Karnataka High Court
Smt. Noor Jahan vs The State Of Karnataka By Its C.O.D. ... on 6 February, 1991
Equivalent citations: 1993CRILJ102, ILR1991KAR4081, 1992(1)KARLJ294
ORDER
1. In this petition under Art. 226 of the Constitution of India, the petitioner has sought for issue of a writ in the nature of Habeas Corpus to the respondents to set at liberty the person by name A. Shaik Ahmed, who according to the petitioner is illegally detained by the respondents. Alternatively, she has also prayed for such other order as deemed fit in the circumstances of the case may be passed.
2. The facts necessary for the purpose of deciding the contentions raised on both sides are as follows;
2.1. On 7-10-1990 a complaint was lodged by one Sri M. G. Prakash Rao in the Rural Police Station, Davangere under the jurisdiction of Harihar Circle alleging that on 6th October, 1990 a person by name Srinivas had been done to death by miscreants and the dead body of the said person was thrown behind Balaji Theatre, Davangere; that the said dead body was taken to the C. G. Hospital (Government Hospital, Davangere) in ambulance; that there were marks of injuries on the dead body of Srinivas. It was also further alleged that Srinivas appeared to have been done to death in the communal riot between Hindus and Muslims by some miscreants.
2.2. A criminal case was registered on 7-10-1990 in Crime No. 401/90. The first information Report was also submitted to the Judicial Magistrate First Class, Davangere.
2.3. The investigation of the case was carried on by the Davangere Rural Police upto 14-10-1990. On 14-10-1990 the investigation was handedover to the C.O.D. Police. During the course of investigation the names of 12 accused persons transpired. Accordingly a report was submitted to the court. Out of those 12 accused, accused Nos. 1 to 3 were arrested on 21-12-1990 at Davangere and they were produced before the Judicial Magistrate First Class, Davangere on the same day. No doubt in the counter affidavit dated 31-1-1991 filed by the Sub-Inspector K. S. Ullas of C.O.D. it is stated that he was arrested on 21-11-1990. This appears to be a typographical mistake, whereas in fact accused No. 3 was arrested on 21-12-1990 and was produced before the learned Magistrate on the same day. The learned Magistrate passed an order on 21-12-1990 remanding accused No. 3 to judicial custody up to 22-12-1990. Again on 22-12-1990, the said accused was produced before the Court. The learned Magistrate remanded him to the judicial custody till 27-12-1990.
2.4. In the meanwhile, on 22-12-1990 accused No. 3 moved the Court for bail. That application was considered and rejected on 4-1-1991. On the same day accused No. 3 moved the Court of Session Chitradurga, for bail. The learned Sessions Judge by his order dated 14-1-1991 rejected the bail application. It is brought to our notice that accused No. 3 has filed Criminal Petition No. 134/91 for bail in this Court and that petition is yet to be considered.
2.5. To resume the narration of facts, accused No. 3 was produced again on 27-12-1990 before the Court. The learned Magistrate remanded him to judicial custody up to 4-1-1991. On 4-1-1991 accused No. 3 was again produced before the Court and the learned Magistrate remanded him to judicial custody up to 18-1-1991.
2.6. On 6-1-1991 accused No. 3 Sri. A. Shaik Ahamed the husband of the petitioner complained of giddiness and vomiting. Therefore, the Superintendent, Sub-Jail, Davangere, got him admitted in the C.G. Hospital, which is a Government Hospital. Since then he has been under the treatment of Dr. M. Rajappa, who is a doctor of Neurology. Accused No. 3 still continues to be in the aforesaid hospital as an inpatient under the treatment of Dr. M. Rajappa.
2.7. On 18-1-1991 an application was filed for continuing all the three accused in judicial custody. Accused Nos. 1 and 2 were produced. However, accused No. 3 was not produced, it was specifically stated in the application that accused No. 3 could not be produced as he was in the hospital as an inpatient and undergoing treatment. The Court passed the following order on 18-1-1991.
"18-1-1991 State by A.P.P. A-1 to A-3 in J.C. Final Report not received. For objections & to hear on the application of A-3. A-1 and A-2 produced from J.C. A-3 not produced from J.C. The Superintendent of Sub-Jail, Davangere, submitted that accused No. 3 is in the Hospital and unable to produce him. A.P.P. filed objections to the application of A-3 with regard to the putting of hand-cuff along with one document. P.I. of C.O.D. has also filed further remand application. Sri. K. H. A. produced a certificate issued by the Medical officer of C.G. Hospital, Davangere. Heard learned A.P.P. and Sri. K. H. A. For orders on the application for putting the hand-cuff. No remand orders are passed with regard to A-3. A-1 and A-2 are remanded to J.C. till 21-1-1991."
