W. P. No 128 (H. C.) of 1993

3rd June, 1993.

Petitioner Counsel: G. A., for Opposite Parties.

Cases Cited:
1989 LLJ 1 (All) [Para 9]
1984 All LJ 375,1984 All Cri C 69 (FB) [Para 13]
1974 Cri LJ 465,1974 SCC (Cri) 280,AIR 1974 SC 510 [Para 16]
AIR 1971 SC 62 [Para 15]
1962 (2) Cri LJ 499,AIR 1962 SC 1506 (Disting.) [Para 16]
1953 Cri LJ 1113,AIR 1953 SC 277 [Para 10]

JUDGMENT

K. C. BHARGAVA, J.:-The present petition has been filed by 22 petitioners for habeas corpus directing the opposite parties to release the petitioners immediately.

2. The facts as they appear from the writ petition which may be stated in brief, are that petitioner No, 1, Avadhesh Singh, is the

National President of Lok Dal and is also a former member of legislative assembly. Bharat Singh, petitoner No. 2, Ram Bhawan Singh, petitioner No. 3. Jagdesh Singh, petitioner No. 5, are the office bearers of Lok Dal and the rest of the petitioners are the workers of Lok Dal and they are law abiding citizens. On 14-4-1993 one Raj Narain Tewari, incharge Police Station, Hazratganj, Lucknow. lodged a report at 5.25 p.m. under Crime No. 321 of 1993 under S. 147/353, 1. P-C- and S. 7 of the Criminal Law Amendment Act. A copy of the first information report is annexed as annexure No. 1 to the writ petition. According to the first information report the petitioners along with three or four hundred other person on 14-4-1993 were holding a meeting in Dayanidhan Park, Lucknow against the Dunkel proposals. This meeting ended at about 5.30 p-m- At that time one procession in connection with Ambedkar Jayanti was passing through the road. All these petitioners along with their associates went towards the Governor's House through V. N. Road without the permission of the police. These persons were interrupted by the police whereupon they became furious and started raising slogans and disturbed the public peace on the V. N. Road. All these persons were, therefore, arrested under S. 151, 106 and 116, Cr. P.C. These persons also exhorted their associates for breaking the law and to fight with the police officials present there. Thereupon, they were also arrested under S. 147, 353, I-P-C- and under S. 7 of the Criminal Law Amendment Act. Thereafter, they were sent to Jail on 14-4-1993 under the orders of the Magistrate, a copy of which is annexure-2. They were detained in jail under S. 151/116. Cr. P. C. No remand was taken under S. 147, 353,I.P.C. and S. 7 of the Criminal Law Amendment Act on 14-4-l993 and they were also not produced before any Magistrate under those sections. 'They were challaned in Crime No. 321 of 1993 under Ss.147, 353, I.P.C. On 17-4-1993 a report was sent to the Court in Crime No. 321 of1993 and they were summoned by the Chief Judicial Magistrate, Lucknow. The Senior Superintendent of Police, Lucknow was asked by the Chief Judicial Magistrate as to why these persons were not produced in court after they were taken into custody on 14-4-l993. A copy of that order is annexure-4. Thereafter, the petitioners were produced before the Chief Judicial Magistrate, Lucknow on 19-4-1993 and they were sent to jail on 14 day's remand. The petitioners objected to their remand but the Magistrate did not consider their prayers. The petitioners held this meeting after taking permission for pressing that the Mandal Commission Report should be enforced and the report of the Expert Committee should be rejected. The petitioners have nowhere said that they were holding the meeting against the Dunkel proposals as manipulated by the police against them. The petitioners were not produced before any Magistrate within 24 hours of their arrest as required by S.167 (1), Cr. P. C., hence their detention is illegal and they should be released from the custody. It is further alleged that the remand order dated 19-4-1993 passed by the Chief Judicial Magistrate is illegal.

