Gouri Shankar Jha Vs. The State of
Bihar & Ors  INSC 22 (20 January 1972)
KHANNA, HANS RAJ
CITATION: 1972 AIR 711 1972 SCR (3) 129 1972
SCC (1) 564
CITATOR INFO :
R 1974 SC 871 (3) R 1975 SC1465 (6) D 1983 SC
Habeas Corpus-Remand order-Magistrate can
pass order if for some reason the accused cannot be produced-Order sheet
showing wrongly that person in custody was produced before magistrate-Such
wrong entry does not mean that remand order was not in fact passed.
Code of Criminal Procedure, 1898-Ss. 167,
344-Scope of-Power under s. 34 can be exercised even before submission of
In the appeal against the order of the High
Court dismissing the appellant's petition for a writ of habeas corpus the
appellant urged that he was not produced before a magistrate within 24 hours
after his arrest as required by s. 167 of the Code of Criminal Procedure or
even later; that he was never informed of the grounds for his arrest; that no
custody warrant was ever issued warranting the jail authorities to keep the
appeal]ant in jail custody; that the remand orders passed by the magistrate
were tinder s. 167 and not under s. 344 of the Code, as the latter section did
not apply at the stage of investigation and that even if s.
344 applied the magistrate could not order
detention for more than 15 days in the whole. He also urged that the Jail
Superintendent did not produce before the High Court the jail records but only
produced his report, thus disabling the appellant from establishing his case.
Dismissing the appeal,
HELD : (1) The order sheet produced before
the High Court showed that the appellant was produced before the magistrate
within 24-hours after his arrest and that the magistrate remanded him to jail custody.
Though the order sheet had entries showing that on subsequent occasions when
remand orders were made the appellant was produced before the magistrate, the
High Court has found that the Magistrate had wrongly recorded that the
appellant was produced before him on those occasions. However, the wrong
entries made by him do not mean that the remand orders were not in fact passed
by him though he did so in the absence of the appellant.
Such orders can be lawfully passed if an
accused person cannot for some reason or the other be brought before the
magistrate. [134 E-F] Rai Narain v. Superintendent, Central Jail, New Delhi,
Writ Petition No. 330 of 1970, decided on Sept. 1, 1970, referred to.
(ii) The facts negative the suggestion of the
appellant being kept in ignorance of the reasons for his arrest. [135 F] (iii)
There is no reason to think that the magistrate ordered the appellant to lie
taken into jail custody without custody warrant. [136 A] (iv) S. 167 operates
at a stage when a person is arrested and either an investigation has started or
is yet to start, but is such that it cannot be completed within 24 hours.
Section 344, on the other- hand, shows that
investigation has already begun and sufficient evidence has been obtained
raising a suspicion that the accused person may have committed the offence 130
and further evidence may be obtained, to enable the police to do which a remand
to jail custody is necessary. The fact that s. 344 occurs in the Chapter
dealing with inquiries and trials does not mean that it does not apply to cases
in which the process of investigation and collection of evidence is still going
on. Therefore, it is not as if the stage at which the Magistrate passed the
remand orders was still the stage when s. 167 applied and not s. 334. The
Magistrate, provided he complied with the condition to the Explanation, was
competent to pass remand orders from time to time subject to each order being
not for a period exceeding 15 days. The Magistrate had satisfied that
Condition. [136 G] View contra in Artatran v. ATR 1956 Orissa 129 disapproved.
A Lakshamanrao v. Judicial Magistrate, A.I.R.
1971 S.C. 186, Chanaraatn v. State, (1953) 3 B.L.J.R., 323 and Ajit Singh v.
State, (1970) 76 Crl.L.H. 1075, referred to The appellant was content with the
production of the superintendent's report. No prejudice was caused to the
appellant's case since the jail record could not have proved anything more than
what the jail superintendent's report proved.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 123 of 1968.
Appeal by special leave from the judgment and
order dated May 3, 1968 of the Patna High Court in Criminal W.J.C. No. 17 of
1968 and Criminal Miscellaneous Case No. 447 of 1968.
