Allahabad High Court
Surendra Tiwari vs State Of U.P. And Ors. on 18 June, 1992
Equivalent citations: 1994CRILJ805
JUDGMENT H.N. Tilhari, J.
1. By means of this writ petition the petitioner has sought the issuance of writ of habeas corpus or writ, order or direction in the nature of writ of habeas corpus directing the immediate release of the petitioner. The petitioner has also prayed for orders being issued for immediate medical aid to the detenu as well as for taking action against Raja Rampal Singh and other police personnel as well as for the orders for proper enquiry and for further orders taking action against Raja Rampal Singh and other police personnel alleged to be responsible for illegally detaining the petitioner and for causing injuries on his person as alleged by the petitioner and for any other such writ, order or direction as is deemed just and proper.
2. The petitioner's case, as per allegations contained in the writ petition, is that on 11-4-1992 at 6 p.m. he has been taken away from his residence at Anandnagar, Police Station Alambagh, Lucknow, by Inspector, Police Station Qaiserbagh, Lucknow and Inspector, Police Station Alambagh, Raja Rampal Singh. The Petitioner further alleged that at the time the petitioner was taken away on 11-4-92 at 6 p.m. Shri Shiv Ram Shukla, Advocate was present and that on enquiry both the Inspectors informed Shri Shiv Ram Shukla, Advocate that the petitioner was required for interrogation and would be set free after sometime as alleged in paragraph 23 of the writ petition. The petitioner's case is that on 12-4-92 at 00.43 hours telegram was sent by Shri Shiv Ram Shukla, Advocate, to Director General of Police", U. P. Lucknow, District Magistrate, Lucknow and to Home Secretary to U. P. Government, Lucknow. A copy of which the petitioner has annexed as Annexure-1, to this writ petition. In paragraph 4 of the writ petition it has been alleged that when Surendra Tewari did not return back home till next morning the deponent in the writ petition Markande Tewari alias Rajendra Tewari, the own brother of the petitioner through whom this petition has been filed made enquiries about Surendra Tewari and he was informed that Surendra Tewari was being kept under police lock up at Police Station, Hazratganj, Lucknow and on 13-4-1992 at about the noon the police squad led by Inspector Raja Rampal Singh and Inspector Qaiserbagh again came to petitioner's residence at Anandnagar, Police Station, Alambagh and forcibly took away his brother Prem Shanker Tewari. In paragraph 6 it was alleged that the deponent in this petition Shri Markande Tewari along with Vinay Jeet Lal Verma and Shri Shiv Ram Shukla, Advocate went to Police Station, Hazratganj and they saw in the evening on 12-4-92 that Surendra Tewari and Prem Shanker Tewari were under Lock up in the Police Station, Hazratganj and they in the petition had further alleged that the two persons appear to have been given serious beating. In paragraph 9 to the writ petition it was asserted by the deponent that Surendra Tewari shouted in presence of the above named two Advocates that he was beaten severally by the police and particularly by Raja Rampal Singh who took him to Police Station, Alambagh and caused him external and internal injuries. The petitioner deponent of the petition in paragraph 12 stated that the deponent sent telegram addressed to the Chief Justice of India, the Chief Minister of Uttar Pradesh and the Senior Judge of the High Court at Lucknow, the Director General of Police, U. P., Lucknow at 01.45 a.m. on 13-4-92. The petitioner's case is that the petitioner is and has been detained by the opposite-parties without any cause and is and has been kept in detention by opposite-parties for more than 24 hours and specifically mentioned in paragraph 15 "40" hours without being produced before the Magistrate and his detention is illegal and violative of the provisions of Article 22(2) of the Constitution of India. The petitioner's complaint in the writ petition is that he has been beaten continuously by Raja Rampal Singh, S.H.O. Police Station, Alambagh and other police personnel. Annexure-1 is the photostat copy of the telegram addressed to Home Secretary, Director General of Police, District Magistrate, Lucknow purports to have been sent by Shri Shiv Ram Shukla, Advocate. Annexure-2 has been stated to be true copy of the telegram sent by the deponent of the writ petition. This petition has been filed in this Court on 13-4-92 and was directed to come up on 16-4-92 for orders and in the meantime the Government Advocate was allowed time to seek