On 21-1-1991 again an application was filed for remanding accused Nos. 1 and 2 as well as accused No. 3 to judicial custody. The Court passed the following order;
"A-1-A-2 produced from J.C. A-3 not produced. The Superintendent of Sub-Jail, Davangere, submitted a requisition stating that he is unable to produce from the hospital. Await final report. A-1 and A-2 are remanded to J.C. till 2-2-1991."
Again on 2-2-1991 another application was filed to continue accuse 1 to 3 in J.C. The Court passed the following order.
"2-2-1991 State by A.P.P. Accused 1 to 3 in J.C. Final Report not received. A-1 and A-2 produced from J.C. Further remand application filed. The Supdt. of Sub-Jail, Davangere, filed a report that A-3 is admitted in hospital. A-3 in absence of A-3 no further remand order is passed. Await final report. A-1 and A-2 are remanded to J.C. by 16-2-1991."
3. This writ petition was filed on 28-1-1991 by the wife of accused No. 3 for issue of a writ in the nature of Habeas Corpus.
4. The respondent have filed the counter affidavit of Sri. M. S. Ullasa S/o Late K. M. Somappa, Aged 48 years, working as Police Inspector H & B Squad, C.O.D., Bangalore, who is investigating case, sworn to by him on 5-2-1991. The respondents have also filed the counter affidavit of Sri. Thanveer Ahmed, S/o Abdul Hakeem, Aged 38 years, working as Superintendent, Special Sub-Jail, Davangere, sworn to by him on 5-12-1991 along with the copies of the reports dated 18-1-1991, 21-1-1991, and 2-2-1991 filed before the Court for not producing accused No. 3 before the Court. In all these reports, it has been pointed out that accused 3 could not be produced, because he has been undergoing treatment from 6-1-1991 in C.G. Hospital as per the medical advise tendered by the Doctor. Nevertheless, the learned Magistrate has not passed an order continuing accused No. 3 in judicial custody. From the order sheet of the various relevant dates reproduced above, it is apparent that what operated in the mind of the learned Magistrate when he did not pass an order remanding accused No. 3 to judicial custody, was that accused No. 3 was not produced before him as required by sub-section (2)(b) of Section 167 of the Code of Criminal Procedure.
5. The case of the petitioner is that as there was no order passed continuing accused No. 3 in judicial custody from 18-1-1991 the respondents have had no authority to retain him in custody. Therefore, the detention of accused No. 3 from 19-1-1991 is unauthorised. Hence, he is entitled to be set at liberty.
It is also contended on behalf of the petitioner that as her husband has been continued in unauthorised custody 19-1-1991 she is entitled to compensation as per law for deprivation of personal liberty.
6. On the contrary, it is contended on behalf of the respondents by Sri C. Shivappa, the learned Advocate General that the investigating agency has done what all that was required to be done on its part for continuing accused No. 3 in judicial custody; that it is the Court that has failed to pass the order under wrong conception of law; that as per the decision of the Supreme Court in the case of Raj Narain v. Superintendent, Central Jail, New Delhi, AIR 1991 SC 178 : (1971 Cri LJ 244) the actual production of the accused is not insisted upon wherever it is not possible to produce that specific material was produced to show that accused No. 3 was got admitted in the hospital, by the jail authority and has been undergoing treatment as an in-patient in the C.G. Hospital under the advise of the Doctor who is treating him, therefore, he could not be physically produced; that the learned Magistrate should not have insisted for actual production of accused No. 3 and should have passed an order remanding accused No. 3 to judicial custody. That it is a case in which on being investigated by C.O.D. it has been found that accused No. 3 is involved in the murder of Srinivas that the bail application filed by him has been rejected by the two Courts below, therefore he should not be set at liberty.
With reference to the contention as to the damages, it is contended by the learned Advocate General that the State has done what all that is required to be done in the matter, but it is the Court which under the wrong conception of law has not passed an order remanding accused No. 3 to judicial custody. Therefore, it is contended that the petitioner is not entitled to damages from the respondents for the mistake committed by the Court. Further, it is contended that it is not as though accused No. 3 is continued in custody without the authority of law in as much as he is involved in an offence punishable under S. 302, I.P.C.
