RAJ NARAIN versus SUPDT. CENTRAL JAIL, NEW DELHI.

RAJ NARAIN

SUPDT. CENTRAL JAIL, NEW DELHI.

September 11, 1970

8 [M. HIDAYATULLAH, C.J., J. M. SHELAT, G. K. MITTER, c. A. VAID!ALINGAM, A. I. D. DUA, JJ.]

\/. BHARGAVA, 1'c RAY ANIJ

Code of Crbninal Procedure, 1898, s. 344--Magistrate reniandiug arrested person to judicial custody-Further remand lvhefl not nurde in presence of prisoner whether illegal.

R was arrested on August 20, 1970 under ss. 107/117 of the Code of Criminal Procedure and was remanded to judicial custody by the City Magistrate Lucknow. petition for writ of habeas corpus was filed in this Court and on August 22, 1970 this Court ordered him to be trans-ferred to Tihar Central Jail Delhi for personal appearance before the Court. R's original remand as ordered by the City Magistrate was till August 28, 1970. On that date at 4 p.m. the Superintendent Central Jail. 0 Delhi sought directions from the court in view of the fact that the remand was due to expire at midnight. The court ordered that in the situation that hod arisen R should be remanded back to the custody to which he belonged, that he may be taken to U.P. if so desired to be produced before the court at the next hearing, and that if no fresh remand orders were received by midnight R was to be set at libe'rty at midnight. The same day wireless message was received by the Superintendent Delhi Central Jail .from. the District_ Magistrate Lucknow, informing him that the City Magistrate Lucknow had extended R's remand up to September 1, 1970. The following day telegraphic message was received from the City Magistrate Lucknow informing the Superintendent that R was ordered to be remanded to judicial custody till September 10, 1970. Simultaneously this Court was informed by the District Magistrate that the remand ef R was extended up to September 10, 1970. R filed an-other petition before this Court challenging the legality of the fresh. remand orders mainly on the ground that they were made behind his back.

HELD : Per Hidayatullah, C.J., Bhargava. Mitter. Ray and Dua. JJ.-Even if it be desirable for the Magistrates to have the prisoner pro-duced before them when they remit him to further custody, magistrate· can act only as the circumstances permit. Indeed courts trying cases may find it necessary to order remand in the absence of an accused e.g. when an accused is so seriously ill that the trial has to be adjourned and he cannot be brought to court and in such case an order made without production of accused in court will not be invalid. [ 151 HJ Prisoners who are under trial, are brought before this C.ourt on rule nisi and arc kept in custody of this Court. This is transferred custody on behalf of the Magistrate. The Magistrate cannot recall the prisoner from this Court's custody by his order and he is only required to intimate to the jail authorities the prisoner, and this Court that the original remand has been extended while adjourning the case. This is sufficient ·com-plianco with the requirements of the law in such special circumstances. To expect the Magistrate to do more under s. 344 of the Code .in such·

.circum~tances is to expect an impossibility from him and the law does ,not contemplate aQ impossibility. [152 F]

In tbe present case the prisoner did not want bail or seek to appear by counsel. He reliod only on the technical plea that ho was not pro-duced before the Magistrate. There was no reason for this Court to order his release when he was held on proper remand by ·Magistrate and there were no circumstances justifying his release. [151 G; 152 DJ

Jn re Venkataraman, 49 Cr. L. J. 41, Anonymous case, 2 Weir 209 and Ram Narain Singh v. State of Delhi .. [1953]· S.C.R. 652, referred to.

Per Shela! and Vaidialingarn, JJ. (dissenting) : It stands to reason that an order of remand will have to be pas·sed in the presence of the accused. OtherwJse the position will be that magistrate o'r court will be passing orders of remand mechanically without having heard tbe accused for considerably long timt. When the accused is before the Magistrate when the remand ord~r is passed he can make representation that no remand order should be passed and also oppose any move for further remand. The fact that the person concerned does not desire to be released on bail or that he can make representations to the Magistrate are beside the point. For instance ;n cases where µerson is sought to be proceeded against under Ch. Vil! of the Criminal Procedure Code, it would be open to him to represent that the circumstances had material-ly changed and further rcmr.nd had become unnecessary. [160 H·161 DJ

It was no answer thut In the present case the petitioner was brou&ht to New Delhi under th• orrlcrs of this Coun and hence the City Mai;is· Irate had to pass the remand order at Lucknow.. The U.P. authorities had made no representation on Augt•st 27. 1970 when the writ petition was adjourned. They also did not ta~c the prisoner to Lucknow as permitted by this Court. In the result it must be held th.it the orders of remand dated 28th and 29th August, 1970 passed by the City Magis-trate, Lucknow were illegal. [,161 F-162 A]

Case law referred to.

