Dismissed

Mahimananda Mishra v. State of Orissa

Orissa HC14 Sept 2017WPCRL/99/2017

Case brief

AI extract

What is this about?

Two habeas corpus petitions challenged continued judicial custody on the ground that no remand order was passed after the last remand, the petitioner not having been produced before the Magistrates. The Court held the initial remand lawful, the later non-production caused by illness and hospital transfers, and the detention valid on the date of return. Petitions dismissed.

What the court decided

AI extract

Mahimananda Mishra Vs State of Orissa — Bail and Remand | Orissa HC (2017)

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THE HIGH COURT OF ORISSA : CUTTACK

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W.P.(Crl.) Nos.98 and 99 of 2017

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In the matter of applications under Articles 226 and 227 of the Constitution of India.

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In W.P.(Crl.) No.98 of 2017

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Mahimananda Mishra … Petitioner -VersusState of Orissa & others … Opposite Parties For Petitioner : Mr. K.T.S. Tulsi and Mr. R.K. Rath, Senior Advocates along with M/s. Partha Sarathi Acharya and Avijit Pal, Advocates

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For Opposite Parties: Mr. Bibhu Prasad Tripathy, Additional Government Advocate

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In W.P.(Crl.) No.99 of 2017

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Mahimananda Mishra

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… Petitioner

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-VersusState of Orissa & others … Opposite Parties For Petitioner : Mr. K.T.S. Tulsi and Mr. R.K. Rath, Senior Advocates along with M/s. Partha Sarathi Acharya and Avijit Pal, Advocates

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For Opposite Parties: Mr. Bibhu Prasad Tripathy, Additional Government Advocate

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P R E S E N T :

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THE HON’BLE MR. JUSTICE B.K. NAYAK & THE HON’BLE DR. JUSTICE D.P. CHOUDHURY

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___________________________________________________ Date of hearing: 08.08.2017 Date of Judgment: 14.09.2017

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Dr. D.P. Choudhury, J. Both the writ petitions of Habeas Corpus being relate

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to the petitioner and being argued analogously, same are disposed of by this common judgment.

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2. Challenge has been made in both the writ petitions about the illegal detention of the petitioner without having any proper order of remand passed by the learned Magistrates in the respective cases.

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FACTS

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3. The unshorn details of the case of the prosecution in

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both the matters is that the petitioner was arrested by the Paradip Police in connection with Paradip P.S. Case No.180 of 2016 on 26.12.2016 at Bhubaneswar and thereafter he was remanded to jail custody as per the order of the learned Judicial Magistrate First Class, Kujang and detained at Samagol Jail. While he was detained in such Paradip P.S. Case, he was found involved with Madhupatna P.S. Case No.107 of 2013 corresponding to G.R. Case No.1533 of 2013 on the allegation that he was involved in a conspiracy to commit murder of the informant. So, the Investigating Officer in Madhupatana P.S. case made a prayer before the learned Judicial Magistrate First

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Class, (hereinafter called ‘J.M.F.C.’), Kujang for his remand to be produced before the learned Sub-Divisional Judicial Magistrate, (hereinafter called ‘S.D.J.M.’), Cuttack in Madhupatna P.S. Case No.107 of 2013. Accordingly, prayer was allowed and the petitioner was spared to be produced before the learned S.D.J.M., Cuttack. As such, the petitioner was produced before the learned S.D.J.M., Cuttack on 12.1.2017 and after bail was being refused he was remanded to jail custody by the learned S.D.J.M., Cuttack.

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4. On 13.1.2017, the Investigating Officer of Madhupatna P.S. Case with the permission of the learned Magistrate took the petitioner into Police custody for three days. On 17.1.2017 the petitioner was produced after completion of Police remand before the learned S.D.J.M., Cuttack who remanded the petitioner to jail custody and as such remained in Circle Jail, Choudwar, Cuttack. In the meantime, in Madhupatna P.S. Case No.107 of 2013 charge-sheet has been submitted against the petitioner and the learned S.D.J.M., Cuttack took cognizance of the offence alleged therein. Thereafter the petitioner was produced before the S.D.J.M., Sadar, Cuttack by the mechanism of Video Conferencing on 10.5.2017. The learned S.D.J.M., Cuttack vide order dated 10.5.2017 remanded the

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petitioner to jail custody till 19.5.2017. On 15.5.2017 the

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learned J.M.F.C., Kujang on the request of the I.O. sent a letter of request to learned S.D.J.M., Cuttack for his production before that Court for remand in that Kujang P.S. Case. So, the petitioner was produced before the learned J.M.F.C. on 16.5.2017 and accordingly he was remanded to Sub-Jail, Kujang at Samagol till 27.5.2017. On 17.5.2017 a report was submitted

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by Sub-Jail, Kujang for shifting of the petitioner to Circle Jail, Choudwar on health ground and such request was duly considered by the learned J.M.F.C., Kujang for shifting the petitioner to Choudwar Jail and on 25.5.2017 petitioner was shifted to Circle Jail, Choudwar.

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5. Further case of the prosecution as revealed that after 27.5.2017 the petitioner was neither produced before the learned J.M.F.C., Kujang nor before the learned S.D.J.M., Cuttack because of his ill health condition. The prosecution alleged that in both the cases the petitioner has moved the bail before this Court and bail has been refused. Subsequently on the request of the petitioner he was sent to S.C.B. Medical College and Hospital for treatment resulting non-production of the petitioner before the learned J.M.F.C., Kujang and time to time the order has been

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passed for production of the petitioner before the concerned Court of learned J.M.F.C., Kujang.

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6. The writ petitions are filed for the reason that the

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petitioner neither was produced after 19.5.2017 before the learned S.D.J.M., Cuttack nor he was produced before the learned J.M.F.C., Kujang after 27.5.2017 although later on the Superintendent of Jail produced the letter explaining the health condition of the petitioner. As such, the detention without any order of remand in either of the case after 19.5.2017 or 27.5.2017 as the case may be is wholly illegal and unconstitutional resulting violation of fundamental right of the petitioner as available to him under Articles 21 and 22 of the Constitution of India. It is the claim of the petitioner that although in Paradip P.S. Case No.180 of 2016 he is on bail but because of this illegal detention, he is behind the bar and as such the writ petitions are filed for immediate release of the petitioner.

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SUBMISSION

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7. Mr. K.T.S. Tulsi, learned Senior Advocate for the petitioner in both the cases submitted that the mandate of Article 22 (2) of the Constitution of India read with Section 57 and 167 (2) of Cr.P.C. that no person can be detained in a

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criminal case beyond 24 hours or 15 days as the case may be without giving any exception has been violated in absence of such order of remand. As such, the detention of the petitioner is illegal. According to him in Madhu Limaye v. Sub-Divisional Magistrate, Monghyr & others, reported in ( 1970) 3 SCC 746, the Hon’ble Apex Court have held that as the remand was not extended in that case, the petitioners became freed from custody and Their Lordships also declared them to be so. The principle laid down by such Constitution Bench is fully applicable to this case and when there is no order of remand extended by the concerned Magistrate at Cuttack or at Kujang, the petitioner became free and should be released.

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8. Mr. Tulsi also drew attention of the Court to the decision reported in Raj Narain v. Superintendent, Central Jail; (1970) 2 SCC 750 and relying upon such decision submitted that when order of remand is made without having presence of the prisoner before the Court, the detention is illegal. He clarified that simply adjourning of case without having order of remand available on record, the detention is illegal. 9. Mr. Tulsi, learned Senior Advocate for the petitioner submitted that even if for a certain period, detention is legal, its continuance without an order of remand makes it illegal,

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unauthorized and such person is liable to be released forthwith by issuing writ of Habeas Corpus. Since in the present case there is no order produced by the State showing remand of the petitioner beyond 19.5.2017 till the date of filing of this writ petition, the detention of the petitioner is illegal. He relied upon the decision reported in Ram Narain Singh v. State of Delhi 1953 SCR 652 where Their Lordships observed that the authorities those who feel called upon to deprive other persons of their personal liberty must strictly and scrupulously observe the forms and the rules of law. According to him the burden is always on the State to justify arrest and detention in accordance with Constitutional and statutory safeguards. In this regard, he relied upon the decision in Mounuddin @ Moin Master v.

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District Magistrate, Beed & Others; (1987) 4 SCC 58 . It is submitted that since in the instant case neither the detention is legal nor the procedure being followed strictly established a law, the petitioner should be freed from the custody. He also relied upon the decision reported in Sapmawia v. Deputy Commissioner, Aijal; (1970) 2 SCC 399 .

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10. Mr. Tulsi, learned Senior Advocate strenuously urged that once the detention of the prisoner is found to be unauthorized, he is entitled to be released even if subsequent to

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filing of writ of Habeas Corpus, an order of remand is made. Relying upon the decision reported in Uday Mohanlal Acharya v. State of Maharashtra; (2001) 5 SCC 453 submitted that right to be released under Section 167(2) is an “indefeasible right” and it should not be defeated by keeping the applications pending. According to him, in such decision, in a Habeas Corpus proceeding, it is not sufficient answer to say that procedural requirements have been complied with before the date of hearing but the legislature wanted that an indefeasible right to an accused flowing from any legislative provision ought not to be defeated by filing of challan because personal liberty is a cherished object.