B. C. Ghose, S. N. Misra and A. K. Nag, for
D. Goburdhun, for the respondent.
The Judgment of the Court was delivered by-
Shelat, J. This appeal, by special leave, is. against the dismissal by the High
Court of Patna of the Writ Petition and an application under S. 561A of the
Code of Criminal Procedure, for a writ of habeas corpus and an order of a like
nature. filed by the appellant. Both of them were heard together as they
contained common allegations and both were dismissed by a common judgment.
In the two aforesaid proceedings, the case of
the appellant was that he was arrested on February 18, 1968, that since then he
had been detained in custody without being informed of the grounds for his
arrest and detention and also without having been produced before a Magistrate
either within 24 hours after his detention as required under the Code, or even
thereafter. On February 21, 1968, he was removed to Darbhanga jail where he was
threatened that he would be falsely involved in several cases of dacoity unless
he made certain incriminating statements which the police wanted him to make.
He made two applications from jail one on February 25, 1968, and the other on
February 28, 131 1968 to the Sub-Divisional Magistrate. The first was not
received at all by the Magistrate, while the second was received but after 'a long
time, and was rejected. He also alleged that thereafter he made two further
applications, one dated March 22. 1968 and the other dated March 27, 196,8
wherein he applied for directions to the police to 'furnish him with
particulars of offences charged against him and for bail, but that he received
no order on either of them. On these allegations, he claimed release forthwith
from detention and the quashing of the criminal proceedings against him.
In the counter-affidavit filed by the State
before the High Court, it was stated that one Bilat Sahni and one Baleshwar
Paswan made confessions before the Magistrate at Samastipur on 23rd and 24th
January, 1968 confessing their own guilt and implicating the appellant and
certain other persons, in about eight dacoity cases, all having been committed
in that locality, Thereupon, the appellant was arrested on February 17, 1968 He
was produced before the Sub-Divisional Magistrate of Samastipur on February 18,
1968, but was remanded to police custody by the said Magistrate for four days
on an application by the police therefore. On February 21, 1968, the appellant
was once again produced before the same magistrate and on an application by the
police he was remanded to jail custody. The affidavit alleged that the appellant
was involved in as many as nine dacoity case;
wherein remand orders had been passed from
time to time and that that was how he had, since February 21, 1968, been
detained as an under trial prisoner. On April 19, 1968, an identification
parade was held in connection with one, of the said nine cases where at the
relevant complainant identified the appellant. The case of the State was that
the appellant was one of the three leaders engaged with certain hardened
criminals in the aforesaid several dacoity cases, that it Was not true that he
was unaware of the case against him or that he was not produced before the
magistrate or that he was kept in prison without proper remand orders having
been passed by the Magistrate.
Five contentions were raised before the High
Court, viz., (1) that the appellant was never produced before any magistrate
within 24 hours after his arrest or even thereafter; hence his detention was in
breach of Art. 22 of the Constitution, (ii) that although the order-sheet, in
respect of Laheriasarai Police Station Case No. 1 of 1968, records that the
appellant had been produced before the Magistrate on several days set out
therein, that order-sheet had been falsely made; (iii) that the magistrates had
no power to detain the appellant in jail in excess of 15 days in all, (iv) that
even if he had the power to remand him in excess of 15 days in all, the
condition for passing such orders was not 13 2 satisfied, and (v) that no
remand order was factually ever passed. None of these contentions was accepted
by the High Court, and the High Court, therefore, dismissed, as aforesaid, both
the applications on May 3, 1968.
Mr. Ghose, who appeared for the appellant
before the High Court and who appeared before us also raised the following
points: (1) that the appellant was not produced before any magistrate either on
February 18, 1968 or on any other date thereafter, (2) that the appellant was
never informed of the ,,rounds for his arrest, and detention thereafter, (3)
that no custody warrant was ever issued warranting the jail authorities to keep
the appellant in jail custody, and (4) that assuming that the said remand
orders were passed, the appellant could not be kept in jail custody for more
than 15 days in the whole. On the basis of these four points he urged that the
appellant's arrest .and detention were illegal and that therefore he was
entitled to be released forthwith and the criminal proceedings instituted
against him by the police quashed. Mr. Ghose also made a point that the jail
Superintendent did not produce before the High Court the jail records which
would show his having been taken out of the jail for being produced before the
Magistrate when the magistrate decided the applications for remand by the
police and passed the remand orders said to have been passed by him and that
instead the jail Superintendent produced his report, thus disabling the
appellant from establishing his case as laid in his writ petition.
