Patna High Court
Babu Nandan Mallah vs The State on 10 August, 1971
Equivalent citations: 1972CRILJ423
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT N.L. Untwalia, Shambhu Prasad Singh and Akbar Husain, JJ. 1. Babu Nandan Mallah, the sole petitioner in this application was arrested and forwarded to the Sub-divisional Magistrate. Hazaribagh, on the 11th July, 1970 in connection with Bishungarh P. S. Case No. 1 (7) 70 under Section 395 of the Indian Penal Code. Eventually, cognizance was taken on 23-11-1970 on submission of the charge sheet by the police. The petitioner before submission of the charge sheet had moved this Court for bail in Criminal Miscellaneous No. 1512 of 1970 which was dismissed on 20-8-70. He all along remained in custody. The Sub-divisional Magistrate after taking cognizance transferred the case to the file of Shri S. K. Ghosh, Munsif-Magistrate, 1st Class. Hazaribagh, for enquiry under Chapter XVIII of the Code of Criminal Procedure (Act V of 1898) hereinafter called the Code. The petitioner's case is that during the period - 11-7-1970 to 23-11-1970-he was physically produced in court only on two dates and not on others. On some dates the learned Sub-divisional Magistrate did not record any specific order of remand either. The petitioner's case further is that on 21-12-1970 Shri Ghosh was on casual leave and Shri Ramayan Singh, Judicial Magistrate, Hazaribagh, was in charge of the files of his court. On that date the petitioner was produced before the Judicial Magistrate from jail custody and the case was adjourned to 23-1-71 for evidence without any specific order of remand and an implied order-- "Accused as before" - was for a period of more than 15 days in violation of the mandatory provision of Section 344 of the Code. The petitioner has stated some facts in the petition to make out a case for his enlargement on bail. I do not consider it necessary to state them, as after hearing arguments advanced by Mr. G. C. Banerjee on behalf of the petitioner and the learned Government Advocate on behalf of the State we had made the following order on 6-7-1971- Having heard learned Counsel for the petitioner and learned Government advocate for the State, and having perused the certified copy of the order dated 4-6-1971 recorded by the Magistrate in whose court the committal proceeding is pending, we have arrived at the conclusion that a writ of habeas corpus should issue directing the release of the petitioner from the illegal custody which has continued as per order dated 4-6-71 upto 3-7-71 and should be presumed to have continued even today. We accordingly issue a writ of habeas corpus and direct the Superintendent, Hazaribagh Central Jail, to relseae the petitioner forthwith. Reasons for this order will follow later on. We would, however, like to observe that it will be open to the authorities or the competent court to take the petitioner under proper legal custody again in accordance with law and this order will not stand as a bar in any subsequent action or order which may be taken or made according to law. But in that event, we would also like to observe that we have thought to issue a writ of habeas corpus only on the application of the petitioner and have not examined the merits of his case in regard to his prayer in this very petition for enlarging him on bail. If he is arrested or taken in custody again, it will be open to him to move the proper court for enlarging him on bail, and in that event it will be for that court to dispose of that application in accordance with law and in the manner it thinks fit and proper. 2. Under section 54 of the Code any police officer may. without an order from a Magistrate and without a warrant, arrest any person under certain circumstances enumerated in Sub-section (1) one of which is that the person has been concerned in any cognizable offence. Sections 60 and 61 enjoin upon the police officer making arrest without warrant to produce the arrested person before a magistrate within twenty four hours. A Magistrate to whom an accused is forwarded under Sub-section (1) of Section 167, may, under Sub-section (2), from time to time authorise the detention of the accused in such custody as such magistrate thinks fit for a term not exceeding fifteen days in the whole. Some cases had taken a view that if the investigation is not completed within a period of 15 days the maximum period for which an accused can be kept in custody under Section 167, the magistrate had no power to keep him in custody pending further investigation. This view was not accepted in several other cases [vide State of Kerala v. Madhavan Kuttan and the cases referred to therein.] The matter has been set at rest by a recent decision of the Supreme Court in A. Lakshmanrao v. Judicial Magistrate . It has been held that pending the investigation and before the commencement of the enquiry or trial, the power is there to send an accused to judicial lock-up Under Section 344 of the Code reading the section along with the explanation appended thereto. In that view of the matter, learned Counsel for the petitioner did not press the point which was taken in the petition that remanding the accused petitioner to custody for a period of more than 15 days before the commencement of the enquiry was illegal. Nor did he press the ground taken that an order of remand made without production of the accused before a magistrate was bad. Majority decision of the Supreme Court in Raj Narain v. Supdt. Central Jail, New Delhi is directly against the petitioner on this point. 