ORIGINAL JURISDICTION: Writ Petition No. 330 of 1970

PetiliQn under Art. 32 of the Constitution of lndia for writ in the nature of habeas corpus.

D. P. Singh, for the petitione1.

The respondent did not appear.

ORDER

By majority, we hold that the custody of :Mr. Raj Narain is valid and that he is not entitled to rele&se Off his fresh petition. We· shall give our reasons later.

The Judgment of M. HIDAYATULLAH, C.J., v. BHARGAVA, G. K. MITTER, N. RAY and I. D. DuA, JJ. was delivered by 11.JDAYATULLAH, C.J. Dissenting Opinion of J. M. SHELAT and C. VAIDIALINGAM, JJ. was given by VAIDIALINGAM, J.

HidayatuUah, C.J. Mr. Raj Narain M.P. was arrested on

August 20, 1970 under SS. 107/ 117, cr;minal Procedure Code.

and was remanded to jail custody under warrant issued by the City Magistrate, Lucknow. petition for writ of habeas corpus for his release is pending in this Court, and under our orders, August 22, 1970, he has been transferred to Tih~r Centr~l Jail Delhi. His original remand. as ordered by the City Magistrate. was till August 28, 1970.

On August 28, 1970, we were informed 1t 4 p.rn. that his

remand would expire at midnight of the 28th August, 1970 and that the Superintendent, Central Jail, Delhi would not be able to detain Mr. Ra) Narain thereafter. The following intima-tion from the Superintendent was received in this .connection b~ the Registry :

"Sub : Production of Shri Raj Narain,

M.P. in the Supreme Court, Writ Petition No. 315 of 1970.

Sir,

I have the honour to state. thnt Shri Raj Nnruin. M.P. was received in thi> jail on transfer from District Jail, Lucknow, for production in Supreme Court in connection with his Writ Petition in the nature of Habeas Corpus. He was produced in the Court on 25th, 26th and 27th Augu!tt, 1970. Now it has been ordered by the Supreme Court dated 27-8-70 that he is not to be produced in the Court and that he may be kept in Delhi. Orders of the Court are reproduced below:

"Shri Raj Narain's petition is not to be listed to-morrow and he is not to be produced in Court tomorrow. He may however be kept in Delhi."

2. Judicial remand of Shri Raj Narain has been granted upto 28-8-70 by the City Magistrate and Magistrate !st Class, Lucknow, vide enclosure copy of the order dated 21-8-70. In other words his judicial remand expires today. You are, therefore, requested kindly to intima:e whether Shri Raj Narain is to be kept in Delhi Jail after 28-8-70 as per your orders or his further judicial remand is to be taken from the said Court.

Clarification sought may kindly be given today per bearer.

Yolll'l> faithfully,"·

The Court, thereupon, made the following order :

"It has been represented to us by the Superinten-dent of Jail that Mr. Raj Narain's remand expires at midnight and that as he has been ordered to be kept in Delhi, it would be necessary for us to say in whose custody and under whose orders be has to be detain-ed. similar situation had arisen in the case of Mr. Madhu Limaye when his remand expired and he became free man, because we could not keep him under our orders in detention beyond the period origi-nally fixed by the Magistrate. The same situation has arisen now and we can only make this order that he shall be remanded back to the custody to which he belongs and that he may be taken to U.P. if so desired, to be produced before us on the next date of hearing to be fixed in this case. If the fresh remand order is not received by the Superintendent of the Jail by midnight, the petitioner shall not be detained as directed by this Court, and he shall be set at liberty at midnight."