instructions. On behalf of the opposite-parties three short counter-affidavits were filed, one was on behalf of opposite-party No. 2, the second was on behalf of opposite-party No. 3, and the third was on behalf of opposite-party No. 4. Lateron detailed counter-affidavits on 18-4-92 after serving a copy thereof on the petitioner's counsel were filed on behalf of opposite-party No. 3 and supplementary counter-affidavit sworn on 17-4-92 after having served a copy on petitioner's counsel on 23-4-92, was filed on behalf of Raja Rampal Singh, S.H.O. Police Station, Alambagh. Rejoinder-affidavit to the counter-affidavit of Raja Rampal Singh was filed after having served the copy thereof on 22-4-92 on the counsel for the State. Since the petitioner in the above writ petition had claimed immediate medical aid being provided to him a Division Bench of this Court consisting of Hon'ble S. S. Ahmad, J. and Hon'ble H. N. Tilhari, J. directed that the detenu be produced in court. The bench had directed the opposite-parties to file supplementary counter-affidavit indicating the nature of injuries on the person of the petitioner as recorded in the jail register at the time of petitioner's entry into district jail. The petitioner having been directed to be produced on 17-4-92. On 17-4-92 the petitioner was produced before the Court and the Court directed let the detenu be examined by the Medical Officer posted in the District Jail Lucknow in presence of the Chief Medical Officer, Lucknow, in the District Jail itself and that a report be submitted to the Court within three days through Government Advocate. By order dated 17-4-92 Raja Rampal Singh was directed to file a detailed counter-affidavit indicating, specially, the time at which the detenu was produced before the Magistrate, the name of the Magistrate before whom the petitioner was produced was also required to be specified and the copies of the relevant G. D. entries relating to petitioner being taken into Havalat and of his being taken out of Havalat for being produced before the Magistrate were also required to be filed along with the counter-affidavit. The latest date for filing a detailed counter-affidavit was fixed to be 21-4-92 and for filing rejoinder to that affidavit was provided as 22-4-92 and the petition was directed to be put up on 23-4-92. On 23-4-92 the case was put up for hearing and after being heard on that date it was put up for hearing on 24-4-92. On 24-4-92 a change did take place in the course of arguments i.e. when the arguments were about to close, after lunch hours Kr. Mridul Rakesh and Shri Vijai Vikram, Advocates produced a letter from the District Magistrate, Lucknow, whereby they were authorised and appointed to be Special Counsel to appear in the case on behalf of the State. Kr. Mridul Rakesh sought time to make his submissions apart from all these submissions that had been made on behalf of the opposite-parties by Shri Bireshwar Nath learned Government Advocate and Shri Abdul Mateen, Additional Public Prosecutor. Kr. Mridul Rakesh was allowed two days' time to prepare the brief before making submissions and keeping in view the interest of justice and fairness to both the parties we allowed two days' time to Kr. Mridul Rakesh to prepare the case and argue and directed the case to come up on 27-4-92. On 27-4-92 we heard the argument afresh in the case and asked the counsel for the petitioner Shri Virendra Bhatia to make his submissions afresh so as to enable the newly appointed Special Counsel to appreciate his argument and be able to advance proper reply on behalf of the State. Thereafter on 27-4-92 and on 30-4-92 we heard Shri Virendra Bhatia, counsel for the petitioner and Kr. Mridul Rakesh and Shri Vijai Vikram Advocates who appeared as Special Counsel for and on behalf of the opposite-parties. Before we proceed with the arguments that have been advanced it may be mentioned here that in pursuance of this Court's order dated 17-4-92 the detenu was got medically examined by Medical Officer posted at District Jail in presence of the Chief Medical Officer, Luck-now, in jail. The injury report submitted by the Medical Officer, District Jail, with the certificate contained therein and given by Dr. G. K. Agarwal, Chief Medical Officer, Luck-now, filed in the court indicates and mentions regarding injuries as under:--
(1) no any mark of external injuries visible on any part of the body.
(2) complain of pain on the back and muscle both sides of the chest.
(3) there is no restriction of movement of any joint of the body. General condition has been mentioned to be satisfactory.