3. The main argument put forward on behalf of the petitioner was on the basis of an unreported Bench decision of this Court in Shri Ram Awadhesh Singh v. State of Bihar Cr. W.J.C. Nos. 53. 54 and 59 of 1970 and decided on 17-12-1970 (Pat). When this case in the first instance came before another Bench of this Court, that Bench doubted the correctness of the decision in Shri Ram Awadhesh Singh's case, and, hence, referred the matter to a larger Bench. 4. A new Sub-section (1) was introduced in Section 344 by the Code of Criminal Procedure Amendment Act (XXVI of 1955). The original Sub-section (1) was renumbered as Sub-section (1-A). The purpose of introduction of Sub-section (1) was, as the Report of the Joint Committee says,- At present owing to the frequent postponement of criminal trials which are often not held from day to day. considerable expenditure has to be incurred by all the parties concerned. The Committee consider that there is scope for reducing such unnecessary expense by speeding up the trials and avoiding postponements. The Committee, therefore, recommend that specific provision be made in the clause for conducting a trial from day to day unless there are good and sufficient reasons for the postponement. For this purpose a second proviso was added to Sub-section (1-A) to say - Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing. The old Sub-section (1) with one proviso was left intact as Sub-section (1-A) and it reads as follows- If from the absence of a witness, or any other reasonable cause it becomes necessary or advisable to postpone the commencement of. or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor from 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 a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time. Sub-section (2) requires that every order made under this section by a court other than a High Court shall be in writing signed by the presiding judge or magistrate. 5. It is to be pointed out here that when an accused is brought before a court pending enquiry or trial then a legal sanction for his judicial lock-up is an order of the court under the main provision of Sub-section (1-A) of Section 344 of the Code. This empowers the court to remand an accused, if in custody, by a warrant. It has to be in writing signed by the presiding judge or magistrate; but if the court happens to be that of a magistrate, the command of the Legislature is that the magistrate shall not remand an accused person to custody for a term exceeding 15 days at a time. The command is rather in a stronger term that no magistrate shall remand for a term exceeding 15 days at a time. The idea and the underlying principle seems to be that magistrate may not adjourn an enquiry or trial and remand an accused for a term exceeding 15 days at a time. This is a check on the power of the magistrate although there is no such inhibition on the sessions court. Sub-section (11 and the second proviso to Sub-section (1-A) were introduced by the amending Act of 1955 for expeditious criminal trials. The inhibition on the power of the magistrate under the first proviso was left intact. I regret to note, however, that the circumstances prevailing in the country have brought about a result which is just the other way. I am not sure about the position prevailing in other States, but in the State of Bihar the rise in the number of criminal cases and the paucity of courts to hold enquiry or trial have led to frequent adjournments and postponements. During the course of argument of this writ application, we were in grave doubt in the present circumstances as to the wisdom of continuing a provision like the one contained in the second proviso to Sub-section (1-A) of Section 344. While ascertaining as to whether the proviso is mandatory or directory, we thought that it will be an unnecessary harassment to the accused in custody and all concerned if the law were to be that no magistrate shall remand an accused for a term exceeding 15 days at a time. But that is a matter which, in my opinion, cannot outweigh the express language and that too put in the negative form. In M. Pentiah v. Muddala Veeramallappa Subba Rao, J., as he then was. has observed at page 1113 (column 1) that the section under consideration in that case conferred on the committee an express cower couched in a negative form and - Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative. 6. I would do better to quote a paragraph occurring at pages 314-15 in Maxwell on The Interpretation of Statutes. Twelfth Edition - It is impossible to lay down any general rule for determining whether a provision is imperative or directory. 'No universal rule' said Lord Campbell L.C. 'can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed'. And Lord Penzance said : 'I believe, as far as any rule is concerned you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory. At page 320 of the same book it has been pointed out - An enactment which provided that every warrant issued by a court would be under its seal was equally imperative. 