The same day wireless message was received by the Superin-·tendent, Tihar Central Jail from the District Magistrate Lucknow. lt stated :

"'Habeas Corpus Petition No. 315/70 Date 28-3-70. Shri Raj Narain M.P. remanded to further jail custody upto September l st ( 1-9-70) under orders of C.M. Lucknow dated 28-8-70. Note in the Jail Warrant and inform him ...

The following day the message was corrected to read September tenth instead of September first. The City Magistrate Lucknow .also telegraphed to the Superintendent, Tihar Central Jail the following message : ·

., .... Referense Habetos Corpus Petition No. 315/ 7Q dated August 28, 1970 Tiem (sic) PM Shri Raj Narain M.P., remanded to further jail custody upto Sept. Ten Nmeteen Seventy. Note in the jail warrant and inform him.".

Simultaneously this Court was informed by District Magistrate that remand of Mr. Raj Narain M.P. was extended to September i 0, 1970 by the City Magistrate.

Mr. Rajnarain 1nade an application in the nature of habeas

corpus petition 'tating that th.~ remand orders were communicat-ed to him on the morning of the 29th and therefore his detention .ifter midnight of 28th was illeg~tl and unsupported by any order

of remand. Further, tllat in any case, as he was · remanded behind his back, his remand is illegal and he is entitled to be released. The question is whether the custody of Mr. Raj Narain became illegal at midnight of August 28, 1970. In our opinicn it did not. Mr. Raj Narain's counsel relied upon the case reported in In re Venkataraman,(') where it was held that an illegality was committed by Magistrate in remanding prisoner without having him before him and asking him whether he wished anybody to represent him and giving him an opportunity of showing cauic why he should not be further remanded. The rulin~ restates, . what was said in an old case reported in Anonymous(•) where it was ruled that just as commitment required the presence of pri-soner, so did recommitment. The earlier case contains no dis-cussion and is opinion stated on reference by the Magistrate.

In Ram Narain Singh v. State of Delhi(') it was ruled that an adjournment required an order in writing and so did an order of remand. The case dealt with an adjournment under s. 344 of the Code of Criminal Procedure and as there was nothing to show that the Magistrate had made an order remanding the pri-soner to custody, the detention was held' to have become illegal. In that case the last order by the Magistrate adjourning the case. was made on 9th March, 1953 but there was no order of remand. The only order was an endorsement on the warrant 'Remanded to Judicial (sic) till I !th Mal'ch 1953". This warrant was not produced earlier and there was nothing on the court's record to show an crdcr of remand. All that th.~ Court had done was to adjourn the case. This Court refused to take notice of the warrant produced. after the Court rose for the day because it was not produced earlier and there was no order on the Court's record showing remand. The detenus were, therefor.~. set at liberty.

The facts here are different from the case cited. Mr. Raj Narain did not want bail or seek to appear by counsel. He complained of nothing except his detention which he described as illegal for the technical reason that h.~ was not produced before the Magistrate. If he wanted bail ht: could have as~ed us a~ he was in our custody. There is nothing in the law which reqmred his personal presence before the Magis.trate because tha~ i~ rule of caution for Magistrates before grantmg remands at the 1~stance of the police. However, ·even if it be desirabl~ for the Mag1strate.s to have the prisoner produced before them, wnen they recomm[1]t . him to further custody, Magistrate can act only as the circums-H tances permit. Where the prisoner's custody is transferr.ed te

(1) 49 Cr. LJ. 41. (2) Weir 2M.

(3) (1953] S.C.R. 652.

superior Court "rch as this the Magistrate can only adjcurn the case at the same time extending the period of remnind. It is for this Court to see. ihat the custody by it continues under proper orders and if this Court is satisfied that the prisoner is in proper custody under proper order of remand, the prisoner will not be released. This Court does not ord.er detention and cannot extend the remand. Its custody is cotenninus with the remand ordered by the Magistrate. If the Magistrate extends the period of remand and communicates the order to the person having the immediate custody of th.~ prisoner with intimation to this Court and the prisoner, nothing more is expected of him. The object of production of the prisoner before the Magistrate is more than answered by his production before this Court because the prisoner has the protection of his interests transferred from the Magistrate to this Court.

