Patna High Court
Kameshwar Prasad Verma vs State Of Bihar And Ors. on 2 June, 1958
Equivalent citations: AIR1959PAT146, 1958(6)BLJR531, 1959CRILJ501, AIR 1959 PATNA 146, 1958 BLJR 531
JUDGMENT U.N. Sinha, J.
1. This is an application under Article 226 of the Constitution of India and under Section 491(1)(b) of the Code of Criminal Procedure filed by one Kameshwar Prasad Verma. It has been mentioned' in the application that Kameshwar Prasad Verma is a friend of one Bipat Gope on whose behalf this application is being made. The prayer made in this application is for a writ in the nature of a writ of habeas corpus directing that the said Bipat Gope be set at liberty.
2. This application arises in the following circumstances. In Government Appeal No. 1 of 1956 Bipat Gope was convicted by this Court under Sections 323 and 324 read with S, 511 of the Indian Penal Code by judgment and order dated 29-11-1957. The sentences passed were of rigorous imprisonment of six months under each or the Section.
The sentences were, however, ordered to run concurrently. On or about 6-1-1958, Bipat Gope was taken into custody and was allowed to remain in the Paying Ward of the Patna Medical College-
Hospital under armed guard as he was lying seriously ill there. On 14-2-1958, an application was filed before the District Magistrate of Patna on behalf of Bipat Gope under Rules 548 and 549 of the Bihar and Orissa Jail Manual.
It was stated therein that for the reasons given in the application Bipat Gope might be released. It appears that when the application was put up before the District Magistrate of Patna, the case was numbered as Criminal Miscellaneous No. 34 of 1958 in his court. On 11-3-1958, the District Magistrate of Patna passed the following order:
"The convict Bipat Gope has been sentenced to undergo R. I.. for six months under Sections 353/323 and 324/511 I. P. C. He has filed a petition for release on the medical ground. The Supdt. Bankipore Jail has recommended for release of the accused under R. 529 of the Jail Manual vide his letter No. 1125 dated 6-3-58. Seen the letter and the medical report that the accused's condition is serious and in danger of death. The prisoner has bleeding from ulcer stomach.
The prisoner has only four months and three days unexpired period of sentence. In view of the Doctor's report and the recommendation of the Supdt. Bankipore Jail in the above letter, the prisoner has been released. The prisoner has been sent to Supdt. Bankipore Jail vide this office letter No. 36 dated 7-3-58 separately. No action necessary in this file.
B.N. Basu, District Magistrate, Patna."
It may be noticed that R. 549 of the Jail Manual has been wrongly recorded as '529' in this order.
3. On 27-4-1958, the District Magistrate of Patna passed an order in Criminal Miscellaneous No. 34 of 1958 for the issue of non-bailable warrant of arrest against Bipat Gope. By the same order the District Magistrate of Patna also ordered that notices should issue to the sureties to show cause why their sureties should not be forfeited. It is stated in the application filed in this Court that this order dated 27-4-1958 was passed by the District Magistrate upon an application made to the District Magistrate by the Police.
It is also stated in the said application that on 29-4-1958 Bipat Gope had filed a previous application in this Court under Article 226 of the Constitution of India against the order passed by the District Magistrate on 27-4-1958. In connection with that application pending in this Court Bipat Gope had appeared in the court of the Senior Deputy Collector of Patna and was arrested.
The order-sheet of the District Magistrate in Criminal Miscellaneous No. 34 of 1954, however, shows that on the 1-5-1958 Bipat Gope surrendered. A petition showing cause was also filed on 1-5-1958 by the sureties. The non-bailable warrant of arrest was ordered to be withdrawn and the record was sent to the District Magistrate for confirmation. The earlier application filed in this Court was withdrawn on 2-5-1958 and on the same day the present application was filed.
4. On 5-5-1958 the application was admitted by this Court and notices were issued to the respondents. The respondents in this case are: (1) the State of Bihar, (2) the District Magistrate of Patna, and, (3) Jailor, Bankipore Jail, Patna. Mr. K. P. Verma, Additional Standing Counsel has appeared for the respondents in this case.
The facts stated in the petition filed in this Court have not been controverted. It is stated in paragraph 11 of the application that the order of opposite party No. 3 (annexure B) is illegal and without jurisdiction for the reason amongst others that after the release of Bipat Gope under Rule 549 of the Jail Manual, no order for re-arrest can be issued by opposite party No. 2, the District Magistrate of Patna.
