A. LAKSHMANARAO versus JUDICIAL MAGISTRATE, IST CLASS, PARVATIPURAM & ORS.

A. LAKSHMANARACJ

JUDICIAL MAGISTRATE, lST CLASS, PARVATIPURAM &ORS.

November 24, 1970

[S. M. S!KRI, V. BHARGAVA AND I. D. DUA; JJ.J

Code of Criminal Procedure, 1898, s. 344(1A)-Validiiy-Power to adjourn and power to remand-Whether guidelines absent;--Order of re-· mand whether must be made in presence of accusecl to be valid.

The petitioner was arrested on July 17, 1970 and· was produced before first class Magistrate next day when he was remanded to judicial custody under s. 167(2) Cr. P.C. for IS days. He was inform~d at the time of remand that his arrest was in connection with case relatina to daco!ty and murder and conspiracy to commit the same. Although charge-sheet had been submitted against about 148 persons accused in the case the· petioner's name was not among them, because as the police later explained,. investigations against him had not been completed. The petitioner object' ed to second remar.d on August I, 1970 but that very day the prosecu-tion .filed supplementary charge-sheet including his name. Remand was then extended upto August 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 petition under Art, 32 of the Constitution the petitioner challenged his detention from August I 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 ptoduction of the accused before the Court. The constitutional validity of s: 344(1A) and: of the Explanation to the section was also challenged.

HEW: (I) In view of this Court's decision in Raj Narain's case it' could no longer be urged that the production of an accused before the magistrate for the ·purpose o'f remand was necessary requirement. though as rule of caution it is highly desirable that the accused should be per-sonally produced before the magistrate so that he may if he so chooses make representation against his remand. The orde·r 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 thi~ Court on habeas corpus. It was still open to 'the ·petitioner to apply for bail to the appropriate court in accordance. with law.

Raf Narain v. Supdt. Central Jail, New Delhi, [1971] 2 S.C.R. 147 applied. [826 G-827 CJ

(ii)Sub-section (IA) of s. 344 of the code vests in the court seized of criffl~nal . case, power to postpone the commencement df or adjourn any inquiry or trial before him by order in writing stating the reason• therefor from time to time on such terms as the court thinks fit and tor such time as it considers reasonabie. When the case is so postponed or adjourned the court may .also by warrant remand the accused, if in custody. The discretion to adjourn being vested in wurt of law has to be exercised judicially on welJ recognised principles and is therefore im· mune from challenge on the ground of arbitrariness dr want of guidelines. The judicial power to postpone or adjourn the proceedings is to be exer·

ci- only tr 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 al( the facts and cir-cumstances of the case including the nature of the charge the gravity o'i the alleged offence, the area of investigation, the antecedents of the accus-ed 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 case where sufficient evidence is obtained to raise suspicion abOut the complicity of an accused person in the offence and it appears likely :bat more evidence may be obta:ned by remand. (828 C-E]

Further, both the order of adjournment as well as the order of remand are •ubject to review by the superior cpurts in accordance with law. The c~lemge to the validity di s. 344.( IA). on the ground of want of guide-lines must therefore fail. [829 H-830 A)

(iii) The suggestion that the explanation could. not extend the subs-tantive provisions of sub-s. (IA) has merely to be stated to be rejected because the explanation merely serves to explain the scope of the expres-sion 'reasonable cause.' (829 El

(iv) The argument that since s. 344 falls in Ch. 24 Cr. P.C. which i:ontains general provisions as to inquiries and trials and therefore it can-not apply to case at the stage of investigation and collection of evidence is negatived by the express language of sub-s. (IA) and the explanation. Under sub-s. (IA) commencement df the inquiry or trial can also be postponed. This clearly seems to refer to the stage prior to the commence-ment of the inquiry. The explanation makes it clear beyond doubt that reaSol!able cause as mentioned in sub-s. (IA) includes the likelihood of obtaining further evidence during investigation by securing remamd. Indeed postponment of an. inquiry ·OD trial also seems to be within the contemplation of the general provisions as to inquiries an.d trials.