3. In the counter affidavit filed on behalf of the opposite parties it is alleged that Avadhesh Singh, petitioner No. 1, is the National President of Lok Dal. It is not know whether the other persons, are office bearers or workers of Lok Dal. On 14-4-1993 at 17.35 p.m. the in-charge of Police Station, Hazaratganj, Raj Narain Tewari, lodged a report under Ss, 147. 353, I-P-C. and S. 7 of the Criminal Law Amendment Act vide Crime No. 321 of 1993 against the petitioners. It is correct to say that on 14-4-1993 the petitioners were arrested along with their associates numbering 222 under Ss. 151, 107, 116, Cr. P.C. and when they committed another offence they were arrested under Ss,147, 353, I.P.C. and S. 7 of the Criminal Law Amendment Act. For offence under Ss. 151, 107, 116, Cr. P.C. these persons were produced before the First Additional Chief Judicial Magistrate on 14-4-l993 in the night. 222 persons were lodged inside the jail. As there was no facility for keeping all these petitioners in the jail and it was also not possible to prepare warrants of all these

persons the warrants could not be prepared to those persons. The report was given in the court on 16-4-1993. No orders could be passed on this report on 16-4-93 but the orders were passed on 17-4-1993. In the first information report it has been mentioned that the meeting was organised in connection with the Dunkel Proposals and not in connection with the Mandal Commission. The petitioners could not be produced before the court within 24 hours for the reasons mentioned above. The petitioners at present are in the custody under a valid order of remand and it cannot be said that the detention of the petitioners is illegal.

4. It is not necessary to mention the facts narrated in the rejoinder affidavit and the supplementary affidavit.

5. Learned counsel for the petitioners and the learned Additional Government Advocate have been heard. Petitioner No.1, Avadhesh Singh has also argued his case in person.

6. According to the learned counsel for the petitioners the petitioners were arrested on 14-4-1993 in case crime No. 321 of 1993 under Ss. 147, 353, I.P.C. and S. 7 of the Criminal Law Amendment Act but no remand order was obtained by the police under sections on that date. According to the learned counsel their remand was taken from the Magistrate concerned for offence under Ss. 151, 107, 116 Cr. P.C. According to the learned counsel for the petitioners if a remand had been taken for offence under Ss. 107, 116, 151, Cr. P.C. then it cannot cover the remand for offence under Ss. 147, 353, I.P.C. and S. 7 of the Criminal Law Amendment Act. According to the learned counsel a separate remand should have been taken under that offence also. According to the learned counsel the initial detention of the petitioners was invalid and the subsequent remand will not cure the illegal detention of the petitioners and the petitioners will be entitled to be released.

7. According to the Additional Government. Advocate even if it may be assumed for the sake of arguments that the petitioners' initial detention was illegal then it stands cured by the subsequent remand which was granted on 19th April; 1993. According to the learned counsel in the case of habeas corpus the legality of the detention has to he seen as on the date of the return or on the date of hearing. According to the learned counsel on both these dates the petitioners were in detention under a valid order of remand and as such this writ petition is liable to be dismissed on this ground alone.

8. Learned counsel for the petitioners has referred to certain provisions of S.116, Cr. P.C and according to the learned counsel no security bonds could have been called for from the petitioners while they were under detention. In the present case, it is not necessary to consider this question. The detention of the petitioners in the present case is to be seen under the different sections (i.e. sections 147, 353, I.P.C. and S. 7 of the Criminal Law Amendment Act) for which another first information report was lodged on the same day.

9. Learned counsel for the petitioners has relied on certain case laws. The first case is Avadh Bihari Rai v. The State of U. P. (1989 ILJ 11), wherein it was held by a Division Bench of this Court that if a person is not produced before a Magistrate within 24 hours of his arrest excluding the period of journey then his remand after the expiry of 24 hours is obviously wrong and the accused is liable to be released forthwith.

10. The other case relied upon by the learned counsel for the petitioners is State of U.P. v. Abdul Samad (1962 (2) Cri LJ 499 (SC)). This case does not help the petitioners. In that case at the time of the first remand the accused persons were produced before the Magistrate within 24 hours but after the expiry of the period of the first remand they could not be produced before any Magistrate but they were produced before the High Court by its order. The Hon'ble Supreme Court considered this fact and came to the

conclusion that it cannot be said that the finding of the High Court releasing the accused persons on the ground that there was no valid remand in their favour was not correct.

