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TMI Blog1970 (9) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... urt, thereupon, made the following order : It has been represented to us by the Superintendent 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 he has to be detained. A similar situation had arisen in the case of Mr. Madhu Limaye when his remand expired and he became a free man, because we could not keep him under our orders in detention beyond the period originally 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. 3. The same day a wireless message was received by the Superintendent, Tihar Central Jail from the District Magistrate Lucknow. It stated : Habeas Corpus Petition No. 315/70 Date 28-3-70. Shri Raj Narain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was an endorsement on the warrant 'Remanded to Judicial (sic) till 11th March 1953". This warrant was not produced earlier and there was nothing on the court's record to show an order of remand. All that the 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 a remand. The detenus were, therefore, set at liberty. 7. 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 he was not produced before the Magistrate. If he wanted bail he could have asked us as he was in our custody. 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 to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regret our inability to agree with the order just pronounced by the learned Chief Justice with regard to the validity of the remand order dated August 28, 1970, in question. We now proceed to give our reasons for such disagreement. 12. In this petition for Habeas Corpus the petitioner prays for immediate release on the ground that the remand order dated August 28, 1970, passed by the City Magistrate, Lucknow is invalid 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. 13. The circumstances leading to the filing of the present petition may be briefly stated thus : The petitioner has already filed a writ petition No. 315 of 1970 for Habeas Corpus challenging his arrest on August 20, 1970 and his detention in the District Jail, Lucknow. He raised various grounds against the legality of his arrest and detention and prayed for being released forthwith. He also prayed for striking down certain sections of the Criminal Procedure Code as violative of the Constitution. The City Magistrate, Lucknow in hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 set out by the learned Chief Justice in his order. It is clear from that letter 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 be detained further under orders of this Court or whether his further judicial remand is to be taken from the City Magistrate, Lucknow. 16. When a person under detention has come with a grievance that his detention is illegal and invalid and seeks a writ of Habeas Corpus and is produced before this Court, the prisoner comes directly under the custody of this Court. But no orders would be passed by this Court which would have the effect of detaining a 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 may release the prisoner on bail or otherwise either with or without conditions, pending adjudication of his grievance by this Court. 17. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 before the City Magistrate and behind his back. 21. On August 31, 1970, this Court issued a notice to the Superintendent, 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 jail authorities, the wireless message received on August 28, 1970 and the telegram of August 29, 1970 were brought to our notice. 22. As we were inclined to hold that the remand orders had not been passed according to law and in consequence the further detention 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. 23. The petitioner's grievance that the two orders passed by the City Mag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain a person during investigation. Under Article 22(2) of the Constitution, however, every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time mentioned therein and no such person shall be detained in custody beyond the said period without the authority of the magistrate. If the investigation cannot be completed within 24 hours, the person arrested and detained in custody must be forwarded to the nearest magistrate as provided under Section 167(1) Cr.P.C under Section 167(2) when an accused person is so forwarded, the magistrate, whether he has or has no jurisdiction to try the accused may authorise the detention of the accused in such custody us he thinks fit for a term not exceeding 15 days in the whole. This is the second stage of detention for 15 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 he considers further detention unnecessary, that magistrate has to forward the accused magistrate having such jurisdiction under Section 167(3) the magistrate authorising, detention in the custody of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a time. The accused is entitled to participate 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 will be made by the Court or magistrate concerned. The accused being present at the inquiry or trial before a magistrate or court, in our opinion, it is implicit in Section 344 that the order of remand under the first proviso has to be made in his presence. 30. 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 Section 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 Section 61 Cr.P.C under Section 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 accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers 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 remanded. 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 a request for a further remand would be made. However that may be, we agree with the learned Counsel for the petitioners that an illegality involving a breach of the provisions of the Criminal Procedure Code was committed; and we trust that our order will serve as a warning to the Magistrate not to repeat this illegality. 35. In Ram Narayan Singh v. The State of Delhi and Ors. 1953CriLJ113 . this Court had to deal with the validity of the detention of an accused. Even at the outset we may state that in that decision, this Court was dealing with a case where no order of the magistrate remanding the accused to custody was placed before this Court. Therefore, on facts that case stands on a different footing, but the principle laid down by that decision, in our opinion, is apposite. At page 654 this Court observes as follows : This Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occasion may have declined to execute a bond for getting himself released; but on a later occasion when a further remand is being considered, the accused may have reconsidered the position and may be willing to execute bond, in which case a remand order will be totally unnecessary. The fact that the person concerned does not desire to be released on bail or that he can make written representations to the magistrate are, in our opinion, beside the point. For instance, in cases where a person is sought to be proceeded against under Chapter VIII of the Criminal Procedure Code, it would be open to him to represent that circumstances have materially changed and a further remand has become unnecessary. Such an opportunity to make a representation is denied to a person concerned by his not being produced before the magistrate. As the magistrate has to apply his judicial mind, he himself can take note of all relevant circumstances when the person detained is produced before him and decide whether a further remand is necessary. All these opportunities will be denied to an accused person if he is not produced before the magistrate or the court when orders of remand are being passed. 40. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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