We may at this stage dispose of Mr. Ghose's
last point in regard to the non-production of the jail record before the High
,;Court. It is true that the appellant did ask for production of that record
first in the writ petition, and then on April 22, 1968 to which date the
hearing of the writ petition was adjourned. But the order-sheet maintained by
the High Court in connection with the writ petition and the said application
under s. 561A of the Code shows that when the writ petition came up for
admission, the learned Judges called for the record of the Magistrate's Court
and report from the jail superintendent regarding the dates on which the
appellant was said to have been produced before the Magistrate for the purpose
of the hearing of the remand applications. It appears that on April 22, 1968,
to which date the writ petition was made returnable, neither the record of the
Magistrate's Court nor the report of the jail Superintendent had arrived. On
that day, the appellant made an application for his production in Court at the
time of the hearing and for the production of the jail record. The High Court,
how-ever, rejected the prayer for his production in Court and as regards the
jail record ordered as follows:
133 so far as the production of the record of
the jail is concerned, an express reminder by telegram may be sent to the
Superintendent of jail to send the report already called for immediately, if
possible by a special messenger. A reminder may also be sent to the Court
concerned to send the records immediately, if possible, by a special
messenger." The High Court does not seem to have pressed for the produc-
tion of the jail record as it presumably thought that the Court's record would
show the dates when the appellant was produced before it and the
Superintendent's report would make that point clear. It 'appears from that
order that the appellant also was content with the production of the
Superintendent's report and did not press for the calling of jail record. The
judgment of the High Court also shows that that was also the case when the High
Court heard the writ petition and the said s. 561A application. Neither the
order-sheet nor the judgment of the High Court seems to warrant the allegations
made in para 28 of the Special Leave Petition that repeated prayers were made
for the production of the jail record. In any event, no prejudice appears to
have been caused to the appellant's case since the jail record could not have
proved anything more than what the jail Superintendent's report proved.
The report, which was before the High Court,
clearly pointed out that the appellant was remanded to jail custody on February
21, 1968 by the Sub-Divisional Magistrate, Sadar in the case under s. 395 of
the Penal Code. The next date for his appearance was fixed on March 5, 1968,
but the appellant refused to go to the Magistrate's Court on that day as also
on March 20, 1968 and April 4, 1968, on the ground that the identification
parade for him had not yet been held and his going to and appearing in the
Court would expose him to possible witnesses. 'Me Magistrate, therefore, had to
postpone his production before him to April 18, 1968 when the appellant was
produced and once again remanded to jail custody till the, next date, that is,
May 2, 1968. The report of the jail Superintendent, thus, frankly conceded that
the appellant could not be produced on the dates above- stated and that the
Magistrate, therefore, had to pass remand orders in his absence. It is clear
from the report that the appellant himself had refused to appear and be present
before the Magistrate when he heard the remand applications. therefore, cannot
legitimately make a grievance that those orders were passed in his absence.
Those orders could be passed validly in his
absence if his presence at the time could not be secured. This has been held by
the majority judgment of this 134 Court recently in Rai Narain v.
Superintendent, Central jail, New Delhi. (1) We now proceed to consider the
remaining points in the order in which Mr. Ghose raised them. The first point
urged before us was that the appellant was not produced before a magistrate within
24 hours after his arrest as required by S. 167 of the Code of Criminal
Procedure, or even later and that therefore his arrest and the detention were
bad in law.
The order-sheet of the Laheriasarai Police
Station Case No.
1(i)68 produced before the High Court shows
that the appellant was produced before the Magistrate on February 18, 1968,
that is, within 24 hours after his arrest and that the Magistrate remanded him
to jail custody on the application by the police until March 5, 1968. So far
there is no difficulty because these entries in the order-sheet are
corroborated by the report of the Superintendent of jail.