There is no reason why we should order the release of Mr. Raj Narain when we are satisfied that he is held on proper remand by Magistrate and there are no circumstances justifying release by us. To expect the Magistrate to do more under s. 344 of the Code in such circumstances is to expect an impossibility from him and the law does not contemplate an impossibility. Indeed, sintilarly courts trying cases may find it necessary to order remand in the absence of an accused, e.g. when an accused is so seriously ill that th.e trial has to be adjourned and he cannot be brought to court and in such case the order made without pro-duction of accused in court will not be invalid.

Prisoners, who are under trial, are brought before this Court on rule nisi and are kept in custody of this Court. This is transferred custody on behalf of the Magistrate. The Magistrate cannot recall the prisoner from our custody by his order and he is only required 10 intimate to the jail authorities, the prisoner and this Court that the original remand has been extended w}tile ad-journing the case. This is sufficient compliance with the require-ments of the law in such special cir~umstances.

It was for these reasons that we held the present cu3tody of My. Raj Narain pending the decision of his main petition to be proper and rejected the application for his instant release.

Vaidialingam, J. We regret our inability to agree with the . .order just pronounced by the learned Chief Justice with regard to t~e validity of the remand o;der dated August 28, 1970, in qiles-t10n. We now proceed to give our reasons for such disagreement.

In this petition for Habeas Corpus the petitioner prays for im-mediate release on the ground that the remand order .da_ted ~ugust 28, 1970, passed by the City Magistrate, Lucknow 1s mvahd and that his detention after the midnight of the 28th August, 1970, is illegal. He further attacks his detention on the ground that it is contrary to the directions given by this Court on August 28, 1970, in Writ Petition No. 315 of 1970.

the circumstances leading to the filing of the present petition may be briefly stated thus : The petitioner has already !lied .a writ petition No. 315 of 1970 for Habea.y Corpus challengmg his arrest on August 20, 1970 and his detention in the District Jail, Lucknow. He raised various 1rounds against the legality of his u!'rc&t and detention and prayed for being released forthwith. He ul~o prayed for strlkmg down certain sections of the Criminal Procedure Code as violative of the Constitutioo.. The City Magis· trate, Lucknow in his counter.affidavit has stated that he had issued the warrant for the arrest of the petitioner under ss. 107 and 112 Cr.P.C. and that when the petitioner was produced before him on August 20, 1970 at 9 A.M. he orally explained to the petitioner the contents of the notice under s. 112 Cr.P.C., copy of which had already been served on him; and ihat the petitioner filed lengthy reply thereto. It is further stated by the City Magistrate that as the petitioner did not make any application for being re-l~ased on bail during pendency of the inquiry, he was remanded to jail. The City Magistrate has also maintained that the proceed-ings initiated against the petitioner are legal and valid and the provisions of the Criminal Procedure Code challenged by the peti-tioner are also valid. The contentions raised by the parties in this writ petition are pending adjudi.catioo by this Court. But it may be stated that the order of remand passed on August 20, 1970 was effective till August 28, 1970.

In Writ Petition No. 315 of 1970, the petitioner impleaded

the State of U.P., the District Magistrate, Lucknow, the Superin-tendent of District Jail, Lucknow and the Union of India as respondents. On August 21, 1970 when the said writ petition came up for preliminary hearing, this Court directed "issue of rule nisi returnable on August 25, 1970" and further ordered that the petitioner was to be produced before the Court on that day. The petitioner accordingly was transferred from the District Jail, Lucknow, to the Central Jail, New Delhi, for being produced before this Court. He was produced in this Court on the 25th, . 26th and 27th August, 1970. On August 27, 1970, this Court passed the foll owing order :

"Shri Raj Narain's petition is not to be listed to-morrow and he is not to be prcduced in Court tomorrow. He may, however, be kept in Delhi."

