Andhra HC (Pre-Telangana)
M.A. Dharman, Son Of Appukuttan vs State Of Andhra Pradesh By Secretary To ... on 24 December, 1990
Equivalent citations: 1991(1)ALT315
JUDGMENT Ramanujulu Naidu, J.
1. In this batch of Writ Petitions filed for issue of writs of Habeas Corpus, directing the respondents to produce before this Court, respectively, (1) Anwar Ismail, s/o Ismail, (2) Dawood Mohammed, s/o Siddiqui, (3) Dawood, s/o Yusuf, (4) Ishaq, s/o Omar, (5) Baktar Ahmad Mujawar Khan, s/o Mujawar Khan, (6) Kasim Mohammed s/o Shaik Mohammed, (7) Abdullah Usman, s/o Usman, (8) Mossa, s/o Ibrahim, and (9) Rafi s/o Abdullah, presently undergoing detention as remanded prisoners in the Central Prison, Visakhapatnam, hereinafter referred to, for the sake of convenience, as 'the detenus' and to set them at liberty, an important question of law as to the interpretation of Section 167 (2) (b) of the Code of Criminal Procedure and the consequences that flow from contravention of or non-compliance with, the provisions of the said section arises for consideration.
2. The facts giving rise to the filing of the batch of writ petitions lie in a narrow compass and may briefly be stated. All the detenus are Helpers and Sailors employed in an Arab Dhow. It sailed towards the coastal sea in the State of Andhra Pradesh and it was intercepted at the coast near Narsapur by the officials of the Directorate of Revenue Intelligence, Madras on 12-7-1990 and large quantities of smuggled silver bars were recovered from the Dhow. The detenus were arrested under Section 104 of the Customs Act, 1962 for contravention of the provisions of Section 135 of the Customs Act and produced before the VIII Metropolitan Magistrate, Visakhapatnam on 15-7-1990 seeking their remand. The learned Magistrate remanded them to judicial custody till 30-7-1990 with a direction to produce the detenus before the Court of Special Judge for Economic Offences, Hyderabad for further remand. The detenus were thereupon lodged in the Central Prison, Visakhapatnam and produced before the Court of the Special Judge for Economic Offences, Hyderabad on 30-7-1990 for further remand. The learned Special Judge remanded them to judicial custody for a further period of 14 days, viz., upto 13-8-1990. On 13-8-1990, none of the detenus was produced before the learned Special Judge, but the learned Special Judge extended their remand till 27-8-1990. Even on 27-8-1990, the detenus were not produced before the learned Special Judge, but the learned Special Judge extended the remand till 10-9-1990. On 10-9-1990 also the detenus were not produced before the Special Judge, but the learned Special Judge mechanically extended their remand till 24-9-1990. It appears that the jail authorities were seeking remand of the detenus from the Special Judge on each of the occasions as a matter of routine, on the ground that there were no escorts available for production of the detenus before him and the Special Judge was mechanically extending remand of the detenus from time to time. A complaint, was however, filed against the detenus on 7-9-1990 before the learned Special Judge, for contravention of the provisions of Section 135 of the Customs Act and the detenus were being remanded from time to time by the learned Special Judge invoking the provisions of Section 309 of the Code of Criminal Procedure. Assailing the orders passed by the learned Special Judge remanding the detenus to judicial custody from 13-8-1990 to 24-9-1990 without being produced before him, the writ petitions were filed.
3. In all the writ petitions, the State of Andhra Pradesh, represented by the Secretary to Government, General Administration Department and the Superintendent of Central Prison, Visakhapatnam were impleaded as respondents 1 and 2. The Directorate of Revenue Intelligence, whose officials arrested the detenus, impleaded itself as the 3rd respondent in all the writ petitions.
4. In the common counter-affidavits filed on behalf of the 3rd respondent it is averred that the fundamental rights enshrined in the Constitution of India are guaranteed only to the citizens of India and the detenus being Pakistan nationals are not entitled to invoke Article 226 of the Constitution of India for issue of writs of Habeas Corpus for enforcement of the fundamental rights, that under Section 167(1) and (2) (b) of the Code of Criminal Procedure what is mandatory is to produce an accused person arrested by a police officer before a competent Magistrate within 24 hours from the time of arrest to secure authorisation of his detention in any custody for a period not exceeding 15 days in the whole and that production of the accused before the Magistrate for authorisation of detention beyond the period of 15 days is not necessary, that in any event the Special Judge having taken cognizance on 7-9-1990 of the offence punishable under Section 135 of the Customs Act, the operation of Section 167 of the Code of Criminal Procedure came to an end and that the learned Special Judge was competent to extend remand of the detenus from time to time in excercise of the powers conferred upon him under Section 309 of the Code of Criminal Procedure.
5. In the common counter-affidavits filed by the Superintendent, Central Prison, Visakhapatnam, it is averred that the detenus could not be produced before the Court of the Special Judge for Economic Offences, Hyderabad on 13-8-1990 as the Urban Police authorities, Visakhapatnam expressed their inability to provide escort on 12-8-1990, and that the detenus could not be produced before the learned Special Judge on 24-9-1990 as they had to be produced before the Central Advisory Board, New Delhi on 24-9-1990 and 25-9-1990. No explanation was, however, offered for non-production of the detenus before the learned Special Judge on 27-8-1990 and 10-9-1990.
6. It is brought to our notice that orders of detention were passed against the detenus under Section 3(1) of the COFEPOSA Act by the Central Government on 20-7-1990. Though the same were not challenged by the detenus by way of separate wirt petitions, their cases were reviewed by the Central Advisory Board, New Delhi which found that there was no sufficient cause for their detention. Consequently, the orders of preventive detention passed against the detenus stood revoked.
7. The main challenge in the writ petitions is that the impugned orders of detention passed by the learned Special Judge were in contravention of the mandatory provisions of Section 167(2) (b) of the Code of Criminal Procedure.
8. Before we advert to the scope and ambit of Section 167 of the Code of Criminal Procedure, we would like to dispose of the preliminary objection raised on behalf of the Directorate of Revenue Intelligence, Madras that fundamental rights enshrined in Part-Ill of the Constitution of India are available only to the citizens of India and that the detenus being Pakistan nationals cannot maintain writ petitions under Article 226 of the Constitution of India for enforcement of any of the fundamental rights.
9. We must at once point out that the preliminary objection is wholly-ill-founded as Articles 20, 21 and 22 of the Constitution of India in contradistinction to Article 14 apply to both citizens and non-citizens. Likewise, Article 226 of the Constitution of India can be invoked both by citizens and non citizens not only for the purpose of enforcement of any of the fundamental rights guaranteed under Articles 20, 21 and 22 of the Constitution of India, but also for any other purpose. In fact, the grievance of the detenus is that their continued detention pursuant to orders of remand passed by the Special Judge, from time to time, in contravention of the provisions of Section 167 (2) (b) of the Code of Criminal Procedure and later in abuse of the power conferred under Section 309 (2) of the Code of Criminal Procedure amounts to deprivation of their liberty and is, therefore, violative of Article 21 of the Constitution of India.
