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IN THE HIGH COURT OF ALLAHABAD
H. P. Asthana and J. K. Tondon, JJ.
VASU DEO OJHA - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
Criminal Misc. 1646 Of 1957
Decided On : 09/25/1957
CRIMINAL PROCEDURE CODE - SECTION 117(3) - SECTION 112 - SECTION 113 - SECTION 114 - SECTION 91 - SECTION 344 - U. P. CONSOLIDATION OF HOLDINGS ACT, 1954 - ARREST - DETENTION - BAIL - HABEAS CORPUS - PUBLIC MEETING - DISTURBANCE OF PUBLIC TRANQUILITY - ORDER UNDER SECTION 112 - EXPLANATION OF ORDER - PRODUCTION OF ACCUSED BEFORE MAGISTRATE - REMAND TO CUSTODY - POWER OF MAGISTRATE TO DEMAND BAIL - COMMITMENT TO JAIL FOR FAILURE TO FURNISH BAIL - LEGALITY OF DETENTION - PROCEDURE FOR ADJOURNMENT OF CASE - WRITTEN ORDER OF REMAND - STRICT COMPLIANCE WITH LEGAL PROVISIONS.
Fact of the Case:
Petitioners, supporters of a certain view against the U. P. Consolidation of Holdings Act, 1954, announced a public meeting to invite attention to alleged hardships caused to kisans by the scheme. The District Congress Committee announced a subsequent meeting at the same time and place, to be addressed by the Labour Minister. Petitioners' meeting was in progress when a Sub-Inspector of Police arrived with constables, asked why they were causing disturbance near the Minister's meeting, and arrested 40 persons, including 13 petitioners, under Section 151 Cr. P. C. They were taken to the police station, then to the collectorate, and kept waiting until the next evening, a public holiday. The Sub-Divisional Magistrate attended court that evening and drew up an order purporting to be under Section 112, Cr. P. C. against all 40 persons, sending them to jail. Petitioners challenged the legality of their detention, alleging non-compliance with the procedure in Section 117(3) Cr. P. C. and lack of authority for remand to jail custody except under that subsection. They also challenged the proceedings under Section 117 Cr. P. C., alleging that the order under Section 112 Cr. P. C. was not read out or properly explained to them, as required by Section 113 Cr. P. C.
Finding of the Court:
The court found that the petitioners' detention was not ordered under Section 117(3) Cr. P. C., but because they failed to furnish security for their appearance at the next date fixed for the hearing of the notice. The court also found that the order under Section 112 Cr. P. C. was read out and explained to the petitioners, and that they were presented before the Magistrate within 24 hours of their arrest. The court further found that the Magistrate had the authority to require the petitioners to furnish security for their appearance and to commit them to jail custody at their refusal to do so, as the proceedings under Chapter VIII of the Criminal Procedure Code were applicable to enquiries under Section 107, Cr. P. C. by virtue of Section 117(2) Cr. P. C. However, the court found that the petitioners' detention in jail could not be sustained due to the absence of a proper order remanding them to custody in accordance with Section 344, Cr. P. C.
Issues: 1. Whether the petitioners' detention was illegal due to non-compliance with the procedure in Section 117(3) Cr. P. C.? 2. Whether the Magistrate had the authority to remand the petitioners to jail custody independently of Section 117(3) Cr. P. C.? 3. Whether the order under Section 112 Cr. P. C. was read out and explained to the petitioners as required by Section 113 Cr. P. C.? 4. Whether the petitioners were presented before the Magistrate within 24 hours of their arrest? 5. Whether the Magistrate had the authority to require the petitioners to furnish security for their appearance and to commit them to jail custody at their refusal to do so? 6. Whether the petitioners' detention in jail was illegal due to the absence of a proper order remanding them to custody in accordance with Section 344, Cr. P. C.?
