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High Court of Allahabad
Kamleshwar Nath, B.L. Loomba, JJ.
Subhash Bhandari – Appellant
Versus
State of U.P. – Respondent
Habeas Corpus W. P. Nos.5480, 5397 and 5555 of 1986
Decided On : Sep 09, 1986
CRIMINAL PROCEDURE CODE - SECTION 50(1) - SECTION 167(2) - GANGSTERS ACT - SECTION 19(2) - SECTION 309(2) - SECTION 344(1-A) - SECTION 36 - SECTION 156(1) - ARTICLE 21 - ARTICLE 22(1) - ARTICLE 22(5) - ARTICLE 227(2)(B) - GENERAL RULES (CRIMINAL) 1957 - RULE 157 - U.P. JAIL MANUAL - SECTION 3 - SECTION 17(1) - SECTION 2(B) - SECTION 59(27) - PRISONERS ACT 1900 - SECTION 2(B) - SECTION 3 - PRISONERS (ATTENDANCE IN COURTS) ACT 1955 - SECTION 2(B) - PRISONS ACT 1984 - SECTION 3(1) - SECTION 59(27) - MAINTENANCE OF INTERNAL SECURITY ACT 1971 - ARTICLE 51-A - CONSTITUTION OF INDIA - FORM NO. 47 - UROOJ ABBAS V. STATE OF U.P. - RADHEY SHYAM V. STATE - KUNJAN V. STATE OF U.P. - MUNESHWAR V. STATE OF U.P. - PRABHU NARAIN SINGH V. SUPERINTENDENT, CENTRAL JAIL, VARANASI - L.R. CHAWLA V. MURARI - I.M. LALL V. GOPAL SINGH - HARINDER SINGH V. S. KARNAIL SINGH - SURESH CHANDRA V. BIRDHICHAND - CHAGANTI SATYANARAYANA V. STATE OF ANDHRA PRADESH - PREM RAJ V. STATE OF RAJASTHAN - BABU NANDAN MALLAH V. STATE OF BIHAR - MUNESHWAR STATE OF U.P. - RAM CHANDRA ALIAS MUNAI V. SUPERINTENDENT CENTRAL JAIL, LUCKNOW - KHUDIRAM DAS V. STATE OF WEST BENGAL - VIMAL KISHORE V. STATE OF U.P. - GYAN CHAND GAUR V. STATE OF U P. - GOVIND PRASAD V. STATE OF WEST BENGAL - AJIT KUMAR SARMAH V. STATE OF ASSAM - NATABAR PARIDA V. STATE OF ORISSA - SHRILAL NANDRAM V. R.R. AGRAWAL S.D.M. FIRST CLASS, GWALIOR - PRAKASH CHANDRA MEHTA V. COMMISSIONER AND SECRETARY GOVERNMENT OF KERALA - RAM MANOHAR LOHIA V. THE STATE OF BIHAR - RAM NARAIN V. DELHI ADMINISTRATION -
Fact of the Case:
The petitioners, Subhash Bhandari and Kamlesh Pratap Singh, were arrested on 10-8-86 at about 10.45 p.m. in connection with a criminal case registered against them under Section 307 IPC and Section 3 U.P. Gangesters and Anti-Social Activities (Prevention) Act, 1986 (hereinafter called Gangesters Act). They were produced before the Additional City Magistrate, Lucknow, on 11-8-86, who remanded them to jail custody upto 10-10-86 under Section 167(2) Cr.P.C. The petitioners challenged the legality of their detention in these writ petitions.
Finding of the Court:
1. The period of remand fixed by the learned Magistrate in this case is in terms of dates and not terms of days, i.e., it is for the period from 11-8-86 to 10-10-86 and not 61 days in terms. 2. The order of remand, Annexure-4, specifically mentioned that the petitioners shall be kept in judicial custody till 10-10-86, signifying that in terms of the order, judicial custody had been authorised by the Magistrate from 11-8-86 to 10-10-86 and, therefore, both the days have to be counted for determining the duration of remand. 3. The remand of the petitioners for the period from 11-8-86 to 10-10-86 cannot be challenged to be invalid for the first 60 days only on the ground that the total period constitutes 61 days. 4. The order of remand has been passed mechanically and without application of mind. 5. The petitioners had not been informed of the grounds of their arrest when they were arrested, in consequence of which there was violation of Section 50(1) Cr.P.C. and Article 22(1) of the Constitution of India. 6. The entries in the custody warrant forms of the petitioners are unintelligible and meaningless and could not constitute a valid remand beyond the first day, i.e.11-8-86 when the warrant was signed by the Magistrate on the front side.
Issues: 1. Whether the period of remand fixed by the learned Magistrate in this case is in terms of dates and not terms of days? 2. Whether the order of remand, Annexure-4, specifically mentioned that the petitioners shall be kept in judicial custody till 10-10-86, signifying that in terms of the order, judicial custody had been authorised by the Magistrate from 11-8-86 to 10-10-86 and, therefore, both the days have to be counted for determining the duration of remand? 3. Whether the remand of the petitioners for the period from 11-8-86 to 10-10-86 can be challenged to be invalid for the first 60 days only on the ground that the total period constitutes 61 days? 4. Whether the order of remand has been passed mechanically and without application of mind? 5. Whether the petitioners had been informed of the grounds of their arrest when they were arrested, in consequence of which there was violation of Section 50(1) Cr.P.C. and Article 22(1) of the Constitution of India? 6. Whether the entries in the custody warrant forms of the petitioners are unintelligible and meaningless and could not constitute a valid remand beyond the first day, i.e.11-8-86 when the warrant was signed by the Magistrate on the front side?