10. We must also observe that India is a signatory to the universal declaration of human rights incorporated in the U.N. Charter. These human rights specifically embrace rights similar to those dealt with under Articles 20, 21 and 22 of the Constitution of India. For that reason, de hors the provisions contained in Articles 20, 21 and 22 of the Constitution of India, the local or State Laws require to be interpreted in consonance with the International Treaty of Obligations. In fact, in Kubic Dar usz v. Union of India, , the Supreme Court had an occasion to consider the above aspect and emphasised the same in the following words :
"Preventive detention of a foreign national who is not resident of the country involves an element of international law and human rights and the appropriate authorities ought not to be seen to have been oblivious of its international obligations in this regard. The universal declaration of human rights include the right to life, liberty and security of person, freedom from arbitrary arrest and detention; the right to fair trial by an independent and impartial tribunal ; and the right to presume to be an innocent man until proved guilty. When an act of preventive detention involves a foreign national, though from the national point of view the municipal law alone counts in its application and interpretation, it is generally a recognised principle in national legal system that in the event of doubt the national rule is to be interpreted in accordance with the State's international obligations as was pointed out by Krishna Iyer, J. in Jolly George Verghese v. The Bank of Cochin, . There is need for harmonisation whenever possible bearing in mind the spirit of the covenants. In this context it may not be out of place to bear in mind that the fundamental rights guaranteed under our Constitution are in conforming line with those in the declaration and the Covenant on Civil and Political Rights and the Covenant, Economic, Social and Cultural Rights to which India has become a party by ratifying them."
11. It is not in dispute that non-citizens are also governed by the Code of Criminal Procedure as otherwise, She remand of the detenus would be void ab initio. It is also settled law that Courts have no inherent power of remand and necessarily Sections 167 and 309 of the Code of Criminal Procedure apply to both citizens and non-citizens.
12. In order to appreciate the main submission made by Sri B. Kumar, learned counsel appearing for the detenus, we may usefully extract the provisions of Sections 57 and 167 of the Code of Criminal Procedure, 1973 :
"Section 57 :-No Police Officer shall detain in custody a person arrested without warrant for a longer period than under all circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.
Section 167 :-Procedure when investigation cannot be completed in twenty four hours :
(1) Where any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of 24 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 station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary, herein prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this Section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding 15 days in the whole, and if he has no 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 :
Provided that-
(a) The Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this para for a total period exceeding -
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years ;
(ii) Sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of 90 days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this Sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter.
(b) No Magistrate shall authorise detention in any custody under this section unless the accused is produced before him :
(c) No Magistrate of the second class, not specifically empowered in this behalf by the High Court, shall authorise detention in the custody of the police).
(Explanation I : For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.) (Explanation 11 : if any question arises whether an accused person was produced before the Magistrate as required under para (b), the production of the accused person may be proved by his signature on the order authorising detention.
(2A) : Notwithstanding anything contained in Sub-section (1) or Sub-section (2), the officer-in-charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate may for reasons to be recorded in writing, authorise the detention of the accused person in such Custody as he may think fit for a term not exceeding seven days in the aggregate ; and on the expiry of the detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order ; and where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this Sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to Sub-section (2) :
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the Officer-in-charge of the Police Station or the Police Officer making the investigation, as the case may be.
(3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under Sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under Sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify".
It may be noted that the new Code of Criminal Procedure came into force on and from the 1st of April, 1974. Section 484 (1) of the new Code repealed the old Code of Criminal Procedure, 1898. Section 57 of the new Code corresponds to Section 61 of the old Code and both the sections are couched in identical language. Section 167 of the new Code corresponds to Section 167 of the old Code with a drastic departure therefrom.
13. Under Section 61 of the old Code, a person arrested without warrant could not be detained in custody by a police officer for a period exceeding twenty-four hours exclusive of the time necessary for the journey of the arrested person from the place of arrest to the Magistrate's Court. Section 167 (1) required the police officer to forward the accused to the nearest Magistrate if the investigation could not be completed within the period of twenty-four hours fixed by Section 61 and if there were grounds for believing that the accusation levelled or information received, against him was well-founded. Sub-section (2) of Section 167 provided:
"The Magistrate to whom the accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit form term not exceeding fifteen days in the whole. If he has no 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."
14. The Magistrate to whom the accused was forwarded could remand him to police custody or jail custody for a term not exceeding fifteen days in the whole under Section 167 (2). Even the Magistrate who had jurisdiction to try the case could not remand the accused to any custody beyond the period of fifteen days under Section 167 (2) of the old Code. There was no other section which in clear or express language conferred this power of remand on the Magistrate beyond the period of fifteen days during the pendency of the investigation and before taking of congnizance on the submission of the charge-sheet, of the offences set out therein. Section 344, however, enabled the Magistrate to postpone the commencement of any enquiry or trial for any reasonable cause and also to remand the accused if in custody, for a term not exceeding fifteen days at a time. The explanation to Section 344 of the old Code reads as follows.
"If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand."
Various High Courts had taken the view that a Magistrate having jurisdiction to try a case could remand an accused to jail custody from time to time during the pendency of the investigation in exercise of the power conferred under Section 344. In Gauri Shankar v. State of Bihar, , She at, J. speaking on behalf of the Supreme Court observed :
"In cases falling under Section 167, a Magistrate undoubtedly can order custody for a period at the most, of fifteen days in the whole and such custody can be either police or jail custody. Section 344, on the other hand, appears in Chapter XXIV which deals with inquiries and trials. Further, the custody which it speaks of is not such custody as the Magistrate thinks fit as in Section 167, but only jail custody, the object being that once an inquiry or a trial begins it is not proper to let the accused remain under police influence. Under this section, a Magistrate can remand an accused person to custody for a term not exceeding fifteen days at a time provided that sufficient evidence has been collected to raise a suspicion that such an accused person may have committed an offence and it appears likely that further evidence may be obtained by granting a remand."
The learned Judge further observed :
"The fact that Section 344 occurs in the Chapter dealing with inquiries and trials does not mean that it does not apply to cases in which the process of investigation and collection of evidence is still going on."
15. In Natabar Parida v. State of Orissa, quoting the observations of Shelat, J. with approval Untwalia, J. observed :
"It would thus be seen that under the old Code the Magistrate was given the power under Section 344 to remand an accused to jail custody as the section was also applicable to cases in which process of investigation and collection of evidence was going on. In other words, the power of remand by the Magistrate during the process of investigation and collection of evidence was an integral part of the process. The power was meant to be exercised, whenever necessary, to aid the investigation and collection of further evidence."
It may thus be noted that under Section 167 (2) of the old Code, an accused person could not be remanded to any custody beyond a period of fifteen days. The period was found to be too short for investigation in cases of serious and ghastly nature and the police naturally insisted on keeping the accused in custody. Section 344 of the old Code was freely resorted to by the police to secure remand of the accused beyond fifteen days though in fact Section 344 was intended to operate only after the Magistrate had taken cognizance of an offence on submission of a charge-sheet under Section 173 of the old Code and not while investigation was still in progress. The liberal use of Section 344 received judicial sanction and more often than not it led to serious abuse as the arrested person could not be kept in custody indefinitely while the investigation went on in a leisurely fashion. It was naturally felt that a time limit should be put on the powers of the police to obtain remand of an accused person while the investigation was going on and at the same time to fix a longer time limit than fifteen days instead of countenancing liberal use and at time, abuse of Section 344.
