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TMI Blog1987 (4) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the control of the prosecution and the Police ? (iii) Whether a defect or illegality in the order of a remand of an accused person is incurable and he can claim a writ of habeas corpus despite the fact that on the date of heating be is in custody under a valid order of remand ? (iv) Whether the judicial orders of a criminal court (stricto sensu) Under the Code of Criminal Procedure, are amenable to quashing by a writ of certiorari. The facts giving rise to the pristinely legal questions aforesaid are not in serious dispute and lie in a narrow compass. The petitioner was arrested at dawn on the 9th of January, 1986 in connection with -Town Police Station Case No. 4 of 1986 registered under sections 25(1) (a) and 26 of the Arms Act. Subsequently he was produced before the Chief Judicial Magistrate, Darbhanga, on the 11th of January, 1986, and his case is that this was beyond the mandated period of twenty four hours However, the Chief Judicial Magistrate directed that he be produced before Shri J.K. Srivastava, Judicial Magistrate, Darbhanga, for recording his statement under section 164 of the Code of Criminal Procedure (hereinafter referred to as the Code'). The peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is manifest from both the orders that no application on behalf of the investigating agency was moved for the remand of the petitioner and this apart there does not even appear a positive prayer or request on its behalf for any further remand. Counsel submitted that there existed no power in the Magistrate to suo motu direct the remand in custody of petitioner in the absence of a formal application and, in any case, a positive request to that effect by the Police, Basic reliance was placed on the judgment of the Rajasthan High Court reported in 1983 (II) Crimes 616 (Mohan v. State of Rajasthan) and by way of analogy on 1978 Bihar Bar Council Journal 84 (Aziz Pasa and others v. The State of Bihar.) 4. The aforesaid somewhat ingenious submission may first be examined in the light of the statutory provisions. The relevant part of section 167 of the Code is in the terms following : (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss on completely in the discretion of the investigating agency, leaving the Magistrate or the Court as a helpless spectator of their actions and whimsicalities. Negatively put, the proposition canvassed on behalf of the petitioner is that it the Investigating Officer does not choose to apply or pray for further remand, the Court is powerless to do so. No such absurd result can be easily countenanced. The whole spirit of the Code is that the custody and liberty of the accused is entirely governed by the authority and sanction of a Court of law beyond the initial period of twenty four hours betwixt the first arrest and production before the Magistrate thereafter. By no twisted interpretation can this power in actual fact and practice be passed on into the mere discretion of the investigating agency, whether to ask for remand or not. In my view, once an accused person is produced before a Magistrate, he is in a legal sense in (sic) legis and it is the Court's responsibility and power whether he is to be remanded to further custody or granted bail or released altogether. By no stretch of imagination can this power of the Court be whittled down and be indeed passed on to the mere di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o question (i) is rendered in the negative and it is held that a Magistrate has jurisdiction to pass an order of remand despite the absence of any formal written application or a request for such remand being made by the Police or the prosecution. 9. Adverting now to question (ii), Mr. Sharma yet again took the extreme stand that the sine qua non for the validity of a remand is first the physical production of the accused before the Magistrate. It was submitted that unless the accused person is personally present before the Court, the latter is denuded of any power to remand further. On that premises, Counsel referred to the order sheet in the case wherein the petitioner had been remanded to further custody without being actually produced before the Court. Particular reliance was sought to be placed on the insertion of the provisions of clause (b) in section 167 (2) of the Code in 1974 (quoted in extenso in paragraph 16 hereafter) to this effect. Basic reliance was again placed on the single Bench judgments of the Rajasthan High Court in 1983(1) Crimes 299 (Rati Ram and others v. State of Rajasthan) and 1983 (II) Crimes 616 (Mohan v. State of Rajasthan). Support was also sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xx (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. XX XX XX It is manifest from the above that the Constitution itself mandates the physical production of an accused person before a Magistrate and all further custody thereafter must be under the orders and authority of the said Magistrate. Yet again the meaningful and the deliberate insertion of clause (b) to sub-section (2) of section 167 in the Code in 1973 is not to be easily lost sight of. It is common ground that this was specifically so mandated in the old Code and was designedly added in the new one apparently to insist on the physical production of the accused at all stages of farther remand. The legislative mandate that the remand of an accused is not to extend beyond fifteen days and on its expiry ordinarily he should be produced before the Magistrate physically, seems to be clear and unequivocal. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused has always access in person to the judicial authorities. The somewhat ingenious submission on behalf of the respondent State that subsequent to the first production the physical presence of the accused person for further remand is unnecessary, must, therefore, fail and is hereby rejected. 12. However, whilst holding so one cannot possibly go to the other extreme and accept the doctrinaire stand that the absence of the physical production of an accused person would vitiate the order of remand incurably. If it is physically impossible to produce the accused in person, then his mere non-production would not render his remand to further custody illegal. The wholesome provisions of the Code requiring physical production have to be viewed reasonably and not to an impossibly logical extreme. One example which inevitably comes to one's mind is where the accused person himself may be not in a position to be produced before the Magistrate--he may be mortally injured or grievously ill and lying in hospital. The law would not and cannot possibly require that he must nevertheless be produced in person before the Magistrate even to his detriment and danger to his very life. Cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no longer in pari materia with the earlier one and particular reliance was placed on section 167(2) (b) which is in the terms following : -- no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him. Reference was also made to sub-section (2A) inserted in 1978 and the other sub-sections of section 167of the present Code. 15. It is true that the aforesaid binding decisions of their Lordships were rendered under the old Code and the provisions of the present section 167 are not in pari materia with section 167 of the old Code. However, this, to my mind is a distinction without any difference. The core of the rationale of the judgment aforesaid is that the law does not contemplate an impossibility and it is vain to expect the impossible from the Police or the prosecution by producing the accused in person if the circumstances for his non-production are beyond their control. That logic and reasoning, to my mind, is equally applicable and attracted to the provisions of section 167 of the present Code. Equally it has to be borne in mind that some, if not all, of the aforesaid judgments were rendered under section 344 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Counsel for the petitioner. However, a perusal of the judgment would indicate that neither principle nor precedent has been soundly relied upon for the somewhat wide ranging observations made. Even a bare reference has not been made to the long line of Supreme Court judgments which have been earlier referred to above in paragraph 15. The view expressed runs plainly counter to them. For the detailed reasons recorded earlier and with the deepest reverence to the learned single Judge, I feel constrained to record a strong dissent therefrom. 17. To finally conclude on this aspect the answer under question no. (ii) is rendered in the negative. It is held that though physical production of the accused before the Magistrate is desirable, yet the failure to do so would not per se vitiate the order of remand if the circumstances for non-production were beyond the control of the prosecution or the Police. 18. I may now take up question no. (iii) whereunder the basic stand of the Learned Counsel for the petitioner is that the original order of remand being defective, the subsequent valid orders of remand cannot cure the alleged illegality. Mr. Sharma had contended that the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt would not be concerned with a date prior to the initiation of the proceedings for a writ of habeas corpus. We accordingly dismiss writ petition no. 601 of 1970. 22A. Within this jurisdiction even a more categorical view has been taken by the Full Bench in Babu Nandan Mallah v. The State (1972 Cri. L.J. 423) in the terms following : I am of the opinion that even though there be an earlier order remanding an accused person to custody for a term exceeding 15 days but if on the date of the hearing it is found that he is in custody in pursuance of the last Older which was not for a term exceeding 15 days the custody cannot be held to be illegal and no writ of habeas corpus can issue directing the release of the person in custody. It is not a condition precedent for a valid order under section 344 (1-A) that the accused must at the time of the order, be in valid custody under a valid order. If it were to be held that it is a condition precedent for an order of remand under Section 344 that the accused is in proper and legal custody otherwise such an order is not possible : it will lead to absurdity and impossibility in many cases. I find no warrant for the proposition that onc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (sic) thereon. I must at the very outset record my appreciation of the erudite and pains taking assistance which he rendered to the Court on this question. This, however, in no way detracts from the very competent submission which the Learned Counsel for the petitioner had already addressed earlier on the point. 