7. In Ram Narayan Singh v. State of Delhi the facts were that certain persons were arrested on the evening of 6-3-53 and were prosecuted for alleged defiance of an order prohibiting meetings and processions in certain area, an offence punishable under Section 188 of the Indian Penal Code. They challenged their detention by filing an application under Article 32 of the Constitution. The detention was sought to be justified on the basis of 2 remand orders-one alleged to have been passed on 6-3-53 and the other on 9-3-53 -by the trying Magistrate while adjourning the case. When papers were directed to be filed the order dated 9-3-53 of the Magistrate was produced which merely directed adjournment of the case till 11th and contained no direction for remanding the accused till that date. Certain slips which were produced late before the Supreme Court and which purported to be warrants of detention and contained the order of the Magistrate dated 9-3-53 remanding the accused to judicial custody till 11-3-53 were not looked into. The case proceeded on the footing that there was no remand order made by the Magistrate. Patanjali Sastri, C. J., while observing that in habeas corpus proceeding the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceeding held that the material date on the facts of the case was 10th March when the affidavit on behalf of the Government justifying the detention as a lawful one was filed, and since on that date there was no remand order as required by section 344. the detention was held to be illegal and the prisoners were directed to be released and set at liberty forthwith. Article 21 of the Constitution says- No person shall be deprived of his life or personal liberty except according to procedure established by law. As I have said above, the only procedure established by law for keeping an accused in custody either before or during the pendency of the enquiry or trial for a period more than 15 days, which is the period sanctioned by section 167, is to be found in Section 344. It is manifest that if there is no order remanding the accused under Section 344, his detention becomes illegal, Usually and generally the order of remand is recorded by the magistrate by saying "Accused as before". This, in my opinion is tantamount to an order of remand. Sometimes no such order is made as subsequently in this case also on one or two occasions no such order was recorded in the order sheet. But then if on the warrant such an order is recorded and signed by the magistrate, in my opinion, it would be a sufficient compliance, although it is desirable that the magistrate should expressly record an order in the order sheet. I, therefore, do not consider on the facts and in the circumstances of this case that merely because in some subsequent orders certified copies of which were produced before us no order of remand was expressly recorded in the order sheet, the detention of the petitioner became bad. No further affidavit was filed and no opportunity was given to the State to produce the warrant which ordinarily must have contained the order of the Magistrate remanding the accused. 8. I am, however, definitely of the opinion that whatever hardship and harassment the first proviso to Sub-section (1-A) may cause in the present circumstances, there is no escape from the position that no magistrate can violate the command of the Legislature and can remand an accused person to custody under Section 344 for a term exceeding 15 days at a time. The custody in pursuance of an order of remand for a term exceeding 15 days made at a particular time in my opinion, becomes illegal and bad on the expiry of 15 days, if not from the date of the order. It is to be emphasised here that a power the exercise of which deprives a person of his liberty must be exercised in accordance with law. On the ground of exigencies or difficulties of the present situation it is not possible to take the view that an order of remand made at a time remanding the accused persons for a term exceeding 15 days will not result in nullification of the detention by construing the requirement of law to be a directory one. It is for the Legislature to intervene to meet the exigencies of the situation in the manner they think it best. But as a Court of law I find no escape from the position that, an order of the Magistrate remanding an accused person to custody for a term exceeding 15 days at a time is bad and the person so detained will have to be directed to be released by grant of a writ of habeas corpus. 9. In the case of Lakshmanrab it is said in paragraph 9 that is is open to the court to impose terms and to fix the period of remand under Section 344 of the Code which cannot exceed 15 days at one time, and this aspect is more forcefully put in paragraph 12 that the period of remand shall in no case exceed 15 days at a time. 10. In Talib Hussain v. State of Jammu and Kashmir , Dua, J. has said in paragraph 5 - In regard to the submission that the petitioner was arrested and deprived of his personal liberty long before the order of his arrest and this invalidated his detention, it is sufficient to point out that in habeas corpus proceedings the Court has to consider the legality of the detention on the date of hearing. If on the date of hearing it cannot be said that the aggrieved party has been wrongfully deprived of his personal liberty and his detention is contrary to law, a writ of habeas corpus cannot issue. In this case the date of return was the 3rd of March, 1971 but the case eventually came up for final hearing before us on 5-7-71 and the hearing concluded on 6-7-71. It is usually expected that habeas corpus petitions would be heard on the date of return, but if for one reason or the other hearing does not take place, then, in my opinion, appropriate time to find out whether the detention is illegal and a writ of habeas corpus should issue is the date of hearing of the application. 