16. Section 167 of the new Code is enacted to achieve both the purposes. A time limit of sixty days was, therefore, fixed by adding proviso (a) to Sub-section (2) of Section 167 of the new Code. It may be remembered that there is no provision corresponding to the proviso Section 167 (2) in the old Code. The proviso was introduced, for the first time, in the new Code of 1973. The reason for the introduction of the proviso was stated in the Statement of Objects and Reasons as follows:
"At present Section 167 enables the Magistrate to authorise detention of an accused in custody for a term not exceeding 15 days on the whole. There is a complaint that this provision is honoured more in the breach than in the observance and that the police investigation takes a much longer period in practice. The practice of doubtful legality has grown whereby the police file a "preliminary" or incomplete charge-sheet and move the Court for a remand under Section 344 which is not intended to apply to the stage of investigation. While in some cases, the delay in the investigation may be due to the fault of the Police, it cannot be denied that there may be genuine cases where it may not be practicable to complete investigation in 15 days. The Commission recommended that the period should be extended to 60 days, but if this is done, 60 days would become the rule and there is no guarantee that the illegal practice referred to above would not continue. It is considered that the most satisfactory solution to the problem would be to extend the period of detention beyond 15 days whenever he is satisfied that adequate grounds exist for granting such detention".
17. Provisos (b) and (c) to Sub-section (2) and an Explanation after proviso (c) are also newly added by the new Code of 1973. The proviso (b) makes it obligatory to produce the accused before the Magistrate at the time of making remand while proviso (c) requires proof of the factum of production of the accused before the Court in case of doubt. The Magistrate can authorise detention of the accused in the custody of the police for a term not exceeding fifteen days in the whole under Sub-section (3). He shall, however, record his reasons for so doing. Sub-section (5) and Sub-section (6) dealing with the investigation into cases triable as summons cases are also new. Sub-section (5) puts a time limit for continuation of the investigation after six months from the date on which the accused was arrested unless the investigating officer satisfies the Magistrate regarding its continuance beyond such period for special reasons or in the interests of justice. Sub-section (6) authorises the Sessions Judge when approached or otherwise to vacate the order of the Magistrate stopping investigation and direct its continuance if he is satisfied in that respect subject to such directions with regard to bail. The provisions are intended to afford protection to the accused against unnecessary harassment at the hands of the investigating police officers on account of their leisurely working. Sub-section (2-A) has been newly added by Act 45 of 1978. It empowers an Executive Magistrate on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred to make an order for remand of an accused for a period not exceeding seven days incases where the judicial Magistrate is not available.
18. In Natabar Parida v. State of Orissa (3 supra) adverting to the limited period of remand of sixty days enacted in proviso (a) of Sub-section (2) of Section 167, their Lordships of the Supreme Court observed :
"But if it is not possible to complete the investigation within a period of sixty days then even in serious and ghastly types of crimes, the accused will be entitled to release on bail. Such a law may be a ''paradise for the criminals", but surely it would not be so, as some times it is supposed to be because of the Courts. It would be so under the command of the Legislature."
The observations of the Supreme Court led to amendment of the proviso (a) to Sub-section (2) of Section 17 by Act 45 of 1978. By the amendment, the Magistrate is empowered to authorise detention of the accused in custody pending investigation for an aggrega period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years or more and upto 60 days in any other case. The amendment is intended to remove difficulties which had been actually experienced in relation to the investigation into offences of a serious nature as pointed out by the Supreme Court. By Act 45 of 1978, original Explanation in the Code of 1973 has been numbered as Explanation-II and Explanation-I has been added to clarify that when the accused person does not furnish bail he would continue to be in detention notwithstanding the expiry of the period specified in the proviso (a).
19. The provisions of Section 167 of the new Code are to be read as supplementary to those contained in Section 57. The object of these provisions of law is to see that a person arrested by the police is brought before a Magistrate with the least possible delay in order to enable the latter to judge if such person has to be further kept in custody and also to enable such person to make any representation if he may wish to make in the matter. By these provisions, it is also intended to prevent the possible abuse by the police of their powers in trying to make discoveries of crime by means of duress, terror, and wrongful confinement. Section 167 also authorises detention in police custody of the arrested person for a period not exceeding fifteen days. The Magistrate authorising such detention shall record his reasons for so doing. By these provisions it is intended to ensure expeditious investigation into cases not lasting more than 90 days where they relate to grave offences punishable with death, imprisonment for life or imprisonment for a term of not less than ten years or more and upto 60 days where they relate to other offences. If the investigation into a case is not completed and the charge-sheet is not filed before the expiry of the period of detention of the accused for 90 days or 60 days, as the case may be, the accused is entitled to be released on bail under the proviso (a) to Section 167 (2) of the Code of Criminal Procedure, 1973. No discretion whatsoever is left to the Magistrate and it is obligatory on his part to release the accused on bail provided the accused furnished bail.
20. As observed by Bhagwati, J. (as he then was) in Hussainara Khatoon v. State of Bihar, the Magistrate owes a duty under proviso (a) to Section 167 (2) of the Code to inform the accused where he has been in detention for 90 days or 60 days, as the case may be, pending investigation into the case registered against him that he is entitled to be released on bail provided he furnishes bail. No formal or written application for bail need be filed. Even an oral application can be entertained. It is no doubt provided that the accused released on bail thereunder shall be deemed to be so released under the provisons of Chapter XXXTII for the purpose of that Chapter i.e., under Section 437 of the Code. In other words, the Magistrate releasing the accused on bail, may, if he considers it necessary so to do, direct such person to be arrested and committed to custody as provided in Sub-section (5) of Section 437 occurring in Chapter XXXIII.
21. In Bashir v. State of Haryana, 1978 Mad. L.J. (Crl) 409 their Lordships of the Supreme Court held that while the Magistrate releasing the accused on bail under Section 167 (2) could direct that such person be arrested and committed to custody if he considered it necessary so to do by virtue of the powers conferred upon him under Section 437 (5) of the Code of Criminal Procedure, 1973, neither the fact that subsequent to his release the charge-sheet had been filed nor the fact that before the order passed under Section 167 (2) the petition for bail filed by him was dismissed on merits was irrelevant for the purpose of taking action under Section 437 (5) of the Code of Criminal Procedure, 1973. The Magistrate, could, however, direct arrest of the accused or commit the accused to custody if he was satisfied that the accused was tampering with the evidence of the prosecution or that his being at large was not in the interests of justice.