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11. Mr. Tulsi, learned Senior Advocate for the petitioner cited the decision of recent case in Lahu Shrirang Gatkal v. State of Maharashtra (Crl. Appeal No.1185/17) wherein Hon’ble Apex Court held that the Habeas Corpus petition should be allowed where the order of detention did not specify any period even when under the statute it could not exceed six months. According to him, it is well settled that when the law prescribes the thing to be done in a particular manner following a particular procedure, it has to be done following provisions of law without deviating the same. He submitted that the history of

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personal liberty is largely the history of insistence on observance of procedure which is bastion against wanton assaults on personal liberty under our Constitution. Since in the instant case, the personal liberty of the petitioner has been seriously deviated by the State by keeping him without having any order of remand in the judicial custody and without the procedure being followed, established by law, the petitioner is entitled to be released forthwith by allowing the writ petition. He also drew attention of the Court to the decision of the Delhi High Court in Deepak Mahajan v. Director of Enforcement and others , reported in 1990 (2) RCR (Criminal) 133 and the decision of the Madras High Court in G. Kalaiselvi v. The State of Tamil Nadu , reported in 2008 (3) RCR (Criminal) 523 .

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12. Mr. B.P. Tripathy, learned Additional Government Advocate submitted that the petitioner is involved in three different cases pending before two different Judicial Magistrates, i.e., S.D.J.M. (S), Cuttack and J.M.F.C., Kujang. According to him, the petitioner was arrested on 26.12.2016 in connection with G.R. Case No.964 of 2016 corresponding to Paradip P.S. Case No.180 of 2016 registered under Sections 302/120-B of I.P.C. read with Section 25 (1) (b) and 27 of the Arms Act and Sections 3 and 4 of the Explosive Substances Act pending before

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the learned J.M.F.C., Kujang. While the petitioner was on remand in that case, the Investigating Officer of Madhupatna P.S. Case No.107 of 2013 corresponding to G.R. Case No.1533 of 2013 took remand of the petitioner for his production before the learned S.D.J.M. (S), Cuttack. Accordingly, the petitioner was produced before the learned S.D.J.M. (S), Cuttack on 12.1.2017 and after the Police remand, the petitioner was remanded to custody at Circle Jail, Choudwar, Cuttack. Again on 15.5.2017 the I.O. in Paradip P.S. Case No.180 of 2016 corresponding to G.R. Case No.964 of 2016 moved an application before the learned J.M.F.C., Kujang for remand of the petitioner for his presence before the learned J.M.F.C., Kujang and accordingly learned S.D.J.M., Cuttack returned the petitioner to learned J.M.F.C., Kujang. On 16.5.2017 the petitioner after being produced before the learned J.M.F.C., Kujang was remanded to jail custody till 27.5.2017. According to him after being remanded to jail custody till 27.5.2017 the Superintendent, SubJail, Samagol at Kujang made prayer for shifting of the petitioner to Circle Jail, Choudwar for medical check up on the regular petition. Learned J.M.F.C., Kujang allowed the same but he could not be shifted. So, the petitioner filed petition before the High Court in BLAPL No.3706 of 2017 for his shifting urgently to

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Choudwar Jail and the Court allowed the said Misc. Case and directed for immediate shifting of the petitioner to Circle, Jail, Choudwar. Since the petitioner was not well and under the Prisoners (Attendance In Courts) Act, 1955 the Superintendent of Jail on the health ground shall exempt the petitioner from his production before the Magistrate, did not produce him on 27.5.2017. So, according to him, the petitioner in accordance with law could not be produced before the Magistrate on 27.5.2017 and it is the petitioner who has volunteered to go for further treatment and accordingly moved the petition before this Court as aforesaid.

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13. Mr. Tripathy, learned Additional Government Advocate submitted that when there is impossibility to produce the petitioner before the learned J.M.F.C., Kujang and Video Conferencing facility in the Court of Kujang is not available, nonproduction of the petitioner on 27.5.2017 or subsequent thereto cannot be said to be illegal. On the other hand, non-production of the petitioner was without prejudice to the right of the petitioner.

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14. Learned counsel for the State contended that as the further production of the petitioner was due to factors beyond the control of the Police and prosecution, same cannot vitiate the

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remand order. In the instant case, the petitioner being involved with criminal case was produced before the Magistrate within 24 hours and he being on remand on the date of return in accordance with law, the detention of the petitioner cannot be said as illegal. He relied upon the decisions of Sandip Kumar Dey v. Officer in-charge, Sakchi P.S. Jamshedpur; (1974) 4 SCC 2737, Gouri Shankar v. State of Bihar; 1972 Crl. L.J. 505 and M. Sambasiva Rao v. Union of India; AIR 1973 SC 850 where Their Lordships held that even if it be desirable for the Magistrates to have prisoner produced before them when the prisoners are remitted to further custody, an order of remand made without producing the accused in court is not invalid as it may on occasions be necessary to pass order of remand in the absence of an accused.

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15. Mr. Tripathy, submitted that even after 27.5.2017 the petitioner was remanded again on 13.6.2017 and subsequent dates and last being 20.7.2017 for which the detention of the petitioner cannot be said not in accordance with law. He cited the decision in Naranjan Singh Nathawan v. The State of Punjab , reported in AIR 1952 SC 106 where Their Lordships held that in Habeas Corpus proceedings the Court is to have regard to the legality of or otherwise of the detention at the time

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of the return and not with reference to the institution of the proceedings. He submitted that in the instant case the detention by remand of the petitioner to custody being not de hors the law, makes the detention of the petitioner legal for which the petitioner’s Habeas Corpus is not maintainable. He also relied upon the decision of Sanjay Dutt v. State , reported in (1994) 5 SCC 410 . In the said decision, it has been held that a petition seeking the writ of Habeas Corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of the return of the rule, the custody or detention is on the basis of a valid order. He cited the decision reported in Manubhai Ratilal Patel v. State of Gujarat; 2013 (I) SCC 314 where Their Lordships observed that the writ of Habeas Corpus is not granted where a person is committed to jail custody by a competent Court by an order which prima facie does not appear to be without jurisdiction or wholly illegal. According to him, since in the instant case, the petitioner has been remanded to custody under valid and legal order, the writ of Habeas Corpus is not maintainable.

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16. Mr. Tripathy, learned Additional Government Advocate submitted that it is settled in law where the accused has been previously produced before the Magistrate at the initial

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stage, non-production at a later time is only a curable defect and in other words, such irregularity is only latent in nature and not patent and in such case the proceeding would neither be vitiated nor it would give right to the accused to be set at liberty. Since in the instant case, the petitioner by virtue of valid and legal order in detention and subsequent to dates of the remand, the petitioner was being not produced for his own health ground or on his own cause, he is not entitled to maintain the writ of Habeas Corpus. In course of hearing, he submitted that the petitioner was moved to NIRTAR for better treatment under the order of the Magistrate and he has passed order for his production before him. So, he submitted that the writ petition is neither maintainable in its form nor liable to be allowed on merit.

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17. POINTS FOR CONSIDERATION

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(1) Whether the writ petitions for Habeas Corpus are maintainable and whether petitioner is in illegal detention requiring intervention of the Court ?

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DISCUSSION:

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18. From the writ petitions, counter and the records called for from the learned J.M.F.C., Kujang and learned S.D.J.M., Cuttack, it appears that the petitioner is involved with three cases out of which two cases, i.e., G.R. Case No.964 of 2016

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corresponding to Paradip P.S. Case No.180 of 2016, G.R. Case No.507 of 2016 corresponding to Paradip P.S. Case No.98 of 2016 are pending with learned J.M.F.C., Kujang under Jagatsinghpur Session Division and G.R. Case No.1533 of 2013 corresponding to Madhupatna P.S. Case No.107 of 2013 is pending with learned S.D.J.M., Cuttack under the Session Division, Cuttack. It is not in dispute that the petitioner was arrested at first in Paradip P.S. Case No.180 of 2016 on 26.12.2016 at Bhubaneswar and thereafter remanded to jail custody as per the order of the learned J.M.F.C., Kujang with date of production mentioned therein. The remand order was also passed on record and interim custody warrant was also issued.

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19. The petitioner being involved in Madhupatna P.S. Case No.107 of 2013, the Investigating Officer moved an application before the learned S.D.J.M., Cuttack for remand of the petitioner in connection with the said case and the learned S.D.J.M. issued order of request to learned J.M.F.C., Kujang to spare the petitioner. Accordingly learned J.M.F.C., Kujang vide order dated 12.1.2017 spared the petitioner for his production before the learned S.D.J.M., Cuttack in connection with Madhupatna P.S. Case No.107 of 2013. After being produced on 12.1.2017 the petitioner was remanded to Police custody for

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three days on the request of the I.O. Accordingly, petitioner was produced on 17.1.2017 before the learned S.D.J.M., Cuttack after Police remand is over and then he was remanded to jail custody at Circle Jail, Choudwar, Cuttack.