The expression 'opposite party No. 3' mentioned above appears to be a typing mistake and it should be opposite party No. 2. In substance, therefore, the contention of the petitioner is to the effect that after the District Magistrate of Patna bad passed order of release under Rule 549 of the Jail Manual, the order of the 27th of April, 1958 is illegal.
5. Rule 549 of the Jail Manual, as it now stands, runs as follows:
"Rule 549. (1) if the Medical Officer considers that a convicted prisoner is in danger of death from illness not due to infectious disease and that there is a probability of his recovery when released, he shall furnish a certificate as required by Bihar and Orissa Jail form No. 105.
On receipt of the certificate, the Superintendent shall immediately report the facts to the Magistrate of the District. He shall also at the same time send for the prisoner's friends and ascertain whether they are willing to look after him. If so, he shall take from them a security bond to the effect that in the event of the prisoner being prematurely released on account of illness, they will give him up at any time they may be required to do so, (2) If the unexpired period of sentence of the prisoner does not exceed six months, the Magistrate is authorised to direct his immediate release after making personal enquiry into the matter, or in the event of the prisoner's offence having been committed in another district, after consulting the Magistrate of the district.
(3) If the unexpired sentence of the prisoner exceeds six months, the Magistrate shall immediately report the facts of the case with his recommendation thereon to the Commissioner of the Division. If the unexpired portion of the prisoner's sentence does not exceed two years, the Commissioner is authorised to direct the immediate release of the prisoner. If the unexpired portion of the sentence exceeds two years or if the Commissioner thinks that the Prisoner should not be released, the Commissioner shall report the facts of the case with his recommendation to Government for orders.
Note:--In any case coming within Sub-rule (2) or (3) the District Magistrate may direct release, or as the case may be report the facts to the Commissioner without consulting the District Magistrate of the district where the offence was committed if in view of the urgency of the matter, there is no time to do so.
Note:--This rule shall not apply to a prisoner who goes on hunger strike. A prisoner on hunger strike shall in no circumstance be released."
Learned counsel for the petitioner has argued that as the unexpired period of sentence of Bipat Gone had not exceeded six months on the date on which he was ordered to be released by the District Magistrate, the latter was authorised to direct the release of Bipat Gope, which he did. It is argued that the District Magistrate was authorised to order unconditional release of Bipat Gope and that the order passed was an unconditional order of release and hence, the order of the District Magistrate dated 27-4-1958 is illegal. It may be noted that the order of the District Magistrate dated 11-3-1958 passed in Criminal Miscellaneous No, $4 of 1958 indicates that Bipat Gope had actually been ordered to be released on 7-3-1958.
6. During the hearing of this case reference was made by both the sides to various correspondence that passed between the Superintendent of Bankipore Jail, the Superintendent of Patna Medical College Hospital, Dr. V. N. Singh, who was treating Bipat Gope in the Hospital and Civil Surgeon of Patna. In my opinion, it is not necessary to refer to this correspondence except one in view of the arguments advanced by learned counsel for the parties. As stated earlier, learned counsel for the petitioner has relied upon the order of release passed under Rule 549 of the Jail Manual. Learned Additional Standing Counsel has put forward the following arguments.
7. He has contended first that the order of the District Magistrate of Patna releasing Bipat Gope was not a proper order under Rule 549 of the Jail manual for the reason that Bipat Gope was not a convicted prisoner within the meaning of Rule 549, Sub-rule (1) of the said Manual. He has further contended that as the Medical Officer of the Jail in question had not furnished a certificate as required by Sub-rule (1) of Rule 549, the order of release passed by the District Magistrate should be ignored.
Learned Additional Standing Counsel in this connection has referred to S. 3 of the Prisons Act (Act IX of 1894) under Section 59 of which the rules for the release of prisoners are said to have been framed. Our attention has been drawn to the definitions in Section 3 of that Act and it is contended that Bipat Gope was not a criminal prisoner because on the date of order of release he was not in confinement within the precincts of any jail.