22. It may be thus noted that under Section 167 (2) of the new Code a Magistrate to whom an accused person is forwarded, may, whether he has or has no jurisdiction in the case, authorise detention of the accused in such custody as such Magistrate thinks fit for a term not exceeding 15 days in the whole. The discretion vested in the Magistrate under Section 167(2) of the new Code is absolute and is not circumscribed by any words of limitation. However, under the proviso (a) to Sub-section (2) of Section 167 of the new Code, the Magistrate may authorise detention of the accused person beyond the period of 15 days subject to the upper limit of 90 days or 60 days as the case may be, if he is satisfied that adequate grounds exist for doing so. In other words, extension of remand of the accused person beyond 15 days is not a matter of course or a routine exercise, and it is only where the Magistrate is satisfied that adequate grounds exist extention of remand is warranted and not otherwise. Proviso (a) thus casts upon the Magistrate an onerous duty as extention of remand results in deprivation of liberty of the accused person. Proviso(b) to Sub-section (2) of Section 167 of the new Code lays down that detention in any custody under Section 167 of the new Code shall not be authorised by the Magistrate unless the accused is produced before him. Explanation II appended to the proviso reads that if any question arises whether the accused person was produced before the Magistrate as required under proviso (b), the production of the accused person may be proved by his signature on the order authorising detention. It may thus be noted that under proviso (b) read with Explanation II, the production of the accused before the Magistrate, both at the time of initial remand of the accused under Section 167 (2) and at the time of extension of remand of the accused from time to time under proviso (a), is an indispensable pre-requisite.
23. In Elumalai v. State of Tamil Nadu and Two Ors., 1983 Law Weekly Notes (Crl) 17 three writ petitions were filed on behalf of three remanded prisoners in the Central Prison, Madras, for the issue of writs of Habeas Corpus directing the State of Tamil Nadu and the Superintendent, Central Prison, Madras, to set them at liberty. Two of the remanded prisoners were arrested under Section 41(2) of the Code of Criminal Procedure while the third one was arrested for an alleged offence punishable under Section 420 of the Indian Penal Code. They were produced before a competent Magistrate for extending their remand. The remand was being extended from time to time without the prisoners being produced before the Magistrate and the reason for their non-production from the Central Prison before the learned Magistrate was stated to be non-availability of escort.
24. Adverting to the scope and ambit of the proviso (b) to Section 167(2) Cr.P.C. read with Explanation II a Division Bench of the Madras High Court consisting of Natarajan and Ratnavel Pandian, JJ. as they then were, observed:
"The above proviso and the Explanation are introduced by the Parliament for the first time in the new Code obviously for the purpose of affording an opportunity to the accused of being heard by the Magistrate in person as to whether he wishes to make any representation and also giving him an opportunity of showing cause why he should not be remanded. Therefore, as per the new provision of law, the production of the accused before the remanding Magistrate is a condition precedent for an order of detention to any custody being passed by the Magistrate. Explanation II makes it clear that if any question arises regarding the production of the accused before the Magistrate as required under proviso (b), the production of the accused may be proved by his signature on the order authorising detention. It follows that the order of remand cannot be made in the absence of the production of the accused before remanding Magistrate and if such an order is made mechanically contrary to the provision, the order of remand or extension of remand is not legally sustainable, jail custody even for one minute after the expiry of the period of remand already ordered by the court and the jail authorities cannot keep them inside any longer".
Their Lordships added :
"Under Sub-section (2) of Section 309, the Court is given power to postpone the commencement of or adjourn any inquiry or trial from time to time after taking cognizance of the offence and also to remand the accused, being in custody, by a warrant. From the Bar it was represented that instances are not rare wherein Magistrates, on requisition, go to jails, hospitals etc., to make an initial order of remand and also to pass extension of the remand already passed. According to them while proviso (b) of Section 167(2) would specifically state that the accused should be produced before the Magistrate, the Magistrate going to the jails merely because sufficient escorts are not available or because the authorities concerned entertain an apprehension that there will be law and order problem in a turmoil situation when large number of accused persons are to be taken to the Court, for example persons arrested in agitations, etc., would not satisfy the requirements of Section 167(2), proviso (b), and such a procedure should be higly deprecated as in such circumstances the accused persons would not be having an opportunity of freely making any complaint or statement before the remanding Magistrates."
Their Lordships also quoted with approval the following observations made by M.N. Moorthy, J. holding that a remand was essentially a judicial function, in Mrs. Bartley v. State, 1983 Law Weekly (Crl.) 71.
"The object of requiring the presence of the accused before the Magistrate for purpose of remand is only to enable him to make representation he wishes to make in the matter."
At the end of the judgment, their Lordships summed up the following propositions of law among others :
(i) The Courts should not mechnically pass orders of remand without verifying the entries in the case diaries and satisfying themselves about the real necessity for granting the remand or extension of remand.
(ii) Under no circumstance a Magistrate can order the detention of any person in custody or extend such detention without the production of the accused before him in violation of the provisions of the Code, viz., proviso (b) to Section 167 (2), whatever may be the reason stated by the authorities concerned for the non-production of the accused before the Court, such as the non-availability of police escorts, etc.
25. In Venkatasubramaniam, P.V.S. State of Tamil Nadu, Rep. by the Commissioner of Police, 1984 L.W. (Crl) 211 a Division Bench of the Madras High Court deprecated the practice of the Jail authorities sending the warrants to the Courts without sending the remand prisoners, for want of escorts, and getting extension of their remand following the decision in Elumalai v. State of Tamil Nadu (6 supra)
26. In G.K. Moopanar and 6 Ors. v. State of Tamil Nadu, (1990) (1) MWN (Crl) 163 a Division Bench of the High Court of Madras while adverting to the scope of Section 167 (2) Crl. Procedure Code also observed :
"That the consideration that would weigh with the Magistrate at the time of remanding an accused person for a period of 15 days at the first instance is different from the ground on which the period of remand is extended beyond the period of 15 days as per the proviso to Section 167 (2). The proviso categorically states that the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding 90 days or 60 days as the case may be, depending upon the nature of offence with which he is charged. As already noticed, the Magistrate remands an accused person to judicial custody for a term not exceeding 15 days at the first instance solely with a view to enable the police to complete the investigation if they are able to satisfy that much time is required for investigation. But once that period of 15 days is over, the prosecution must show adequate grounds for extending the period of remand for a further period of 60 days or 90 days, as the case may be. The language of the section to the effect that the Magistrate may authorise the detention beyond the period of 15 days if he is satisfied that adequate grounds exist for doing so, makes this position amply clear that an order of remand cannot be extended unless there are special grounds for doing so. At this stage, the Magistrate has to apply his mind in the nature of investigation that has been done until then and the necessity for extending the remand to enable further investigation. For this purpose, the Magistrate must have sufficient materials before him for exercising such a power under this proviso."
