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1992 Supreme(All) 350
IN THE HIGH COURT OF ALLAHABAD
K. L. SHARMA, H. N. TILHARI
SURENDRA TIWARI - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
Writ Petn. 127 (H/c) Of 1992
Decided On : 06/18/1992
M.RAKESH, VIRENDRA BHATIA
A remand order cannot validate a detention which is illegal and in violation of the provisions of statutory or constitutional law.
Headnote:
HABEAS CORPUS - ILLEGAL DETENTION - VIOLATION OF ART. 22(2) OF THE CONSTITUTION OF INDIA - REMAND ORDER - VALIDITY - CURABILITY OF DETENTION.
Fact of the Case:
The petitioner, Surendra Tiwari, was allegedly taken away from his residence by the police on 11-4-1992 at 6 p.m. and detained illegally for more than 24 hours without being produced before a Magistrate. On 13-4-1992, the petitioner was arrested by the police and produced before a Magistrate on 14-4-1992, who remanded him to judicial custody.
Finding of the Court:
The Court found that the petitioner's detention was illegal and in violation of Art. 22(2) of the Constitution of India, as he was not produced before a Magistrate within 24 hours of his arrest. The Court also found that the remand order passed by the Magistrate on 14-4-1992 could not validate the illegal detention, as it was not passed in accordance with the provisions of S. 167 of the Code of Criminal Procedure.
Issues: 1. Whether the petitioner's detention was illegal and in violation of Art. 22(2) of the Constitution of India? 2. Whether the remand order passed by the Magistrate on 14-4-1992 could validate the illegal detention?
Ratio Decidendi: 1. The Court held that the petitioner's detention was illegal and in violation of Art. 22(2) of the Constitution of India, as he was not produced before a Magistrate within 24 hours of his arrest. The Court relied on the provisions of Art. 22(2) of the Constitution of India, which states that "no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice". The Court also relied on the provisions of S. 50(1) of the Code of Criminal Procedure, which states that "when any person is arrested and detained in custody, he shall be produced before the nearest Magistrate without unnecessary delay, and not later than twenty-four hours from the time of his arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate". 2. The Court held that the remand order passed by the Magistrate on 14-4-1992 could not validate the illegal detention, as it was not passed in accordance with the provisions of S. 167 of the Code of Criminal Procedure. The Court relied on the provisions of S. 167(1) of the Code of Criminal Procedure, which states that "when any person accused of any offence and in custody is brought before a Magistrate, the Magistrate shall, if he considers that there is sufficient ground for committing the accused for trial, and that the case is one in which bail should not be granted, make an order committing the accused to prison". The Court held that the Magistrate had not applied his mind to the facts of the case and had not recorded any reasons for remanding the petitioner to judicial custody.
Final Decision: The Court allowed the writ petition and issued a writ of habeas corpus directing the petitioner to be released and set free subject to certain conditions.
( 1 ) BY means of this writ petition the petitioner has sought the issuance of writ of habeas corpus or writ, order or direction in the nature of writ of habeas corpus directing the immediate release of the petitioner. The petitioner has also prayed for orders being issued for immediate medical aid to the detenu as well as for taking action against Raja Rampal Singh and other police personnel as well as for the orders for proper enquiry and for further orders taking action against Raja Rampal Singh and other police personnel alleged to be responsible for illegally detaining the petitioner and for causing injuries on his person as alleged by the petitioner and for any other such writ, order or direction as is deemed just and proper.
( 2 ) THE petitioners case, as per allegations contained in the writ petition, is that on 11-4-l992 at 6 p. m. he has been taken away from his residence at Anandnagar, Police Station Alambagh, Lucknow, by Inspector, Police Station Qaiserbagh, Lucknow and Inspector, Police Station Alambagh, Raja Rampal Singh. The Petitioner further alleged that at the time the petitioner was taken away on 11-4-92 at 6 p. m. Shri Shiv Ram Shukla, Advocate was present and that on enquiry both the Inspectors informed Shri Shiv Ram Shukla, Advocate that the petitioner was required for interrogation and would be set free after sometime as alleged in paragraph 23 of the writ petition. The petitioners case is that on 12-4-92 at 00. 43 hours telegram was sent by Shri Shiv Ram Shukia, Advocate, to Director General of Police, U. P. Lucknow, District Magistrate, Lucknow and to Home Secretary to U. P. Government, Lucknow. A copy of which the petitioner has annexed as Annexure-1, to this writ petition. In paragraph 4 of the writ petition it has been alleged that when Surendra Tiwari did not return back home till next morning the deponent in the writ petition Markande Tiwari alias Rajendra Tiwari, the own brother of the petitioner through whom this petition has been filed made enquiries about Surendra Tiwari and he was informed that Surendra Tiwari was being kept under police lock up at Police Station, Hazratganj, Lucknow and on 13-4-1992 at about the noon the police squad led by Inspector Raja Rampal Singh and Inspector Qaiserbagh again came to petitioners residence at Anandnagar, Police Station, Alambagh and forcibly took away his brother Prem Shanker Tewari. In paragraph 6 it was alleged that the deponent in this petition Shri Markande Tiwari along with Vinay Jeet Lal Verma and Shri Shiv Ram Shukla, Advocate went to Police Station, Hazratganj and they saw in the evening on 12-4-92 that Surendra Tiwari and Prem Shanker Tiwari were under Lock up in the Police Station, Hazratganj and they in the petition had further alleged that the two persons appear to have been given serious beating. In paragraph 9 to the writ petition it was asserted by the deponent that Surendra Tiwari shouted in presence at the above named two Advocates that he was beaten severelly by the police and particularly by Raja Rampal Singh who took him to Police Station, Alambagh and caused him external and internal injuries. The petitioner deponent of the petition in paragraph 12 stated that the deponent sent telegram addressed to the Chief Justice of India, the Chief Minister of Uttar Pradesh and the Senior Judge of the High Court at Lucknow, the Director General of Police, U. P. , Lucknow at 01. 45 a. m. on 13-4-92. The petitioners case is that the petitioner is and has been detained by the opposite-parties without any cause and is and has been kept in detention by opposite-parties for more than 24 hours and specifically mentioned in paragraph 15 "40" hours without being produced before the Magistrate and his detention is illegal and violative of the provisions of Art. 22 (2) of the Constitution of India. The petitioners complaint in the writ petition is that he has been beaten continuously by Raja Rampal Singh, S. H. O. Police Station, Alambag