24. Herein the roles are somewhat reversed and it was the Learned Counsel for the respondent State who strenuously challenged the very maintainability of this criminal writ petition seeking, in essence, the quashing of the judicial order of the Magistrate and the revisional judicial order of the learned Sessions Judge refusing to release the petitioner on bail. Mr. Shukla, the Learned Counsel for the respondent State, forcefully pointed out that barring a routine and solitary marginal reference to habeas corpus, in the whole of the petition the sum and substance of the present criminal writ was for quashing of the orders of the learned Chief Judicial Magistrate, Darbhanga. (Annexure 4) and the order of the First Additional Sessions Judge, Darbhanga, (Annexure 5), On the petitioner's own averments in paragraph 9 of the petition, he had filed an application for bail on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested on Mirajkar's case (supra) it becomes necessary to advert to its facts and ratio in some detail. Therein, as I well recall, a sensational libel suit on the original side of the High Court of Bombay was under trial between a well known industrialist Mr. Krishnaraj M.D. Thackersey and Mr. R.K. Karanjia the editor of the Blitz Weekly. In the said case one Bhaichand Goda was cited as a witness for the defence. He duly appeared and was cross examined at length on behalf of Mr. Karanjia. Later another request was made on his behalf that he be called for further cross-examination. On his second appearance Bhaichand Goda prayed to the Presiding Judge Mr. Justice Tarkunde to withhold his evidence from publication in the newspapers on the ground that the earlier reports therein had caused him an immense business loss and financial embarrassment. After hearing arguments of both sides the learned Judge directed that the proceeding should not be reported by the press in order to save his business from harm. Against the said direction the petitioner moved a writ petition in the Bombay High Court itself which was peremptorily dismissed on the short ground that the impugned order was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental right of the citizens under Art 19(1). What the judicial decision purports to do is to decide the controversy between the parties brought before the Court and nothing more. If this basic and essential aspect of the judicial process is borne in mind, it would be plain that the judicial verdict pronounced by Court in or in relation to a matter brought before it for its decision cannot be said to affect the fundamental right of citizens under Art. 19 (1). The character of the judicial order remains the same whether it is passed in a matter directly in issue between the parties or is passed incidentally to make the adjudication of the dispute between the parties fair and effective. On this view of the matter it seems to us that the whole attack against the impugned order based on the assumption that it infringes the petitioners' fundamental rights under Art. 19(1), must fail The learned Chief Justice then proceeded further to consider that assuming entirely for the sak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... highest the petitioner claims an alleged violation of the fundamental right under Article 21 of the Constitution, which is sought to be remedied by a writ of certiorari for quashing the judicial orders of the learned Chief Judicial Magistrate and of the Additional Sessions Judge. If, as it has been categorically held by their Lordships in Mirajkar'g case (supra), no writ was competent against a judicial order even on the assumption that it violated Article 19 of the Constitution, then one fails to see how a writ of certiorari would lie against the considered judicial orders or judgments of the criminal Courts created and established by the Code of Criminal Procedure on the alleged tenuous ground of an infraction of Article 21 of the Constitution. 28. A closer analysis of Mirajkar's case (supra) would show that the stand taken by the respondent State in the present one on the basis of its ratio, is even on a stronger footing than in the said case. Therein even Learned Counsel of late Mr M.C. Setalvad's (sic) and stature had conceded that if a Court of competent jurisdiction makes an order in a proceeding before it, and the order is inter panes, its validity cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would lie against the judicial process established by law, then plainly the judgments and orders of the Judicial Magistrate and the Court of Session would be totally out of the purview of a writ of certiorari and amenable only to the process of appeal, revision or the inherent jurisdiction of the High Court under section 482 of the Code and thereafter by way of a special leave to their Lordships of the Supreme Court. 