The learned Counsel appearing on both sides have placed several judicial precedents in support of their respective contentions which will be referred to at the appropriate place.
7. Having regard to the contentions urged on both sides, the following points arise for consideration are :-
(1) In the facts and circumstances of the case, whether the petitioner is entitled to have a writ in the nature of Habeas Corpus issued to the respondents to set at liberty accused No. 3 in Crime Nos. 401/90 on the file of the J.M.F.C., Davangere ?
(7) If it is held that the continuation of accused No. 3 in judicial custody from 19-1-1991 is unauthorised, whether he is entitled to damages ?
8. Point No. 1 :- The facts narrated above which are no more in dispute make it clear that from 18-1-1991 onwards there is no order continuing accused No. 3 in judicial custody. Where a person is involved in an offence punishable with imprisonment for life or death or lesser offence when once he is arrested he has to be produced before the Court within 24 hours the time of arrest as required under Section 57 of the Code of Criminal Procedure ('the Code' for short) and Article 22 of the Constitution of India. Thereafter as required by Section 167 of the Code, the jurisdictional Magistrate on being satisfied has to continue the accused in judicial custody from time to time until expiry of 90 days, but the continuation of the accused in judicial custody shall not exceed 15 days at a time. In case the prosecuting agency fails to file Charge sheet in the case of an offence punishable with imprisonment for life or death or imprisonment for 10 years within a period of 90 days and in the case of any other offence within a period of 60 days. The Court on the expiry of the aforesaid period of 90 days or 60 days as the case may be, has no option but to release the accused on bail, if he is prepared to and does furnish bail. In the instant case, no doubt, the period of 90 days from the date of arrest is not yet over. However, that is not the point for our consideration. The point for consideration, as already stated above, as there is no order passed by the Magistrate remanding accused No. 3 to judicial custody from 18-1-1991 onwards, having regard to the provisions contained in sub-section (2) of Section 167 of the Code, accused No. 3 can be continued in custody. Even though the complaint may be for any offence unless the accused is found guilty he is presumed to be innocent. Therefore, in order to detain the accused in custody, law specifically provides in Section 167 of the Code that there should be an order remanding the accused to judicial custody. Therefore, in the absence of the order remanding the accused to judicial custody there will not be any authority either in the State or in the state police to detain a person in custody merely because he is accused of an offence punishable under Section 302, I.P.C.
9. Sri. Patil learned Counsel for the Petitioner has placed reliance on the following decisions;
1. , Makhan Singh Tarsikka v. State of Punjab.
2. , Ram Narayan Sigh v. The state of Delhi.
3. AIR 1969 SC 1014 : (1969 Cri LJ 1440), In Re. Madhu Limaya.
4. 1970 (2) SCWR 329 : (1971 Cri LJ (N) 42), Sapmawia v. Deputy Commissioner, Aijal.
5. , Raj Narain v. Superintendent, Central Jail, New Delhi.
6. , Gauri Shankar Jha v. State of Bihar.
7. AIR 1973 SC 850 : (1973 Cri LJ 663), M. Sambasiva Rao v. The Union of India.
8. , Sandip Kumar Dey v. The Officer-in-charge, Sakchi P.S. Jamshedpur.
9. , State of Bihar v. Rampalak Singh.
The learned Advocate General has placed reliance on a decision of a Full Bench of the High Court of Patna in the case of Ramesh Kumar Ravi alias Ram Prasad and etc. v. State of Bihar, .
9.1. In Makhan Singh's case Makhan Singh was arrested and detained under an order dated 1-3-1950 made by the District Magistrate. Amritsar, under section 3(1) of Preventive Detention Act. The Supreme Court held that every case of detention should be placed before an Advisory Board constituted under the Act. If the Advisory Board reports that there is sufficient cause for the detention, "the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit." It is therefore, plain that it is only after the Advisory Board to which the case has to be referred, reports that the detention is justified, the Government should determine the period of detention and not before that. Therefore, it was held that the fixing of the period of detention in the initial order itself was contrary to the scheme of the Act and as such it could not be supported. However, the learned counsel for the petitioner placed great stress on the following observations (at Page 322 of Cri LJ) :
"However that may be, we are clearly of opinion that the order dated 30-7-1951 must be regarded as a fresh order made for the petitioner's detention in supersession of the earlier order and the question is whether it was illegal in that it straightaway directed that the petitioner be detained till 31-3-1952 which was date of the expiry of the Act."