11. Another argument placed by the learned counsel for the petitioners is that under Art. 22 of the Constitution of India if the detention of the petitioners was illegal at the initial stage then it cannot be cured by subordinate legislation. Article 22(2) of the Constitution of India provides for production before a Magistrate of a person who has been arrested and detained within 24 hours of his arrest excluding the time of journey. It further provides that the detention will not continue after 24 hours if a person is not produced as directed by this provision. It does not specifically say that if a person who has not been produced before a court as laid down in this Article then his detention cannot be made valid by subsequently remanding him to custody or such subsequent remand cannot be made. Therefore, in absence of any such prohibition if a person has been validly remanded to judicial custody even though after 24 hours of his arrest then his detention in jail cannot be questioned on the ground that initial detention was illegal. The argument of the learned counsel for the petitioner to the contrary cannot be accepted.

12. As mentioned in the earlier part of the judgment the Hon'ble Supreme Court did not hold that the detention of a person for want of a remand by the Magistrate within 24 hours will continue to be illegal even if subsequent remand is valid.

13. Now we consider the cases cited by the learned Additional Government Advocate. The first case is Surjeet Singh v. State of U.P. (1984 (21) ACC 69) ; (1984 All LJ 375) wherein a Full Bench of this Court held that the 'custody' means imprisonment both legal and illegal. The meaning of ''custody' under S.309(2), Cr. P.C. cannot be restricted to legal imprisonment only. It was further held that it there was an illegal detention then the court has jurisdiction to rectify that mistake and can pass an order of remand during the period of illegal detention. Thus in this case it was held that if there was an illegal imprisonment at the initial stage then by a remand under S. 309 (2), Cr. P.C. the custody can be legalised and the illegal detention will end there.

14. The second case is Ram Narayan v. State of Delhi (AIR 1953 SC 277) : (1953 Cri LJ 1113). In that case the Hon'ble Supreme Court has held that the crucial date for considering the legality of the detention is the date of return and not with reference to the initiation of the proceedings.

15. The third case is Talib Husain v. State of Jammu and Kashmir (AIR 1971 SC 62) wherein it was held that for issue of a writ of habeas corpus the detention of the person has to be considered on the date of hearing.

16. In the last case Kanu Sanyal v. District Magistrate' Darjeeling (1974 SCC (Cri) 280) : (1974 Cri LJ 465) the Hon'ble Supreme Court had an occasion to consider the above mentioned two cases and held that (at p. 467 of Cri LJ) :

"......, whichever be the correct view, the earliest date with reference to which the legality of the detention may be examined is the date of filing of application for habeas corpus and the...........

The Court went on to say that of the three views taken by the Court at different times, the second view expressed in the case of Talib Hussain v. State of Jammu and Kashmir (AIR 1971 SC 62) (supra) appears to be more in consonance with the law and practice wherein it has been held that the legality of the detention has to be considered as on the date of the return and not with reference to the initiation of the proceedings. With reference to the third view that the detention has to be seen on the date of hearing, the Hon'ble Supreme Court opined that though the third view also cannot be discarded as incorrect, because an inquiry whether the detention is legal or not at the date of hearing of the application for habeas corpus would be quite

relevant, for the simple reason that if on that date the detention is legal, the Court cannot order release of the person detained by issuing a writ of habeas corpus.

17. In the present case the Court has to see as to whether the detention of the petitioners at the time of hearing of the habeas corpus petition or on the date of the return was legal or not. Even according to the petitioners the remand of the petitioners under Ss.147, 353, I.P.C. and S.7 of the Criminal Law Amendment Act in Crime No. 321 of 1993 was made for the first time on 19th April, 1993 when they were produced before the Chief Judicial Magistrate, Lucknow. This petition was filed on 24th April, 1993 after the remand had been given. The return of the opposite parties was filed on 4th May, 1993. The hearing of the petition was concluded on 15th May, 1993. Thus on the date of the return as well as on the date of hearing the petitioners' detention was valid under a valid order of remand passed on 19th April, 1993. It has not been shown by the petitioners that after this remand the further remands given by the learned Magistrate are not in accordance with the provisions of law vitiating their detention. Therefore, keeping in view the fact that the detention of the petitioners at present cannot be said to be illegal or against the provisions of any law, The petitioners cannot be granted the relief they have prayed for and the opposite parties cannot be directed by means of this petition to release the petitioners forthwith as the detention of the petitioners is legal even though it may have been illegal at the initial stage. The petitioners are not entitled to be granted any of the reliefs they have prayed.

The writ petition is, therefore, dismissed.

Petition Dismissed