Although it is a fact that on the date of the order of release Bipat Gope was in Patna Medical College Hospital under armed guard the contention of learned Additional Standing Counsel that Bipat Gape was not a convicted prisoner is not of substance. Bipat Gope was sentenced to six month's rigorous imprisonment on 29-11-1957 and on 11-3-1958 the District Magistrate of Patna himself states that "the prisoner has only four months and three days unexpired period of sentence".
I, therefore, hold that on the date on which Bipat Gope was ordered to be released, he was a convicted prisoner. With respect to the contention that the order of release was improper inasmuch as there was no certificate in terms of Rule 549, Sub-rule (1) of the Jail Manual, I am of the opinion that this contention also has no substance. The letter of the Superintendent of District Jail to the District Magistrate of Patna dated 6-3-1958 mentions that the matter had been referred to the Civil Surgeon Patna who is also the Medical Officer of the Jail and there is no controversy that the Civil Surgeon of Patna had asked for the opinion of Dr. V.N. Singh.
The provision of Sub-rule (1) was, in my opinion, substantially complied with. Sub-rule (2) of Rule 549 lays down that the District Magistrate is authorised to direct a release after making such enquiries as he thinks fit. The order dated 11-3-1958, dearly indicates that enquiries were made by the District Magistrate of Patna, after coming to know of all the facts and circumstances and after considering the appropriate rule of the Jail Manual, the District Magistrate had sanctioned the release of Bipat Gope. I do not think it can be held that the order of release was not a proper order on this account.
8. It was then argued by learned Additional Standing Counsel that even if the requirements of Rule 549 were complied with, the release of Bipat Gope by the District Magistrate of Patna was a conditional release. Our attention has been drawn to the entries in the Bihar and Orissa Jail form No. 105 which is mentioned in Rule 549(1). In the remarks column the following remarks have been entered :
"14
Remarks of the Supdt. of the Jail as to the propriety of the release and generally in regard to the prisoner.
i.
I endorse the remarks of the Medical Officer and recommend the release of the prisoner.
ii.
The prisoner was released on 7-3-58 under the order recorded in col. 13.
iii.
The prisoner has been informed that his re-lease is conditional on the sanction of the Govt.
iv.
The friends of the prisoner (whose names and addresses are stated on the reverse) have signed declaration (on Reverse) that they will surrender him if required so to do.
Dated 7-3-58 Sd. B. Prasad, Superintendent."
Remark No. iii states that the release is conditional upon sanction of the Government. It is admitted by both counsel that in this particular case, the sanction of the Government was not necessary inasmuch as the unexpired period of sentence of Bipat Gope did not exceed six months. Learned Additional Standing Counsel, therefore, argues that remark No. iii should be ignored but that under remark No. iv the District Magistrate has power to require that Bipat Gope should be surrendered whenever the District Magistrate so desires, In my opinion, it was really not necessary to impose the conditions mentioned in remarks Nos. iii and iv inasmuch as the release in this case had not required the sanction of the Government, but, in any event, if conditions were imposed for the release, then the condition was that Bipat Gope must be surrendered if ultimately sanction for his release was refused by Government. It is not the case of the respondents that the release of Bipat Gope has not been sanctioned by Government. I am, however, of the opinion that in this particular case, the release by the District Magistrate of Patna was an unconditional release.
His order on Jail form No. 105 and his order dated 11-3-1958 amounted to a release without any condition. In the letter of the Superintendent of District Jail, Patna to the District Magistrate of Patna dated 6-3-1958 to which reference has been made in this Court, attention of the District Magistrate was drawn to the fact that the District Magistrate had power to pass an order of release as the unexpired period of sentence of Bipat Gope was only four months and three days. On this letter the District Magistrate had himself written on 7-3-1958 thus : "Allowed release in the circumstance". It cannot be contended, therefore, that the order of release by the District Magistrate of Patna was a conditional release.
9. Learned Additional Standing Counsel has further argued that the release of Bipat Gope in the present case was a case of premature release within the meaning of Sub-rule (1) of Rule 549 of the Jail Manual. He has contended that all releases before a prisoner had served full term of his imprisonment are premature releases and, therefore, the question of surrender of Bipat Gope by the sureties did arise. This argument appears to be contrary to his own argument when he admitted that remark No. iii in Jail form No. 105 was redundant inasmuch as the sanction of the Government was not necessary in this particular case.