The order-sheet, however, has entries dated
March 5, 1968, March 20, 1968 and April 4, 196 8 when remand orders are shown
to have been made, each for a period of 15 days, and further that the appellant
was produced before the Magistrate on each of those three occasions. That, as
the High Court has rightly observed, was not correct as the jail
Superintendent's report clearly showed that the appellant had refused to go
from the jail for fear that he would be seen or be shown to probable witnesses.
No reason has been shown as to why we should not agree with the aforesaid
observation of the High Court, viz., that the Magistrate had wrongly recorded
that the appellant was produced before him and that the remand orders were
passed in his presence. The wrong entries made by him, however, do not mean
that the remand orders were not in fact passed by him though he did so in the
absence of the appellant. Such orders, as already pointed out, can be lawfully
passed if ail accused person cannot for some reason or the other be brought
before the Magistrate. It is, therefore, not possible to say that remand orders
were not passed or that consequently his detention in the jail was without a
valid basis. In the High Court no such contention, viz., that remand orders
were not passed on those three dates appears to have been raised. Indeed, the
allegation that the appellant was never produced before the Magistrate is
belied by an elaborate order made by the Magistrate on March 28, 1968 when the
appellant was represented by counsel. At that stage his counsel did not argue
that the appellant was never produced before the Court or that no remand orders
were ever, passed.
The argument urged at that time was that the
proceedings at that stage attracted s. 167 of the Code, that the stage had not
yet reached when s. 344 would operate and that therefore the Magistrate bad no
power to remand the appellant to jail custody for more than 15 days in the
whole. That contention was (1) Writ Petition No. 330 of 1970, dcc. on September
135 rejected by the Magistrate holding that
there was an inquiry before him, and that therefore, s. 344 applied and he was
competent, therefore, to pass remand orders from time to time so long as each
of those orders was not for a period in excess of 15 days. By that very order,
the Magistrate rejected the bail application made by the appellant's advocate
holding that the investigation in the cases of dacoity in which the appellant
was concerned was going on at that stage and that release of the appellant on
bail would hinder its progress.
The next contention was that the appellant
was never informed of the grounds of his detention and that that being so, his
detention was invalid. Paras 3, 4 and 35 of his writ petition did not charge
that at the time of his arrest he was not informed of the grounds for his
arrest and that even when he filed his writ petition he was not informed of
those reasons, and that that constituted breach of Art.
22(1). This allegation is without any
foundation. All throughout, his case was that the police had tortured him and
threatened to involve him in a number of dacoity cases unless he made certain
incriminating statements which they wanted from him. What were those
incriminating statements which the police were trying to get from him ? From
the fact that the police were wanting him to make those statements, he must
have realised that those statements were related to the cases for which he had
been arrested. Next, in the application he made from jail to the Magistrate on
February 28, 1968, he alleged that the senior Sub-Inspector of Police came to
him on February 19, 1968, first abused him and then later on asked him "to
admit that offence and promised that by doing so I would be discharged".
According to that application he refused to admit the offence whereupon he was
assaulted by the police. It also appears that he knew that an identification
parade was going to be held and therefore had refused to be taken out of jail
for being produced before the Magistrate. All these facts negative the
suggestion of his being kept in ignorance of the reasons for his arrest or the
cases charged against him.
The third contention was that no valid
custody warrant was issued by the Magistrate enabling the jail authorities to
detain the appellant in the Darbhanga jail and licence the detention must be
held to be without any legal authority.
In support of the argument, counsel pointed
out the custody warrant dated February 18, 1968 which according to him must be
deemed to have been cancelled is at the foot of it there is the Magistrate's
endorsement that the appellant was instead remanded to police custody. Assuming
that to be so, there is nothing to show that on February 21, 1968 when the
Magistrate ordered the appellant to be taken into jail custody, a fresh custody
warrant had not been issued by him.