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20. It is elicited from the case records that on 10.5.2017 the petitioner was produced through medium of Electronic Video linkage and remanded till 19.5.2017 by the learned S.D.J.M., Cuttack. On 15.5.2017, the learned J.M.F.C., Kujang on the application of the I.O. in Paradip P.S. Case No.180 of 2016 issued a letter of request to spare the petitioner by the learned S.D.J.M., Cuttack for his remand in Paradip P.S. Case No.98 of 2016. On 16.5.2017 the petitioner was produced before the learned J.M.F.C., Kujang who remanded him to jail custody in the aforesaid Paradip P.S. Case till 27.5.2017.

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But on 17.5.2017 on the request of the petitioner, the Superintendent Sub-Jail, Kujang sought permission of the learned J.M.F.C., Kujang for shifting of the petitioner to Circle Jail, Choudwar on the ground of his ill health and learned J.M.F.C. allowed for his shifting to Circle Jail, Choudwar. Thus, on 19.5.2017 the petitioner was not produced before the learned S.D.J.M., Cuttack as he was already spared to learned J.M.F.C., Kujang.

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21. Further it reveals from the order sheet that on

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13.6.2017 the petitioner was neither produced nor interim custody warrant was received from Jail but order was passed for his production on 26.6.2017. However, on 24.6.2017 record was put up and the petitioner was not produced but was directed to be produced on 7.7.2017. On 7.7.2017 charge-sheet was submitted in Kujang P.S. Case No.98 of 2016 for the offence under Sections 307/120-B/34 of I.P.C. read with Section 25 (1)(b) of the Arms Act and cognizance of offence was taken on that day. On that day also the petitioner was not produced and the petitioner was directed to be produced on 20.7.2017. It appears from the order sheet dated 10.7.2017 of the learned J.M.F.C., Kujang that the order was passed for shifting the petitioner to NIRTAR, Olatapur, Cuttack as stated earlier. No doubt on 20.7.2017 the petitioner being not produced was again directed to be produced on 2.8.2017.

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22. It is found from Annexure-1 that petitioner was released on bail in Paradip P.S. Case No.180 of 2016 by this Court but he had moved another bail application vide BLAPL No.3706 of 2017 in Paradip P.S. Case No.98 of 2016 under Section 439 Cr.P.C. for his release on bail wherein the petitioner filed Misc. Case No.510 of 2017 for immediate shifting to Circle

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Jail, Choudwar for availing treatment inside the Circle Jail and this Court vide order dated 24.05.2017 directed immediate shifting of the petitioner to Circle Jail, Choudwar. It appears from the records that after the petitioner being shifted to Circle Jail, Choudwar, he has been again referred to the S.C.B. Medical College and Hospital from where he has been referred to NIRTAR for better treatment, of course under the order of concerned Court.

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23. It is the contention of the learned counsel for the petitioner that after 27.5.2017 the petitioner was never remanded for which his detention is illegal. But the learned Additional Government Advocate refuting such contention submitted that the petitioner himself being ill required for treatment for which under Section 6 of the Prisoners (Attendance In Courts) Act, 1955, the petitioner was not produced before the Court below but got order of Court for his treatment as he was under judicial custody.

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24. Section 6 of the Prisoners (Attendance In Courts) Act, 1955 states as follows:-

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“6. Officer in-charge of prison when to abstain from carrying out order . – Where the person in respect of whom an order is made under Section 3 –

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(a) is, in accordance with the rules made in this behalf, declared to be unfit to be removed from the prison

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where he is confined by reason of sickness or other infirmity; or

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(b) is under committal for trial; or

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(d) is in custody for a period, which would expire before the expiration of the time required for removing him under this Act and for taking him back to the prison in which he is which he is confined,

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the officer-in-charge of the prison shall abstain from carrying out the order and shall send to the Court from which the order had been issued a statement of reasons for so abstaining:

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Provided that such officer as aforesaid shall not so abstain where –

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(i) the order has been made by a Criminal Court; and

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(ii) the person named in the order is confined under committal for trial or under remand pending trial or pending a preliminary investigation and is not declared in accordance with the rules made in this behalf to be unfit to be removed from the prison where he is confined by reason of sickness or other infirmity; and

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(iii) the place, where the evidence of the person named in the order is required, is not more than five miles distant from the prison in which he is confined.”

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From the aforesaid provision of law, it is clear that if

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the accused under remand is unfit to be removed from the prison where he is confined by reason of sickness or other infirmity, the Superintendent of Jail shall abstain from carrying out the order of the court to produce him before the said criminal court. Thus, when the petitioner became ill, on his request, he has been shifted to the Hospital at the Circle Jail and then to S.C.B. Medical College & Hospital and then to NIRTAR, obviously under the

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procedure as established by law the petitioner was not produced before the concerned Magistrate to receive the order of remand after 27.5.2017. The order sheet dated 27.5.2017 of the learned S.D.J.M., Cuttack shows the said fact.

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25. From the aforesaid facts and figures, it is clear that the petitioner has been initially remanded with proper warrant for not more than 15 days and he being involved in heinous offence has been sent to the judicial custody. After 19.5.2017 the petitioner on his own motion was shifted to Choudwar Jail for treatment and then also moved this Court for immediate shifting for the Jail Medical facility at Circle Jail, Choudwar and further on his own petition has been shifted to S.C.B. Medical College & Hospital, Cuttack for treatment and then on the order of the Court of Magistrate being shifted to NIRTAR for special treatment. So, on the health ground, the petitioner has not been produced although the order sheet of the learned J.M.F.C., Kujang shows for production of the petitioner time to time which otherwise authorized detention of petitioner in judicial custody. It is not a case where the detention of the petitioner at initial stage is illegal because he has been remanded within 24 hours of his arrest to jail custody being involved in heinous offences.

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26. Apart from this, in Madhu Limaye case (supra) the

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detention from the beginning was illegal as without any notice the petitioners were detained in Police Station and then produced before the Magistrate’s Court and after first remand when the case stood adjourned, they were not produced before the Magistrate. But here the facts are different. So, the facts and circumstances of this case are different. However, the principle enunciated in Madhu Limaye case is undisputed because any detention from the beginning being illegal, the principles of violation of Article 22 of the Constitution applies requiring intervention of Court in writ of habeas corpus. Similarly in Ram Narayan Singh’s case (supra) the principle is reiterated that when personal liberty of a person is sought to be restricted/ curtailed, Rules of law as well as the forms must be scrupulously observed. It is reported in Ram Narayan Singh case (supra) where Their Lordships observed that in Habeas Corpus proceeding the Court shall have to 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. In that decision it has been also observed that the record showing order of remand is material but not simply the issue of interim custody warrant being reflected in record.

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27. In Ram Narayan Singh’s case the facts are that

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Ram Narayan was illegally detained in custody without being produced before the Magistrate. He has neither sought for bail nor appeared through his Counsel but the facts of this case are different because in the present case as observed above the petitioner was time to time remanded by order of concerned Magistrates from the beginning and due to health reason he of his own volition under the order of the Court shifted to Jail Hospital and then shifted to Government Hospital for treatment. However, the principle of Ram Narayan Singh’s case about maintainability of writ of habeas corpus is followed with due regard.

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28. Similarly in Mohinuddin @ Moin Master (supra)

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the case relates to preventive detention but not exactly on the line of the facts of the present case. It is only revealed from that case that State or the detaining authority should satisfy the Court that the detention is not illegal or wrong and the petitioner is not entitled to the relief claimed. In the present case the petitioner has been taken to judicial custody under proper order of the Magistrate and also under the proper order of the Magistrate he has been kept under treatment having remained in Circle Jail, Choudwar or at S.C.B. Medical College & Hospital, Cuttack or at

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NIRTAR as records show. It is the petitioner who has moved for shifting for treatment and the Jail authorities of course under Prisoners (Attendance In Courts) Act, 1955 has kept the court informed time to time about his treatment without producing him after 27.05.2017 and Court has passed order for production of petitioner from time to time.

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29. In the case of Uday Mohanlal Acharya , the case relates to indefeasible right of the petitioner. Where there is delay in completion of the investigation in accordance with the provisions of Section 167(2) of Cr.P.C., the accused can ask for bail by exercising his indefeasible right. But here the fact of the case is completely different.

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30. Moreover, in the present case it appears that both petition for habeas corpus filed on 10.07.2017 and counter filed on 03.08.2017. So, on the date of return, there is already order passed by learned J.M.F.C., Kujang for production of the petitioner from time to time being involved with criminal cases. So, as per principle of Ram Narayan Singh’s case (supra) no petition for Habeas Corpus is warranted.