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 order 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 once an invalid order has been made remanding the accused person to custody for a term exceeding 15 days at a time, the subsequent order of remand for a term not exceeding 15 days will be bad on that account. The difficulty, however, in this case was that in the last order made on 4-6-71 the court will be deemed to have remanded the accused to custody till 3-7-71 obviously for a term exceeding 15 days. In the order sheet there was no order of remand recorded; merely the case was adjourned. We however, did not feel persuaded to order the release of the petitioner on that ground as the State had not been directed to produce the warrant which might have contained the order of remand. But on the 5th or the 6th July no order was produced before us to show that on that day the petitioner was in custody under an order of remand made by the Magistrate on 3-7-71 for a period which had not exceeded 15 days. In that view of the matter, we had directed the release of the petitioner by issuance of the writ of habeas corpus. 11. In the case decided by M. P.' Verma and A. N. Mukharji, JJ., namely, Cri. W. J. C. Nos. 53. 54 and 59 of 1970 (Pat) one of the points taken was that the petitioner was not physically produced before the Magistrate since after his arrest. Although the order of their Lordships is not very clear as to whether a release was directed on that ground suffice it to say that release cannot be ordered on that ground in view of the Supreme Court decision referred to above. But then in case of the petitioner in Cr. W. J. C. Nos. 53 and 54 the rule was made returnable within 10 days of 9-11-70 and on 21-11-70 the hearing in the court below had been adjourn-ed to 11-12-70 and the accused had been remanded to that date for a period of 20 days which had exceeded 15 days at a time. In Cr. W. J. C. 59 rule had been issued on 11-11-70 returnable within 2 weeks. The Munsif Magistrate had made an order on 26-9-70 adjourning the case to 21-12-70. There was no order produced before their Lordships to show that at the time of the hearing any valid order of remand under Section 344 for a period not exceeding 15 days had been made. In that view of the matter, the petitioners were directed to be released. If I may say so with respect, on the facts that decision is correct. Learned Government Advocate brought to our notice a decision of Anwar Ahmad and P. K. Banerji, JJ., in Paran Mahton alias Pran Mahton v. The State Cri. W.J.C. 3 of 1971 D/-3-2-1971 (Pat). In that case rule was issued on 12.1.71 made returnable within 3 weeks. After the issuance of the rule, there was an order of the Magistrate dated 16.1.71 which showed that the petitioner was remanded to custody on 16-1-71 till 30-1-71. Since this last order was not in violation of the requirement of the law, the application was dismissed. On the facts of that case and in accordance with the view which I have expressed on the point, I say with respect that, that case was also rightly decided. The order referring this case to a larger Bench was by Anwar Ahmad and Kanhaiyaji. JJ., doubting the correctness of the decision of Verma and Mukharji. JJ.. in the earlier case. For the reasons recorded above, I think, that case was also decided rightly on its special facts. 12. For the reasons stated above, the writ application stood allowed, the custody of the petitioner was held to be illegal on 6-7-71 and he was directed to be released by grant of a writ of habeas corpus on that date. Shambu Pbasad Singh, J.
13. I agree to the order of release passed in open Court of July, passed in open Court on 6th of July, 1971, for the reason that the orders of the Magistrate dated 4th of May, 1971 adjourning the case to 4th of June 1971 and 3rd of July, 1971, did not contain any direction for remanding the petitioner. It is settled by the decision of the Supreme Court in (AIR 1953 SC 277) that detention of an accused when there is no direction of the Magistrate remanding him to custody is illegal. It is true that it may be proved by the State by producing the warrant that there was a direction for remand by the Magistrate and. therefore, the custody is legal even in absence of a direction for remanding the accused in the order sheet. But it is for the State to prove that with reference to the date of hearing of habeas corpus matter. An application for habeas corpus is admitted with reference to the allegations made in the petition as they exist on the date of filing of it but the order is passed with reference to the legality or illegality of the detention on the date of hearing. Once the application is admitted and rule issued, even if no further affidavit is filed on behalf of the petitioner as to the facts existing on the date of hearing, where the State fails to prove that the detention is legal on that date, the petitioner has to be released. In the instant case the State did not produce warrants to show that there was any direction by Magistrate remanding the accused-petitioner to custody on 4th of May, 1971 and 4th of June, 1971. The State could have produced even the order-sheet or warrant containing a direction of the Magistrate remanding the petitioner to custody on 3rd of July, 1971, to which date the case was adjourned and shown that the petitioner was not entitled to a favourable order, but that too was not done. In my opinion, therefore the petitioner was entitled to be released on the facts of the case.