Ratio Decidendi: 1. The period of remand fixed by the learned Magistrate in this case is in terms of dates and not terms of days, i.e., it is for the period from 11-8-86 to 10-10-86 and not 61 days in terms. 2. The order of remand, Annexure-4, specifically mentioned that the petitioners shall be kept in judicial custody till 10-10-86, signifying that in terms of the order, judicial custody had been authorised by the Magistrate from 11-8-86 to 10-10-86 and, therefore, both the days have to be counted for determining the duration of remand. 3. The remand of the petitioners for the period from 11-8-86 to 10-10-86 cannot be challenged to be invalid for the first 60 days only on the ground that the total period constitutes 61 days. 4. The order of remand has been passed mechanically and without application of mind. 5. The petitioners had not been informed of the grounds of their arrest when they were arrested, in consequence of which there was violation of Section 50(1) Cr.P.C. and Article 22(1) of the Constitution of India. 6. The entries in the custody warrant forms of the petitioners are unintelligible and meaningless and could not constitute a valid remand beyond the first day, i.e.11-8-86 when the warrant was signed by the Magistrate on the front side.
Final Decision: Habeas Corpus Writ Petition Nos.5480 of 1986 and 5397 of 1986 of Subhash Bhandari and 5555 of 1986 of Kamlesh Pratap Singh are allowed, Their present detention is quashed, they shall be set at liberty forthwith, unless wanted in some other case.
Kamleshwar Nath, J.
1. WRIT petition No. 5480 of 1986 is the regular writ petition of Subhash Bhandari, on whose behalf a telegram was received in this Court which led to WRIT Petition No. 5397 of 1986. The writ petition of Kamlesh Pratap Singh raises common questions with the writ petitions of Subhash Bhandari ; hence they have been taken up together for disposal.
2. ON 10-8-86 at about 10.45 p. m. a criminal case crime no. 905 of 1986, for offences under Section 307 IPC and Section 3 U. P. Gangesters and Anti- Social Activities (Prevention) Act, 1986 (hereinafter called Gangesters Act), was registered against petitioner Subhash Bhandari and Kamlesh Pratap Singh at P. S. Hazratganj, Lucknow, on the report of one Surya Kumar Verma. A police force, including S. I. Chhote Lal Tewari of P. S. Hazratganj, arrested both the petitioners from their houses in the night between 10/11-8-86 between 1 and 2 a. m. ON 11-8-86 both the petitioners were produced before the Additional City Magistrate, Lucknow. The Additional City Magistrate passed an order, under Section 167 (2) Cr. P.C., remanding both the petitioners to jail custody upto 10-10-86. The custody of both the petitioners, in pursuance of that order of remand, has been challenged as illegal in these writ petitions. Counter affidavits, rejoinder affidavits, supplementary counter affidavits and supplementary rejoinder affidavits have been exchanged between the parties. The relevant facts were not fully set out in the writ petitions initially, but they have been brought out with the aid of the affidavits which have been exchanged between the parties. They may be stated briefly as hereunder.
3. BOTH the petitioners, among others, were detained under the National Security Act, against which their writ petitions were dismissed by this Court in the year 1985. The petitioners filed petitions for special leave to appeal, as well as habeas corpus petitions before the Hon'ble Supreme Court. In July, 1985 both the petitioners were granted bail pending disposal of the said appeal/writ petition in the Supreme Court. Some time, after release on bail, Subhash Bhandari was again arrested, and shortly thereafter released on bail by the concerned Magistrate. Subhash Bhandari then filed a petition in the Hon'ble Supreme Court for punishment of the concerned police officers for committing contempt of Court of Hon'ble Supreme Court. HONOURABLE Supreme Court directed the Sessions Judge of Lucknow to make an enquiry into and submit a report on the facts surrounding the contempt petition and directed that in the meantime investigation into any offence, which may be alleged to have been committed by Subhash Bhandari, be conducted under the supervision of the Senior Superintendent of Police, Lucknow.
4. IN compliance of the orders of the Hon'ble Supreme Court, a Criminal Contempt Enquiry Case No. 16 of 1986 was registered in the Court of Sessions Judge of Lucknow in which certain persons, including both the petitioners, were to be examined as witnesses. The statement of petitioner Kamlesh Pratap Singh had been recorded. The allegation of petitioner Subhash Bhandari that his statement had already been recorded in part and that the remaining part was to be recorded on 11-8-86 in the Court of Sessions Judge, Lucknow, has not been specifically denied on behalf of the opposite parties. The petitioners' case is that they were suddenly arrested by the opposite parties in the night between 10/11-8-86. They were not informed of the grounds of their arrest as required under Section 50 Cr. P.C. and Article 22 (1) of the Constitution of India.
5. IT is pointed out that investigation of the alleged offence against Subhash Bhandari was not done under the supervision of the Senior Superintendent of Police, Lucknow, despite the orders of Hon'ble Supreme Court as indicated above.
6. ON 11-8-86 both the petitioners were produced in custody in the Court of incharge Sessions Judge Lucknow at 9.50 a. m. (in connection wit
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