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31. From the aforesaid decisions, there is no dispute with principles of law as enunciated but decisions only apply as per facts and circumstances of the case in hand. Since from the facts

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of this case, it is clear that detention is not illegal and he is under proper order of remand, decisions cited by the learned Counsel for the petitioner would hardly apply.

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32. In the case of Manubhai Ratilal Patel (supra), Their Lordships have considered the maintainability of the petition for habeas corpus. Their Lordships have categorically discussed the earlier decision of the Hon’ble apex Court and finally have been pleased to observe at paras-19, 20 and 31 in the following manner:-

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“19. In Kanu Sanyal v. District Magistrate, Darjeeling; (1974) 4 SCC 141 , contentions were raised to the effect that the initial detention of the petitioner in District Jail, Darjeeling was illegal because he was detained without being informed of the grounds for his arrest as required under clause (i) of Article 22 of the Constitution and that the Sub-Divisional Magistrate, Darjeeling had no jurisdiction to try and, therefore, he could not authorise the detention of the petitioner under Section 167 of the Code. The two-Judge Bench adverted to the aforesaid aspects and referred to the earlier decisions in Naranjan Singh v. State of Punjab;AIR 1952 SC 106, Ram Narayan Singh v. State of Delhi; AIR 1953 SC 277, Col. B. Ramachandra Rao v. State of Orissa; (1972) 3 SCC 256 and Talib Hussain v. State of Jammu and Kashmir, (1971) 3 SCC 118 and noted that three views had been taken by this Court at various times pertaining to the relevant date to determine the justifiability of the detention and opined as follows: (Kanu Sanyal case (supra), SCC pp.145-46, para-4)

¶117

“4. …. This Court speaking through Wanchoo, J. (as he then was) said in A.K. Gopalan v. Government of India; [(1966) 2 SCR 427 = (AIR 1966 SC 816)] AIR p.818, para-5).

¶118

¶119

‘5. It is well settled that in dealing with the petition for habeas corpus the Court is to see whether the detention on the date on which the application is made to the Court is legal, if nothing more has intervened between the date of the application and the date of the hearing”.

¶120

In two early decisions of this Court, however, namely, Naranjan Singh v. State of Punjab, [(1952 SCR 395) = AIR 1952 SC 106)] and Ram Narayan Singh v. State of Delhi, [(1953 SCR 652) = (AIR 1953 SC 277)] a slightly different view was expressed and that view was reiterated by this Court in Col. B.Ramachandra Rao v. State of Orissa; (1972) 3 SCC 256 where it was said: (SCC 0.259, para 7)

¶121

“7. … 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.’

¶122

and yet in another decision of this Court in Talib Husain v. State of Jammu & Kashmir (AIR 1971 SC 62 ) Mr. Justice Dua, sitting as a Single Judge, presumably in the vacation, observed that: (SCC p.121, para 6)

¶123

‘6. … in habeas corpus proceedings the Court has to consider the legality of the detention on the date of the hearing.’

¶124

Of these three views taken by the Court at different times, the second appears to be more in consonance with the law and practice in England and may be taken as having received the largest measure of approval in India, though the third view also cannot be discarded as incorrect, because an inquiry whether the detention is legal or not at the date of hearing of the application for habeas corpus would be quite relevant, for the simple reason that if on that date the detention is legal, the Court cannot order release of the person detained by issuing a writ of habeas corpus. But, for the purpose of the present case, it is immaterial which of these three views is accepted as correct, for it is clear that, whichever be the correct view, the earliest date with reference to which the legality of detention may be examined is the date of filing of the application for habeas corpus and the Court is not, to quote the words

¶125

¶126

of Mr. Justice Dua in Col. B. Ramachandra Rao v. State of Orissa; (1972) 3 SCC 256 (SCC p.259, para 7)

¶127

‘7. … concerned with a date prior to the initiation of the proceedings for a writ of habeas corpus’.” (emphasis supplied)

¶128

20 . After so stating, the Bench in Kanu Sanyal case (supra) opined that for adjudication in the said case, it was immaterial which of the three views was accepted as correct but eventually referred to para 7 in B.Ramachandra Rao (supra) wherein the Court had expressed the view in the following manner: (SCC page 259)

¶129

“7. …. 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.”

¶130

Eventually, the Bench ruled thus: (Kanu Sanyal case (supra), SCC p.148, para 5)

¶131

“5. … The production of the petitioner before the Special Judge, Visakhapatnam, could not, therefore, be said to be illegal and his subsequent detention in the Central Jail, Visakhapatnam, pursuant to the orders made by the Special Judge, Visakhapatnam, pending trial must be held to be valid. This Court pointed out in Col. B. Ramachandra Rao v. State of Orissa (supra) (SCC p.258, para 5) that a writ of habeas corpus cannot be granted

¶132

‘where a person is committed to Jail custody by a competent court by an order which prima facie does not appear to be without jurisdiction or wholly illegal’.”

¶133

xxx xxx xxx

¶134

“31. Coming to the case at hand, it is evincible that the arrest had taken place a day prior to the passing of order of stay. It is also manifest that the order of remand was passed by the learned Magistrate after considering the allegations in the FIR but not in a routine or mechanical manner. It has to be borne in mind that the effect of the order of the High Court regarding stay of investigation could only have a bearing on the action of the investigating agency. The

¶135

¶136

order of remand which is a judicial act, as we perceive, does not suffer from any infirmity. The only ground that was highlighted before the High Court as well as before this Court is that once there is stay of investigation, the order of remand is sensitively susceptible and, therefore, as a logical corollary, the detention is unsustainable. It is worthy to note that the investigation had already commenced and as a resultant consequence, the accused was arrested. Thus, we are disposed to think that the order of remand cannot be regarded as untenable in law. It is well accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. As has been stated in the cases of B.Ramachandra Rao and Kanu Sanyal , the court is required to scrutinize the legality or otherwise of the order of detention which has been passed. Unless the court is satisfied that a person has been committed to jail custody by virtue of an order that suffers from the vice of lack of jurisdiction or absolute illegality, a writ of habeas corpus cannot be granted. It is apposite to note that the investigation, as has been dealt with in various authorities of this Court, is neither an inquiry nor trial. It is within the exclusive domain of the police to investigate and is independent of any control by the Magistrate. The sphere of activity is clear cut and well demarcated. Thus viewed, we do not perceive any error in the order passed by the High Court refusing to grant a writ of habeas corpus as the detention by virtue of the judicial order passed by the Magistrate remanding the accused to custody is valid in law”.

¶137

33. With due regard to the aforesaid decision, it appears

¶138

that in the present case facts being similar there is remand in all criminal cases initially to judicial custody of the petitioner in accordance with law and he being time to time remanded in the criminal cases under different jurisdiction and finally he having remained under the medical treatment on his own request and

¶139

¶140

there being order of production of the accused from time to time by the Magistrate by the time of return, i.e., on 3.8.2017 when counter is filed by State, the Writ of Habeas Corpus is not maintainable. Moreover, in none part of his judicial custody is found to be illegal in view of the threadbare discussion made hereinabove. Apart from this, a Division Bench of the Patna High Court has also observed in 1985 CRI. L. J. 894; Ramchander

¶141

Nonia v. State of Bihar paragraph-7 of which is quoted below:-

¶142

“7. When an accused detained in custody of a court is sent out side its jurisdiction and thus there being no production in that court, such nonproduction is neither illegal nor unauthorized violating Arts.22(2) and 21 of the Constitution and also Ss.167(2) and 309(2) of the Code.

¶143

Relying upon aforesaid decision, in the instant case when the petitioner is on remand initially by the criminal court at Kujang but continued at the Circle Jail at Choudwar which is outside the jurisdiction of Kujang, non-production of the petitioner due to his illness is neither illegal nor violative of Article 22 (2) and Article 21 of the Constitution read with Sections 167 (2) and 309(2) of the Cr.P.C. At the same time, it is the duty of each Judicial Magistrate to be vigilant in such nature of cases where the accused is involved in good number of criminal cases pending before different jurisdictions and the Judicial Magistrate is not only to be vigilant but also must pass

¶144

¶145

order on application of judicial mind even if it is a formal remand of the accused to judicial custody under Section 167 (2) Cr.P.C. and under Section 309 (2) of Cr.P.C., as the case may be. However, in the instant case, neither patent error is noticed in passing initial order of remand of petitioner to judicial custody nor subsequent procedures established by the law are violated to declare the detention of the petitioner as illegal and unjust.

¶146

34. This Court in the case of Manoj Kumar Dash v. Republic of India and others , reported in 2016 (I) ILR-CUT633 have observed that the date of return is crucial but not the date of institution of the proceeding and in the similar facts and circumstances of this case, Their Lordships in that case dismissed the writ petition being not maintainable.

