 18th
July and 824 remanded to judicial custody under s. 167 (2), Cr. P.C. for 15
days. At the time of remand he was informed by the Magistrate that he was
accused of offenses under ss. 120-B, 121-A 122 read with 302 and 395, I.P.C. in
Crime No. 3 of 1970 (known as Parvatipuram Naxalite Conspiracy Case). This
crime had been registered in January, 1970 in which more than 148 persons were
sought to be proceeded against. The names of only 148 accused persons were
specifically mentioned. The petitioner and one Dr. C. Ramadass were not
specifically named. They were apparently included in the expression "others".
On 30th March, 1970 a report was filed by the Investigating Officer describing
it as a preliminary charge-sheet in which it was stated that the investigation
in the case had not been completed and several accused persons had yet to be
traced. This report, according to the averments, does not fall under S. 173(1),
Cr.P.C. Even in this preliminary charge-sheet the names of the petitioner and
Dr. Ramadass were not included. On 1st August when the period of the
petitioner's first remand expired, again no charge-sheet was separately filed
against him and Dr. C. Ramadass. The prosecution, however, sought extension of
the period of remand.. When the petitioner objected to further remand a second
preliminary charge-sheet was presented to the court on that very day specifically
including the petitioner's name. His remand was thereupon extended upto 6th
August and thereafter upto 20th August. On 20th August he was not produced in
the court because of want of escort and the order of remand was made in his
absence. He has expressed ignorance about the period of this remand.
The present petition dated 22nd August, 1970
was forwarded to this Court through the Superintendent. Central Jail,
Rajahmundry (Andhra Pradesh). The petitioner challenges the remand orders from
the 1st August onwards and claims that his detention is illegal and that he is
entitled to be set at liberty. The remand order dated 20th August, 1970 which
was made in his absence because he could not be produced before the court on
the ground of lack of escort is challenged on the further ground that the law
does not permit remand orders without the actual production of the accused
before the court:
According to the petitioner who himself
argued his case, s. 344(1A), Cr.P.C. does not contain any guidelines for the
court in the matter of remand orders and he added that this section is
otherwise too inapplicable to the investigation stage of criminal cases. When
his attention was drawn to the explanation to s. 344, according to which the
likelihood of further evidence being obtained by the remand in cases of
suspicion against an accused person raised by the evidence already obtained, he
contended that the 825 explanation could not, as a matter of law, serve to
extend the scope of the substantive provision contained in sub-s.
(1A). On this premise the petitioner
questioned the vires of s. 344(1A) and (2) and the explanation.
In the counter-affidavit sworn by the
JudicialMagistrate in whose court the case against the petitioner is pending,
while referring to the proceedings held on 1st August, 1970, it is affirmed
that the petitioner and Dr. C. Ramadass were produced in court and it was
submitted by them that since their names had not shown in the preliminary
charge-sheet the court had no power to extend the period of reman. On that very
day the prosecution filed a second preliminary charge-sheet in which the
petitioner and Dr. C. Ramadass were shown as accused nos. 149 and 150 suspected
of having committed offences under ss. 120-B, 121A, 122 read with 302 and 395,
I.P.C. The Court thereupon passed an order of remand in respect of both of
them. A bail application filed on behalf of the petitioner and Dr. C. Ramadass
was thereafter argued by the petitioner and the matter was adjourned to 6th
August, 1970 for orders when that application was disposed of.
On behalf of the other respondents a lengthy
affidavit has been sworn by S. Veeranarayanareddi, Deputy Superintendent of
Police, Crime Branch, C.I.D., Government of Andhra Pradesh, Hyderabad. It is
affirmed in this affidavit that the petitioner is an-active Naxalite and along
with others is accused of charges under ss. 120-B read with ss. 302, 395, 397,
399, 364, 365, 368 and 386, I.P.C. in P.R.C. No. 3/70, pending in the Court of
the Judicial First Class Magistrate, Parvatipuram Taluk. A separate complaint
under ss. 121-A and 120-B read with 121, 122, 123 and 124A, I.P.C.
is also stated to have been filed against the
aforesaid persons including the petitioner in the same court in P.R.C.