3. After perusal of the report the petitioner did not press his submission regarding relief A, B, C and D contained in the relief clause bf the writ petition. The writ petition was addressed primarily for the grant of relief No. 1 i.e. writ of habeas corpus directing the opposite-parties to release the petitioner immediately and for any other relief which this Court deems fit. On behalf of the petitioner the main thrust of the petitioner has been that the petitioner had been taken away on 11-4-92 at 6 p.m. and uptil the date of presentation of the petition he was continued to be detained without being produced before the Magistrate for more than 36 hours and that he ought to have been produced before the Magistrate within 24 hours of arrest. The petitioner having been detained for more than 24 hours in breach of the requirements of the provisions of Article 22(2) of the Constitution of India, and, as such, his detention is illegal and is in breach of the provisions of law and particularly Constitution of India, if the petitioner's submission primarily has been that the petitioner's detention is in breach of Articles 21 and 22 of the Constitution of India. His contention is that his personal liberty is being deprived illegally and without following any provisions of law. In alternative keeping in view the allegations in short counter-affidavit filed on behalf of the opposite-parties the learned Counsel for the petitioner submitted that even according to the opposite parties case vide paragraph 3 of the counter-affidavit, the petitioner was, according to the version of the opposite-parties, arrested on 13-4-92 at 12.30 a.m. by Raja Rampal Singh the deponent of the short counter-affidavit filed on behalf of opposite-party No. 3. Learned Counsel submitted without conceding even if for the sake of argument it be accepted for a moment that on 13-4-92 the petitioner was arrested at 12.30 a.m. as mentioned in this affidavit as well as in the short counter-affidavit filed by on behalf of opposite-parties 2 and 3 and that the petitioner was produced on 14-4-92 before the Magistrate even then the detention had become illegal because of non-production of the petitioner-detenu before the Magistrate on 14-4-92 (wrongly mentioned on 14-2-92 in the affidavit). Since the detention became illegal and void being in breach of the provisions of the constitution, the petitioner is and has been entitled to be released and set free by issuance of writ of habeas corpus or writ in the nature of habeas corpus. On this basis the petitioner has sought the grant of relief and issuance of writ of habeas corpus in his favour. On behalf of the opposite-parties it has been contended that the petitioner had not been arrested on 11-4-92 at 6 p.m. The opposite-parties have denied the petitioner's case regarding his arrest on 11-4-92. It has been contended on behalf of the opposite-parties that the relevant time and date to determine the validity or illegality of arrest or detention is the time when the return is filed on behalf of the State in the writ petition or at the time of hearing and if at a stage subsequent to the filing of the writ petition the arrest has been legalised by having obtained a remand order from Magistrate then in that case the petitioner is not entitled to get the relief claimed simply on the ground that on the date of the filing of the writ petition or earlier to that date the detention of the petitioner had been illegal. It may be mentioned that earlier during the course of arguments another important change that had taken place apart (sic) of the counsel is that firstly in paragraphs 3, 6 and 13 of the short counter-affidavit sworn by Raja Rampal Singh, Station House Officer, Alambagh, the stand taken was that the petitioner had not been arrested on 11-4-92 but he was arrested from his house at Rajendra Hotel, Charbagh on 13-4-92 at 12.30 a.m., in Crime No. 437 of 92, arising out of first information report lodged at Police Station, Hazratganj, Luck-now. It was asserted that within 24 hours of arrest the detenu was produced before the Magistrate on 14-4-92. Similar allagations about arrest were also made in paragraph 3 of the affidavit sworn by Shri Gopal Krishna Gupta, Sub-Inspector, Hazratganj, Luck-now, material portion of which reads as under:--
That during the course of investigation in the above case complicity of petitioner Surendra Tewari was revealed and was brought to Police Station, Hazratganj after being arrested on 13-4-92 by Inspector Incharge Alambagh and was produced before the Magistrate on 14-4-92 and the learned Magistrate after going through the case diary and other relevant papers remanded custody and sent to jail on 14-4-92 and since then he is in jail. It is vehemently denied that the petitioner was ever tortured at Police Station, Hazratganj in lock up or he was ever put to lock up at Police Station, Hazratganj, Lucknow before 12.30 a.m. on 13-4-92.