Their Lordships also added :
"As per the provisions of Section 57 Cr.P.C, a person cannot be detained for more than24 hours without a special order of a Magistrate under Section 167, after a person is arrested. Chapter XII of the Code relates to information to the police and their powers to investigate. Elaborate provisions have been made as to the powers of the police in the matter of investigation. When an investigation cannot be completed within the period of 24 hours as provided by Section 57 and if it appears to the investigating agency that there are grounds for believing that the accusation or information against the arrested person, is well-founded, the officer in charge of the police station or the police officer making the investigation should immediately transmit to the nearest judicial Magistrate a copy of the entries made in the diary and forward the accused to such Magistrate as required in Section 167 (1) which is supplementary to Section 57. Therefore, a person arrested by the police has to be produced before a Magistrate within 24 hours for remanding him to judicial custody. A careful reading of Section 167 (1) Cri.P.C. would show that an investigating officer can ask for remand only when there are grounds for believing that the accusation or information is well-founded and it appears that the investigation cannot be completed within the period of 24 hours fixed by Section 57. Therefore, it follows that a remand by a Magistrate is not an automatic one and sufficient grounds must exist for the Magistrates to exercise their powers of remand. That is the reason why it is required that a copy of the entries in the diary should be forwarded to the Magistrates along with the arrested persons."
27. In an unreported judgment dated 10th September, 1990, rendered by a Division Bench of this Court in W.P.No. 12699 of 1990, speaking on behalf of the Bench, I observed :
'Section 167 (2) (b) Cr.P.C. lays down that no Magistrate shall authorise detention in any custody, unless the accused is produced before him. The language employed in Section 167 (2) (b) of the Code is imperative and any violation of the provision cannot be cured'.
28. It is true that under Section 167 (2) (b) of the Code of Criminal Procedure, production of the accused person before the Magistrate both at the time of seeking his remand and extension of the remand, is cmpulsory. In our opinion, though physical production of the accused before the Magistrate at the time of seeking his initial remand can never be dispensed with, absence of his physical production would not incurably vitiate a subsequent order of extension of his remand, if it is physically impossible to produce him in person. For instance, if the accused person is mortally injured or grievously ill and in the hospital, he may not be in a position to be produced before the Magistrate. The law would not and cannot possibly require that he should nevertheless be produced before the Magistrate even to his detriment and danger to his very life. Instances are not lacking where an accused person charged with many offences may have to be produced on a particular date at two different places and it is obvious that by no magic can he be produced at both the places at the same time. Yet another instance is where curfew is imposed and an accused person cannot possibly be carried to the relevant Magistrate without infracting the law. The instances listed are only illustrative, but not exhaustive, as there may be many other factors which may hinder or bar the actual physical production of an accused. The law does not therefore compel or insist upon impossibility of performance of the requirement enacted under Section 167 (2) (b) of the Code of Criminal Procedure. In other words it is always open to either the prosecuting agency or the jail authority to put forward a plea of impossibility of production of an accused person before the learned Magistrate and if the learned Magistrate is satisfied that the plea is well founded, he may, for special reasons to be recorded in writing, extend the remand of the accused person even without his production. We, however, hasten to add that non-availability escorts for non production of the accused person hardly constitutes a ground for infraction of the mandatory requirement of Section 167 (2) (b) of the Code of Criminal Procedure.
29. It may be noted that the object behind the salutary rule enacted in Section 167 (2) (b) of the Code of Criminal Procedure is to afford to the accused person produced before the Magistrate an opportunity of being heard before an order of remand or extension of remand is passed. The finding that adequate grounds exist for extension of remand of the accused person cannot be reached by the Magistrate unless the accused is given an opportunity to show-cause against the same. It is also part of fairness in procedure enshrined in Article 21 of the Constitution that no person can be deprived of his life and personal liberty except according to the procedure established by law. The fact that a complaint filed against the detenus and presumably taken cognisance of on 7-9-1990 by the learned Special Judge would not have any effect on consideration of the issue raised on behalf of the detenus even though their subsequent remand after filing of the complaint may be referable to the power of remand provided under Section 309 (2) of the Code of Criminal Procedure. Even under Section 309 (2) of the Code of Criminal Procedure for remanding an accused person to judicial custody the requirement of natural justice particularly that of audi alteram partem should be complied with. Production of the accused person is an indispensable requirement of natural justice and fair procedure as the order of remand seeks to deprive him of his personal liberty. Even if Section 309 (2) of the Code of Criminal Procedure in terms has not provided a right of hearing before the remand of the accused person, the requirement must be read into the same as held by the Supreme Court in Maneka Gandhi v. Union of India, , wherein their Lordships held:
".. .. .. .. .. .. .. .. .. .. .. ..
Now, it is true that there is no express provision in the Passports Act, 1967 which requires that the audi alterant partem rule should be followed before impounding the passport, but that is not conclusive of the question, if the statute makes itself clear on this point, then no more question arises. But even when the statute is silent, the law may in a given case make an implication and apply the principle stated by Byles, J., in Cooper v. Wandsworth Boards of Works (1863) 14 C.B.N.S. 180: "A long course of decisions, beginning with Dr. Bentley's case (1723) 1 Str. 557 and ending with some very recent cases, establish that although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature." The principle of audi alterant partem which mandates that no one shall be condemned unheard, is part of the rule of natural justice".
.. .. .. .. .. ..
In the United States, the right to an administrative hearing is regarded as essential requirement of fundamental fairness. And in England too it has been held that 'fairplay in action' demands that before any prejudicial or adverse action is taken against a person, he must be given an opportunity to be heard."
Their Lordships of the Supreme Court quoted with approval the rule laid down by Lord Denning in Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch. D. 149:
"Where a public officer has power to deprive a person of his liberty or his property the general principle is that it has not to be done without his being heard and of making representations on his own behalf."
This rule applies a fortiorari to a Magistrate performing and discharging a judicial function.
30. In Khatri and Ors. v. State of Bihar and Ors., , Justice Bhagawathi, as he then was, speaking on behalf of the Supreme Court observed:
"........This Court has pointed out in Hussainara Khatoon's case which was decided as far back as 9th March, 1979 that the right to free legal services is clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 and the State is under a constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer. It is unfortunate that though this Court declared the right to legal aid as a Fundamental Right of an accused person by a process of judicial construction of Article 21, most of the States in the country have not taken note of this decision and provided free legal services to a person accused of an offence. We regret this disregard of the decision of the highest Court in the land by many of the States despite the constitutional declaration in Article 141 that the law declared by this Court shall be binding throughout the territory of India.......We must therefore, hold that the State is under constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial, but also at the stage when he is first produced before the Magistrate as also when he is remanded from time to time...."
The Supreme Court thus emphasised the imperative obligation of affording to an accused person an opportunity of being heard both at the time when he is first produced before a competent Magistrate seeking his initial remand and at the time of seeking extension of his remand. In fact, the Supreme Court directs free legal services to an indigent accused person in such a situation.
31. It is complained on behalf of the detenus and not contradicted, that the learned Special Judge extended their remand to judicial custody from 30-7-90 to 13-8-90 in the first instance without their being produced before him, that the remand was again like-wise extended till 27-8-90, that even on 27-8-90 they were not produced before the learned Special Judge, that the learned Special Judge, however, extended the remand till 10-9-90, that they were not aware that a complaint was filed against them for contravention of the provisions of Section 135 of the Customs Act as they were not produced before the learned Special Judge even subsequently and that they were not represented by any advocate at any time.