8 of 1970. These two cases are known as
Parvatipuram Naxalite Conspiracy Cases and relate to 46 murders, 82, dacoities,
99 attacks on police and 15 abductions committed by the accused persons in
Andhra Pradesh. The accused persons are also alleged to have committed several
offences of the types just mentioned in the Agency Tracts of Orissa bordering
Andhra Pradesh. The Government of Andhra Pradesh had on account of the gravity
of the situation declared certain areas affected by the Naxalite menace in
Srikakulam and Warangal Districts as disturbed areas Under s. 3 of the Andhra
Pradesh Suppression of Disturbances Act, 1948. In the affidavit certain
incidents have been traced from 1964 and it is affirmed that as a result of
various political developments certain volunteers were recruited from various
parts of Andhra Pradesh and the petitioner helped them in creating
revolutionary bases in the agency tracts of Visakhapatnam District. There is
also reference to one of the accused persons having become an approver and
another having made a confessional statement. After stating various facts
discovered during investigation it is affirmed that the investigation of this
case is limited not only to the State of Andhra Pradesh but it extends to
several States where naxalite, movement has spread, including West Bengal and
Orissa, and as many as 900 witnesses have already been examined during the
course of investigation which has taken nearly nine months. Sanction of the
State Government has also been obtained for the prosecution of the petitioner
and the other accused persons under s. 196, Cr.P.C. On 12th October, 1970 the
investigation was completed and a final charge-sheet filed in the court of the
Judicial Magistrate in P.R.C. No. 3 of 1970. The separate complaint against the
petitioner and other accused persons mentioned earlier was also filed in the
court of the Judicial Magistrate under ss. 121A, 120B read with 121, 123 and
124A, I.P.C. on the same day. It is admitted that the preliminary charge-sheet
is not covered by s. 173(1), Cr.P.C. But it is averred that it is only a report
pending further investigation seeking extension of remand under s. 344, Cr.P.C.
The long period of investigation has been ascribed to the fact that there was
an organised attempt on the part of the accused and their followers to thwart
the, efforts of the authorities in bringing the accused to book. It is admitted
that the petitioner is lodged in Central Jail, Rajahmundry and that on 20th
August, 1970 he could not be produced before the court for lack of escort. The;
remand is also admitted to have been extended by the Magistrate, respondent No.
1, from time to time on 3rd and 17th September and 1st October, 1970.
The court, it is pleaded, is empowered to
pass an order of remand even in the absence of the accused under s. 344,
Cr.P.C. unlike the remand order under s. 167, Cr.P.C. Incidentally, in this
counter-affidavit there is a reference to the prejudicial activities in which
the petitioner has been indulging in connection with Naxalite movement. The
initial non-inclusion of his name in the array of accused persons' has been
explained on the ground that sufficient corroboration of the approver's
testimony incriminating the petitioner was not forthcoming at that stage.
In so far as, the question oflegality of the
remand order dated 20th August, 1970 without producing the petitioner before a
Magistrate is concerned, the point is concluded by a recent judgment of this
Court in the case of Rai Narain v. Supdt. Central Jail, New Delhi(1). In that
case this Court by majority expressed the view that as a matter of law personal
presence of an accused person before a Magistrate is not a necessary
requirement for the purpose of his remand under s. 344, Cr.P.C., at the
instance of the police, though as a rule of caution it is highly desirable that
the accused should be personally produced before the Magistrate so that he may,
(1) (1971) S.C.R. 147 827 if he so chooses, make a representation against his
remand and for, his release on bail. The Court on a review of the decided
cases, observed "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." The order of remand dated 20th August,
1970 was in the circumstances not contrary to law so as to render the
petitioner's, custody illegal justifying his release by this Court on habeas
corpus. It is unnecessary to point out that it was and still is open to the,
petitioner to apply for his release on bail to the-appropriate court in
accordance with law there being no illegal obstacle in his way in this respect.
The challenge to the constitutional validity
of s. 344(1A), Cr.P.C. is also in our opinion misconceived. Section 344 reads
" (1) In every inquiry or trial, the proceedings. shall be held as expeditiously
as possible and in particular, when the examination of witnesses, has once
begun, the same shall be continued from day to day until all the witnesses in
attendance have been examined, unless the Court finds the adjournment of the
same beyond the following day to be necessary for reasons to be recorded.
(1-A) If, from the absence of a witness, or
any other reasonable cause, it becomes necessary or advisable to postpone the
commencement of, or adjourn, any inquiry or trial, the Court may, if it thinks
fit, by order in writing, stating the reasons therefore, from time to time,
postpone or adjourn the same on such terms as it thinks fit, for such time as
it considers reasonable, and may by a warrant remand the accused if in custody:
Provided that no Magistrate shall remand an
accused person to custody under this section for a term exceeding fifteen days
at a time Provided further that when witnesses are in attendance. no
adjournment or postponement shall be granted, without examining them, except
for special reasons to be recorded in writing.
828 (2)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.' Explanation.-If sufficient evidence has been obtained to
raise a suspicion that the accused may have committed an offence, and it
appears likely that further evidence may be obtained by a remand, this is a
reasonable cause for a remand." Sub-section (1-A) was originally numb.-red
as sub-s. 1 The present sub-section (1) of s. 344 was added by the Amending Act
26 of 1955 when the original sub-section (1) was renumbered as sub-section
(1-A). The impugned sub-section vests in the court seized of a criminal case
power to postpone the commencement of or adjourn any inquiry or trial before
him by order in writing stating the reasons therefore from time to time on such
terms as the court thinks fit and for such time as it considers reasonable.