4. In the affidavit subsequently sworn by Raja Rampal Singh during the course of hearing the stand taken was that the petitioner was arrested on 13-4-92 at 12.30 p.m. and was produced before the Munsif Magistrate Shri V. V. Pandey on 14-4-92 but it is nowhere mentioned at what time he was produced before the Magistrate or at what time the remand was taken. In the affidavit of Raja Rampal Singh it has been asserted that on 14-4-92 petitioner Surendra Tewari was taken out of lock up at 11 a.m. and was taken to be produced before the Chief Judicial Magistrate, Unnao and was produced before the Munsif Magistrate Shri V. V. Pandey on 14-4-92 during the court hours who, going through the case diary and other relevant papers remanded the petitioner to judicial custody and he was sent to jail on 14-2-92 as mentioned in the affidavit and since then he was in jail. The opposite-parties had contended that since after the passing of the remand order the arrest and detention which even if might have been illegal or in breach of Article 22(2) of the Constitution had become legalised and valid, and, as such, the petition needs to be dismissed. In support of their respective contentions the counsel for the parties have referred to the same cases.
5. The first question to be considered is whether the petitioner has been detained by the opposite-parties for more than 24 hours without being presented before the Magistrate concerned and if so, whether his detention has been violative of Article 22(2) of the Constitution of India. The second question for consideration is whether he had been remanded by the Magistrate in accordance with law as alleged by the opposite parties, on 14-4-92, if yes, whether the remand order did have the effect of validating the arrest and detention of the petitioner which have been in violation and in breach of the provisions of Article 22(2) of the Constitution of India since after his arrest the petitioner had not been presented before a competent Magistrate within 24 hours? As regards the first question the petitioner's case originally is that the petitioner had been taken away from his residence at Anand Nagar on 11-4-92 at 6 p.m. and had been detained and kept in lock up and the information regarding that was sent to the authorities by Shri Shiv Ram Shukla, Advocate on 12-3-1992 at 00.43 hours as well as by the deponent swearing the affidavit in support of the writ petition also at 0.45 a.m. on 13-4-1992. In support of his allegation the petitioner has annexed copy of the telegram sent by Shri Shiv Ram Shukla, Advocate as annexure-1. As I have mentioned in the earlier part of this order the stand taken on behalf of the State in the counter-affidavit appears to be not very clear and definite as in the affidavits sworn on 16-4-92 by Raja Rampal Singh, S.H.O., Police Station, Alambagh, the stand taken in that the petitioner had not been taken away or arrested on 11-4-92 and again on 12-4-92 on search being taken the petitioner could not be found. It is stated in paragraph 3 of the said counter-affidavit that ultimately on 13-4-92 the petitioner was arrested at 12.30 a.m. by the deponent and before his arrest he was duly assigned of being so arrested. In paragraph 4 of the counter-affidavit it has been further averred:
It is relevant to point out that the petitioner was arrested from Rajendra Hotel, Charbagh, at about 12.30 a.m. in case Crime No. 437/92....
The case in his affidavit taken is that the petitioner was arrested at 12.30 a.m. on 13-4-92 and that he was produced before the Magistrate concerned on the next day i.e. 14-4-92 and that after going through the case diary and other papers according to the deponent Raja Rampal Singh, the Magistrate was satisfied and on the request for remand was remanded to jail custody on 14-4-92 and was sent to jail. In paragraph 6 of the counter-affidavit again it has been stated that after the arrest of petitioner Surendra Tewari on 13-4-92 at 12.30 a.m. he was brought to the lock up of Police Station and thereafter he was produced before the Magistrate concerned within 24 hours of his arrest on 14-4-92. Similar is the allegation in paragraph 13 of that affidavit as well. A perusal of affidavit Gopal Krishan Gupta, Sub-Inspector, Police Station, Hazratganj indicates that according to the allegation made thereunder during the course of investigation of Crime No. 437 of 92 complicity of petitioner Surendra Tewari was revealed and he was brought to Police Station, Hazratganj after being arrested on 13-4-92 by the Inspector-in-charge, Police Station, Alambagh and was produced before the Magistrate, according to the averments made in the affidavit, on 14-4-92. Later portion of paragraph 3 of the affidavit of Gopal Krishna Gupta, Sub-Inspector reads as under:--
It is vehemently denied that the petitioner was ever tortured at P. S. Hazratganj, in lock up or he was ever brought to lock up of P. S. Hazratganj, Lucknow before 12.30 a.m. on 13-4-1992.