32. Sri 1. Koti Reddy, learned Standing Counsel for the Union of India, however, placed reliance upon the decision in Ramesh Kumar Ravi @ Ram Prasad and Ors. v. State of Bihar and Ors., FB, wherein a Full Bench of the Patna High Court held:
"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 his non-production were beyond the control of the prosecution or the police".
Before the Full Bench of the Patna High Court reliance was placed upon the decision of the Supreme Court in Raj Narain v. Superintendent, Central Jail, New Delhi, , and followed in Gourishankar v. State of Bihar and reiterated later in M. Sambasiva Rao v. The Union of India and Ors. (AIR 1973 SC 850) wherein it was held:
"......An order of remand of an accused person even if made by a Magistrate under Section 167 Cr.P.C. without production of the accused person before the said Magistrate, would not be invalid.."
It should be borne in mind that these three decisions were rendered by the Supreme Court while construing the scope of Section 167 of the repealed Code of the Criminal Procedure, drastically depatred from while enacting Section 167 of the present Code as explained earlier. Notwithstanding the distinction brought to the notice of the Full Bench, the Chief Justice of the the Patna High Court speaking on behalf of the Full Bench observed:
"......However, this to my mind is a distinction without any difference. The core of the rationale of the judgments aforesaid that the law does not contemplate any 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... :. I am therefore, of the view that the judgments of the Supreme Court rendered under the old Code on this point continue to be applicable mutatis mutandis under the present Code as well and the attempt to distinguish them is vain and untenable."
33. We respectfully dissent from the view of the Chief Justice as the statements of objects and reasons for enacting the proviso to Section 167 (2) of the new Code of the Criminal Procedure was lost sight of by the learned Chief Justice. The Chief Justice, however, observed earlier that:
"......It seems to me that viewed from whichever angle either from the constitutional or the statutory, it appears that the mandate of the law herein is that the accused person is to be physically produced before the Magistrate though it may turn out to be somewhat burdensome for the State. This on principle appears to be intended as a primal guarantee against any infraction of the valuable right of liberty even though curtailed by the criminal process so as to ensure that the 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."
34. In fact in Sandip Kumar Dey v. the Officer-In-Charge, Sakchi P.S. Jamshedpur and Ors., , the validity or othewise of an order extending remand without the accused being produced before the Magistrate under Section 167 of the Old Code came up once again for consideration before the Supreme Court and their Lordships of the Supreme Court observed :
"......The counter affidavit filed on behalf of the respondents is not clear on the question whether the petitioner was produced before the Magistrate when the various orders of remand were passed and therefore, we asked the respondents' counsel to furnish to us copy of the proceedings of the Magistrate's Court at Jamshedpur. Those proceedings also do not indicate clearly whether the petitioner was produced before the Magistrate when the remand orders were passed. This is a highly unsatisfactory state of affairs and must be deprecated. Orders of remand ought not to be passed mechanically and even though this Court has ruled that the non-production of the accused will not vitiate an order of remand, the Magistrate passing an order of remand ought, as far as possible, to see that the accused is produced in the court when the order of remand is passed......".
35. The next question which arises for our consideration is whether the remand of the detenus ordered by the learned Special Judge subsequent to taking cognizance of the complaint filed against them on 7-9-90 would cure the illegal detention of the detenus from 13-8-90 to 7-9-90. To our minds, it would not.
36. In Gyanu Madhu Jamkhandi @ Savant and Ors. v. State of Karnataka, 1977 MLJ (Crl.) 33 after noticing the decision in Natabar Parida v. State of Orissa (3 supra) a single Judge of the Karnataka High Court observed:
"......It is therefore, clear to my mind that after a Magistrate takes cognizance of an offence or offences on the filing of the final report by the police under Section 173 of the Code of Criminal Procedure, his powers of remanding the accused who is in custody to custody, flow from the provisions of Section 309 (2) and not from the provisions of Section 167 of the Code. In Heeramatan's case (supra) a further view has been expressed to the effect that as soon as the charge-sheet is submitted, the period of remand pending investigation comes to an end and the provisions of Section 167 (2) (a), would cease to apply to such a case. I respectfully agree with that view also. It is nextly expressed that in such a case, bail can be granted only on merits. I am unable to see any warrant in support of this view. The period of remand granted by a Magistrate in exercise of his powers under Section 167 comes to an end on the filing of the charge sheet and that means that if at all further remand to custody is found to be necessary in regard to an accused who is already in custody, the Magistrate has to draw on the powers vested in him by Section 309 of the Code of Criminal Procedure and he has no other power of remand. If, on the filing of the charge-sheet, a Magistrate does not, for a number of days proceed to apply his mind and take cognizance of the offence or offences made out, he cannot ------for those number of days-------exercise powers of remand to judicial custody either under Section 167 or under Section 309 (2) of the Code of Criminal Procedure. This situation can be solved by a Magistrate applying his mind to the facts and material available in the final report and the documents produced along with it in no time after the filing of the final report and deciding whether cognizance of the offence or offences made out should be taken or not; if he decides to take cognizance of the offence or offences, then he can, under Section 309 (2) of the Code of Criminal Procedure proceed to exercise his power of remand.. ".
37. In Nakkati Satyanarayana and Anr. v. State, 1975 (2) APLJ 133 the petitioners were remanded to judicial custody along with five others on 30-5-75 on the ground that they were concerned in Cr. No. 140/75 of the Mummidivaram police station, registered under Sections 364, 342, 302 and 201 read with Section 34 of the Indian Penal Code. While the investigation was proceeding they were being remanded to judicial custody from time to time. As no charge-sheet was filed even by 4th August, 1975, they submitted an application to the Magistrate requesting for their release on bail and expressing their readiness to furnish bail, on the ground that their custody pending investigation exceeded 60 days by then. The learned Magistrate adjourned the petition for hearing on 7-8-75. While so, the police filed a charge sheet against them and some others on 6-8-75 under Sections 364, 342, 302 and 201 of the Indian Penal Code. After receiving the charge sheet the Magistrate passed an order remanding the petitioners to judicial custody under Section 309 (2) of the Criminal Procedure Code. Having passed the order of remand, on 6-8-75 after taking cognizance of the offence, the learned Magistrate rejected the petitioners' application for bail. Assailing the order of the detention, the petitioners moved this court for bail. It was contended on behalf of the petitioners that the order of remand passed by the learned Magistrate under Section 309 (2) of the Code of Criminal Procedure on 6-8-75, on receipt of the charge-sheet was illegal and invalid in so far as the petitioners by then were not under proper legal custody, and that the order passed by the Magistrate sought to render otiose the time limit prescribed in the proviso (A) to Section 167 (2) of the Code. Adverting to the above contention, Madusudhana Rao, J observed:
"......Under Section 309 (2) Cr.P.C. a Magistrate may remand the accused "if in custody". The "custody" contemplated under the Sub-section (2) "lawful custody" and not unlawful or illegal custody. By 6-8-75 though the petitioners were in custody, the custody was illegal and unauthorised and such illegal custody cannot be treated as the necessary custody for a proper order of remand under Section 309 (2) Cr.P.C. In any case, where the investigation has not been completed within 60 days after the accused has been remanded to judicial custody under Section 167 Cr.P.C. whatever the nature of the offence, be it dacoity or murder and whatever its magnitude whether gruesome murder or even mass muders it is not open to the court to circumvent the mandate contained in proviso (a) to Section 167 (2) by postponing its imperative obligation of easing the accused on bail until when the court gets the power of remanding the accused Under Section 309 (2) Cr.P.C Once the investigation is not completed within 60 days and the accuied furnishes bail it is the bounden duty of the Magistrate to release him on bail. After the completion of the investigation, if a charge-sheet is filed and the Magistrate considers it necessary to remand the accused, it would be open to him to cancel the bail under Section 437 (5) Cr.P.C in so far as the bail granted under Section 167 (2) should be deemed to be bail granted under the provisions of Chapter XXXII of the Code....".