14. My learned brother Untwalia, J., for whose views and learning I have great respect, in his order has observed that during the course of argument of the writ application, we were in grave doubt in the circumstances prevailing in the State of Bihar, as to the wisdom of continuing a provision like the one contained in the second proviso to Sub-section (1-A) of Section 344 of the Code of Criminal Procedure (hereinafter to be referred to as 'the Code') but has held that those circumstances cannot outweigh the express language of the first proviso and non-compliance of it will make the detention of the accused illegal entitling him to be released on a writ of habeas corpus. The purpose-criminal trials and enquiries should be disposed of as expeditiously as possible - behind the two provisos being common, we were also in grave doubt as to the wisdom behind continuing the first proviso. I have not been able to persuade myself to the view that non-compliance of the first proviso to Section 344 (1-A) of the Code will make the detention of the accused illegal and entitle him to be released on a writ of habeas corpus and I regret my inability to agree to that view, True it is that the language of the first proviso to Sub-section (1-A) of Section 344 of the Code is in the negative form and "negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative", but the word 'ordinarily' used in the above quoted passage quoted from M. Pentiah's case (AIR 1961 Supreme Court, 1107) is of great significance. Negative words do not make statute imperative in all cases. Negative words undoubtedly make enactments mandatory but mandatory enactments may be "directory only or obligatory with an implied nullification for disobedience". Lord Campbell from whose judgment in Liverpool Borough Bank v. Turner (1860) 30 LJ Ch. 379, the words in the preceding sentence have been quoted further observed in that case that "it is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed". In Howard v. Bodington (1877) 2 P.D. 203. Lord Penzance reiterated the same principles in the following words:
I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory.
15. In many cases, enactments language whereof is not in negative form have been held to be obligatory with an implied nullification for disobedience. It is not necessary to refer to such cases except the case of Ram Narayan Singh already referred to earlier. The language of Sub-section (1-A) of Section 344 of the Code is not in negative form. Even the word 'shall' has not been used in that sub-section. According to that sub-section, when a court postpones or adjourns a case, it "may by a warrant remand the accused, if in custody". Though the word 'may' is ordinarily held to be directory, it was held by the Supreme Court in that case that absence of a direction for remanding an accused to custody would make his detention illegal. There are also cases where enactments with negative words were not held obligatory with an implied nullification for discbedience. For instance, in Catterall v. Sweetman (1845) 9 Jur. 951 : 163 ER 1047, marriage was not held to be invalid though it was performed in disobedience of a colonial Act providing in negative language that no marriage between Presbyterians and Catholics should be had and solemnised "until one or both of such persons, as the case may be shall have signed a declaration in writing". Dr. Lushington in his judgment in the aforsaid case observed that negative words used in the statute were merely prohibitory of the marriage being had without the prescribed requisites but whether the marriage itself was void was a question of great difficulty and in absence of words "without a declaration of nullity" held the marriage to be valid. Again in Stallwood v. Tredger (1815) 2 Phillim 287 : 161 ER 1147, a marriage was held in disobedience of the provision in Lord Hard-wicke's Act. 1753 Section 1 which enacted that "in all cases where banns have been published, the marriage shall be solemnised in one of the Parish Churches where such banns have been published and in no other place whatever". Sir John Nicholl decided in favour of the validity of a marriage which had been solemnised at a church different from that at which the banns were published. In referring to the aforesaid two cases, I am not oblivious of the fact that in those cases. Courts were concerned with the validity of marriages and the result of declaring the marriages nullity would have been to bastardize the issues and the case before us involves the question of personal liberty of a subject and our Constitution in Article 21 provides that no person shall be deprived of his personal liberty except according to the procedure established by law.
