PRABHAKAR NATH DWIVEDI Vs. DISTRICT MAGISTRATE ALLAHABAD

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution of India by Prabhakar Nath Dwivedi, President of the Allahabad University Union, praying for the issue of a writ of habeas corpus directing opposite party No. 2, the Superintendent, Central Jail, Naini, Allahabad, to set the petitioner at liberty at once. The other opposite-party to this petition is the District Magistrate of Allahabad. The facts on which this petition is founded are briefly these. On 12-12-1959 the City Magistrate of Allahabad passed an order under Section 107/112 of the Code of Criminal Procedure saying that whereas it had been made to appear to him by the report of the station officer of police station Colonelganj that due to the situation created by the closure sine die of the University of Allahabad, the petitioner along with others was likely to take out processions, destroy University property, and there was reason to fear the commission of a breach of the peace and disturbance of public tranquillity, the City Magistrate under the provisions of Section 112 of the Code of Criminal Procedure called upon the petitioner to show cause why he should not be made to execute a personal bond of Rs. 1,000/- with two reliable sureties each in like amount for not committing a breach of the peace for a period of two months. Along with the order aforesaid another order purported to have been made by the City Magistrate under Section 117 (3) of the Code was passed on the same date and it was to the effect that the City Magistrate was satisfied "from the above mentioned facts and information received from the police'' that it was necessary to take immediate measures for the prevention of breach of peace and disturbance of public tranquillity and he therefore directed the petitioner to execute a personal bond in the sum aforesaid with two sureties also in like amount for maintaining peace and public tranquillity during the inquiry and in default of furnishing sureties, he will be taken into custody and detained until such time that necessary sureties are furnished on the enquiry is completed, whichever is earlier. Both these notices were served upon the petitioner at his residence by the police on the night between 12th and 13th of December, 1959 at 3 a.m. At the time of his arrest there was also a warrant issued by the City Magistrate on 12th of December, which was in pursuance of his order under Section 117(3) of the Code; and that warrant has also been laid before us. The arrest was made by Sri Jagbir Singh Sirohi, the station officer, of police station, Kydganj, Allahabad. He took the petitioner to the Kotwali police station and produced him before Sri J. P. Singhal a Magistrate of the First Class, who at that time was on duty at the Kotwali. At the time of the production before Sri Singhal the warrant and notices under Sections 112 and 117 (3) referred to above were also laid before him. Sri Singhal then signed a jail warrant and sent the petitioner to jail allowing only one day's remand. Since then the petitioner has been in detention in the Central Jail. These facts are not now controverted before us.

(2.) Upon the basis of these facts two submissions have been made by learned counsel for the petitioner. The first submission is that there has been an infringement of Article 22 (2). That Article requires that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate and no such person shall be detained an custody beyond the said period without the authority of a Magistrate. It is submitted that in this particular case the production of the petitioner before Sri J. P. Singhal was not a production in "the Court of a Magistrate" because Sri J. P. Singhal was not functioning as a Court at that hour in the Kotwali. We have given this submission due consideration and we do not agree with it. In our opinion Sri Singhal was functioning as a Court when the production was made before him. There is an Assam decision os this point in Prabhat Malla v. D. C. Kamrup, AIR 1952 Assam 167, in which it was held that in a case of this nature it is immaterial where such a Magistrate was sitting at the time of the passing of the order and that there is no violation of the provisions of Article 22 of the Constitution. We therefore reject this first submission.

(3.) The second submission which has been made by learned counsel for the petitioner is that the detention is illegal because there is no valid order under Section 117 (3) of the Code of Criminal Procedure. It has been contended that under Section 117 (3) of the Code of Criminal Procedure it is only after the parties have appeared in Court and the Magistrate proceeds to inquire into the matter and when he finds that a case of emergency is made out then alone he can direct the execution of interim bonds, and it is not permissible for the Magistrate to call upon the person concerned to execute interim bond before the inquiry starts, and as a part of the order under Section 112 of the Code of Criminal Procedure he cannot simultaneously pass an order under Section 117 (3). This submission appears to us to be perfectly sound. In order to appreciate whether a Magistrate is justified in demanding an ad-interim bond under Section 117(3) of the Criminal Procedure Code while making an order under Section 112 of the Code to show cause under Section 107, a survey of the few sections touching on the subject under Chapter VIII of the Criminal Procedure Code may be made.