30. I may highlight and pinpoint that it is a sound rule that in adjudicating upon the significant and particularly constitutional questions the Court should focus itself on the limited issue and not ramble into collateral or analogous matters. From the frame of question no. (iv) it is manifest that we are called upon to consider the issue of the quashing of judicial orders of criminal courts (stricto sensu) created under the Code of Criminal Procedure. Mr. Tara Kant Jha had tempted us to stray into the scope and field of an altogether different writ of a habeas corpus, but I would firmly decline to entertain issues which do not directly arise. Nevertheless, even by way of analogy it appears to me that other judgments of the final Court are also conclusively again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... namely, whether a writ of certiorari lies for quashing the judicial orders of a criminal court stricto sensu? Thus the judgment relied upon is of no aid to the petitioner. However, even a close analysis of the judgment would indicate that an order of remand beyond 15 days directly in the teeth of the mandate of the then section 344(1) (a) of the old Code, on expiry of 15 days would exhaust itself and stand nullified with the consequent result that there is, in the eye of law, no order of remand or detention existing. Plainly enough, detention without any order of custody is something Which would almost automatically attract the writ of habeas corpus. Therefore, the judgment in Babu Nandan Mallah's case (supra) is not even remotely a warrant for the proposition that judicial order and judgments of criminal courts under the Code are quash able by certiorari. What has been said above in a way is equally applicable to Ramdeo Mahto v. State of Bihar (1978 Criminal Law Journal 1074) and is thus distinguishable. There is no quarrel with the proposition laid down there that criminal court has no inherent power of remand other than that specified by the Code and that if no provision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anted neither by principle nor by any other precedent. The assumption that for moving an application for bail, one must allege that the custody, is a legal one is, to my mind, an erroneous assumption. It is open to an accused person seeking to assail the custody as unwarranted by law and on that ground to ask for the relief of being released on his bond or on bail. Indeed, invariably application for bail the challenge to custody may well be raised on one or the other ground including that of innocence, false implication and innumerable other illegalities. The view in Baban Lal Yadav's case (supra), if carried to its logical length, would lead to the absurdity that where a man is in custody and seeks to get his release and is willing to do so on security and bail, he is nevertheless barred from seeking such remedy from the Magistracy or the Court of Session. Indeed, as noticed in the judgment by virtue of the deletion of section 491 of the Code a person alleging illegality of his custody would be barred from all remedies under the Code for procuring bail, but must seek it in the High Court alone, by way of habeas corpus. No such anomalous result is to be easily visualised or cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 430 of the Code the State Government has power to suspend or remit sentence and direct the release of a convict on a wide variety of considerations provided in the said section. Again, there is no dearth of precedent that where courts of law were unable to give adequate relief within the strict four coiners of a judicial process, they can make a recommendation to the Executive to exercise the powers vested in it which has invariably been acceded to. Consequently the apprehension of the Learned Counsel for the petitioner that the marginal limitation placed on a writ of certiorari against the judicial process created by an exhaustive statute like the Code of Criminal Procedure and other similar legislation, would result in any grave failure of justice, appears to me as imaginary and hallucinatory.. 34. In the light of the foregoing discussions the answer to the question no. (iv) posed at the very outset is rendered in the negative and it is held that the judicial orders of a criminal court stricto sensu under the Code of Criminal Procedure are not amenable to quashing by a writ of certiorari. 35. In the light of the above, the stand of the respondent State by way of preliminary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a revision petition in the court of the Sessions Judge, Gaya, who, in an equally considered judgment (vide annexure 1), concurred with the trial court and held that the dispute between the parties was of a civil nature and affirmed the order of dismissal by the Magistrate. 38. Aggrieved thereby, the present writ petition was filed and at the threshold stage of admission the respondent State took up the firm stand that no writ would lie for quashing the judicial orders passed under express provisions of the Code of Criminal Procedure by a court of competent jurisdiction. Considering the significance of the issue, the application was directed to be heard by the Full Bench. 39. Learned Counsel for the petitioner, Mr. Nand Kishore Prasad, was fair enough to say that he had nothing further to add on the point of maintainability which has been exhaustively agitated and debated before the Full Bench and has been adjudicated upon in the connected case (Cr. W.J.C. No. 20 of 1986). It is plain that the answer to question no. 4 abovesaid would thus govern the present writ petition as well. Indeed, the present case is even on a weaker footing in so far as there is not the remotest foot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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