This is the stand taken by the State in the short counter-affidavits dated and appearing to be sworn on 16-4-92. In these affidavit it has not been indicated as to who had taken the petitioner to the court of the Magistrate and at what time on 14-4-92 produced the petitioner before the Magistrate. No doubt, on 17-3-92 we had required the opposite-parties to file a detailed counter-affidavit indicating specially the time at which the petitioner was produced before the Magistrate, the Magistrate before whom the petitioner was produced shall also be specified. Thus, we had directed in our order dated 17-4-92 for filing of a detailed counters-affidavit. The detailed counter-affidavit dated 18-4-92 sworn by Raja Rampal Singh was filed after serving a copy on the petitioner's counsel on 21-4-92. In the counter-affidavit dated 18-4-92 the stand was changed on behalf of the State and it was stated that on 13-4-92 the petitioner was arrested at 12.30 p.m. and that the time of arrest of the petitioner mentioned in the affidavit dated 15-4-92 as 12.30 a.m. was wrong and it was asserted to be typing mistake of A. M. for P. M. In paragraph 6 of the detailed counter-affidavit it was stated as under:--
That after the arrest of the petitioner on 13-4-92 at 12.30 p.m. he was brought to the lock up of Police Station and thereafter he was produced before the Magistrate Sri V. V. Pandey, on 14-4-92 within 24 hours of his arrest.
Similar allegation is reiterated in paragraph 13 of the detailed counter-affidavit of Raja Rampal Singh. Along with the counter-affidavit extract of case diary has been filed as Annexure-CA-1. A perusal of CA-1 indicates the time as 12.30 p.m. / Bayan Muljim and it indicates that statement of accused had been recorded at 12.30 p.m. It is also mentioned in it that the petitioner was being interrogated prior to his statement being recorded as the sentence reads:--
Avashyak Shakti Ka Prayog Karke Dono Ko Bandi Banaya Gaya Tatha Unse Poochh-tachh Ki Ja Rahi Hai. Karan Giraftari Bataya Gaya.
Annexure-CA-II to the counter-affidavit is alleged to extract of Nakal report indicating time of the arrested persons being put in lock up. Annexure-CA-III is alleged to be the extract of Nakal report Dakhila of petitioner in lockup on 13-4-92 as well as taking out petitioner for being produced before the Magistrate concerned. Annexure-CA-3 is annexed in support of allegation that on 14-4-92 petitioner Surendra Tewari was taken out from the lock-up at 11 a.m. and was taken to be produced before Chief Judicial Magistrate on 14-4-92. Thus, a perusal of these counter-affidavits filed on behalf of the opposite-parties show that according to the allegation in the short counter-affidavits petitioner was arrested and put up in the lock on 13-4-92 at 12.00 a.m. and not earlier while subsequently the stand was changed and it was attempted to be proved by alleging that the petitioner was put up on the lock at 12.30 p.m. on 13-4-92. The counter-affidavits had been sworn by Station House Officer, Police Station, Alambagh and Sub-Inspector, Hazratganj and it is expected that before signing they had gone through the affidavits and they had signed the affidavit after reading and understanding the same and they had sworn the affidavit with full knowledge of the contents thereafter. At the time of filing of the detailed counter-affidavit the deponent's of the affidavits attempted to bring the case of petitioner's detention and petitioner's production before the Magistrate within 24 hours and in the affidavit dated 18-4-92 the stand taken was that the petitioner was arrested on 13-4-92 at 12.30 p.m. and the copies of extracts were annexed, it is not clear and it has not been explained as to why at the time of filing his affidavit dated 16-4-92 those very officers did not take the clear cut stand about the arrest after going through the documents in their possession i.e. case diary and G. D. etc. It appears, on our calling upon the opposite-parties to indicate the time of the production of the petitioner before the Magistrate as well as to indicate the name of the Magistrate before whom he was produced the opposite-parties realised the shortfall of their case and changed their stand as to the time. The G. D. entry, no doubt, draws a rebuttable presumption about its correctness but when the stand of the opposite-parties itself indicates and creates a doubt about the correctness of those entries, we cannot rely upon it. The subsequent affidavit and the allegations in that affidavit appear to be afterthought and we cannot rely on those entries on account of the same being in conflict with the deposition of Raja Rampal Singh and Gopal Krishna Gupta made in the counter-affidavit dated 16-4-92. The position that emerges is that the petitioner was arrested on 11-4-92 at 6 p.m. according to the case taken by the petitioner. But the stand of the State authorities being in conflict with the two affidavits, we cannot rely on the subsequent stand, nor on the G. D. entries, as the same appear, to be unreliable apart from the provisions under Section 172, Cr. P.C. and stand taken in the subsequent affidavit appears to be afterthought.