(829 C-D]

[Plea to reopen Raj Narain's case rejected.]

ORIGINAL JURISDICT!Ol'f: Writ Petition No. 513 of 1970.

Petition under Art. 32 of the Constitution of India for writ in the nature of habeas cqrpus.

The petitioner appeared in person.

P~ Ram Reddy and P. P. Rao, for the respondent.

The Judgment of the Court was delivered by

Dua, l. The petitioner, A. Lakshmanarao, an Adv6cate practising at Narasipatnam in the district of Visakhapatnam in the State of Andhra Pradesh has applied under Art. 32 of the Con-stitution for writ of habeas corpus on the following averments :

The petitioner, while going home from the court, was arrested on 17th July, 19.70 at about 12.30 in the afternoon, He was not shown any warrant at the time of his arrest. He was produced before Judicial Magistrate, First Class, on 18th July and

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 off~es under ss. 120-B, 121-A, l22 read with 302 and,395, I.P.C. in Crime No. 3 of 1970 (known as Parvati-puram Naxalite Conspiracy Case). This crime had been regis-tered in January, 1970 in ~hich more than 148 persons were sought to be proceeded agamst. The names of only 148 accused persons were specifically mentiooed. The petitioner and one Dr. C. Ramadass were not specifically named. They were appa-rently included jn the expression "others". On 30th March, 1970 report was filed by the Investigating Officer describing it as preliminary charge-sheet in which it was stated that the investiga-tion ~n the case had not been completed and several accused persons had yet to be traced. This report, according to the aver-ments, does not .fall under s. 173 ( 1), Cr.P .C. Even in this pre-liminary charge-sheet the names of the petitioner and Dr. Ramadass were not included. On 1st August wh~n the period of the peti-tioner's first remand expired, again no charge-sheet was separately filed against him and Dr. C. Ramadass. The prosecution, how-ever, sought extension of the period of remand. When the peti- . tioner objected to further remand second preliminary charge-sheet was presented to the court on that very day specifically including the petitioner's 1I1ame. His remand was. thereupon extended upto 6th August and thereafter upto 20th August. On 20th August he was not produced in the court becaus• of want of escort and the order of remand was made in his absence. He has expr~ssed ignorance about the period of this remand.

The prestint 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 ~n 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 docs 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 rema,nd 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 obtain-ed by the remand in cases of suspicion against an accused person raised by the evidence already obtained, he contended that the

explanation could not, as matter of law, serve to extend the scope of the substantive provision contained in sub-s. ( lA). On this premise the petitiQ11er questioned the vires o.f s. 344(1A) and (2) and the explanation.

In the counter-affidavit sworn by the Judicial Magistrate in whose court the case against the petitioner is pending, while refer-ring to the proceedings held on 1st August, 1970, it is affirmed that the petitioner and Dr. C. Ramadass were produced in co1m aind it was submitted by them that since their names had not shown in the prelinJ.jnary charge-sheet the court had no power to extend the pe-riod of remand, On that very d~ the prosecution filed second pre-C liminai'y charge-sheet in which the petitioner and Dr. C. Ramadass were shown as accused nos. l 49 and 150 suspected of having com, mitted 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. bail application filed on behalf of the petitioner and Dr. C. Ramadass was thereafter argued by the petitioner and the matter w8s adjourned to 6th August, 1970 for orders when that

applicati0:n was disposed of.