The Magistrate, while passing that order,
must have known that the 136 jail authorities would not accept the appellant in
jail unless the police taking him there produced a custody warrant. There is no
reason to think first that the Magistrate had not issued such, a warrant, and
secondly, that the jail Superintendent inducted the appellant in the jail
without such a warrant. The contention, in our view is wholly without any
The last contention of Mr. Ghose was,
firstly, that the remand orders passed by the Magistrate were under s. 167 and
not s. 344, as the latter section did not apply at that stage, and secondly,
that even if s. 344 applied, the Magistrate could not order detention for more
than 15 days in the whole. Sec. 167 appears in Ch. XIV which deals with
information and investigation. As its language shows, it deals with the stage when
a person is arrested by the police on information that an offence has been
committed. In providing that such a person must, in terms of s. 61, be produced
before a magistrate within 24 hours after his arrest, the section reveals the
policy of the legislature that such a person should be brought before a
magistrate with as little delay as possible. The object of the section is
two-fold, one that the law does not favour detention in police custody except
in special cases and that also for reasons to be stated by the magistrate in
writing, and secondly, to enable such a person to make a representation before
a magistrate. In cases falling under s. 167, a magistrate undoubtedly can order
custody for a period at the most of 15 days in the whole and such custody can
be either police or, jail custody. Sec. 344, on the other hand, appears in Ch.
XXIV which deal with inquiries and trials.
Further, the custody which it speaks of is
not such custody as the magistrate thinks fit as in s. 167, but only jail
custody, the object being that once an inquiry or a trial begins it is not
proper to let the accused remain under police influence. Under this section, a
magistrate can remand an accused person to custody for a term not exceeding 15
days at a time provided that sufficient evidence has been collected to raise a
suspicion that such an accused person may have committed an offence and it
appears likely that further evidence may be obtained by granting a remand Thus,
s. 167 operates at a stage when a person is arrested and either an
investigation has started or is yet to start, but is such that it cannot; be
completed within 24 hours.
Sec. 344, on the other hand, shows that
investigation has already begun and sufficient evidence has been obtained
raising a suspicion that the accused person may have committed the offence and
further evidence may be obtained, to enable the police to do which, a remand to
jail custody is necessary. The fact that s. 344 occurs in the Chapter dealing
with inquiries and trials does not mean that it does not apply to cases in
which the process of investigation and 137 collection of evidence is still
going on. That is clear from the very language of sub-s. 1-A under which the
magistrate has the power to postpone the commencement of the inquiry or trial.
That would be the stage prior to the commencement of the inquiry or trial which
would be the stage of investigation. (see A. Lakshamanrao v. Judicial
Magistrate(1). Therefore, it is not as if the stage at which the Magistrate
passed the remand orders was still the stage when s. 167 applied and not s.
344. The decision of the Orissa High Court in Artatran v. Orissa(2), to the
effect that s. 344 does not apply at the stage of investigation and can apply
only after the Magistrate has taken cognizance of and issued processes or
warrant for the production of the accused if he is not produced before him
cannot, in view of A. Lakshamanrao's case(1) be regarded as correct. The power
under s. 344 can be exercised even before the submission of the charge-sheet, (cf.
Chandradip v. State(3) and Ajit Singh v. State(4), that is, at the stage when
the investigation is still not over. If the view we hold is correct that s. 344
operated, the Magistrate, provided he complied with the condition in the
Explanation, was competent to pass remand orders from time to time subject to
each order being not for a period exceeding 15 days. There can be no doubt that
the Magistrate had satisfied that condition. The judgment of the High Court in
para 11 points out that the prosecution case was that the appellant had himself
made a confession before the police.
That was in addition to a confession by two
others which implicated the appellant in the commission of offences under s.
395 of the Code.
In our view none of the contentions raised on
behalf of the appellant can be sustained. The appeal, therefore, fails and has
to be rejected.
K.B.N. Appeal dismissed.
(1) A.I.R. 1971 S.C. 186.
(2) A.I.R. 1956 Orissa 129.
(3)(1955)Bihar Law Journal Reports, 323.
(4) (1970) 76 Cr. L.J. 1075.