Though the State of Uttar Pradesh appeared before us througl;i Counsel on August 27, 1970, when the above order was passed, it was not brought to our notice that the remand order passed by the City Magistrate, Lucknow, on August 20, 1970 was expiring by midnight of August_ 28, 1970 nor were any directions in that connection sO'!ght for from this Court at that time. It was only on August 28, 1970, ut 4 P.M. when the Court was about to rise for the day that letter of the Superintendent, Central Jail, New De.Jhi of the same date.. received by the Assistant Registrar of this Court, seeking directions regarding detention of the petitioner, was brought to our notice. That letter has been ;et out by the learned Chief Justice in his order. It is clear from that Jetter that the judicial remand of the petitioner ordered by the City Magistrate, Lucknow would expire on that day and orders were solicited whether the petitioner is to he detained further under orders of- this Court or whether his further judicial remand is to be taken from the City Magistrate, Lucknow.When person under detention has come with grievance that his detention is illegal and invalid and seeks writ of Habeas Corpus and is produced before this Court, the prisoner comes directly under the custody of this Court. But no orders would he passed by this Court which would have the effect of detaining prisoner beyond the period of detention already ordered and which order is complained off. In an appropriate case, during the operation of the detention order under challenge, this Court ~uay release the prisoner on bail or otherwise either with or without conditions, pending adjudication of his grievance by this Court.

On the letter of August 28, 1970, of the Superintendent, Cen-tral Jail, New Delhi, this Court made an order on the same day which has been set out in full in the order of the learned Chief Justice. From that order the following points emerge :

(i) Mr. Raj Na:;ain was remanded to the custody to which he belongs, namely, the U.P. authorities;

(ii) The U.P. authorities were at liberty to take the petitioner to Lucknow pending fixation of the fUrther date for the hearing of his writ petition.

(iii) If the Superintendent of the Central Jail, New Delhi, does not receive the fresh order of remand by midnight of August 28, l 970. the petitioner should not be detained as directed by thill. Court and that he should be se't at liberty at midnight.

At this stage it may be stated that if the respondents in Writ Petition No. 315 of 1970, who were represented by counsel, had

.A brought to our notice on August 27, 1970 (when this Writ Peti-tion was adjourned to later date) that the remand order of the City Magistrate was expiring on August 28, 1970. and had sought directions this Court would have, on that date itself, passed an order simllar to the one, which was actually passed in the evening of August 28, 1970. In that case the respondents would have II had ample opportunity to take the petitioner to Lucknow, for producing him before the City Magistrate for further order 01 remand, if he considered it necessary.

However, the position is that the petitioner was not taken to Lucknow nor produced before the City Magistrate. Instead, he was kept in the Central Jail, New Delhi. The City Magistrate, Lucknow, passed two orders, viz., one on August 28, 1970 and another on August 29, 1970, Both the orders have been quoted in the order of the learned Chief Justice. By the first order, which is stated to have been communicated by wireless message, the petitioner was remanded to further jail custody upto September 1, 1970. By the second order which was communicated by telegram, he was remanded to further jail custody upto September 10, 1970.

The petitioner has in the present writ petition prayed for the issue of writ of Habeas Corpus directing his release on the grounn that his further detention is illegal. He has attacked his detention after midnight of August 28, 1970 as illegal and contrary to the directions given by this Court. He has stated that no orders of remand were communicated to him before midnight of August 28, 1970 and that the two remand orders are quite inconsistent with each other. The more serious ground of challenge in respect of the remand orders is that they are illegal as they have been passed by the City Magistrate, without his being produced befo1e the City Magistrate and behind his back.

On August 31, 1970, this Court issued notice to the Superin-tendent, Central Jail, New Delhi, to produce before the Court on September 1, 1970, the warrants under which "Mr. Raj Narain is presently detained." On September 1, 1970, on behalf of the -G jail authorities, the wireless message received on August 28, 1970 and the telegram of August 29, 1970 were brought to our notice. As we were inclined to hold that the remand orders had not been paosed according to law and in consequence the further ae-tention of the petitioner was illegal, this Court passed on the same day the following order :

"By majority, we hold that the custody of Mr. Raj Narain is valid and that he is not entitled to release on his fresh petition. We shall give our reasons later."

The petitioner's grievance that the two ordel's pa.ssed ~y the City Magistrate on 28.th and 29th August, 1970 are mcons1stent, has considerable force. It is strange that remand order ex· tending the petitioner's custody upto September 1, 1970, was fell~wcd within hou.:s by another order extending it to still further period upto September 10, 1970. There i~ nothing to show why this became necessary. Prima :jacie, it looks as . if the Magistnite had not judicially applied his mind on the question of how lcng the petitioner's custody should be extended, Prima facie, it would also show that the magistrate was passing an order of remand in mechanical manner without even considering the period for which his remand orders are to have effect. This certainly shows non·npplication of i'udicial mind even where the personal .liberty of citizen is invo ved.