6. It may be mentioned here that no affidavit has been filed indicating the time when the petitioner was produced before the Magistrate nor was any affidavit filed indicating the time at which the petitioner was produced before the Magistrate. It is no where clear in this affidavit as to who had taken the petitioner before the Magistrate and at what time was the petitioner produced before the Magistrate in spite of our directing the opposite-parties to file such an affidavit. There remains no course open except to presume adversely against the State authorities that had the petitioner been produced within 24 hours of his arrest before the Magistrate the opposite-parties would have filed the affidavit of the person producing the petitioner before the Magistrate indicating the time at which the petitioner was produced before the Magistrate on 14-4-92. As the petitioner has alleged his arrest to be on 11-4-92 at 6 p.m. and that he was produced before the Magistrate on 14-4-92 then it is beyond doubt that he was produced much after 24 hours of his arrest before the Magistrate. If otherwise, the stand taken by the opposite-parties in their short counter-affidavits is accepted that petitioner was arrested at 12.30 a.m. on 13-4-92 and thereafter he was produced sometime in the after-noon, it be 1 p.m., 2 p.m. or 3 p.m. definitely the production of the petitioner before the Magistrate was beyond 24 hours as the arrest of the petitioner had taken place according to the short counter-affidavit at 12.30 a.m. on 12/13-4-92 and the period of 24 hours did expire at 12.30 a.m. of the midnight of 13/14-4-92, and, as such, in both these circumstances whether the arrest had taken place on 11-4-92 as alleged by the petitioner or at 12.30 p.m. on 13-4-92 (during the midnight hours of 12/13-4-92), the petitioner was detained for more than 24 hours before his production before the Magistrate and on the expiry of 24 hours the detention became unauthorised and it became illegal and without jurisdiction being in breach and in violation of the requirements of the provisions of Article 22(2) of the Constitution of India. The detention without any authority from the Magistrate beyond the maximum period of 24 hours shall be illegal, null and void being in breach of Article 22(2) of the Constitution.
7. The executive power of the State extends upto and is conterminous to the legislative i.e. to the subjects over which the State Government has got power to legislate as will appear from the provisions of Article 162 of the Constitution and that power is subject to the other provisions of the Constitution including the provisions contained in Part III of the Contitution of India, the spirit of Article 13 i.e. the executive action which is in breach of the provisions contained in the chapter dealing with the fundamental rights shall be to the extent of contravention be void in the same way as a legislation enacted by the legislature to the extent of inconsistency has been declared to be void. In this view of the matter, the detention of the petitioner beyond 24 hours had been void in view of the provisions of Articles 13, 22(2) and 162 of the Constitution of India.
8. The next question that crops up for consideration is with reference to the remand alleged to have been ordered by the Magistrate on 14-4-92. In the counter-affidavit dated 18-4-92 it has been stated in paragraph 13 ..."and thereafter petitioner Surendra Tewari was produced before the Magistrate concerned (Shri V. V. Pandey) on 14-4-92 who after going through the case diary and other relevant papers remanded the petitioner to jail custody and since then he is in jail. "No copy of the remand order has been filed along with the affidavit to show if the remand order has been passed after applying the mind and after having recorded the reasons in writing authorising the detention of the petitioner in the custody keeping in view the principles of law as contained in Section 167 of the Code of Criminal Procedure because if the remand order on which the opposite-parties base their case for validating the detention of the petitioner has not been passed keeping in view the letter and spirit of the provisions of law and without recording the reason for allowing the petitioner to be kept in the custody (police custody or jail custody) then in that case remand order cannot be said to be a valid and legal remand order.