It is not possible to hold that the aforesaid observations are of any bearing on the point in question. Thus the decision in Makhan Singh's case is not applicable to the case on hand.
9.2. In Ram Narayan Singh's case, the Supreme Court was concerned with the case wherein the accused were arrested for the alleged defiance of an order prohibiting meetings and processions in the area in question, an offence punishable under Section 188 of the Indian Penal Code. It was held by the Supreme Court as followed :
4. "In a question of Habeas Corpus when the lawfulness or otherwise of the custody of the persons concerned is in question, it is obvious that these documents, if genuine, would be of vital importance, but they were not produced notwithstanding the clear direction contained in our order of 10th March. The Court records produced before us do not contain any order of remand made on 9th March. As we have already observed, we have the order of the trying Magistrate merely adjourning the case to 11th. The Solicitor General appearing on behalf of the Government explains that these slips of paper, which would be of crucial importance of the case, were with a police officer who was present in Court yesterday, but after the Court rose in the evening the latter thought that their production might be of some importance and therefore, they were filed before the Registrar at 5.20 p.m. We cannot take notice of documents produced in such circumstances and we are not satisfied that there was any order of remand committing the accused to further custody till 11th March. 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."
Relying upon the aforesaid decision, it was submitted that the law required that an order continuing accused No. 3 in judicial custody ought to have been passed on 18-1-91; that as no such order was passed, the continuation of accused No. 3 in custody from 19-1-91 was illegal and unauthorised. Therefore, accused No. 3 was entitled to be set at liberty forthwith.
9.3. There is no doubt that in the instant case from 19-1-91 onwards, there is no order passed by the Court continuing accused No. 3 in judicial custody. Therefore, there is no authority for the respondents to detain accused No. 3 in custody in the absence of an order continuing him in judicial custody from 19-1-91.
9.4. The decision in Madhu Limaye case, AIR 1969 SC 1014 : (1969 Cri LJ 1440) is to the effect that the order passed mechanically remanding the accused to judicial custody cannot be considered to be a valid order in the eye of law. Therefore, this decision has no bearing on the point involved in the case.
9.5. In Sapmawia's case, 1970 (2) SCWR 329 : (1971 Cri LJ (N) 42) the Supreme Court was concerned with the case in which the accused was charged with an offence punishable under section 121, I.P.C. and Rules 41(4) and 32(5) of the Defence of India Rules and also Sections 10, 11, and 13 of the Unlawful Activities (Prevention) Act. In that case, the accused sought for a writ of Habeas Corpus on the ground that the order remanding him to judicial custody was not a valid order. In that case, on 14th August 1968, the accused was taken by the Security Force from his house in Bairabi, Mizo District, to work as a porter for carrying their luggage to the next village. He was however, not allowed to return home. He was kept under military guard for about three months without any interrogation. On November 23, 1968, he was sent to Silchar District Jail where he was interrogated by a Sub-Inspector of Police. He was thus kept as an under-trial prisoner since the date of his arrest on 14-8-1968. On enquiry from jail authorities, he learnt that he was charged for the aforesaid offences. The accused made an application before the Assam High Court for a writ of Habeas Corpus. The High Court on January 22, 1970, directed the State Government to complete the investigation of the case registered against him within two months. Thereafter no further action was taken. Hence he moved the Supreme Court for a writ in the nature of Habeas Corpus. In that case, the last order of remand was passed on February 2, 1970 but that order was silent as to for how many days the accused was remanded to judicial custody and it also did not in terms authorise the authorities of Dibrugarh jail to keep the accused in their custody. One of the contentions urged was as to under what provision of law the order of remand was made. The Supreme Court on considering the contentions held at paragraph 11 of the decision as follows :
"The writ of Habeas Corpus is a prerogative writ by which the causes and validity of detention of a person are investigated by summary procedure and if the authority having his custody does not satisfy the Court that the deprivation of his personal liberty is according to the procedure established by law the person is entitled to his liberty. The order of release in the case of a person suspected of or charged with the commission of an offence does not per se amount to his acquittal or discharge and the authorities are not by virtue of the release only on habeas corpus deprived of the power to arrest and keep him in custody in accordance with law for this writ is not designed to interrupt the ordinary administration of criminal law. This Court has been entrusted by the Constitution with a duty and an obligation to enforce the fundamental rights of the parties approaching it for such relief. Out constitution is the supreme law framed by the selected representatives of entire nation after years of deep though and deliberation. The fundamental principles embodied therein were designed to inspire our governmental set up. It is from this source that all authorities including the Parliament, the President and this Court derive their respective powers. Such powers are circumscribed by the language of the Constitution itself. It is impermissible to go against the constitutional mandate or to override it. If, therefore, a person has been deprived of his personal liberty in violation of the procedure established by law and no cogent ground for declining relief in habeas corpus proceedings is made out, then this Court has no option except to order his release, for personal liberty of the individual is highly cherished in our set up giving priority only to the interest of the nation and the security of the State. It is undoubtedly in our eastern and north-eastern borders there are some unfriendly foreign power which, with evil and hostile designs, are constantly seducing political adventurists and gullible inhabitants of that area and aiding and encouraging their unlawful activities prejudicial to our democratic set up. Such a situation, posing as it does a serious threat to orderly life and security of the State demands drastic measures for meeting it. It is also correct that the charge against the petitioner pertains to security of the State. But these considerations do not afford sufficient justification for by-passing or violating the provisions of the Constitution. Executive expediency should not prevail over the rule of law as envisaged therein. For meeting with emergencies, the Constitution, it may be pointed out, contains adequate provisions."