But we are not prepared to rest our decision on the above circumstance alone. The petitioner has further stated in ?is . petition that he received intimation <¥1-ly in the mom-mg of August 29, 1970 about the order of remand passed by the City Magistrate, Lucknow. If the City Magistrate was in law entitled to pass an order of remand on August 28,1970, without the person detained being produced before him, the mere fact that it was made known to the petitioner in the morning of August 29, 1970 may not make the order of detention invalid. But we are upholding the contention of the petitioner that the City Magistrate had no power to pass an order of remand without the person in detentic;n being produced lxfore him, and as such the order passed on August 28, 1970 is illegal, irrespective of the time as to when it was made known to the petitioner.

Now coming to the question of the legality of the order passed by the Magistrate remanding the petitioner in detention, without his being produced before him, it is nec-essary to refer to ceriain · provisions of . the Criminal Procedure Code Such question came up before this Court in Tlaangding/iana v'. State of Assam(') but was not decided as it was not necessary in that case to do so.

The Criminal Procedure Code contemplates the period for which person can be detained in custody prior to the com· .mencement of an inquiry or trial and that is broadly divided into two stages. The first stage is the maxinmm period of 24 hours. (See Sec. 61 Cr.P.C.) For this period the police have tlie power to detain person during investigation. Under Art. '.!2(2) of the Constitution, however, every person who is arrested and detained

(I) IV.P. No. 171of1969 decided on Sept. 25.1969.

in custody shall be produced before the nearest magistrate within period of 24 hO!JrS of such arrest exclu~ing t~e time mentioned therein and no such person shall be detamed m custody beyond the said period without the authority of the magistrate. If the investigation cannot be completed within 24 hours, the ~on arrested and detained in custody mmt be forwarded to the ·?¥ar-B est magistrate as provided under s. 167(1) Cr.P.C. Under s. 167(2) whM an accused person is so forwarded, the magistrate, whether he has or has no jurisdiction to try the accused may authorise the -:letention of the accused in such custody ~ . he thinks fit for term not exceeding IS days in tht: whole. This is the second stage of detention for IS days. If the magistrate to whom the accused has been . .forwarded has not jurisdiction to try the case or commit it for trial, and if ho considers further detention unnecessary, that magistrate has to forward tho accused magistrate having such jurisdiction. Under s. 167(3) the magis-trate. authorising_ detention in the custody of the police is bound to record his reasons for so doing.

But the fact to be noted in s. 167(2) is, that the accused who is suspected or alleged to have committed an offence and who has to be tried by court has to be forwarded to the nearest ~gistrate whether he has jurisdiction to try the case or not. For the purpose of enabling the Police to complete the investiga-tion, the magistrate before whom the accused is so be produced has got power to authorise the detention of the accused for the maximum period mentioned therein. If the aforesaid magistrate considers further detention unnecessary, the accused has to be forwarded to the magistrate having jurisdiction. Belore both the magistrates reforred to in this sub-section, production of the accused is essential. And this is the position in respect of person against whom the commission of an offence is alleged.

It may happen that the 15 days detention ordered under s. 167(2) is not found sufficient for completing the ipvestigation. It could not have been contemplated by the Legis1ature that under such circumstances the arrested person must be released. Therefore it must have made provisions for continuing the arrested person's detention after 15 days in suitable cases and there is no provision permitting further remand barring that contained in s. 344 Cr. P. C. We have already referred to the fact that the City Magistrate has in his counter-affidavit in writ Petition No .. 31 S of 190 stated that the petitioner did not offer any bail durmg the pendency of the inquiry in which case s. 344 squarely applies. ~ction 170 Cr.P.C. also refers to the accused under cust~y bemg forwarded .. to magistrate empowered · to take cogmsance of the offence upon police report. This section

also insists upon the production of the accused before the magis-trate.