In Raghubir Singh v. State of Bihar, Chinnappa Reddy, J., observed:
"The question whether the right to a speedy trial which forms part of the fundamental right to life and liberty guaranteed by Article 21 has been infringed is ultimately a question of fairness in the administration of criminal justice even as 'acting fairly' is of the essence of the principles of natural justice (In re H.K. "1967 (1) All ER 226) and a 'fair and reasonable procedure' is what is contemplated by the expression 'procedure established by law' in Article 21 (Maneka Gandhi)".
39. Adverting to the effect of an order for release on bail under Section 167 (2) (a) of the Code of Criminal Procedure, the learned Judge added:
"The order for release on bail is not extinguished and is not to be defeated by the discharge of the surety and the inability of the accused to straightway produce a fresh surety. The accused person may yet take advantage of the order for release on bail by producing a fresh, acceptable surety. The argument of the learned counsel for the State of Bihar was that the order for release on bail stood extinguished on the remand of the accused to custody under Section 309 (2) of the Code of Criminal Procedure. There is no substance whatever in this submission. Section 309 (2) merely enables the Court to 'remand the accused if in custody'. It does not empower the Court to remand the accused if he is on bail It does not enable the Court to 'cancel bail' as it were. That can only be done under Section 437 (5) and Section 439 (2). When an accused person is granted bail, whether under the proviso to Section 167 (2) or under the provisions of Chapter XXXIII the only way bail may be cancelled is to proceed under Section 437 (5) or Section 439 (2)".
40. Adverting to the plea of maintainability of writ petitions filed by the petitioners in G.K. Moopnar and 6 Ors. v. State of Tamil Nadu (9 supra) for issue of writs of Habeas Corpus before exhausting the alternate remedy available to them by way of criminal revision petitions or by way of petitions under Section 482 of the Code of Criminal Procedure against the orders of remand made under Section 167 (2) of the Code of Criminal Procedure, a Division Bench of the Madras High Court observed:
"It has been repeatedly held by the Supreme Court and this Court that normally the remedy under Article 226 being a discretionary remedy, the High Court may refuse to grant the relief wherever there is an alternate remedy available which is equally efficacious and adequate. Whether the alternate remedy is equally effective or adequate is a question of fact to be decided in each case. As far as the cause of action against the Government is concerned, a distinction is always made between sovereign functions of the Government and contracts made by the Government. A person who is individually and prejudicially affected by exercise of a sovereign power by the Government is entitled to file a petition under Article 226 under certain circumstances. Article 226 is not intended to circumvent statutory procedures but it is intended to give effective and immediate relief to the aggrieved persons. While considering this question the basic principles should be borne in mind viz., that the existence of an alternate remedy is not an absolute bar to the relief under Article 226. It must be noted in this connection that it was made an absolute bar by the Constitutional 42nd Amendment Ac!, 1976 which inserted Clause (3) in Article 226 but that clause had been omitted by the 44th Amendment Act, 1978. The existence of an alternate remedy does not take away the jurisdiction of the Court to grant relief under Article 226. The question whether the statutory remedies like appeal, revision, review etc. is a bar for exercise of jurisdiction under Article 226 was again considered by the Supreme Court in Zilla Parishad, Moradabad v. K.S. Mills, Amroha wherein it was held as follows:
"A provision like Section 128 of the U.P. District Boards Act for an appeal against an assessment to tax is there, but the fact that the petitioner has not availed of it, does not oust the jurisdiction of the High Court to entertain a petition under Article 226 and it \s for the High Court to exercise its discretion whether to entertain the petition or not, where there is nothing to show that the discretion has not been properly exercised by the High Court the Supreme Court would not interfere".
41. After noticing the following observations-oflne Supreme Court in A.V. Venkateswaran v. R.S. Wadhwani, .
"The rule that the party who applies for issue of a high prerogative writ should, before he approaches the court, have exhausted other remedies open to him under the law is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which Courts have laid down for the exercise of their discretion".
Their Lordships added:
"Therefore, whenever this Court finds that resort to such alternate remedy in a given case is dialatory or difficult to give quick relief, this Court can always exercise jurisdiction under Article 226 as held by the Supreme Court in Assistant Transport Commissioner v. Sri Nand Singh .
A Writ of Habeas Corpus is a very important jurisdiction in which the High Courts are called upon to protect the individual liberties of citizens and prevent illegal detention by the authority of the State or otherwise. This jurisdiction is exercised to call upon the person who has detained another to produce the person detained before the Court in order to let the Court know on what ground he has been confined and if the Court finds that there is no legal basis for the imprisonment, the Court will set him at liberty. If the detention is proved to be in violation of the procedure established by law, the Court has to necessarily order his release. It is the paramount duty of the Courts to issue this kind of writ to safeguard the freedom of the citizens against arbitrary and illegal detention".
42. In Mantoo Mazumdar and Anr. v. State of Bihar, (1908) 2 Supreme Court Cases, Page 406 two under-trial prisoners languishing in jail in the State of Bihar for more than seven years and without any charge-sheet laid against them, sought redressal of the Supreme Court by addressing two letters in despair and the same were treated as petitions for issue of writs of Habeas Corpus. It was noticed by the Supreme Court that those prisoners were languishing in jail pursuant to successive orders of remand mechanically made by Magistrates authorising their detention under Section 167 (2) of the Code of Criminal Procedure. Their Lordships, while deprecating the conduct of the Magistrates, held that the orders of remand were both violative of Section 167(2) of the Code of Criminal Procedure and Article 21 of the Constitution of India.
43. It is thus well settled that if a person complains of illegal detention and seeks protection of the Court by presenting a post-card, the Court is bound to activate.
44. In Icchu Devi v. Union of India, . their Lordships of the Supreme Court observed :
"......It is also necessary to point out that in a case of an application for a writ of habeas corpus, the practice evolved by this Court is not to follow strict rules of pleading nor place undue emphasis on the question as to on whom the burden of proof lies. Even a post-card written by a detenue from jail has been sufficient to activise this Court into examining the legality of detention. This Court has consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima facie case invalidating the order of detention. Whenever a petition for a writ of habeas corpus has come up before this Court, it has almost invariably issued a rule calling upon the detaining authority to justify the detention. This Court has on many occasions pointed out that when a rule is issued, it is incumbent on the detaining authority to satisfy the Court that the detention of the petitioner is legal and in conformity with the mandatory provisions of the law authorising such detention.