In my opinion, the interpretation put upon by learned Additional Standing Counsel to the words "prematurely released" occurring in Sub-rule (1) of Rule 549 of the Jail Manual cannot be a correct interpretation. The words refer to a release by an authority who has not the power to pass final order in this connection. Reference may be made to one of the notes appended to Rule 549 under which the District Magistrate is authorised to direct release in urgent cases even when he is not authorised to pass final order in this connection.
10. On behalf of the respondents reliance has been placed in the case, Girdhari Lal Agarwal v. Emperor, AIR 1935 All 181. On the authority of this decision learned Additional Standing Counsel has argued that the order of release passed by the District Magistrate did not amount to a remission cf the sentences imposed upon Bipat Gope and, therefore, Bipat Gopc may be ordered to serve out the full period of the sentence.
The case of Girdhari Lal Agarwal does not appear to be of any assistance. In that case Pandit Jawaharlal Nehru had been released from custody for some days to enable him to be at the beside of Mrs. Nehru. It was contended before the Allahabad High Court that that order of release amounted to a remission of the unexpired portion of the sentence.
In the present case the question that arises is the effect of the order of release under Rules 549 of the Bihar and Orissa Jail Manual. It was then argued by learned Additional Standing Counsel that it was held in Supreme Court Appeal No. 84 of 1954 by an order passed on 14-1-1957 that the original order passed by the Hon'ble the Chief Justice of this court could be subsequently recalled by him.
In my opinion, this decision also is not in point. It was there held that the original order passed by the Hon'ble the Chief Justice had been passed by mistake or through inadvertence.
I will mention here that in the instant case learned Additional Standing counsel has not argued that the order of release which had been passed by the District Magistrate of Patna had been obtained by Bipat Gope or on his behalf, by any improper means.
He has admitted that this case must be decided on the basis of the fact that what the District Magistrate had stated in his order dated the 11th of March 1958 regarding the condition of health of Bipat Gope is correct. Under those circumstances, the only question that arises for decision is whether after the District Magistrate had properly released Bipat Gope, his order dated the 27th of April, 1958 is valid or not. In my opinion, the District Magistrate of Patna could not have passed an order on the 27th of April, 1958 for the arrest of Bipat Gope.
11. It was faintly argued on behalf of the respondents that after the conviction of Bipat Gope by this Court his detention in jail for the purpose of serving out the sentences imposed on him by this Court is a valid detention. In the ordinary circumstances that will be so. But after the District Magistrate of Patna has exercised his discretion in releasing Bipat Gope under Rule 549 of the Bihar and Orissa Jail Manual, the detention of Bipat Gope now must be held to be illegal.
12. The application under Article 226 of the Constitution of India and under Section 491(1)(b) of the Code of Criminal Procedure must, therefore, be allowed. Bipat Gope, son of Soni Gope detained in Bankipore District Jail or in any other jail to which he may have been transferred must be set at liberty. It must be made clear, however, that Bipat Gope must be released provided he is not being detained under any other order unconnected with the order of the District Magistrate of Patna passed on the 27th of April, 1958. A writ in the nature of Habeas Corpus will also issue under Article 226 of the Constitution of India directing immediate release of Bipat Gope.
13. The hearing of this ease was concluded on the 27th of May, 1958 and an order was passed on that date directing that Bipat Gope be set at liberty forthwith. The reasons for the order passed on the 27th of May, 1958 are given herein.
S.C. Prasad, J.
14. I have had the advantage of going through the judgment prepared by my learned brother. I agree that the petition should be allowed. I would only add a few words of my own on the main points of law arising in this case.
15. Every person in India has a right to his personal liberty, which cannot be taken away except by procedure established by law. Where there is any complaint by any person that he is being detained illegally or improperly, the law has provided the means to set him free. One of them is by writ of habeas corpus. Even if the detention of a person is improper, a writ will issue for his being set at liberty (see Section 491, Criminal Procedure Code), The use of the word "improper" obviously means that although the forms of law have been observed in a particular case of detention, but if there has been a fraud upon an Act or an abuse of powers given by the Legislature, it will be a fit case for interference by the High Court by a writ of habeas corpus.