Ratio Decidendi: 1. The court held that the petitioners' detention was not ordered under Section 117(3) Cr. P. C., but because they failed to furnish security for their appearance at the next date fixed for the hearing of the notice. Therefore, the legality of their detention did not depend on compliance with the procedure in Section 117(3) Cr. P. C. 2. The court held that the Magistrate had the authority to require the petitioners to furnish security for their appearance and to commit them to jail custody at their refusal to do so. The court found that the proceedings under Chapter VIII of the Criminal Procedure Code were applicable to enquiries under Section 107, Cr. P. C. by virtue of Section 117(2) Cr. P. C., and that Section 344, Cr. P. C., which allows for commitment to custody to secure the attendance of accused at the next hearing of the case, was applicable to these proceedings. 3. The court found that the order under Section 112 Cr. P. C. was read out and explained to the petitioners, as required by Section 113 Cr. P. C. 4. The court found that the petitioners were presented before the Magistrate within 24 hours of their arrest. 5. The court held that the petitioners' detention in jail could not be sustained due to the absence of a proper order remanding them to custody in accordance with Section 344, Cr. P. C.
Final Decision: The court directed that nine of the petitioners who were still in jail custody be set at liberty forthwith.
( 1 ) THIS petition, which is under Article 226 of the Constitution and also under Section 491, criminal Procedure Code, has asked a writ of habeas corpus against the opposite parties, who are the State of Uttar Pradesh, the Collector of Mathura, Senior Superintendent of Police Mathura and Superintendent, District Jail, Mathura, in connection with their contention in Mathura jail. The facts giving rise to it are briefly these: a scheme for the consolidation of holdings has been started in Mathura Tehsil under the provisions of the U. P. Consolidation of Holdings Act, 1954. A certain section of the public does not seem to be favourably disposed of towards the working of the scheme. Accordingly some of the supporters of that view announced on 8-7-1957 a public meeting to be held at two Oclock that afternoon. The purpose of the meeting was to invite the attention of the authorities and the Government to certain hardships which the petitioners alleged were being caused to the kisans, particularly in the way the scheme was being worked. Another meeting for the same date, it is further alleged, was announced by the District Congress Committee of Mathura which again was to be held at the same time in the same village. This was to toe addressed by the Labour Minister, Sri Acharya Jugul Kishore. According to the petitioners the meeting on behalf of the District Congress Committee was announced subsequently,. e. , after they had announced the programme of their own meeting, it is stated that while the petitioners meeting was in progress a sub-inspector of police arrived at the scene with a number of constables and asfced the persons collected there as to why they were causing disturbance near the place where the Honble Minister was addressing the meeting which as we have already noticed, was arranged by the District Congress Committee. It is also alleged that soon after the Sub-Inspector arrested 40 persons, out of whom were the 13 petitioners, acting under Section 151 Cr. P. C. After their arrest these persons were taken in the first instance, to the police station and, later, to collectorate Mathura where, it is further alleged, they were kept waiting outside the courtroom until next evening, July 9, 1957 was a public holiday. But the Sub-Divisional Magistrate attended his court that evening at about 4-30 p. m. whereupon the arrested persons were produced before him. The Sub-Divisional Magistrate then drew up an order purporting to be under Section 112, Cr. P. C. against all the 40 persons and at the same time sent them to jail. It is contended on behalf of the petitioners that the procedure provided in sub-section (3) of Section 117 Cr. P. C. was not complied with and that their detention is illegal. Also according to them in proceedings under Chap. 8, Cr. P. C. a Magistrate has no authority to remand persons proceeded against to jail custody except under and in accordance with subsection (3) of Section 117, Cr. P. C. and since no such proceeding was taken against them in this case their detention is illegal. Their contention also is that the Magistrate before he makes an order remanding the persons proceeded against to jail custody under this subsection must previously find that immediate measures are necessary for the prevention of the breach of the peace or disturbance of public tranquillity and further that he must record his reasons in writing. If he fails in this necessary step the order, if any, made under Sub-section (3) of Section 117 Cr. P. C. will itself be illegal and unable to sustain any detention.
( 2 ) THE petitioners have also challenged the proceedings started against them under Section 117 cr. P. C. alleging that though an order under Section 112 Cr. P. C. was made by the Magistrate he neither read it out to them nor properly explained its contents which was necessary in view of section 113 Cr. P. C. Hence also they challenged the legality of their detention.
( 3 ) ON behalf of the opposite parties
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