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PETITIONER: RAM NARAYAN SINGH

       Vs.

RESPONDENT: THE STATE OF DELHI AND OTHERS.

DATE OF JUDGMENT: 12/03/1953

BENCH: SASTRI, M. PATANJALI (CJ) BENCH: SASTRI, M. PATANJALI (CJ) MUKHERJEA, B.K. DAS, SUDHI RANJAN HASAN, GHULAM BHAGWATI, NATWARLAL H.

CITATION:  1953 AIR  277            1953 SCR  652  CITATOR INFO :  F          1969 SC1014  (12,13)  D          1971 SC 178  (6,35,37)  F          1971 SC2197  (7)  R          1974 SC 510  (3)  E          1976 SC1207  (70)

ACT: Criminal   trial-Adjournment  of  case-No  order   remanding accused   to   custody--Legality   of    detention--Criminal Procedure Code, 1898, s. 344-Habeas corpus.

HEADNOTE:    In habeas corpus proceedings the Court is to have  regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of  the proceedings.      Section  344 of the Criminal Procedure Code requires  a Magistrate, if he chooses to adjourn a case, " to remand  by warrant  the  accused if in custody " and  provides  further that  every order made under this section by a  Court  other than  a  High  Court shall be in writing.   Where  a  trying Magistrate adjourned a case by an order in writing but there was nothing in writing on the record to show that he made an order  remanding  the  accused to custody:  Held,  that  the detention of the accused after the order of adjournment  was illegal.    Those  who feel called upon to deprive other  persons  of their  personal  liberty  in  the  discharge  of  what  they conceive  to be their duty, must strictly  and  scrupulously observe the forms and rules of the law.

JUDGMENT: ORIGINAL JURISDICTION: Petition No. 54 of 1953.  Petition  under Article 32 of the Constitution for a  writ in the nature of habeas corpus.  Jai  Gopal Sethi and Veda Vyas (S.  K. Kapur, A. K.  Datt, A.  N. Chona, B. Pathnaik and A. AT.  Sinha, with them)  for

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the petitioners. C.K.   Daphtary,   Solicitor-General   for   India   (Porus A.Mehta, with him) for the respondents.  1953.  March 12.  The Judgment of the Court was  delivered by the Chief Justice. PATANJALI  SASTRI  C. J.-This is a petition for  a  writ  of habeas  corpus filed by one ham Narayan Singh on  behalf  of four  gentlemen,  namely,  Dr. S. P. Mukerjee,  Shri  N.  C. Chatterjee, Pandit Nandial Sharma and Pandit Guru Dutt Vaid, who  are  the real petitioners in the case.   These  persons were 653 arrested on the evening of the 6th March, 1953, and they are now  being  prosecuted  for alleged  defiance  of  an  order prohibiting   meetings  and  processions  in  the  area   in question,  an  offence punishable under section 188  of  the Indian Penal Code.  Their detention is sought to be justified on the basis  of two  remand orders, the one alleged to have been- passed  by Mr. Dhillon, Additional District Magistrate, Delhi, at about 8  p.  m. on the 6th March, 1953, and the other  alleged  to have  been passed by the trying Magistrate at about 3 p.  m. on   the  9th  March  while  adjourning  the  case  on   the representation  made before him that a habeas "pus  petition was being moved in this Court.  Various questions of law and fact have been argued  before us by Mr. Sethi on behalf of the petitioner, but we consider it   unnecessary  to  enter  upon  a  discussion  of   those questions,  as  it is now conceded that the first  order  of remand dated the 6th March even assuming it was a valid  one expired  on  the 9th March and is no longer  in  force.   As regards the order of remand alleged to have been made by the trying  Magistrate  on  the 9th March, the  position  is  as follows:-The  trying Magistrate was obviously proceeding  at that stage under section 344 of the Criminal Procedure Code, which  requires  him,  if he chooses  to  adjourn  the  case pending before him, " to remand by warrant the accused if in custody," and it goes on to provide: Every order made  under this section by a court other than a High Court shall be  in writing  signed by the presiding Judge or  Magistrate.   The order  of  the Magistrate under this  section  was  produced before us in compliance with an order of this Court made  on the 10th March, which directed the production in this  Court as  early as possible of the records before  the  Additional District Magistrate and the trying Magistrate together  with the  remand  papers  for  inspection  by  Counsel  for   the petitioner.    The   order  produced  merely   directs   the adjournment of the case till the 11th March and contains  no direction  for, remanding the accused to custody  till  that date.  Last 85 654 evening, four slips of paper were handed to the Registrar of this  Court  at 5-20 p. m. On one side they  purport  to  be warrants  of detention dated 6th March and addressed to  the Superintendent  of Jail, Delhi, directing the accused to  be kept in judicial lock-up and to be produced in court on  the 9th  March 1953.  These warrants contain on their  back  the following  endorsements:  Remanded  to  judicial  till  11th March, 1953"  In  a  question of habeas corpus, when the  lawfulness  or otherwise  of  the custody of the persons  concerned  is  in question,  it  is obvious that these documents,  if  genuine would  be of vital importance, but they were  not  produced, notwithstanding  the clear direction contained in our  order

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of the 10th March.  The court records produced before us  do not  contain any order of remand made on the 9th March.   As we  have already observed, we have the order of  the  trying Magistrate  merely  adjourning the case to  the  11th.   The Solicitor-General  appearing  on behalf  of  the  Government explains that these slips of paper,which would be of crucial importance  to the case, were with a police officer who  was present in court yesterday, but after the Court rose in  the evening the latter thought that their production might be of some  importance  and therefore they were filed  before  the Registrar  at 5-20 p. m. We cannot take notice of  documents produced  in  such circumstances, and we are  not  satisfied that there was any order of remand committing the accused to further  custody till the 11th March.  It has been  held  by this  Court that in habeas corpus proceedings, the Court  is to have regard to the legality or otherwise of the detention at  the  time of the return and not with  reference  to  the institution  of the proceedings.  The material date  on  the facts of this case is the 10th March, when the affidavit  on behalf of the Government was filed justifying the  detention as  a lawful one.  But the position, as we have  stated,  is that  on  that date there was no order  remanding  the  four persons to custody.  This Court has often reiterated  before that those who 655 feel called upon to deprive other persons of their  personal liberty in the discharge of what they conceive  to be  their duty, must strictly and -scrupulously observe the forms  and rules of the law.  That has not been done in this case.  The petitioners  now  before  us are therefore  entitled  to  be released, and they are set at liberty forthwith.                                        Petition allowed. Agent for the petitioner: Ganpat Rai Agent for the respondents: G. H. Rajadhyaksha.