On behalf of the other respondents 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 ainiactive 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. separate complaint under ss. 121-A and 120-B read with 121, 122, 123 and 124A, l.P.C. is also stated to have been filed against the aforesaid persons \rlcluding the petitioner in the same court in P.R.C. 8 of 1970. These two cases are known as Parvatipurarri 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 accus-ed persons are also alleged to have committed several off~ttces 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 affect-ed by the Naxalite menace in Srikakulam and Waraingal Districts as disturbed areas under s. 3 of the Ahdhra Pradesh Suppression of Disturbances Act, 1948. In the affidavit certain incidents have been traced from 1964 and it is affirmed that as result of various political developments certain volunteers were recruited from various parts of Andhra Pradesh a.nd 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 ancj another having made confes-

and along with others is accused of charges under ss. 120-B read

· siOIJ!ll statement. After stating various facts. <11scoverea during investigaJion it is allirmed that the investigation of this case is limited n<>t 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 wit;nesses have already been examined during the course of investigation, which has taken .nearly nine months. Sanction of the State Government has also beQDi ob-B tained for the prosecution of the· petitioner and the other accused persons under s.191\, Cr.P.C. On 12th October, 1970 the investi-gation was completed and fi~al charge-sheet filed in the court of the Judicial Magis,trate in P.R.C. No. 3 of 1970. The separate complaint again§t the petitoner and other accused persons mention. ed earlier was also filed in the· court of the .Judicial Magistrate ·C' under ss. 121A, 120B read with 121, 123 and 124A, l.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 report pep:iding further investigation seeking extension of remand under s. 344, Cr.P.C. The Jong 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 autho-rities in bringing the accused to book.· It is admitted that the peti-tioner is lodged ih Central Jail, Rajahmundry and that on 20th August, 1970 he could not be produced before the court for lack of escort. · Tht? reinand 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 prder under·s. 167, Cr.P.C. Incidentally, in this counter-affidaviqhere is reference to the pre-judicial activities in which the petitioner has been indulg• ing ~n connection with Naxalite movement. · The . initial non-inclusion of his name in the array. of accused persorui has been explained.on the ground that sufficientcorroboration of the approv-er's testimony incriminating the petitioner was Jllot forthcoming at that stage.

In so far as the question of legality of the remand order dated 20th August, 1970 without producing the petitioner before Magis-trate is comiemed, the. point is c.oncluded by recent judgment of this Court in the case of R~i Narain; v. Supdt: Central Jail, New Delhi(1). In that case this Court by majority expressed the view that as matter of law personal presence of an accused person before Magistrate is not necessary requirement for the purpose of his remand under s. 344, Cr.P.C., at the instance of the _police, thou~h as rule of caution it is highly desirable that the accused should be personaily produced before the Magistrate so that he may,

if he so chooses, make rei>resentation against his remand and for his. release on bail. The Court on review of the decided cases observed:-

"There is nothing in the law which required his per-sonal presence be.fore the Magistrate because that is rule of caution for Magistrates before granting remands at the insta.nce of the police. However, even if it be desirable for the Magistrates to have the prisoner produced before them. whein they recommit him to further custody, Magistrate can act only as the circumstances permit,"

The order of remand dated 20th August, 1970 was in the cir-cumstances not contrary to law S!> 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 petiti0iner 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 proceedi.ngs 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 beon examined,1unless' the Court finds the adjournment of the same beyond the following day to be necessary for reilsohs to be recorded.

(J-A) If, from the absence of witness, or any

other reasonable cause, it becomes necessary or advisable to postpone the comme,ncement of, or adjourn, any· inquiry or trial, the Court may, if it thinks~~. by order in· writing, stating the reasons therefor, frorr. 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 warrant remand the accused if in custody :

Provided that illO Magistrate shall remand an accused person to custody under this section for term exceed-ing fifteen days at time :

Provided further that when witnesses .are in attend-ance, no adjourrunent or postponement shalJ be granted, without examining them, except for special reasons to be recorded in writing.

( 2) Every order made under this section oy court other than High Court shall be in writing signed by the presiding Judge or Magistrate.

Explanation.-lf sufficient evidence has been obtain-ed to raise suspicion that the accused may have com-mitted <411 offence, and it appears likely that further evidence may be obtained by remand, this is reason-ab:e cause for remand."