¶147

35. It is reported in (2005) 31 OCR (SC) 799; Union of India and another v. Chaya Ghoshal and another , where Their Lordships observed at para-15 in the following manner:-

¶148

“ 15 . Where, however, a person alleging infraction of personal liberty tries to act in a manner which is more aimed at deflecting the course of justice than for protection of his personal right, the Court has to make a deliberate balancing of the fact situation to ensure that the mere factum of some delay alone is made use of to grant relief. If a fraud has been practiced or perpetrated that may in a given case nullify the cherished goal of protecting personal liberty, which obligated this Court to device guidelines to ensure

¶149

¶150

such protection by balancing individual rights and the interests of the nation, as well.”

¶151

36. With due respect to the said decision, in the present

¶152

case it appears the petitioner has alleged infraction of the personal liberty but at the same time has managed under the cloak of personal health reason which rather amounts to deflecting the course of justice than for protection of his personal right, the Court after balancing of the fact situation is not inclined to consider the plea of infraction of personal liberty at the altar of procedure duly established by law.

¶153

37. It is reported in (2012) 51 OCR (SC) 96;Ummu Sabeena v. State of Kerala & others , where Their Lordships observed that in dealing with Writ of Habeas Corpus the technical objectives cannot be entertained by the Court. In the instant case, the technicality raised by the learned counsel for the petitioner that the petitioner was not produced before the Court in the interregnum period cannot be entertained in this petition for Habeas Corpus. This view is also fortified in the case of Kanu Sanyal (supra) where Their Lordships held in specific term in the following manner:

¶154

“This Court pointed out in B.R. Rao v. State of Orissa that a writ of habeas corpus cannot be granted “Where person is committed to jail custody by a competent court by an order which prima facie does not appear to be without

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jurisdiction wholly illegal”. The present case is clearly covered by these observations and the petitioner is not entitled to a writ of habeas corpus to free him from detention.”

¶157

38. With regard to such decision, in the present case, it appears that the petitioner was committed to jail custody by the competent court, i.e., learned J.M.F.C., Kujang and learned S.D.J.M., Cuttack for which the prayer for Habeas Corpus is indefensible.

¶158

39. In terms of the above discussion, detention of the petitioner being at initial stage legal under judicial custody and on the date of return he is already under proper remand, neither petition for habeas corpus is maintainable nor detention can be held unlawful. The point for determination is answered accordingly.

¶159

CONCLUSION:

¶160

40. In the writ petitions, it is prayed to declare the detention of the petitioner in jail as illegal and unconstitutional. Further, it is prayed to make rule absolute with consequential relief to release him from custody in both the cases. In view of the aforesaid analysis, we are of the opinion that the petitioner being in judicial custody under proper orders of the Magistrates in both the cases at Cuttack and Kujang, the detention of the petitioner is legal and on the date of return there being no

¶161

¶162

absence of order of remand/production of the petitioner who remained absent to appear due to health reasons, the writ petition for habeas corpus sans merit and also not maintainable. So, we have no other option than to say no to the reliefs prayed in the writ petitions. Hence, both the writ petitions being devoid of merit, stand dismissed.

¶163

. ……………………………. Dr. D.P. Choudhury, J.

¶164

ORISSA HIGH COURT, CUTTACK The 14^th September, 2017/Kar

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B.K.Nayak, J. 41. I had the advantage of going through the judgment prepared by my learned brother, Dr. Justice D.P. Choudhury. While agreeing with the ultimate conclusion arrived at by him, I give the reasons for my judgment as follows:

¶167

These two Habeas Corpus petitions have been filed by the petitioner for his release from judicial custody in connection with Paradip P.S. Case No.98 of 2016 corresponding to G.R. Case No.507 of 2016 of the court of the learned J.M.F.C., Kujanga and Madhupatna P.S. Case No.107 of 2013, corresponding to G.R. Case No.1533 of 2013 of the court of the learned S.D.J.M(S), Cuttack.

¶168

Apart from the aforesaid two criminal cases, the petitioner has also been implicated in Paradip P.S. Case No.180 of 2016 corresponding to G.R.Case No.964 of 2016 pending in the court of the learned J.M.F.C., Kujanga for alleged commission of offences under Sections 302/120-B of the I.P.C. and Sections 25 and 27 of the Arms Act and Sections 3 and 4 of the Explosive Substances Act. In connection with Paradip P.S. Case No.180 of 2016, the petitioner was arrested by Paradip Police on 26.12.2016 at Bhubaneswar and on production before the learned J.M.F.C., Kujanga he was remanded to jail custody and detained at Samagol Jail. While the petitioner was under detention as such, the Investigating Officer of Madhupatna P.S. Case No.107 of 2013 under Sections 307/120-B of the I.P.C. and Section 9 (b) of the Indian Explosive Act, filed a petition on 06.01.2017 before the learned S.D.J.M.(S), Cuttck praying for remand of the petitioner in connection with the said case. Accordingly, the learned S.D.J.M.(S), Cuttack on the

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¶170

same day passed order requesting the learned J.M.F.C., Kujanga to spare the petitioner for his production before the learned S.D.J.M.(S), Cuttack and remand in the said case. On such request, the learned J.M.F.C., Kujanga passed order for sparing the petitioner for his production before the learned S.D.J.M.(S), Cuttack in connection with Madhupatna P.S. Case No.107 of 2013. Thereupon, the learned S.D.J.M.(S), Cuttack passed order issuing production warrant to the Superintendent, Samagol Sub-Jail for production of the petitioner before him on 12.01.2017. Accordingly, the petitioner was produced before the learned S.D.J.M.(S), Cuttack in connection with Madhupatna P.S. Case No.107 of 2013, on 12.01.2017 and remanded to jail custody and lodged at Circle Jail, Cuttack at Choudwar. The orders of remand of the petitioner in connection with the said Madhupatna P.S. Case, corresponding G.R. Case No.1533 of 2013 continued from time to time till 19.05.2017. In the meantime, charge-sheet was submitted against the petitioner and another co-accused under Sections 307/120-B/34 of the I.P.C. read with Section 9 (b) of the Indian Explosive Act and by order dated 02.05.2017, the learned S.D.J.M.(S), Cuttack took cognizance of the said offences. On 15.05.2017, extract of an order dated 15.05.2017 passed by the learned J.M.F.C., Kujanga in G.R. Case No.507 of 2016 (arising out of Paradip P.S. Case No.98 of 2016) was received by the learned S.D.J.M.(S), Cuttack for return of the petitioner to the court of the learned J.M.F.C., Kujanga for his production before him in the said case. Accordingly, the learned S.D.J.M.(S), Cuttack on the same day passed order for return of the petitioner for his production and remand before the learned J.M.F.C.,

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Kujanga in G.R. Case No.507 of 2016. The Superintendent, Circle Jail at Choudwar was accordingly informed and the petitioner was produced before the learned J.M.F.C., Kujanga in connection with G.R. Case No.507 of 2016 on 16.5.2017 and his bail application was rejected by the learned J.M.F.C. and he was remanded to jail custody till 27.05.2017.

¶173

It was contended by Mr. K.T.S. Tulsi, learned Senior Counsel for the petitioner, that the petitioner’s detention in custody in connection with G.R. Case No.1533 of 2013 of the court of the learned S.D.J.M(S), Cuttack after 15.5.2017 and detention in jail custody in connection with G.R. Case No.507 of 2016 of the court of the learned J.M.F.C., Kujanga after 27.05.2017 is illegal, since the petitioner was not produced and no order of remand after those dates was passed by the learned S.D.J.M.(S), Cuttack and the J.M.F.C., Kujanga in terms of subsection (2) of Section 167 and Section 309 of the Cr.P.C. and, therefore, the further continuance of detention of the petitioner in judicial custody in the said two cases is illegal and violative of his fundamental right under Article 22 (2) of the Constitution of India. Therefore, the petitioner is required to be released from custody.

¶174

It was also contended that for remand of the accused to judicial custody from time to time the production of the accused before the Magistrate in person or through Electronic Video Linkage, as required under Sections 167 (2) and 309 of the Cr.P.C., is essential and, therefore, the petitioner having not been produced before the learned S.D.J.M.(S), Cuttack on or after 19.05.2017 and before the learned

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J.M.F.C., Kujanga on or after 27.05.2017, his detention thereafter in custody is violative of the statutory provision and his fundamental right.

¶177

In support of his contention Mr. Tulsi, learned Senior Advocate relied upon the decisions in the cases of Madhu Limaye v. Sub-Divisional Magistrate, Monghyr & Ors. (MANU/SC/0147/1970); Raj Narain v. Superintendent Central Jail, 1970 (2) SCC 750; Mohinuddin @ Moin Master v. District Magistrate, Beed & Ors, (1987) 4 SCC 58; G.Shravan Kumar v. State of A.P., 2002 Cri LJ 2997; Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453; Sapmawia v. Dy. Comm, Aijal, (MANU/SC/0184/1970); Deepak Mahajan v. Director of Enforcement and Ors., 1990 (2) RCR (Criminal) 133; G. Kalaiselvi v. The State of Tamil Nadu, 2008 (3) RCR (Criminal) 523; Cherukuri Mani v. Chief Secretary, Government of Andhra Pradesh and others, (2015) 13 SCC 722; Prabhu Dayal Deorah v. The District Magistrate, Kamrup and Ors., (MANU/SC/0056/1973); Lahu Shirang Gatkal v. State of Maharashtra, through the Secretary and Ors., decided by the Hon’ble Supreme Court on 17.07.2017 in Criminal Appeal No.1185 of 2017 and decision of the High Court of Orissa in W.P.(Crl.) No.80 of 2015 in the case of Dinabandhu Mishra v. State of Odisha & Others .

