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SUPREME COURT OF INDIA
M. Hidayatullah, CJI. J.M. Shelat, V. Bhargava, G.K. Mitter, C.A. Vaidialingam, A.N. Ray and I.D. Dua, JJ.
Raj Narain - Petitioner
Versus
Superintendent, Central Jail, New Delhi and another - Respondents
Writ Petn No. 330 of 1970
Decided On : 1-9-1970
Criminal Procedure Code, 1973 – Sections 112, 344, 107, 117 – Remand orders – Jail custody – Illegal Arrest – Writ of habeas corpus – Mr. Rajnarain made an application in nature of a habeas corpus petition stating that remand orders were communicated to him on morning of the 29th and therefore his detention after midnight of 28th was illegal and Unsupported by any order of remand – Further, that in any case, as he was remanded behind his back, his remand is illegal and he is entitled to be released – Question is whether custody of Mr. Raj Narain became illegal at midnight of August 28, 1970 – Held, Fact that person concerned does not desire to be released on bail or that he can make written representations to Magistrate are, beside point. – For instance, in cases where a person is sought to be proceeded against under Chapter VIII of Criminal Procedure Code, it would be opened to him to represent that circumstances have materially changed and a further remand has become unnecessary. – Such an opportunity to make a representation is denied to a person concerned by his not being produced before Magistrate. – As Magistrate has to apply his judicial mind, he himself can take note of all relevant circumstances when and person detained is produced before him and decide whether a further remand is necessary. – All these opportunities will be denied to an accused person if he is not produced before and Magistrate or Court when orders of remand are being passed – Court released petitioner from its custody and restored him to original custody and even permitted him to be taken to Lucknow, pending fixation of a fresh date of hearing of his case. – Uttar Pradesh authorities concerned did not avail themselves of opportunity to take him back to Lucknow for being produced before Magistrate concerned. – They were content to have an order of remand of prisoner in New Delhi passed by Magistrate sitting in Lucknow. – Such an order, as court have held, is illegal and hence detention of petitioner on authority of-such an illegal order of remand is also illegal Such a situation has been brought about by Uttar Pradesh authorities for which they have to thank themselves. – Court hold that orders of remand passed by City Magistrate, are illegal – Court further hold that detention of petitioner in Central Jail, after midnight of August 28, 1970 on authority of illegal orders of remand is also illegal – Writ Petition Allowed.
JUDGMENT :
Hidayatullah, C.J.I. - (11-9-1976) Mr. Raj Narain M. P. was arrested on August 20, 1970 under Sections 107/117, Criminal Procedure Code, and was remanded to jail custody under warrant issued by the City Magistrate, Lucknow. A petition for a writ of habeas corpus for his release is pending in this Court, and under our orders, August 22, 1970, he has been transferred to Tihar Central Jail Delhi His original remand, as ordered by the City Magistrate, was till August 28, 1970.
2. On August 28, 1970, we were informed at 4 P. M. that his remand would expire at midnight of the 28th St 1970 and that the Superintendent, Central Jail, Delhi would not be able to detain Mr. Raj Narain thereafter. The following intimation from the Superintendent - was received in this connection by the Registry:
Sir,
I have the honour to state, that Shri Raj Narain; M. P. was received in this jail on transfer from District Jail Lucknow, for production in Supreme Court in connection with his Writ Petition in the nature of Habeas Corpus He was produced in the Court on 25th, 26th and 27th August, 1970. Now it has been ordered by the Supreme Court dated 27-8-70 that he is not to be produced in the Court and that he may be kept in Delhi. Orders of the Court are reproduced below :
"Shri Raj Narain's petition is not to be listed tomorrow and he is not to be produced in Court tomorrow. He may however be kept in Delhi."
2. Judicial remand of Shri Raj Narain has been granted upto 28 8-70 by the City Magistrate and Magistrate 1st Class, Lucknow, vide enclosure copy of the order dated 21-8-70 In other words his judicial remand expires today. You are, therefore, requested kindly to intimate whether Shri Raj Narain is to be kept in Delhi Jail after 28-8-70 as per your orders or his further judicial remand is to be taken from the said Court.
Clarification sought may kindly be given today per bearer.
Yours faithfully."
The Court, thereupon, made the following order :
3. The same day a wireless message was received by the Superintendent, Tihar Central Jail from the District Magistrate Lucknow. It stated :
"........Reference Habeas Corpus Petition No. 315/70 dated August 28, 1970 Tiem (sic) P. M. Shri Raj Narain M. P. remanded to further jail custody upto September Ten Nineteen Seventy. Note in the jail warrant and inform him."
Simultaneously this Court was formed by District Magistrate that remand of Mr. Raj Narain M. P. was extended to September 10, 1970 by the City Magistrate.
4. Mr. Rajnarain made an application in the nature o
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