9. On the second question whether the remand validates the detention which suffers from violation of the provisions of statutory or constitutional law, the Division Bench of this Court consisting of Hon'ble Mr. Justice H. N. Seth and Hon'ble Mr. Justice M. Wahajuddin in the case of Ram Chandra alias Munai v. Superintendent Central Jail, Naini, 1982 LLJ 160 has taken the view that in the circumstances of that case i.e. non-communication of the grounds of detention while arresting or detaining the petitioner in that case rendered the detention after arrest illegal and after holding arrest to be illegal has observed as under :--
In the circumstances, there has been non-compliance of the provisions contained in Section 50(1) of the Code of Criminal Procedure as also those of Article 22 of the Constitution, rendering petitioner's detention after arrest illegal. Any subsequent order of remand made by the Magistrate under Section 167 of the Code of Criminal Procedure can also not validate his detention. Under the circumstances, the petitioner has made out a case for the relief claimed by him.
In another case Ashok Kumar Singh v. State of U. P., 1987 LLJ 273, decided by a Division Bench consisting of Hon'ble Kamlwshwar Nath and Hon'ble D. S. Bajpai, JJ. it has been held :--
We should think that there are two clear classes of case of detention from the point of view of the requirements of the law. The first set of the provisions is the one which is contained in part 3 of the Constitution of India based on fundamental rights, namely, Articles 21 and 22(1). These are the constitutional guarantees which cannot be curtailed by any legislature does so it would be invalid in view of Article 13 of the Constitution of India.
The second set of provisions consists of the procedural laws beginning from Section 41 of the Code of Criminal Procedure to various provisions like Section 167, 209 and 309 of the Code of Criminal Procedure which deal with the arrest, detention and remand of a person. These provisions of law although made under the legislative powers conferred by various lists of Schedule 7 of the Constitution of India, can be examined in the light of the provisions of curability of procedural errors contained in Chapter 35 of the Code of Criminal Procedure; The doctrine of curability of a detention by virtue of a subsequent valid order of remand despite a previous invalid order or remand can have support from this classification of the laws; but it cannot be extended to the violation of the constitutional guarantees which are contained in Articles 21 and 22(1) of the Constitution of India. We must reiterate that the procedure of safeguard contained in Section 50(1) of the Code of Criminal Procedure does not belong to the second set of provisions but it belongs to the first set of provisions which is a part of the procedure established by law as laid down by Article 21 of the Constitution of India. We are, therefore, clearly of the opinion that the detention of the petitioner in the circumstances and facts of the present case was illegal and void at the very inception and cannot be sustained despite the fact that the charge-sheet has been submitted to the Court.
10. Thus, considering, in the light of the facts and circumstances set forth above and the law laid down by Division Benches of this Court, we find that remand order could not and did not validate the detention which has been made and (sic) in breach of Article 22(2) of the Constitution of India, was void and illegal, and, as such, the petitioner is entitled to be released. Since the investigations are going on and at subsequent stage if the presence of petitioner may be required for further investigation or interrogation while allowing the writ petition it will be proper to issue writ of habeas corpus directing the release of the petitioner and to direct the opposite-parties to set the petitioner free subject to personal bond in the sum of Rs. 15,000/- being given by the petitioner along with two sureties of like amount with the undertaking that if at any time subsequently the petitioner's presence is required for interrogation or for trial in case subsequent investigation discloses any way indicating his involvement, the petitioner shall appear when he is so required for, interrogation or facing trial and further giving an undertaking that he will not abscond or go away to foreign country without the permission of the competent District and Sessions Court and that he will be coercive methods threat or inducement not induce any person if he is well conversant with the facts not to state the correct facts.
11. Thus, considering the above facts and circumstances, we allow the writ petition and issue a writ of habeas corpus directing the petitioner to be released and set free subject to further directions mentioned above i.e. the petitioner shall furnish before Sessions Judge a personal bond worth Rs. 15,000/- with two sureties of like amount undertaking to appear when ? so required in writing to appear for interrogation or for facing trial if and when it is necessary in connection with Crime Case No. 437 of 92 and (sic) Police Station Hazratganj, Lucknow as well as not to induce by force, use of force or threat or inducement any person, if he is conversant or in know of facts relating to Crime No. 437 of 92 ? referred to above, not to state or divulge the correct facts.
12. As soon as the judgment was delivered the learned Special Public Prosecutor Vijay Vikram orally prayed for certificate of fitness being issued in favour of the State. The application for certificate has been made orally. No substantive error in the judgment has been pointed out. As such the prayer for certificate is rejected.