¶178

The State through the Superintendent of Sub-Jail, Kujanga at Samagol has filed counter affidavit wherein it is stated that while the petitioner was in Circle Jail at Choudwar in connection with G.R. Case No.1533 of 2013 being remanded till 19.05.2017, on the request of the learned J.M.F.C., Kujanga, the learned S.D.J.M.(S), Cuttack spared the

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petitioner and accordingly the petitioner was taken and produced before the learned J.M.F.C., Kujanga on 16.05.2017 in connection with G.R. Case No.507of 2016 and remanded to jail custody till 27.05.2017. It is further stated that the petitioner through the Superintendent of Sub-Jail at Samagol made a prayer to the learned J.M.F.C., Kujanga for shifting him to Circle Jail, Choudwar because of his ill health and the learned J.M.F.C., Kujanga by his order dated 17.05.2017 allowed the petition and directed for shifting of the petitioner to the Circle Jail, Choudwar. However, the order for shifting having not been carried out immediately, the petitioner filed Misc. Case No.510 of 2017 in his pending bail application, i.e., BLAPL No.3706 of 2017 before the High Court for his shifting to the Choudwar Jail urgently as per order of the J.M.F.C., Kujanga. The said misc. case was allowed on 24.05.2017 by the High Court with direction for shifting of the petitioner to the Circle Jail at Choudwar in accordance with the order of the learned J.M.F.C., Kujanga. In pursuance to the said order passed by the High Court, the petitioner was transferred to Circle Jail, Choudwar on 25.05.2017. Therefore, the petitioner could not be produced physically before the learned J.M.F.C., Kujanga on 27.05.2017 for extension of his remand period as he was in Circle Jail at Choudwar. Besides, production of the petitioner before the learned J.M.F.C, Kujanga through electronic video linkage was not also possible, since video conferencing facility is not available in the court of the learned J.M.F.C., Kujanga. It is stated that as per the settled position of law, unless the writ court is satisfied that a person is in jail custody by virtue of an order that suffers from total lack of jurisdiction or absolute

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illegality, the writ of habeas corpus cannot be issued. Since the initial production and remand of the petitioner in both the G.R. cases in the courts of the S.D.J.M.(S), Cuttack and J.M.F.C., Kujanga were in accordance with law and do not suffer from lack of jurisdiction, the detention of the petitioner in connection with G.R. Case No.507 of 2016 after 27.05.2017 cannot be said to be illegal since the petitioner’s production before the learned J.M.F.C., Kujang was an impossibility as he was then in Circle Jail, Choudwar.

¶183

The learned Additional Government Advocate contended that in view of the peculiar fact situation, though Section 167 (2) of the Cr.P.C. provides that the accused is to be produced before the concerned Magistrate for the purpose of his remand and its extension, it does not mandate production of the accused for the purpose of remand where it is an impossibility due to factors beyond the control of the police or prosecution and, therefore, the continuance of detention of the petitioner for want of subsequent production and remand order cannot be said to be illegal. It is submitted further that the remand order passed by the Magistrate in absence of the petitioner is not invalid. In this connection, he has relied upon the decision of the Hon’ble Supreme Court in the case of Sandip Kumar Dey v. Officer-in-charge (1974) 4 SCC 2737 ; Gouri Shankar v. State of Bihar: 1972 CriLJ 505 and in the case of M. Sambasiva Rao v. Union of India: AIR 1973 SC 850 .

¶184

Learned Additional Government Advocate has also relying upon a division Bench decision of Patna High Court in the case of Ramesh Kumar Ravi alias Ram Prasad v. The State of Bihar, and

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¶186

three others: AIR 1988 PAT-199 contended that “if it is physically impossible to produce the accused in person, then his mere nonproduction would not render his remand to further custody illegal. The wholesome provisions of the Code requiring physical production have to be viewed reasonably and not to an impossibly logical extreme.” Though physical production of the accused before the Magistrate is desirable, yet the failure to do so would not per se vitiate the order of remand if the circumstances for non-production were beyond the control of the prosecution or the police. In the same case it was also held that “the true test for the legality or otherwise of the detention is on the date of the hearing of the petition. A defect in an earlier order of remand or detention of an accused person is not incurable and he cannot claim a writ of habeas corpus on that score alone if on the date of hearing he is in custody under a valid order of remand.”

¶187

In the case of Madhu Limaye (supra), relied upon by the petitioner, Madhu Limaye and his companions while proceeding to Varanasi City from Airport, were arrested by police. Habeas corpus petition was filed in the Supreme Court on the ground that the petitioners were not told the ground of arrest and were taken to the City Magistrate, who read out a notice under Section 112 of the Cr.P.C. calling upon them to furnish security of Rs.5,000/- with two sureties. The petitioners therein then refused to accept the notice and the City Magistrate adjourned the case to the following day and remanded them to jail. Again the case was adjourned by the Magistrate to 17.08.1970. In the habeas corpus petition, the Hon’ble Supreme Court directed for

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¶189

production of the petitioners therein and the City Magistrate simply adjourned the case before him. Since 17.08.1970 the case stood adjourned in view of the pendency of the habeas corpus petition and the petitioners were in the custody of the Hon’ble Supreme Court. It was held that as the remand was not extended by the Magistrate, the petitioners became free from custody and the Hon’ble Supreme Court declared them to be so. It was further held (paragraph-74) that “the City Magistrate did not read the law to inform himself about what he was to do. Having the petitioners before him and having read to them the order under Section 112 it was his duty either to release them unconditionally or to ask them to give an interim bond for good conduct but only after he has started inquiring into the truth of the information. Therefore, the Magistrate did not act according to law and his action after 09.08.1970 in detaining the petitioners in custody was illegal.

¶190

In the case of Madhu Limaye (supra), the action of the City Magistrate in sending the petitioners therein to jail custody was a total lack of jurisdiction as the same was done without making any inquiry into the truth of the information and without asking the petitioners to execute the interim bond after inquiry. It was not a case of an accused involved in a criminal prosecution, who was produced before the Judicial Magistrate in a legal way and was remanded to jail custody, though subsequently, the detention continued without the production of the accused before the court and for want of further remand order in impossible circumstances.

¶191

¶192

In the case of Raj Narain (supra), Mr. Raj Narain was arrested on 20.08.1970 under Sections 107/117, Cr.P.C. and was remanded to jail custody by the City Magistrate, Lucknow. In the habeas corpus petition filed by him in the Hon’ble Supreme Court, on the Court’s order, Mr. Raj Narain was transferred on 22.08.1970 to Tihar Central Jail, Delhi. His remand expired on 28.08.1970, which fact was brought to the notice of the Supreme Court at late hours on that day and the Hon’ble Supreme Court passed order to remand back Raj Narain to the custody of the City Magistrate with further direction that if by midnight no fresh remand order of the City Magistrate was received in Tihar Jail, the petitioner shall be set at liberty at midnight. On the same day, a fresh remand order of the City Magistrate was received in Tihar Jail that Sri Raj Narain was remanded to further jail custody up to 01.09.1970. Therefore, a further contention was raised on behalf of the petitioner that he was remanded by the City Magistrate behind his back on 28.08.1970 without being produced before him. The Hon’ble Supreme Court by a majority of 5:2 repelled the contention and rejected the application for his instant release holding as follows :

¶193

“ 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

¶194

¶195

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 made without production of accused in Court will not be invalid.

¶196

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.”

¶197

It is thus seen that Raj Narain’s case (supra) does not support

¶198

the contention raised on behalf of the petitioner that a prisoner needs to be physically produced before the Magistrate without any exception for the purpose of his remand to custody. On the contrary, the decision supports the contention raised on behalf of the State that there may be circumstances making it impossible for production of the prisoner before the Magistrate either physically or through electronic video linkage for reasons beyond control of the authorities.

¶199

The case of Mohinuddin @ Moin Master (supra) which has been relied upon by Mr.Tulsi, learned Senior Counsel, was a case of preventive detention under the National Security Act,1980. The High

¶200

¶201

Court in that case dismissed the habeas corpus petition on the ground of imperfect pleadings. In the appeal, the Hon’ble Supreme Court held that the dismissal of the habeas corpus petition on such ground was an improper exercise of power on the part of the High Court. It was held that the normal rule that writ petitions are to be decided on the basis of affidavits and the petitioner cannot be permitted to raise grounds not taken in the petition at the hearing, is not applicable to a petition for grant of a writ of habeas corpus.

