BABU NANDAN MALLAH Vs. STATE

JUDGEMENT

(1.) N.L. Untwalia, Shambhu Prasad Singh and Akbar Husain, JJ. 1. Babu Nandan Mallah, the sole petitioner in this application was arrested and forwarded to the Sub-divisional Magistrate. Hazaribagh, on the 11th July, 1970 in connection with Bishungarh P. S. Case No. 1 (7) 70 under Section 395 of the Indian Penal Code. Eventually, cognizance was taken on 23-11-1970 on submission of the charge sheet by the police. The petitioner before submission of the charge sheet had moved this Court for bail in Criminal Miscellaneous No. 1512 of 1970 which was dismissed on 20-8-70. He all along remained in custody. The Sub-divisional Magistrate after taking cognizance transferred the case to the file of Shri S. K. Ghosh, Munsif-Magistrate, 1st Class. Hazaribagh, for enquiry under Chapter XVIII of the Code of Criminal Procedure (Act V of 1898) hereinafter called the Code. The petitioner's case is that during the period - 11-7-1970 to 23-11-1970-he was physically produced in court only on two dates and not on others. On some dates the learned Sub-divisional Magistrate did not record any specific order of remand either. The petitioner's case further is that on 21-12-1970 Shri Ghosh was on casual leave and Shri Ramayan Singh, Judicial Magistrate, Hazaribagh, was in charge of the files of his court. On that date the petitioner was produced before the Judicial Magistrate from jail custody and the case was adjourned to 23-1-71 for evidence without any specific order of remand and an implied order-- "Accused as before" - was for a period of more than 15 days in violation of the mandatory provision of Section 344 of the Code. The petitioner has stated some facts in the petition to make out a case for his enlargement on bail. I do not consider it necessary to state them, as after hearing arguments advanced by Mr. G. C. Banerjee on behalf of the petitioner and the learned Government Advocate on behalf of the State we had made the following order on 6-7-1971- Having heard learned Counsel for the petitioner and learned Government advocate for the State, and having perused the certified copy of the order dated 4-6-1971 recorded by the Magistrate in whose court the committal proceeding is pending, we have arrived at the conclusion that a writ of habeas corpus should issue directing the release of the petitioner from the illegal custody which has continued as per order dated 4-6-71 upto 3-7-71 and should be presumed to have continued even today. We accordingly issue a writ of habeas corpus and direct the Superintendent, Hazaribagh Central Jail, to relseae the petitioner forthwith. Reasons for this order will follow later on. We would, however, like to observe that it will be open to the authorities or the competent court to take the petitioner under proper legal custody again in accordance with law and this order will not stand as a bar in any subsequent action or order which may be taken or made according to law. But in that event, we would also like to observe that we have thought to issue a writ of habeas corpus only on the application of the petitioner and have not examined the merits of his case in regard to his prayer in this very petition for enlarging him on bail. If he is arrested or taken in custody again, it will be open to him to move the proper court for enlarging him on bail, and in that event it will be for that court to dispose of that application in accordance with law and in the manner it thinks fit and proper.

(2.) UNDER section 54 of the Code any police officer may. without an order from a Magistrate and without a warrant, arrest any person under certain circumstances enumerated in Sub-section (1) one of which is that the person has been concerned in any cognizable offence. Sections 60 and 61 enjoin upon the police officer making arrest without warrant to produce the arrested person before a magistrate within twenty four hours. A Magistrate to whom an accused is forwarded under Sub-section (1) of Section 167, may, under Sub-section (2), from time to time authorise the detention of the accused in such custody as such magistrate thinks fit for a term not exceeding fifteen days in the whole. Some cases had taken a view that if the investigation is not completed within a period of 15 days the maximum period for which an accused can be kept in custody under Section 167, the magistrate had no power to keep him in custody pending further investigation. This view was not accepted in several other cases [vide State of Kerala v. Madhavan Kuttan and the cases referred to therein.] The matter has been set at rest by a recent decision of the Supreme Court in A. Lakshmanrao v. Judicial Magistrate . It has been held that pending the investigation and before the commencement of the enquiry or trial, the power is there to send an accused to judicial lock-up UNDER Section 344 of the Code reading the section along with the explanation appended thereto. In that view of the matter, learned Counsel for the petitioner did not press the point which was taken in the petition that remanding the accused petitioner to custody for a period of more than 15 days before the commencement of the enquiry was illegal. Nor did he press the ground taken that an order of remand made without production of the accused before a magistrate was bad. Majority decision of the Supreme Court in Raj Narain v. Supdt. Central Jail, New Delhi is directly against the petitioner on this point.

(3.) A new Sub-section (1) was introduced in Section 344 by the Code of Criminal Procedure Amendment Act (XXVI of 1955). The original Sub-section (1) was renumbered as Sub-section (1-A). The purpose of introduction of Sub-section (1) was, as the Report of the Joint Committee says,- At present owing to the frequent postponement of criminal trials which are often not held from day to day. considerable expenditure has to be incurred by all the parties concerned. The Committee consider that there is scope for reducing such unnecessary expense by speeding up the trials and avoiding postponements. The Committee, therefore, recommend that specific provision be made in the clause for conducting a trial from day to day unless there are good and sufficient reasons for the postponement. For this purpose a second proviso was added to Sub-section (1-A) to say - Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing. The old Sub-section (1) with one proviso was left intact as Sub-section (1-A) and it reads as follows- If from the absence of a witness, or any other reasonable cause it becomes necessary or advisable to postpone the commencement of. or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor from time to time, postpone or adjourn the. same on such terms as it thinks fit, for such time as it considers reasonable and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time. Sub-section (2) requires that every order made under this section by a court other than a High Court shall be in writing signed by the presiding judge or magistrate.