.Sub-section ( 1-A) wa> orig:nal!y numb~red as sub-s. (1). The present sub-section ( 1) oi s. 344 was added by the Amending Act · 26 of 1955 when the original sub-section ( 1) was re-numbered as .~uh-section (1-A). The impugined sub-section vests ip. the court seized of criminal case power to postpone the commencement of ·or adjourn any inquiry or trial before him by order in writing ·stating the reasons therefor from time to time on such terll)s as the ;court thinks fit and for such time as it considers reasonable. Wh~n the case is so postponed or ad1ourned the court may also by 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 ·ccmsiders it necessary or advisable to do so. Reasonable cause .for remand according to the explanation to this section covers case where sufficient evidence is obtained to raise suspicion about the ·complici.ty of an accused person in the offence and it appears likely that more evidence may be obtained by remand. The court has · · i111 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 circum-stances of the case. The petitioner strongly contended that this ·section clothes the court with a111 unfettered, arbitrary and unguided power. 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 witness or some othPr reasonable cause the court consipers it either to be necessary or advisable to postpone the commencement of the illlquiry 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 postpon~d 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 court of law has to be exercised judicially on well-recognised prin-ciples. and is in our view immune from challenqe on the ground of arbitrariness or want of guidelines. In our opinio'l, therefore, not onlv are the !!UideHnes clearly contained in the statute but the dis-·cretion being judicial fs required to be exercised on general orinci-·ples guided by rules of reason and justice on the facts of each case,

ain.d not in any arbitrary or fanciful manner. It may also be remem-bered that if the discretion is exercised in an arbitrary or unjudicial manner remedy b; way of resort to the higher courts is always opm to the aggrieved party.

The second limb of the· challenge is based qn: the contention that s. 344 falls in Chapter 24, Cr.P.C. which ·contains general pro~isions as to inquiries and trials. According to this submission thi~ section cannot apply to case which is at the stage of investiga-tion and collection of evidence only. Thirargument appears to us to be negatived by the express language both of sub-s. (IA) and the explanation. Under sub-s. (IA) 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 . explanatioo makes it clear beyond doubt that reasonable cause as. mentioned in sub-s. (IA) includes the likelihood of obtaining further evidence during investigation by securing remand. The language ?f s. 344 is unambiguous and clear allKi the fact that this section occurs in Chapter 24 which contains general provisions as to inquiries and trials does not Justify strained · construction. Indeed, postpooi.ement 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 sub-E stantive provisions of sub-s. (IA) has merely to be stated to be' rejected because the explanatioin merely serves to explain the scope of the expression reasonable cause.

The last submission that there is in any event no guideline for making remand order and, therefore, the power to remand an accused person under s. 344 is ultra vires be\ng arbitrary and unguided is wholly unacceptable. When case is postponed or adjourned and the accused is in custody the court has to exercise its judicia1 discretion whether or not to continue him in custody by making remand order. The court is mi th er 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 time. The-G discretion to make suitable order is to be exercise~ judicially keeping in view all the facts and circumstances of the case including the nature of the charge, ·the gravity of the a:lleged offence, the area of investigation, the antecedents of the accused and all other relevant factors which may appropriately help the-court in deter-mining whether to keep the accused in custody or to release him on bail. The court has to ensure the presence of the accused and just, fair and smooth inquiry IWd 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 sttperfor courts in accordance

with faw. The powe~ conferred being judicial the absence of llJl express, ·precise standard for detennination. of the question would not reinder the section unconstitutional. Detention pursuant to an order of remand which appropriately falls within the temis of s. 344 is accordingly not open to challenge in habeas corpus .

. After we had reserved orders the petitiqner forwarded to this ~ Court through jail supplemeintary affidavit containing written argu-ments. We have gone through the affidavit but we do inbt find any new point requiring di!Cussion. It only discloses further attempt to reopen the majority .decision of .this Court in Raj N.:zrain's case (supra) by relying on the minority judgment and by submitting thats. 344(1A), Cr.P.C. offends Art. 19(l)(d) of the Constitu-tion. All that we need say at this stage is that the majority view is binding on us.

This petition accordingly fails and is dismissed.

Petition dismissed.