¶202

This decision only deals with the right of the detenu under Article 22 of the Constitution of India and does not deal with the provision of the Cr.P.C. relating to production and remand of an accused charged in a criminal case. Therefore, the decision is of no help to the petitioner.

¶203

The case of G. Shravan Kumar (supra) was a case of bail application filed before the Andhra Pradesh High Court and not a habeas corpus petition. The said decision does not deal with the legal questions those arise in the instant case. On the contrary, it refer to a division Bench decision of the said court in the case of M.A.Dharman v.

¶204

State of A.P.: 1991 (1) ALT 315 in which it was held that under Section 167 (2) (b) of the Cr.P.C. production of the accused person before the Magistrate both at the time of seeking his remand and extension of the remand is compulsory, but though physical production of the accused before the Magistrate at the time of seeking his initial remand can never be dispensed with, absence of his physical production would not incurably vitiate a subsequent order of extension of his remand, if it

¶205

¶206

is physically impossible to produce him in person, such as in cases where the accused person is mortally injured or grievously ill and in the hospital, and not in a position to be produced before the Magistrate.

¶207

The decision in G. Shravan Kumar (supra) also refers to a Full Bench decision of the Andhra Pradesh High Court in the case of K. Dasaratharamaiah v. State of A.P.: 1992 (1) ALT 269 (FB) , in which it has been held that non-availability of police escort for justifiable reasons is a valid ground for non-production of the accused before the Magistrate for extending remand under Section 167, Cr.P.C.

¶208

Therefore, the decision in G. Shravan Kumar (supra) is of no help to the petitioner.

¶209

The case of Uday Mohanlal Acharya (supra) was a case which dealt with the right of the accused to be released on bail for non completion of investigation within the period stipulated under Section 167(2) proviso of the Cr.P.C. It did not deal with the question of production and remand of the accused. Hence, it is of no assistance to the petitioner.

¶210

In the case of Sapmawia (supra) a habeas corpus petition was forwarded to the Hon’ble Supreme Court from Dibrugarh Jail stating that the petitioner therein, a citizen of India hailing from Mizo District, was taken by the Security Forces from his house in village-Bairabi on 14.08.1968 to work as a porter for carrying their luggage to the next village. The petitioner however was not allowed to return home. He was kept under military guard for about three months without any interrogation. On 23.11.1968 he was sent to Silchar District Jail where

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he was kept as under trial prisoner. From the jail authorities the petitioner learnt that he was charged with offences under Section 121, I.P.C. and under Rules 41 (5) and 32 (5) of the Defence of India Rules and also under Sections 10, 11 and 13 of the Unlawful Activities (Prevention) Act. From Silchar Jail, the petitioner was transferred to the District Jail, Dibrugarh. Later the charges under Section 121, I.P.C. and Rule 41 (5) and 32 (5) of the Defence of India Rules were withdrawn. The petitioner made an application to the Assam High Court for a writ of habeas corpus, but the High Court directed the State to complete the investigation of the cases within two months. From the return filed the State-opposite parties in the habeas corpus petition before the Hon’ble Supreme Court it was found that up to the date of the order of the High Court, the petitioner’s custody in jail was not unlawful. The High Court did not authorize the further custody of the petitioner, but merely ruled the maintainability of the habeas corpus and further directed the investigation to be completed within two months. The last order of the remand that was disclosed before the Hon’ble Supreme Court was on 02.02.1970, but it was silent about for how many days the petitioner was remanded and the order also did not disclose the reasons for keeping the petitioner in jail custody at Dibrugarh. In the aforesaid circumstances, the Hon’ble Supreme Court was constrained to hold that the petitioner’s custody in Dibrugarh Jail was not in accordance with the procedure established by law and, therefore, directed for his release.

¶213

This decision supports the contention of the learned Senior Counsel for the petitioner with regard to the principles enshrined in

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Article-22, but it is factually distinguishable in that it did not consider the question where an accused in judicial custody on the orders of the Judicial Magistrate is transferred to another jail or to hospital on health ground outside the jurisdiction of the Judicial Magistrate making it impossible for his physical production or production through electronic video linkage due to non availability of the said facilities, for the purpose of passing further remand orders. The question as to transfer of the accused out of the jurisdiction of the jurisdictional Magistrate as ordered by the J.M.F.C and the High court in the instant case for the purpose of providing better medical facilities to the accused did not arise.

¶216

In the case of Deepak Mahajan (supra), the petitioner was arrested by the Officers of Enforcement Directorate for commission of offence under the Foreign Exchange Regulation Act, 1973 ( hereinafter called the ‘FERA’) and produced before the Chief Metropolitan, Magistrate in terms of Section 35 (2) of FERA. His bail application was rejected and he was remanded to judicial custody for fourteen days. His remand was extended from time to time. Accepting the argument that the Magistrate has no power of remand either under Section 167 (2) or Section 437, Cr.P.C. in respect of an accused produced before him under Section 104, Customs Act or Section 35 of FERA, the full Bench of Delhi High Court by a majority view held that the detention of the petitioner was illegal.

¶217

The fact situation in the case of Deepak Mahajan (supra) as seen above is quite different from the facts of the case in hand.

¶218

The case of G. Kalaiselvi (supra) was one of preventive detention by virtue of an order passed by the District Collector-cum-

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District Magistrate on the allegation that the detenu is a goonda, by which time he was already in judicial custody for having committed offences under the I.P.C. in connection with a criminal case. The contention was that the detaining authority passed the detention order without application of mind and did not consider whether the detenu was at large or was in custody. No ground was given that he was likely to be released on bail in a criminal case.

¶221

Similarly, the case of Cherukuri Mani (supra) is a case of preventive detention and, therefore, should have no application to the case in hand.

¶222

The decision of the Hon’ble Supreme Court in the case of Lahu Shrirang Gatkal (supra) (Criminal Appeal No.1185 of 2017) is a case of preventive detention where a blanket order was passed without specifying the period of detention. Therefore, the detention in pursuant to such order was held to be illegal.

¶223

Similarly the case of Prabu Dayal Deorah (supra) is one of preventive detention where the ground of detention communicated to the petitioners was vague and there was no question of public interest. Therefore, the order of preventive detention was held to be bad.

¶224

The decision of this Court in W.P.(Crl) No.80 of 2015: Dinabandhu Mishra v. State of Odisha and others decided on 29.07.2015 was a case in which the petitioners therein were arrested and produced before the learned S.D.J.M. on 16.02.2015 for commission of offences under Sections 420/406/448/467/468/471/294/506/34 of the I.P.C. and Section 6 of the Odisha Protection of Interest of Depositors (in

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Financial Establishments) Act,2011 (in short “the OPID Act”). From time to time the learned S.D.J.M., Angul continued to pass order of remand in respect of them. Lastly on 10.06.2015 the S.D.J.M. remanded the petitioners therein till 23.06.2015. In the meantime, keeping in view the offence under Section 6 of the OPID Act, on question of jurisdiction the Investigating Officer made a prayer before the learned S.D.J.M. on 20.06.2015 for transfer of the case to the designated court under the OPID Act and the prayer having been allowed, the records were transferred and received in the designated court on 22.06.2015 and that court directed to cause production of the petitioners therein by 10.07.2015. In the circumstances, custody of the petitioners therein beyond 23.06.2015 was without any authority of law. Therefore, this Court held the detention of the petitioners beyond 23.06.2015 as illegal and issued writ of habeas corpus for their release.

¶227

The facts of the said case are not similar to the case in hand, where the present petitioner being involved in different criminal cases under different jurisdictions was sent from one jail to another and on his own prayer on health ground shifted to the Circle Jail, Cuttack at Choudwar. The question of impossibility of production of the accused in the decided case did not arise.

¶228

Learned Additional Government Advocate in support of his contention relied on certain decisions. In the case of Naranjan Singh

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Nathawan v. The State of Punjab :MANU/SC/0073/1952 (AIR 1952

¶230

SC 106), a Constitution Bench of the Hon’ble Supreme Court held that in habeas corpus proceedings the court is to have regard to the legality

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or otherwise of the detention at the time of the return and not with reference to the date of the institution of the proceeding. This proposition further received approval in the case of Col. Dr. B. Ramachandra Rao v. The State of Orissa and Ors.:MANU/SC/0085/1971 (AIR 1971 SC 2197) .

¶233

Referring to the decision in the case of Col. Dr. B. Ramachandra Rao (supra) and the view expressed in the case of Ramnarayansingh v. The State of Delhi & Ors.: MANU/SC/0035/ 1953:1953 SCR 652) (AIR 1953 SC 277), the Hon’ble Supreme Court in the recent case of Manubhai Ratilal Patel Tr. Ushaben v. State of Gujarat and Ors.: MANU/SC/0800/2012: (2013) 1SCC 314 opined that a writ of habeas corpus is not granted where a person committed to jail custody by a competent court by an order which prima facie does not appear to be without jurisdiction or wholly illegal. Further the court is to have regard to the legality or otherwise of the detention at the time of return.

