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HIGH COURT OF ORISSA
G. K. Misra, C. J. And B. K. Patra, J.
JAGANNATH MISRA - Appellant
Versus
STATE OF ORISSA - Respondent
Criminal Misc. Cases 95 Of 1969
Decided On : JULY 14, 1969
CRIMINAL PROCEDURE CODE - Section 167, 344 - Remand - Legality - Production of accused before Magistrate - Necessity - Habeas Corpus - Illegal detention - Subsequent legal detention - Effect.
Fact of the Case:
The petitioners were arrested on charges under Sections 120b/399 I.P.C. and were remanded to custody by the Sub Divisional Magistrate at Gunupur. They were later transferred to Koraput Jail and were produced before the Sub Divisional Magistrate at Koraput who remanded them to custody till 22-3-1969. Thereafter, they were forwarded in custody to Gunupur and were produced before the S.D.M. at Gunupur who remanded them to jail custody.
Finding of the Court:
The detention of the petitioners in Koraput Jail under orders of the Magistrate at Koraput was illegal as the Magistrate had no jurisdiction to try the case. However, the subsequent production of the petitioners before the Magistrate at Gunupur, who had jurisdiction to try the case, and the remand orders passed by him under Section 344 Cr.P.C. were legal.
Issues: 1. Whether the detention of the petitioners in Koraput Jail under orders of the Magistrate at Koraput was illegal. 2. Whether the subsequent production of the petitioners before the Gunupur Magistrate, who has jurisdiction to try them and under whose orders they are at present remanded to Jail custody, their present detention can still be illegal; 3. Whether assuming that their present detention is legal, whether the petitioners are entitled to be released merely by reason of the fact that at the time they made these applications they were held in illegal custody.
Ratio Decidendi: 1. Section 167 Cr.P.C. provides that whenever any person is arrested and detained in custody of the Police and it appears that the investigation cannot be completed within the period of twenty-four hours and there are grounds for believing that the accusation or information is well founded, he must be produced within 24 hours of the arrest before a Magistrate who from time to time may authorise the detention of the accused person in such custody, for a term not exceeding fifteen days in the whole. 2. Such a Magistrate need not always be the magistrate who has jurisdiction to try the case. But if any detention beyond the period of 15 days from the date of arrest is sought, that can be ordered only by the Magistrate having jurisdiction to try the case and this power can be exercised by the Magistrate not under Section 167 Cr.P.C. , but under Section 344 Cr.P.C. 3. The legality of the detention of the petitioners cannot be determined with reference to the dates on which they have made these applications. Whether the relevant date is the date on which the State shows cause in answer to the rule as indicated by the Supreme Court or the date on which this Court passes the final order as indicated by the Federal Court, it is immaterial so far as the present proceedings are concerned, because, even by the time the State showed cause in these proceedings, the petitioners are being held in lawful custody by virtue of orders under Section 344 Cr.P.C. passed by the Magistrate at Gunupur.
Final Decision: The applications are dismissed.
PATRA, J.
( 1 ) THESE eight applications- (Crl. Misc. 62/69 and 95/69 being by the same person)have been filed praying that this Court should issue directions in the nature of habeas corpus under Section 491 Cr. P. C, to produce the petitioners before this court and set them at liberty.
( 2 ) ALL the petitioners excepting the one in Cr. Misc 77 of 69 were arrested by the police of Gunupur Police Station of Gunupur Sub-division in Koraput district on charges under Sections 120b/399-I. P. C. on different dates between 30-1-1969 and 2-2-1969, and were duly produced before the Sub Divisional Magistrate at Gunupur, who remanded them to custody till 14-2-69, A proceeding under Section 109 Cr. P. C. having been initiated against the petitioner in Crl. Misc. 77/69, he was arrested by the Gunupur Police on 2-3-69 and was duly produced before the magistrate at Gunupur, who remanded him to custody pending further investigation. It appears from the record that besides these petitioners a large number of other persons, about 52 in all, were also arrested on charges under sections 120b/399, I. P. C. As there was insufficient accommodation in Gunupur sub-jail, these petitioners were transferred to be lodged in Koraput District Jail on 6-2-1969. They were produced -before the Sub Divisional Magistrate at Koraput on the 14th February, 1969. On that very day, the other accused persons involved in this case who had been kept at Gunupur Jail were produced before the S. D. M. , gunupur. On the same day, the Investigating Officer filed an application in gunupur court praying for further remand as investigation was not complete. The court directed that charge sheet should be filed by 27-2-1969 and also directed that the remands in respect of not only the accused persons actually produced before him, but also the accused persons who were transferred to Koraput jail should be extended till 27-2-1969. On 19-2-69, the charge sheet was filed before the S. D. M. at Gunupur. Meanwhile, on 14-2-69, the petitioners were produced before the Sub Divisional Magistrate at Koraput who remanded them to custody till 20-2-69. On 28-2-69, the petitioners were produced before the S. D. M. at koraput who remanded them to custody till 8-3-69. The order sheet shows that this was done in pursuance of a wireless message received from the S. D. M. , gunupur. On 8-3-69, in the absence of any further instructions from the S. D. M. , gunupur, the Magistrate at Koraput extended the remand till 22-3-69. Thereafter, no further instruction appears to have been received by the Magistrate at Koraput, from the Magistrate at Gunupur, and in the absence thereof, he went on remanding the petitioners from time to time to 22-3-1969, 5-4-69, 16-4-69 and 17-4-69. On the last mentioned date, the petitioners were forwarded in custody to gunupur. It is not disputed, that after-being taken to Gunupur, the petitioners were produced before the S. D. M. at Gunupur who obviously under Section 344 cr. P. C. has remanded them to jail custody.
( 3 ) THESE, in short, are the facts of the case. The present applications were submitted by the petitioners while they were still in Koraput Jail complaining that they were being illegally detained there. The three short points that arise for consideration in these cases are --
(1) Whether the detention of the petitioners in Koraput Jail under orders of the Magistrate at Koraput is illegal. (2) if the aforesaid detentions are illegal whether in view of the fact that they were subsequently produced before the Gunupur Magistrate, who has jurisdiction to try them and under whose orders they are at present remanded to Jail custody, their present detention can still be illegal; and (3) assuming that their present detention is legal, whether the petitioners are entitled to be released merely by reason of the fact that at the time they made these applications they were held in illegal custody.
( 4 ) SECTION 167 Cr. P. C. provides that whenever any person is arreste
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