16. I would now proceed to examine the various provisions of the Code for finding out in the light of the classic observations of Lord Campbell and Lord Penzance whether disobedience of the first proviso to Sub-section (1-A) of Section 344 of the Code will make the detention of an accused illegal. Sections 54 and 55 of the Code authorise police officers to arrest a person without an order from a Magistrate and without a warrant under the circumstances mentioned in these sections. Sections 60 and 61 lay down that a police officer making an arrest without a warrant unless he enlarges the person on bail, shall, without unnecessary delay, take or send the person arrested before the Magistrate having jurisdiction in the case or before the officer incharge of a police station and that no police officer shall detain in custody a person arrested without warrant in absence of a special order of the Magistrate under Section 167 of the Code for a period exceeding 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. According to Section 81 of the Code, a police officer or other person executing a warrant of arrest shall subject to the provisions of Section 76 of the Code as to security, without unnecessary delay, bring the person arrested before the Court before which he is required by law to produce such person. As a result of these provisions, a Police Officer is required to produce a person arrested and kept in custody before a Magistrate as early as possible and the period of police custody without an order of Magistrate is not to exceed 24 hours. Section 167 (2) of the Code lays down that a Magistrate of the first class or a Magistrate of the second class specially empowered in this behalf by the State Government to whom an accused person is forwarded by a Police Officer, may whether he has or has not jurisdiction to try the case, from time to time authorise detention of the accused in such custody as such Magistrate thinks fit for a term not exceeding 15 days in the whole. If the Magistrate has not got jurisdiction to try the case or commit it for trial and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. Section 344 of the Code (I shall refer to the provisions thereof in greater detail hereafter) provides for remand of the accused to custody by the Courts including Magistrates having jurisdiction to try the case. There are decisions which took the view that Section 344 applies only after cognizance is taken of a case and if the investigation is not completed within a period of 15 days, the maximum period for which an accused can be kept in custody under Section 167 of the Code, the Magistrate has no power to keep him in custody pending further investigation. It has been held in a recent decision of the Supreme Court that a Magistrate having jurisdiction to try a case has got power to send an accused to judicial lock-up under Section 344 of the Code pending investigation and before commencement of the enquiry or trial. Thus the ban not to remand an accused to custody for a period exceeding 15 days in the whole is only on Magistrate not having jurisdiction to try the case. It is noteworthy that the power under Section 344 of the Code can be exercised by any Magistrate, be he of a second class or third class, if he has got jurisdiction to try the case; the power under Section 167 of the Code cannot be exercised by a Magistrate of third class at all and by a Magistrate of second class, if he is not specially empowered by the State Government for the purpose.
17. Prior to the amendment of the Code of the year 1955 present Sub-section (1-A) of Section 844 of the Code was Sub-section (1). The first proviso to it was also there. The amending Act added a new sub-section making it No. 1 and renumbered the old Sub-section (1) as Sub-section (1-A). The main purpose behind Section 344 of the Code both before and after the amendment has been to see that enquiries and trials in which accused are in custody are not delayed-By the first proviso to Sub-section (1-A) it was made mandatory for the Magistrates to examine at times not exceeding 15 days from each other, progress made in collecting evidence against the accused and to proceed with the enquiry or the trial if the necessary evidence has been collected. In case of unreasonable delay in the matter of collecting evidence, they could refuse to remand the accused in custody and enlarge them on bail. The provision was, however, not found to be of any real help to the accused inasmuch as there were frequent postponements of criminal trials and enquiries; of course, the postponed date generally being within the period of 15 days. This led to the amendment of the section by inserting a new Sub-section (1) directing that when the examination of witnesses has once begun the same shall be continued from day to day until all witnesses in attention have been examined. By the same Act which amended Section 344 of the Code, Section 497 of the Code was also amend-ed by adding a new sub-section to it as Sub-section (3-A) which runs as follows:
If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
According to this sub-section, even an accused of a non-bailable offence, becomes ordinarily entitled to bail if the trial is not concluded within a period of 60 days from the first date fixed for taking evidence in the case. Sub-section (1) of Section 497 provides for grant of bail in non-bailable cases, but if the offence is punishable with death or imprisonment for life, ordinarily bail has to be refused. The reason behind this enactment is that a person who is accused of an offence punishable with death or imprisonment for life is likely to make himself scarce by absconding. Can it, therefore be said that for disobedience of the first proviso to Sub-section (1-A) of Section 344 of the Code, the accused, however serious the offence may be, will be entitled to be released on a writ of habeas corpus ? There is apparent distinction between absence of a remand order and a direction in the remand order for custody of the accused for a period exceeding 15 days. In the former case, the persons who keep the accused in custody have got no authority for that. The detention in such cases has, therefore, to be held illegal, as was done in Ram Narayan Singh's case . In the latter case, the persons who keep the accused in custody have got authority to do so till the date for production of the accused before the court of the Magistrate though the court of the Magistrate commits an error in fixing that date beyond 15 days. It is remarkable that section 344 of the Code does not impose an absolute ban on remanding the accused to custody for a period exceeding 15 days. On Courts other than that of a Magistrate, no such ban is imposed. It is the first proviso to Sub-section (1-A) which imposes the ban on Magistrates. Why such a distinction between other Courts and Courts of Magistrates? Can it be said that the proviso was enacted on account of absence of confidence in the Magistrates? The answer will obviously be in the negative. Under other Courts, Courts of Assistant Sessions Judges also do come in. Under Section 30 of the Code, which has been held to be intra vires by the Supreme Court in Budhan Choudhry v. State of Bihar , some Magistrates may be vested with powers which are ordinarily exercised by an Assistant Sessions Judge. But even those Magistrates, in remanding an accused to custody have to act according to the first proviso to Sub-section (1-A) of section 344 of the Code. In my opinion, therefore, the reason behind enacting the first proviso was that Magistrates on account of other preoccupations may freely adjourn enquiries and trials beyond 15 days which other Courts which are mainly concerned with enquiries and trials of cases may not do and, therefore, there should be an express direction to the Magistrates prohibiting them from adjourning cases beyond 15 days. Disobedience of such a prohibitory provision by the Magistrate, even though the language is in negative form, in my opinion, would not result in nullification of his order and keeping in custody of an accused for a period exceeding 15 days at one time under an order of a Magistrate would not make the custody illegal and entitle him to be released on a writ of habeas corpus.