¶234

A full Bench of Patna High Court in the case of Ramesh Kumar Ravi @ Ram Prasad v.The State of Bihar, and 3 others: MANU/BH/0324/1987 (AIR 1988 Patna-199) , while considering the validity of a remand order of an accused which was passed in his absence, held as follows :

¶235

“ 11. It seems to me that viewed from whichever angle, either from the Constitutional or the statutory, it appears that the mandate of the law herein is that the accused person is to be physically produced before the Magistrate though it may turn out to be somewhat

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burdensome for the State. This on principle appears to be intended as a primal guarantee against any infraction of the valuable right of liberty even though curtailed by the criminal processes so as to ensure that the accused has always access in person to the judicial authorities. The somewhat ingenious submission on behalf of the respondent State that subsequent to the first production the physical presence of the accused person for further remand is unnecessary, must therefore, fail and is here by rejected.

¶238

12 . However, whilst holding so one cannot possibly go to the other extreme and accept the doctrinaire stand that the absence of the physical production of an accused person would vitiate the order of remand incurably. If it is physically impossible to produce the accused in person, then his mere non-production would not render his remand to further custody illegal. The wholesome provisions of the Code requiring physical production have to be viewed reasonably and not to an impossibly logical extreme. One example which inevitably comes to one’s mind is where the accused person himself may be not in position to be produced before the Magistrate—he may be mortally injured or grievously ill and lying in hospital. The law would not and cannot possibly require that he must nevertheless be produced in person before the Magistrate even to his detriment and danger to his very life. Cases are not lacking where an accused person charged with many offences may have to be produced on a particular date in to different courts at two different places. It is obvious that by no magic can he be physically produced at both the places at the same

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time. There may be many other factors which may hinder or even bar the actual physical production of the accused. In the somewhat turbulent times through which we are passing a patent one is where a curfew is imposed and the accused person cannot possibly be carried to the venue of the Magistrate’s court without infracting the law. Examples of this nature can be multiplied ad infinitum and it is somewhat unnecessary to labour the obvious.”

¶241

In the recent case of D. Gundappa v. State of Karnataka

¶242

and Ors: MANU/KA/1200/2017, a division Bench of the Karnatak High Court referring to the decision of the Hon’ble Supreme Court in the case of Raj Narain (supra) and other decisions of the Karnatak High Court held as follows :

¶243

“15. As per section 167(2)(b) of the Code, normally for seeking an order of remand to continue the accused in custody, the accused is required to be produced before the Court in person or through video linkage and in case it is not possible to bodily produce the accused, for example when he is hospitalized or undergoing treatment etc., the Investigating officer is required to submit the reasons for non-production so that the Magistrate can satisfy himself the genuineness thereof, but he cannot refuse order of remand on ground of nonproduction of the accused. This issue is settled by the Hon’ble Apex Court in the case of RAJ NARAIN v. SUPERINTENDENT, CENTRAL JAIL, NEW DELHI MANU/SC/0164/1970: AIR 1971 SC 178 and the ratio enunciated therein is followed by the Division Bench of this Court in NOOR JAHAN v. STATE OF KARNATAKA MANU/KA/0139/1991: ILR 1991 Karnataka 4081 wherein the Division Bench has reiterated as under:

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“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.”

¶246

It is held in the above case by the Division Bench that the decision in Raj Narain’s case holds good even under the 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 and cannot refuse to pass an order of remand. Therefore, it follows that mere non-production of the accused before extending the remand does not render the custody of the accused illegal.”

¶247

Facts almost identical to the case in hand arose before a

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division Bench of Patna High Court in the case of Rama Chander Nonia

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v. State of Bihar: 1985 Cri.LJ 894 where it was held that when an accused detained in custody of a Court is sent outside its jurisdiction and thus there being no production in that court, such non-production is neither illegal nor unauthorized violating Article 22 (2) and 21 of the Constitution and also Ss.167 (2) and 309 (2) of the Cr.P.C.

¶250

From the conspectus of the decisions of the Hon’ble Supreme Court and different High Courts as seen above, it becomes evident that though for the initial remand of the accused to jail custody in a criminal case his physical production is mandatory, for the subsequent remands to custody his production before the court either physically or through electronic video linkage is not mandatory if the same is not possible for justifiable reasons. It is also discernible that the

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relevant date of examining the validity or propriety of the detention of the prisoner is not the date of filing of the habeas corpus petition or any date anterior to that but the date of return.

¶253

Keeping the aforesaid principles in view, it is now necessary to examining further facts from the records of the two G.R. Cases of the courts of J.M.F.C., Kujanga and S.D.J.M(S), Cuttack and all other relevant materials.

¶254

From the counter affidavit of the State and from the ordersheets of the record in G.R. Case No.507 of 2016 of the court of the learned J.M.F.C., Kujanga it is apparent that the petitioner’s application through the Superintendent of Samagol Jail for shifting him to the Circle Jail at Choudwar on health ground was allowed and subsequently by order of this Court dated 24.05.2017 passed in Misc. Case No.510 of 2017, in petitioner’s bail application, i.e., BLAPL No.3706 of 2017, the petitioner was shifted to Circle Jail, Choudwar on 25.05.2017. Therefore, production of the petitioner before the learned J.M.F.C., Kujanga on 27.05.2017 and subsequent dates was not possible. The order-sheets further reveal that on 13.06.2017, 24.06.2017 and 07.07.2017 the learned J.M.F.C., Kujanga indicated in the order-sheets that the petitioner, who was in Choudwar jail, could not be produced nor was any interim custody warrant received from the jail authority. He, therefore, directed production of the petitioner fixing a future date. It is further revealed from the G.R. Case record that while the petitioner was in Circle Jail, Choudwar, he was undergoing treatment at SCB Medical College and Hospital, Cuttack. On 10.07.2017, the Senior Superintendent, Circle

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Jail, Choudwar sent a letter to the learned J.M.F.C., Kujanga stating that the Neurosurgery Department of SCB Medical College & Hospital, Cuttack has advised for physiotherapy of the petitioner at NIRTAR, Olatpur, Cuttack. The Superintendent of the Jail, therefore prayed to accord necessary permission for shifting the petitioner to NIRTAR. Accordingly, on the same day, i.e., on 10.07.2017, the learned J.M.F.C., Kujanga allowed the petition and the petitioner was shifted to NIRTAR, where he is undergoing treatment since then.

¶257

It is thus clear that though the order was passed by the learned J.M.F.C., Kujanga specifically remanding the petitioner to jail custody till 27.05.2017, thereafter because of the shifting of the petitioner to Choudwar jail as per the order of the JMFC, as well as the order of this Court passed in the misc. case, and his treatment in the SCB Medical College & Hospital, Cuttack and the further shifting of the petitioner on 10.07.2017 to NIRTAR for specialized treatment, it was impossible to produce the petitioner before the learned J.M.F.C., Kujanga since 27.05.2017, from time to time. Therefore, the learned J.M.F.C. noted in the order-sheets about non-production and directed for production on a future date. In the circumstances, allowing the shifting of the petitioner to Circle Jail, Cuttack and to NIRTAR for his treatment and further directions of the learned J.M.F.C. from time to time to produce the petitioner before him on future date would tantamount to remand authorizing treatment in detention. It would have been more appropriate on the part of the J.M.F.C. to order “remanded to custody/ custodial treatment”, but the mere non-mention of the same in the

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orders would not mean that the J.M.F.C. has not authorized further detention of the petitioner. It is the meaning and purport of the order that matters and not its form or the language used. Therefore, the detention of the petitioner in custody cannot be held to be illegal or unauthorized, since his initial remand was after physical production. On the date of return, i.e., on 03.08.2017, the petitioner was under treatment in custody and hence his detention cannot be said to be unauthorized.

¶260

The records of G.R. Case No.1533 of 2013 reveals that after the petitioner was spared by the S.D.J.M., Cuttack on 15.05.2017 for his production before the J.M.F.C., Kujanga in G.R. Case No.507 of 2017, the petitioner could not be produced before the S.D.J.M.(S), Cuttack on 19.05.2017. Thereafter, the S.D.J.M. posted the case to further dates from time to time indicting that the petitioner has not been produced as he was spared, and lastly by order dated 10.07.2017 requested the J.M.F.C., Kujanga for sparing the petitioner for committal proceeding.

¶261

In the aforesaid circumstances, the petitioner is not entitled to writ of habeas corpus for his release. The writ petitions are, therefore, dismissed.

¶262

The records of G.R. Case No.1533 of 2013 be returned to the learned S.D.J.M.(S), Cuttack and records of G.R. Case No.507 of 2017 be returned to the learned J.M.F.C., Kujanga immediately.

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………………… B.K.Nayak, J.

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ORISSA HIGH COURT, CUTTACK The 14^th September, 2017/Gs

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Mahimananda Mishra v. State of Orissa

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Mahimananda Mishra v. State of Orissa

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