remand unrl· r : 344 Cr. P. C. is tr> be distinguished from remand under '· 16 7(2) Cr.P.C. Section 344 is more general than s. 167(2). But s. 344 itsdf contains the limitations for passing an orda uf remand under that provision. Section 344 gives power to the court to postpone or adjourn the inquiry or trial under the circumstances and in the manner indicated therein. The first pruviso to s. 344 states that no magistrate shall remand an accused person to custody under that section for term exceeding 15 days at time. The accused is entitled to partici-pate in the inquiry or trial and he will be present before the court concerned and it is in his presence that the order of remand under the first proviso wili be made by the Court or magistrate concerned. The accused being present at the inquiry or trial before magistrate or court, in our opinion. it is implicit in s. 344 that the order of remand under the first proviso has to be ma<ie in his presence.

The matter can be considered from another aspect. We have already stated· that even in respect of an accused who is alleged to have committed an offence and with reference to which offence investigation is being conducted by the police, the production of the accused before the magistrates mentioned in s. 167(2) Cr.P.C. is absolutely essential for the purpose of the police obtaining the necessary orders for detaining the accused, beyond the period of 24 hours referred to in s. 61 Cr.P.C. Under s. 344 Cr.P.C., which deals with inquiry or trial in respect of an offence alleged to have been committed by ·an accused, the remand order under the proviso is to be passed in the presence of the accused. In this case even according to the averments made by the City Magistrate in his counter-affidavit in Writ Peli·· tion No 315 of 1970, the petitioner had been arrested on the basis of warrant issued by him under ss. 107 and 112 Cr.P.C. and that the petitioner did not offer to be released on bail pend-ing the inquiry. reading of s. 107 Cr:P.C. will clearly show that the inquiry referred to by the City Magi$lrate with reference to the petitioner is not in respect of an offence alleged to have been committed already, but is only for the purpose of decid-ing whether action is to be taken for prevention of the offence referred ta therein. When an accused who is alleged to have committed crime has to be produced before the magistrate when an order of remand is passed under s. 344 Cr.P.C., in our opinion, it stands to reason that person who has not committed any offence but is sought to be proceeded against under Chapter VIIT Cr.P.C. and is proposed to be detained, must be before

the court at the time when the latter passes an order of remand under s. 344 Cr.P.C.

We will now refer to the case law on this aspect. In 1867 2 Weirs 409 the Madras High Court had to answer reference made by magistrate whether person has to be placed before magistrate on each occasion of fresh remand being given. The names of the parties are not given in the Report. In High Court dated June 10, 1867 it is stated as follows:

"The High Court observe that to remand is to re-commit to custody and that magisterial conunitment requiring the presence of the prisoner, the recommlt-ment of the prisoner also requires that presence."

This decision was given under s. 344 of the Criminal Proce-dure Code as it then stood.

In Crown v. Shera and other.<(') it was held that it was illegal to remand person on the application of the police, when the pnsoner is not produced in Court. ·

· In Re. M. R. Venkataraman and ot/•ers(') Division Ben.ch of the Madras High Court had to cons~der the legality of re-mand order passed by the magistrate unrler ss·. 167 and 344 Cr.P .C. without the prisoners having be"n produced before him. In dealing with this question the High Court observes at page 281 as follows:

" ...... it does seem certain that an illegality was committed by the Magistrate in issuing an order of re-mand without havin11: the prisoners produced before him and asking them whether they wished anybody to represent their cause and giving them an opportunity of showing cause why they should not be further re-manded. We trust that the Sub-Magistrate issued this order through oversight and because as he later said, the prisoners were at Trichinopoly and he did not have much notice that request for further remand would be made. However that may be, we agree with the learned Counsel for the petitioners that an illegality involving breach of the provisions of the Criminal Procedure Code was committed; and we trust that our order will serve as warning to the Magistrate not to repeat this illegality."

In Ram Narayan Singh v. The State of Delhi and ors.(') this Court had to deal with the validity of the detention of an (I) 1867 Punjab Record-frdicial 72. (2) I.LR. [!948] Madcas 279.

(3) [1953] S.C.R. 652.

accused. Even at the outset we may state that in that decision, this Court was dealing witii cu.:.~, w!:ere no order of the magistrate remanding the accused to custody was placed before this Court. Tterefore. ou facts that case stands on different footing, but the p1ir.ciple laid down by that decision, in our opiniou, is apposite. At page 654 tti:; Court observes as follows:

"This Court has often reiterated before that those who feel called upoa 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."