18. In some cases, strict following of the aforeasid proviso may lead to absurdities and unnecessary harassment to the accused himself. In a case where records are called for by this Court in a revision application against some interlocutory order, the passing of orders for remand for period not exceeding 15 days will be nothing but wasting of public time and money when ordinarily the record is not likely to be received back within a period of one year. Again, a criminal proceeding may be stayed by the High Court pending the hearing of a civil suit and if a view contrary to one taken by me be correct, even in such cases, if the Magistrate remands the accused to custody for a period exceeding 15 days, the latter may claim release. I have not been able to appreciate what useful purpose will be served in such case by the Magistrate directing production of the accused before him every fortnight. In this State, as observed by Untwalia, J., large number of cases are pending before each Magistrate and it is not possible for the Magistrate to take up all cases in which the accused are in custody on the date they are produced even if the evidence is ready. They, in this State have to give preference to older cases than the newer cases. I do not think, there is any chance in this State, even in remote future, of large number of Magistrates being put on the judicial work to reduce the congestion of files and the strict obedience of the aforesaid proviso is not likely to serve any real purpose. It has only to be a formality of compliance of a technicality. Such a formality will lead to unnecessary harassment to prosecution which shall have to bring witnesses on each date the accused is to be produced. It will also be a harassment to the accused for he too shall have to incur expenses for pairvi in the case on each such date. It was suggested that the case may be adjourned to a longer period, but the accused may be ordered by a warrant to be produced twice, thrice or four times during that period on dates not exceeding 15 days from each other. This will not serve the real purpose because the Magistrate will not be able to know on such dates whether evidence is ready or not. There should not be too much of rigidity in interpreting statutes. Same provision in a statute may differently be interpreted according to the needs of the Society and changing time. In my opinion, therefore, the first proviso to Sub-section (1-A) of Section 344 of the Code .ought not to be interpreted to render its disobedience result in the nullification of the order of the Magistrate.
19. The language of the second proviso to Sub-section (1-A) is also in the negative form. It runs as follows:
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing.
Can it be said that if a Magistrate does not record special reasons in writing and adjourns or postpones the enquiry or trial without examining witnesses in attendance, adjournment or postponement will be such an illegality as to entitle the accused to claim release on an application for writ of habeas corpus ? In my opinion the answer will be in the negative and for the same reasons it cannot be said that disbedience of the first proviso to the said sub-section will entitle the accused to release on an application for writ of habeas corpus.
20. In Lakshmanrao's case the question whether disobedience of the first proviso to Sub-section (1A) of Section 344 of the Code would result in the nullification of Magistrates' order neither did arise for decision nor was actually decided. Observations made in that case that period of remand cannot exceed 15 days are mere reiteration of what is stated in the proviso and not a decision. This is obvious from the fact that it has not been stated in paragraph 12 that the restriction is only on the Courts of Magistrates and not on other Courts; rather the observation gives an impression that no Court can pass an order of remand for period exceeding 15 days,
21. "Shall" when used in statutes in some cases may mean "may" and the provision containing it may be directory but ordinarily even when it is used in affirmative language, the enactment is considered mandatory. In many cases while interpreting the provisions of the Code, it has been held that disobedience of mandatory provisions of the Code containing the word "shall" would not result in the nullification of the order. I may refer to one such decision of this Court in S. M. Yaqub v. T.N. Basu AIR 1949 Pat. 146 SB. It was held in this case that failure on the part of the Magistrate to state the grounds for apprehending the breach of the peace in initiatory order would not make his final order without jurisdiction.