Thus the Supreme Court held that custody of the accused in jail was not in accordance with the procedure established by law. Therefore, directed the authorities to release him.
9.6. It may be pointed out that this decision is relied upon by both the sides. The learned counsel for the petitioners has relied upon this decision to support his contention that in the absence of an order remanding the 3rd accused to judicial custody, the Court has no option but to issue a writ in the nature of habeas corpus. Whereas, the learned Advocate General has placed reliance on the other observations contained in the same para that even if the Court has no option but to issue a writ in the nature of habeas corpus, the State Police or the Investigating Agency, is no deprived of the power to re-arrest him and produce him before the Court because the issuance of a writ does not amount to discharge or acquittal of the accused or release of the accused on bail.
9.7. In Raj Narain's case, it has been held that for the purpose of passing an order remanding the accused to judicial custody, if it is not possible to produce the accused bodily, he need not be produced and the order of remand can be passed even in the absence of the production of the accused. It has also been further held that custody of the accused cannot be continued in the absence of an order of remand. In Raj Narain's case, the decision rendered in the case of Makhan Singh, has also been distinguished. The facts of Raj Narain's case are as follows :
Sri Raj Narain, a Member of Parliament, was arrested on August 20, 1970 under sections 107/117, Cr.P.C. and was remanded to judicial custody under a warrant issued by the City Magistrate, Lucknow. The remand order was upto August 28, 1970. Raj Narain moved the Supreme Court for a writ of Habeas Corpus on August 22, 1970. The Supreme Court directed that Raj Narain be transferred to Tihar Central Jail, Delhi. There was an order passed by the City Magistrate on August 28, 1970 continuing Raj Narain in judicial custody and this order was communicated to Raj Narain on the morning of August 29, 1970. As the order continuing him in judicial custody was not served on Raj Narain on or before 28-8-1970 i.e., on or before the expiry of the period of the earlier order remanding him to judicial custody, it was contended that the delay in communication of the order made the continuation of Raj Narain in jail unauthorised; therefore, he was entitled to a writ in the nature of Habeas Corpus; that the order passed by the City Magistrate, Lucknow continuing Raj Narain in judicial custody without he being produced before him was not valid in law. Both these contentions were negatived. The relevant portion of the decision is as follows :
"7. The facts here are different from the case cited. Mr. Raj Narain did not want bail or seek to appear by counsel. He complained of nothing except his detention which he described as illegal for the technical reason that he was not produced before the Magistrate. If he wanted bail, he could have asked us as he was in our custody. There is nothing is the law which required his personal presence before the Magistrate because that is a rule of caution for Magistrates before granting remands at the instance of the police. However, even if it be desirable for the Magistrates to have the prisoner produced before them, when they recommit him to further custody, a Magistrate can act only as the circumstances permit. Where the prisoner's custody is transferred to a superior Court such as this the Magistrate can only adjourn the case at the same time extending the period of remand. It is for this Court to see that the custody by it continued under proper orders and if this Court is satisfied that the prisoner is in proper custody under a proper order of remand, the prisoner will not be released. This Court does not order detention and cannot extend the remand. Its custody is conterminous with the remand ordered by the Magistrate. If the Magistrate extends the period of remand and communicates the order to the person having the immediate custody of the prisoner with intimation to this Court and the prisoner, nothing more is expected of him. The object of production of the prisoner before the Magistrate is more than answered by his production before this Court because the prisoner has the protection of his interest transferred from the Magistrate to this Court.