It has also to be kept in mind that where the circumstances are almost all in favour of the interpretation contended for by the applicant and where two interpretations are possible on the order under which a person has been detained, the court would be inclined to give preference to the interpretation which is in the applicant's favour (see Purshottam Trikamdas v. Emperor, AIR 1946 Bom 333 at p. 336).
16. In this case, therefore, it has been contended that the detention of Bipat Gope in Bankipur Jail under the orders of the District Magistrate of Patna is illegal, because the District Magistrate of Patna bad, in exercise of the powers vested in him under Rule 549 of the Bihar and Orissa Jail Manual, released Bipat Gope from the jail, and that this release having wiped off the remaining unexpired portion of his sentence, he could not be rearrested and put in prison to undergo any further sentence.
17. Except as otherwise provided by the Constitution, the only way in which any person in India can be deprived of his liberty, is by an or of the court which has tried him according to the procedure established by law on a charge duly framed against him, but the Legislature, in its wisdom, has for obvious leasons, invested the execucutive authorities with powers to restore to him his liberty in spite of his conviction and sentence by a Court of Law (see section 401 of the Code of Criminal Procedure and Section 59 of the Prisons Act, 1894). Reference may also be made, in this connection to Articles 72 and 161 of the Constitution which confer on the President of India and the Governor of a State respectively the powers of granting pardon, reprieve, commutation of sentence etc.
18. We are concerned in this case with Rule 549 of the Bihar and Orissa Tail Manual framed by Government under Section 59 of the Prisons Act, Act IX of 1894, under which the Government have been given powers to frame rules, inter alia, for regulating the conditions of release from Jail of a prisoner who is in danger of death due to illness. The rules framed under this section have, therefore, got the force of law.
After having carefully considered the matter, keeping in view the history of the rule in question, the changes made therein from time to time, the position in law seems to be as follows. Under this rule 549 of the Bihar and Orissa Jail Manual, the District Magistrate has been given powers under certain specified circumstances to release a convicted prisoner, when it is reported to him that his life is in danger due to illness, not due to infectious disease, and there is the probability of his recovery, if he is released.
According to this rule, such a proposal is ordinarily to be initiated by the Jail officers concerned, that is to say, the medical officer and the Superintendent. The latter is enjoined to take security bond from the friends of the prisoner, if they are willing to look after him, to the effect that in the event of his premature release on account of illness they shall surrender him if and when required to do so.
This is because the jail officers are not expected to know what view the authority having power to order release might take, whether to release the prisoner conditionally or unconditionally. That is why the Superintendent takes the bond so that if that authority decides to order release conditionally, the bond will be there to serve the purpose. The District Magistrate, if the unexpired portion of the sentence is six months or less, has been given, under this rule, full powers to release the prisoner after making personal enquiries.
The provision for the taking of security bonds does not touch the absolute powers of the authorities mentioned in this rule to order the release of the prisoner without any condition attached to it. Such authorities including the District Magistrate may decide to release the prisoner on the condition attached that in the event of his recovery he may be recalled to undergo the unexpired portion of his sentence or they may release him altogether without any further power being reserved to recall the prisoner.
It follows as a necessary corollary that the authorities subordinate to the Government may release the prisoner on some other reasonable conditions also, one of them may be (and actually in this case it was done) that the release shall be conditional on the sanction by the Government.
19. In a case in which the release is conditional, the authority releasing the prisoner must necessarily have powers to recall the prisoner concerned if the condition is not fulfilled, because it must be taken that in the eye of law the period of sentence, during the time he has been on such a release, was under suspension. It shall not be taken as having been remitted, but in a case where the release has been unconditional, it shall be taken that as soon as the prisoner is released, the unexpired portion of the sentence on him shall be deemed to have been remitted, so that the prisoner is no longer under the liability of being recalled to undergo any further sentence. No such sentence actually exists in the eye of law in that eventuality.
20. During the discussion, a question was raised as to whether the executive authorities had powers to recall a prisoner released by them conditionally even after the period of his unspent sentence had expired without his having recovered from his illness, but he actually recovers thereafter. That point, however, does not arise in this case, and it is not necessary for me to express any opinion on this point.