When the case is so postponed or adjourned the court may also by a warrant
remand the accused, if in custody. This judicial power to postpone or, adjourn
the proceedings is to be exercised only if from the absence of witnesses or any
other reasonable cause the court considers it necessary or advisable to do so.
Reasonable cause for remand according to, the explanation to this section
covers a case where sufficient evidence is obtained to raise a suspicion about
the complicity of an accused person in the offence and it appears likely that
more evidence may be obtained by remand.
The court has in the exercise of its judicial
discretion in granting or declining postponement or adjournment of the case and
in ordering remand of the accused, to keep in view all the relevant facts and
circumstances of the case. The petitioner strongly contended that this section
clothes the court with an unfettered, arbitrary and unguided power. A plain
reading of the section shows the untenability of the submission. Apart from the
fact that it is only when either from the absence of a witness or some other
reasonable cause the court, considers it either to be necessary or advisable to
postpone the commencement of, the inquiry or trial or adjourn the hearing of
the case that the order can be made, the court is also required to record the
order in writing giving the reasons why it thinks fit that the case should be
postponed or adjourned. It is further open to the court to impose terms and to
fix the period which cannot exceed 15 days at one time. This discretion being
vested in a court of law has to be exercised _judicially on well-recognised
principles, and is in our view immune from challenge on the ground of
arbitrariness or want of guidelines. In our opinion, therefore, not only are
the guidelines clearly contained in the statute but the discretion being
judicial is required to be exercised on general principles guided by rules of
reason and justice on the facts of each case, 829 and not in any arbitrary or
fanciful manner. It may also be remembered that if the discretion is exercised
in an arbitrary or un-judicial manner remedy by way of resort to the higher
courts is always open to the aggrieved party.
The second limb of the challenge is based on
the contention that s. 344 falls in Chapter 24, Cr.P.C. which contains general
provisions as to inquiries and trials. According to this submission this
section cannot apply to a case which is at the stage of investigation and
collection of evidence only. This argument appears to us to be negatived by the
express language both of sub-s. (1A) and the explanation.
Under sub-s. (1A) the commencement of the
inquiry or trial can also be postponed. This clearly seems to refer to the
stage prior to the commencement of the inquiry. The explanation makes it clear
beyond doubt that reasonable cause as mentioned in sub-s. (1A) includes the likelihood
of obtaining further evidence during investigation by securing a remand. The
language of s. 344 is unambiguous and clear and the fact that this section
occurs in Chapter 24 which contains general provisions as to inquiries and
trials does not justify a strained construction. Indeed, postponement of an
inquiry also seems to be within the contemplation of the general provisions as
to inquiries and trials. So this challenge also fails.
The suggestion that the explanation could not
extend the substantive provisions of sub-s. (1A) has merely to be stated to be
rejected because the explanation merely serves to explain the scope of the
expression reasonable cause.
The last submission that there is in any
event no guideline for making a remand order and, therefore, the power to
remand an accused person under s. 344 is ultra vires being arbitrary and'
unguided is wholly unacceptable. When a case is postponed or adjourned and the
accused is in custody the court has to exercise its judicial discretion whether
or not to continue him in custody by making a remand order. The court is
neither bound to make an order of remand nor is it bound to release the accused
person. The period of remand is in no case to exceed 15 days at a time. The
discretion to make a suitable order is to be exercised judicially keeping in
view all the facts and circumstances of the case including the nature of the
charge, the gravity of the alleged offence, the, area of investigation, the
antecedents of the accused and all other relevant factors which may
appropriately help the court in determining whether to keep the accused in
custody or to release him on bail. The court has to ensure the presence of the
accused and' a just, fair and smooth inquiry and trial of the offence charged.
The order of remand is thus subject to judicial discretion and the, order is
also subject to review by the superior courts in accordance, 830 with law. The
power conferred being judicial the absence of an express, precise standard for
determination of the question would not render the section unconstitutional.
Detention pursuant to an order of remand
which appropriately falls within the terms of s. 344 is accordingly not open to
challenge in habeas corpus.
After we had reserved orders the petitioner
forwarded to this ;Court through jail supplementary affidavit containing
written arguments. We have gone through the affidavit but we do not find any
new point requiring discussion. It only discloses a further attempt to reopen
the majority decision of this Court in Rai Narain's case (supra) by relying on
the minority judgment and by submitting that S. 344(1A), Cr.P.C.
offends Art. 19(1)(d) of the Constitution.
All that we need Say at this stage is that the majority view :is binding on us.
This petition accordingly fails and is
dismissed.
G.C. Petition dismissed.
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