.. .. .. .. .. .. ..
Once the rule is issued it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law......".
45. In Bhim Singh v. State of J & K, , Sri Bhim Singh, a member of the Legislative Assembly of Jammu & Kashmir was whisked away on the intervening night of 9th/10th September, 1985 by the police while he was proceeding from Jammu to Srinagar. As it was not known where he had been taken away and as the efforts to trace him proved futile, his wife Smt. Jayamala acting on his behalf, moved the Supreme Court for the issue of a writ of habeas corpus directing the respondents therein to produce her husband before the Court and set him at liberty by declaring his detention as illegal. It was claimed by the respondents that Sri Bhim Singh was produced before the First Class Executive Magistrate on the 11th September, 1985 and later before a Subordinate Judge for remand. Adverting to the said plea, their Lordships of the Supreme Court observed :
"..... .We do not have the slightest hesitation in holding that Shri Bhim Singh was not produced before the Executive Magistrate First Class on 11th and was not produced before the Sub-Judge on 13th. Orders of remand were obtained from the Executive Magistrate and the Sub-Judge on the applications of the police officers without the production of Shri Bhim Singh before them. The manner in which the orders were obtained, i.e. at the residence of the Magistrate and the Sub-Judge after office hours, indicates the surreptitious nature of the conduct of the police. The Executive Magistrate and the Sub-Judge do not at all see to have been concerned that the person whom they were remanding to custody had not been produced before them. They acted in a very casual way and we consider it a great pity that they acted without any sense of responsibility or genuine concern for the liberty of the subject. The police officers, of course, acted deliberately and mala fide and the Magistrate and the Sub-Judge aided them either by colluding with them or by their casual attitude. We do not have any doubt that Shri Bhim Singh was not produced either before the Magistrate on 11th or before the Sub-Judge on 13th, though he was arrested in the early hours of the morning of 10th. There certainly was a gross violation of Shri Bhim Singh's constitutional rights under Articles 21 and 22 (2)......".
Their Lordships added :
"......We do not wish to use stronger words to condemn the authoritarian acts of the police. If the personal liberty of a Member of the Legislative Assembly is to be played with in this fashion, one can only wonder what may happen to lesser mortals: Police Officers who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the laws by stooping to such bizarre acts of lawlessness. Custodians of II. law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct......".
Their Lordships finally concluded :
".....When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case. We direct the first respondent, the State of Jammu & Kashmir to pay to Shri Bhim Singh a sum of Rs. 50,000/- within two months from today.....".
46. In Talib Hussain v. State of J & K, , it was held :
"......In a proceeding for issue of a writ of Habeas Corpus, the Court must see the legality of 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".
47. In Ram Narayan Singh v. State of Delhi, , it was held :
"......Detention of a person in custody after the expiry of remand order, without any fresh order of remand committing him to further custody while adjourning the case under Section 344, Criminal Procedure Code is illegal................................It has been held by this Court that in habeas corpus proceedings 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 proceedings. The material date on the facts of this case is 10th March, when the affidavit on behalf of the Government was filed justifying the detention as a lawful one. But the position, as we have stated, is that on that date there was no order remanding the four persons to custody. This Court has often reiterated before that those who feel called upon 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. That has not been done in this case. The petitioners now before us are, therefore, entitled to be released, and they are set at liberty forthwith".
48. In Abdul Latif v. B.K. Jha, , Chinnappa Reddy, J. held :
"......We only desire to add that in a habeas corpus proceeding, it is not a sufficient answer to say that the procedural requirements of the Constitution and the statute have been complied with before the date of hearing and therefore, the detention should be upheld. The procedural requirements are the only safeguards available to a detenu since the court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. If a reference to an Advisory Board is to be made within three weeks, it is no answer to say that the report, though not obtained within three months, was obtained before the hearing of the case. If the representation made by the detenu is required to be disposed of within a stipulated period, it is no answer to say that the representation, though not disposed of within three months, was disposed of before the hearing of the case".
49. It may be recalled that without production of the detenus before him, the learned Special Judge mechanically remanded them to judicial custody from 13-8-1990 till 27-8-1990 and later till 10-9-1990 and still later till 24-9-1990, in contravention of the mandatory provision contained in Section 167 (2) (b) of the Code of Criminal Procedure, read with explana-tion-II appended thereto. No plea of impossibility of compliance with the mandatory provision before the learned Special Judge, either by the prosecuting agency or by the Jail authority was pleaded. Non-availability of escorts to produce the detenus before the learned Special Judge, pleaded by the Jail authority, hardly constitutes a ground for their continued non-production. The successive orders passed by the learned Special Judge remanding the detenus to judicial custody from 13-8-1990 till 7-9-1990 on which date, a complaint was filed against the detenus before the learned Special Judge, for contravention of the provision under Section 135 of the Customs Act, are therefore, violative of Section 167 (2) (b) of the Code of Criminal Procedure and Article 21 of the Constitution of India and their detention or custody from 13-8-1990 till 7-9-1990, was illegal and unlawful. It is true that subsequent to taking cognizance of the offence punishable under Section 135 of the Customs Act, the learned Special Judge remanded the detenus from time to time in purported exercise of the powers under Section 309 of the Code of Criminal Procedure. It should be borne in mind that Section 309 of the Code of Criminal Procedure, only authorises remand of a person in custody. But the expression "custody" means "lawful custody". It therefore, follows that the orders of remand passed by the learned Special Judge from time to time subsequent to his taking cognizance of the offence, would not cure the illegal detention of the detenus. It is thus clear, that on the date of the returns i.e. 8-11-1990, when counter affidavits were filed on behalf of the Directorate, Revenue Intelligence, Madras, the detenus were in illegal detention. As it is the primordial duty of this Court to remedy an illegal detention, if it is brought to its notice, a writ of habeas corpus shall issue in each of the writ petitions directing the respondents to set at liberty forthwith the detenus named therein, on their each furnishing to the Special Judge, Court of Economic Offences, Hyderabad, either bank guarantee or cash security, in a sum of Rs. 10,000/-.
50. It is now brought to our notice that the detenus are at present, lodged in the District Jail, Musheerabad, Hyderabad. A direction shall therefore, issue to the Superintendent, District Jail, Musheerabad to set the detenus named in all the above writ petitions at liberty, on receipt of intimation from the Court of Special Judge for Economic Offinces, Hyderabad, as to furnishing of either bank guarantee or cash security by each of the detenus in a sum of Rs. 10,000/-. The Writ Petitions are accordingly allowed. No costs.
51. An oral application is made by Sri I. Koti Reddy, Senior Standing Counsel for the Union of India, for leave to appeal to the Supreme Court. We, are however, not convinced that the cases involve any substantial question of law of general importance. Leave asked for is therefore, refused.
52. Sri Koti Reddy, learned Standing Counsel for the Union of India, also makes an oral request for suspension of operation of our Judgment, for a week. We see no grounds to supend the same. The oral request is rejected.