21. Learned Additional standing counsel urged that the intention of the rule in question, that is, Rule 549 of the Bihar and Orissa Jail Manual was to make all releases under it conditional, that is to say, the prisoner was always liable to be recalled if and when he recovered from his illness, and that no authority had the power to override this and ignore it. In my view, this contention has no substance. The words of the rule are not open to this construction. That part of this rule which actually confers the power of release on the prescribed authorities under specified circumstances, does not contain anything to limit the powers of release so conferred. On the contrary, the District Magistrate has to make personal enquiries and then pass the order. Similarly, the Commissioner has powers to order release & if he declines to do so, he has to submit the case to Government for orders. It seems unreasonable, therefore, to interpret this rule as fettering the powers of the authorities including the State Government and limit them so that not even the Government can release the prisoner concerned unconditionally, under Rule 54 of the Jail Manual.
22. Indeed, the learned Counsel for the applicant contended on the terms of this rule that the only construction which could be put on it was that the security bond was to be taken for the purpose of meeting certain contingencies; when the authorities higher, than the District Magistrate, declined subsequently to release the prisoner, who under this Rule itself might have been released by the District Magistrate in anticipation of the final orders of the authorities, in urgent cases. Even in the case where the District Magistrate himself is empowered to pass a final order on the proposal of the release of the prisoner, if, that prisoner had committed the offence in another district, no such final order can be passed by him without consulting the Magistrate of that place. Even, so, if the matter be very urgent, the District Magistrate has been empowered to release the prisoner even before he has had an opportunity of consulting that Magistrate.
It was contended that to meet such contingencies it has been provided in Sub-rule (2) of this Rule 549 that a security bond shall be taken from the friends of the prisoner to the effect that in the event of premature release duel to illness, they will surrender the prisoner when required to do so. These contentions of the learned Counsel for the applicant cannot be lightly brushed aside. They appear to contain force an them. My learned brother has shown that this is the interpretation which should reasonably be put on Rule 549 of the Jail Manual.
23. There can be no doubt that this rule in question is unhappily worded and is so ambiguous that we have had to face considerable difficulties in understanding its true meaning and implications. If really the intention of the Government was as contended by the learned Additional Standing Counsel, it is high time that this rule was reformed and amended to make the matter clear, precise and unambiguous.
24. The order of the District Magistrate which has been quoted by my learned brother is clearly open to two possible interpretations; (1) that the District. Magistrate had released Bipat Gope on the security bond executed by his friends binding themselves to surrender him if and when required to do so, his release being conditional on the sanction by the Government, or (2) that the release order passed by the District Magistrate was an unconditional one without reserving any power to recall him at any time after his release from the jail.
My learned brother pointed out the facts showing that actually the order of the District Magistrate was unconditional in this case. He has quoted the order of the District Magistrate. This order had been passed by the District Magistrate after making enquiries on the application filed before him by Bipat Gope's relation on 14-2-1958 for his release due to his illness. That petition clearly mentioned in the prayer portion of it that the unexpired portion of his sentence should be remitted.
In the report dated 6-3-1958 sent by the Superintendent of Bankipur Jail to the District Magistrate in pursuance of this order nowhere it is proposed by him that his release should be conditional. On the basis of that report the judicial Peshkar of the District Magistrate put up a note before him informing the District Magistrate that he had full powers to release Bipat Gope under R, 549 of the Bihar and Orissa Jail Manual, and the District Magistrate on 7-3-1958 ordered; "Allowed, release in the circumstance." These facts clearly indicate that the intention of the District Magistrate was to release Bipat Gope unconditionally.
25. Taking the alternative construction for consideration, if this order meant that the release was conditional, because in the contents of the certificate under Form 105, which was also sent along with his letter of 6-3-58 by the Superintendent of Bankipore Jail to the District Magistrate proposing the release of Bipat, it is mentioned under date 7-3-58 that the security bond had been taken from the friends of Bipat Gope, and that Bipat had been informed that his release was conditional on the sanction of the Government, and therefore the presumption should be that he had ordered release as being subject to those conditions, the fact remains that in this case admittedly no Government orders have been passed yet, and therefore it follows that Government have not refused the sanction.
Consequently, even if it be taken that the order of the District Magistrate was conditional, the District Magistrate had no power to issue non-bailable warrant of arrest against Bipat Gope and put him in prison so long as the Government had not refused the sanction, of his release. It is, therefore, clear that there is no escape from the conclusion that the present detention of Bipat Gope is illegal, not to speak of being improper, and he is entitled to be set at liberty forthwith.