22. In Abdul Rahman v. Emperor AIR 1927 PC 44, it was held by the Judicial Committee that omission to com-ply with Section 360 of the Code unaccompanied by any failure of justice having been occasioned thereby was not enough to warrant the quashing of a conviction. In the instant case also, there is no suggestion that remand to custody of the petitioner by the Magistrate for periods exceeding 15 days has resulted in failure of justice. It is noteworthy that when the petitioner moved this Court for bail earlier, the prayer was refused.
23. I am in agreement with the views of my learned brother Untwalia, J., that in any case the remand order for a period of more than 15 days is to be considered valid for at least 15 days and that the decision of a Bench of this Court in (Cri WJC 3 of 1971 D/- 3-2-1971 (Pat).) is correct. However, with greater respect to the learned Judges, I am of the opinion that the view taken in (Cri WJC Nos. 53, 54 and 59 of 1970 D/- 17-12-1970 (Pat.)) as to the effect of disobedience of the first proviso to Sub-section (1-A) of Section 344 of the Code is not correct.
Akbar Husain, J.
24. I had the privilege of perusing the judgments delivered by my learned brothers Untwalia, J., and Shambhu Prasad Singh J., which I have attempted to study carefully. I must at the very outset express my full agreement with the views contained in the judgment of my learned brother Untwalia. J., both on the imperative character of the provisions contained in Section 344 (1-A) of the Code of Criminal Procedure (hereinafter referred to as 'the Code'), and on the question of implied nullification for its disobedience. It is not necessary for me to refer to the facts of this case which have been fully set out in the judgment mentioned above. The only reason why I decide to add a few paragraphs of my own supporting my agreement with the view of my learned brother Untwalia, J. is due to the difference expressed by my learned brother Shambhu Prasad Singh, J., who has observed as follows:
I have not been able to persuade myself to the view that non-compliance of the first proviso to Section 344 (1-A) of the Code will make the detention of the accused illegal and entitle him to be released on a writ of habeas corpus and I regret my inability to agree to that view.
He has towards the end of paragraph 5 of his judgment, further differed on the question of the result of disobedience and has observed in the following terms:
Disobedience of such a prohibitory provision by the Magistrate, even though the language is in negative form, in my opinion, would not result in nullification of his order and keeping in custody of an accused for a period exceeding 15 days at one time under an order of a Magistrate would not make the custody illegal and entitle him to be released on a writ of habeas corpus.
25. In the instant case the only question which fell for decision was whether the violation of the provisions of Sections 167 and 344 of the Code and Article 21 of the Constitution would render the detention illegal and would result in entitling the petitioner to be released. For determining the imperative or directory effect of the proviso to Section 344 (1-A) of the Code my learned brother Untwalia, J., has usefully quoted from Maxwell on the Interpretation of Statutes, and, if I may say so with great respect, he has scrupulously observed the principles contained therein, and, in agreement with him and having regard to the relation of the provision in question with the general object apparent from the report of the joint committee quoted in paragraph 4 of the judgment of my learned brother Untwalia, J., and upon examination of the facts of the instant case, it must be held that Section 344 (1-A) containing the ban on the Magistrate is imperative, and, if that is so. the conclusion is inevitable that its disobedience will result in nullification. It is impossible to hold that in spite of an express direction to the Magistrate prohibiting him to remand an accused to custody under Section 344 (1-A) of the Code for a period not exceeding 15 days at a time in disobedience of its express prohibition, its violation 'would not make the custody illegal and entitle him to be released on a writ of habeas corpus' as observed by my learned brother Shambhu Prasad Singh, J. A number of decisions have been referred to in the judgment of my learned brother Untwalia. J.. in the process of examining the question involved, namely, the imperative or directory character of Section 344 (1-A) of the Code. So far I am concerned, I have drawn my conclusions in agreement with my learned brother Untwalia. J., on deducing the ratio of the decisions reported in the case of wherein Subba Rao J., as he then was, has observed at page 1113 (column 1) that "negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative'. Similar is the effect of the decision reported in the case of (AIR 1953 SC 227), which has considered the question in habeas corpus proceeding, the legality or otherwise of the detention with reference to Article 21 of the Constitution and Section 344 of the Code. The proviso to Section 344 (1-A), the violation of which is alleged by the petitioner and has been found to be factually correct, is as follows:
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time.
I cannot see my way for any plausible scope for construing this proviso to mean something different from what it obviously expresses.
26. For the reasons stated above, I am in full agreement with the views expressed by my learned brother Untwalia, J in allowing the writ application and declaring the custody of the petitioner as illegal on the 6th of July 1971, and on that account the petitioner must be held to be entitled to a direction of release by grant of a writ of habeas corpus on that date,