8. There is no reason why we should order the release of Mr. Raj Narain when we are satisfied that he is held on a proper remand by a Magistrate and there are no circumstances justifying release by us. To expect the Magistrate to do more under section 344 of the Code in such circumstances is to expect an impossibility from him and the law does not contemplate an impossibility. Indeed, similarly Courts trying cases may find it necessary to order a remand in the absence of an accused e.g. when an accused is so seriously ill that the trial has to be adjourned and he cannot be brought to Court and in such case the order order made without production of accused in Court will not be invalid.
9. Prisoners, who are under-trial are brought before this Court on rule nisi and are kept in custody of this Court. This is a transferred custody on behalf of the Magistrate. The Magistrate cannot recall the prisoner from our custody by his order and he is only required to intimate to the jail authorities, the prisoner and this Court that the original remand has been extended while adjourning the case. This is sufficient compliance with the requirements of the law in such special circumstances."
Thus this decision lays down that actual production of a prisoner, where it is not possible or in a case where he is seriously ill and as such cannot be brought to Court, is not necessary and the Court can pass an order remanding him to judicial custody even in the absence of this production. Therefore, in the instant case also, the Magistrate ought not to have insisted upon the production of accused No. 3 and ought to have passed an order continuing him in judicial custody.
10. We need not refer to the other decisions referred to by learned counsel for the petitioner , Gouri Shankar Jha v. State of Bihar, AIR 1973 SC 850 : (1973 Cri LJ 663), M. Sambastva Rao v. The Union of India, , Sandip Kumar Dey v. The Officer-in-Charge, Sakchi P.S. Jamshedpur in greater detail because in these decisions, the decision rendered in Raj Narain's case has been followed.
10.1. In the case of Gouri Shankar Jha, the accused refused to appear before the Magistrate's Court. Therefore, the order remanding him to judicial custody was passed without producing him. The Court held that the accused himself having refused to appear before the Court, cannot take advantage of his own conduct and challenge the order continuing him in judicial custody.
10.2. In the case of M. Sambasiva Rao, AIR 1973 SC 850 : (1973 Cri LJ 663) the order of remand was challenged on the ground that the accused was not produced before the Court. Following the decision reported in Raj Narain's case, the contention was negatived.
10.3. In the case of Sandip Kumar Dey, the accused was arrested on 5-6-1971 and produced before the Magistrate on 6-6-1971. The Court passed an order remanding the accused to judicial custody. The order remanding the accused to judicial custody was challenged and a writ in the nature of habeas corpus was sought. But the Supreme Court held that order of remand ought not to have been passed mechanically even though 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. The decision in Raj Narain's case has been followed.
11. A Full Bench decision of the High Court of Patna , Ramesh Kumar Ravi alias Ram Prasad v. State of Bihar relied upon by the learned Advocate General was a case in which an order remanding the accused to judicial custody was passed. The points raised for consideration by the Full Bench also would go to show that there was an order of remand passed remanding the accused to judicial custody. The validity of those orders was challenged. Therefore, it is not possible to hold that the aforesaid decision of a Full Bench governs the case on hand because in the instant case, from January 19, 1991 onwards there was no order passed by the Magistrate, Davangere, remanding accused No. 3 to judicial custody. Having regard to the decisions of the Supreme Court reported in Ram Narayan Singh, : Sampawia, 1970 (2) SCWR 329 : (1971 Cri LJ (N) 42) and Raj Narain, even though the offence alleged against accused No. 3 is the one punishable under section 302, I.P.C., in the absence of an order passed by the Magistrate, Davangere, continuing accused No. 3 in judicial custody, from 18-1-1991 onwards, we are constrained to hold that accused No. 3 is entitled to a writ in the nature of habeas corpus, because there is no authority for the respondents to continue him in custody in the absence of an order of remand passed under section 167 of the Code. It is true that as per clause (b) of sub-section (2) of Section 167 of the Code, normally for seeking an order of remands to continue the accused in judicial custody, the accused should be produced before the Magistrate, but in a case where it is not possible to bodily produce the accused as in the instant case where the accused is undergoing treatment in the hospital as anin-patient and according to the doctor's advice, he cannot be taken out of the hospital and produced before the Court, it is not necessary that the accused should be produced bodily. If the Magistrate is not satisfied, it is open to him to call for the