It will be . noted that this Court has emphasised that when the personal liberty of person is sought to be restricted or cur-tailed, rules of the law as well as the forms must be scruplously observed.

More recently the Delhi High Court in the decision reported in Ram Rishl Anal v. Delhi Administration, Delhi and others([1]) had to deal with the legality of an order of remand passed by the magistrates without the accused being produced before them. There were .certain other illegalities pointed out in that judgmeut. The leamed Chief Justice has held in that decision that passil!g of remand order behind the back of an accusw, is illegal. In the judgment of the Delhi High Court there is no reference to the decision cited by us earlier except the decision of this Court in Ram Narain Singh v. The St11te of Delhi and others(').

From the decision of this Court, referred to above, it is clear that the authorities seeking to curtail the liberty of subject ;nust strictly and scrupulously observe the forms a,nd rules of the law. The various provisions of the Criminal Procedure Code, referred to by us, as also the decisions quoted above lead to the conclusion that the accused must be present before the magistrate or court when an order of remand is passed. In fact the decisions quoted by us clearly lay down that an order of remand passed without the accused being produced, is i!legal. We rue in agreement with those decisions.

It stands to reason that an order of remand will have to be passed in the presence of the accused. Otherwise the position will be that magistrate of court will be passing orders of remand mechanically \\-ithout having heard tlte accused for considerably long time. If the accused is before the magistrate when 0) 1967 Delhi L•w Times, 126. (2) [1953] S.C R. 652.

0) 1967 Delhi L•w Times, 126.

remand order is being l)assed, he can make representations that no remaad order should be passed and also oppose a,ny move tor further remand. For instance he may rely upon the inordinate delay that is being caused by the prosecution in the matter and he can attempt to satisfy the court that no fUrther remand should be allowed. Again it may 0e that an accu~cd. on fonner occasion may have declined to execute bond for getting himself released; but on later occasion when further remand is being considered, the accused may have reconsidered the position and may be willing to execute bond, in which case remand order will be totally unnecessary. The fact that the ~on concerned docs not desire to be released on bail or tlrat he can make written representations to the magistrate are, in our opinion, beside the point. For instance, in cases where person is sought tu be proceeded agaipst under Chapter VID of the Criminal Procedure Code, it would be open to him to re-present that circumstances have materially changed and further remand has become unnecessary. Such an opportunity to make representation is denied to person concerned by his not btJng produced before the ma~istrate. As the magistrate has to api:ily h.11 judicial mind, he himself can tiike note of all relevant Cir· cumstances when the person detained is produced before him and decide whether further remand is necessary. All these oppor· tunities will be dCl!ied to an accused person if he is not produced before the magistrate or the court when orders of remand are being passed .

It is no answer that the petitioner was brought to New Delhi under the orders of this Court and hence the City Magistrate had to pass the remand order at Lucknow. We have already mentioned ·that no representation was made nor any directions asked o!l August 27, 1970, on behalf of the respondents when Writ Petition No. 315 of 1970 was adjourned. Under orde~ of August 28, 1970, this Court released the petitioner from its custody and restored him to the original custody and even pennit-ted him to be taker. to Lucknow, pending fixation of fresh date of hearing of his case. The Uttar Pradesh authorities concerned did not avail themselves of the oppor:unity to take him back to Lucknow for being produced before the magistrate concerned. On the other hand, they were content to have an order of remand of the prisoner in New Delhi passed by the magistrate sitdng in Lucknow. Sucl1 an order, as we have held. is illegal and hence the detention of the petitioner on the authority of such an illegal order of remand is also illegal. Suclt situation has been J;i.rougl1t about by the Uttar Pradesh authorities for which they Ti'ave to thank themselves.

.Ln the result we hold that the orders of remand dated 28th and 29th August, 1970 passed by the City Magistrate, Lucknow: are illegal. We further hold that the detention of the petitioner in the Central Jail, New Delhi, after the midnight of August 28, 1970 on the authority of the illegal orders of remand is also illegal. In consequence the petitioner should be set at liberty forthwith. The writ petition is allowed.