report from the Doctor or he can personally visit the hospital and satisfy about the condition and safety of the accused but he cannot refuse to pass an order continuing the accused in judicial custody on the ground that he has not been produced. The law is not unreasonable and it does not expect an impossible thing to be performed. Therefore, the Magistrate ought to have been circumspective and ought to have passed an order continuing accused No. 3 in judicial custody. There is no doubt that the Magistrate only on literal interpretation of the provisions contained in clause (b) of sub-section (2) of Section 167 of the Code, has failed to pass an order continuing accused No. 3 in judicial custody on the ground that accused No. 3 is not produced before the Court. The decision in Raj Narain's case has settled the issue beyond doubt, and decision holds good even under new Code of 1973 that wherever it is not possible to produce the accused before the Court bodily, the Court cannot insist upon the production of the accused bodily and cannot refuse to pass an order of remand. As already pointed out, in such a case if the Court is not satisfied with the report made by the investigating officer for continuing the accused in judicial custody, it is open to the Court to call for a fresh report from the concerned person or authority, if the accused is undergoing treatment in hospital as an in-patient the Court can also call for a report from the Doctor who is treating him or if the Court is situated in the place where the hospital is situated, the Magistrate can visit the hospital and satisfy himself. What is required in this situation is the practical and the common sense approach to the case. The Court has to see whether it is possible to produce the accused or not. If it is not possible, then the Court should not insist upon production of the accused bodily.
12. We also consider it necessary to point out that as observed in Sapmawia's case, 1970 (2) SCWR 329 : (1971 Cri LJ (N) 42) issuing of a direction to release the accused by way of a writ in the nature of Habeas Corpus, does not amount to or does not result in either discharge or acquittal of the accused of the offence for which the case is registered against him, nor such an order amounts to granting bail to the accused. As such, it does not come in the way of investigating agency to exercise its power and to re-arrest and keep him in the custody in accordance with law. Accordingly, point No. 1 is answered in the affirmative.
POINT NO. 213. The facts stated above and the conclusion reached by us make it clear that this case has arisen only because of the mistake committed by the Magistrate, Davangere. All the material that was necessary for passing an order of remand was placed before the Court; nevertheless, the Court refused to pass an order remanding accused No. 3 to judicial custody on the ground that accused No. 3 was not produced. Therefore, for the mistake committed in the Court, the State should not be penalised. No doubt, the mistake committed by the Court has resulted in the unauthorised detention of the accused No. 3 from 19-1-1991 onwards but this mistake is due to bona fide wrong understanding of law by the Court and not with any ulterior motive or purpose. The mistakes are bound to happen. It is human to err. As long as the mistakes are bona fide, they can be excused. Therefore, we are of the view that though the Court has committed an error but it has acted bona fide. There was no ulterior motive in not passing an order of remand. Therefore, the petitioner cannot be awarded damages because bona fide error or mistakes committed in the bona fide exercise of jurisdiction by the Court, cannot be held to give rise to a right to claim damages. Accordingly, point No. 2 is answered in the negative.
14. In the result and for the reasons stated above, this writ petition is allowed in part in the following terms :
(a) A writ in the nature of Habeas Corpus shall issue. Sri A. Shaik Ahamed, the husband of the petitioner, who is accused No. 3 in Crime Nos. 401/90 on the file of the judicial Magistrate First Class, Davangere, is set at liberty.
(b) As respondent-2 is present in the Court, this order shall be served upon him. He shall also receive this order before he leaves the prescincts of this Court.
(c) We further make it clear that this order or release does not affect the authority of respondent-1 and the investigating officer of the case to arrest accused No. 3 and keep him in custody in accordance with law.
(d) We also make it further clear that this order shall not be read as in any way affecting the criminal case lodged against accused No. 3, as it does not amount to discharge or acquittal of the 3rd accused for the offence for which the prosecution is launched against him, nor does it amount to granting bail to him.
(e) The prayer for damages is rejected.
15. A copy of the operative portion of the order shall be handed over to the learned Government Advocate who shall hand over the same to respondent-2 for compliance.
16. As copy of this order shall also be furnished to the learned counsel for the petitioner today itself.
17. Order accordingly