SheetalD/o Jagadesh v. State of Tamil Nadu

O R D E R(Order of the Court was made by R. SUDHAKAR, J.)This Habeas Corpus Petition has been filed by one Sheetal,daughter of one of the detenues, namely, Jagadesh, for and on behalfof her father and the following other detenues, namely, (1) OmPrakash, Son of Ranjot Singh (2) Zaildarsingh, Son of Jagmal Singh(3) Ravindersingh, Son of Premasingh (4) Rakesh, Son of Ramupal (5)Lakshman, Son of Kari and (6) Babulu, Son of Kishnanlal. 2. According to the petitioner, all the above said persons werearrested and remanded to judicial custody in Crime No.451 of 2004, onthe file of Velaveu Police Station, for offences under Sections 395,397, 120-B r/w.27(2) of the Arms Act. It is stated in the petitionthat they were produced periodically before Tiruvallur Sessions Courtand on 16.3.2007 they were not produced before the said Court.Therefore, the present Habeas Corpus Petition has been filed statingthat detention beyond 16.3.2007 of the above said seven persons isillegal and violative of Article 21 of the Constitution and Section309 of the Criminal Procedure Code and therefore, they should be setat liberty.3. At the time of admission, i.e., on 28.3.2007, based on thesubmissions made by the Additional Public Prosecutor, it has beenrecorded that the detenues were produced before Judicial MagistrateNo.III, Vellore on 16.3.2007 and remand was extended upto 30.3.2007.4. The only contention raised by the learned counsel for thepetitioner is that the Judicial Magistrate, who extended the remandon 16.3.2007, has no jurisdiction to extend the remand and,therefore, the order extending the remand is illegal.5. Learned Addl. Public Prosecutor has produced a copy of thewireless message, dated 16.3.2007, from the Superintendent, CentralPrison, Vellore, addressed to the Principal Sessions Court,Tiruvallur District, which reads as follows :-"I submit that the following convict & remandprisoners concerned in P.R.C.No.40/2005 andVellavedu Police Station Crime No.451/2002 are tobe produced before Hon'ble Court on 16.3.07. Dueto Hon'ble Chief Minister of Tamilnadu visit toTiruvannamalai District entire police personnelengaged for bando bust duty escort not provided bythe Armed Reserve, Vellore District from16.03.2007 & 17.03.2007. Hence the above prisonernot able to produced before Hon'ble Court on https://hcservices.ecourts.gov.in/hcservices/

16.03.2007.The Chief Judicial Magistrate, Vellore videproceeding No.1073/2007/HC, dated: 16.03.07Judicial Magistrate, Vellore nominated to extendthe remand period."6. Subsequently, a report dated 13.9.2007 is filed by theInspector of Police, B-7 Vellavedu Police Station, Tiruvallur and itstates as follows :-"3. It is submitted that based on thecomplaint a case in Crime No.451/04 wasregistered for offence under sections 395 & 397I.P.C. During the course of investigation, themain accused Oma Bawaria @ Omprakash was arrestedby the Inspector of Police, Sriperumpudur PoliceStation in connection with the Crime No.352/2004under sections 302, 307, 397 I.P.C. On 8.9.05.On his confession it is came to light of hisinvolvement in this case. Investigation disclosethat A-1 Omprakash and his associates involved in24 cases in similar nature and committed dacoityto the property worth more than a Crore apartfrom causing injuries to 64 peoples.4. It is humbly submitted that theinvestigation reveals that 33 persons has beeninvolved in the above said crime and out of which11 persons arrested and remanded to judicialcustody.5. It is further submitted that aftercompletion of investigation final report has beenfiled on 16.5.2005 before the learned JudicialMagistrate No.II, Poonamallee for offence undersections 395 & 397 I.P.C. read with 120 B I.P.C.And 109 I.P.C and 27(2) Arms Act and the same hasbeen taken on file by the learned JudicialMagistrate No.II, Poonnamallee inP.R.C.No.40/2005 on 05.07.2005.6. It is respectfully submitted that the casehas been committed to the learned District Judge,Thiruvellur so far, 10 accused are concerned.The other accused has been splited up and thesame has been pending in P.R.C.No.10/2007 beforethe learned Judicial Magistrate II, Poonamallee.The Learned District Judge Thiruvallur taken the https://hcservices.ecourts.gov.in/hcservices/ case on file in S.C.11/2007 and the same wasposted on 16.3.2007 for appearance of theaccused. Due to the Honourable Chief Minister ofTamil Nadu Bundobust duty, the Escort Police hasnot been available to produce the accused beforethe District Sessions Judge, Thiruvallur. Henceon 16.3.2007 as per the requisition ofSuperintendent, Central Prison, Vellore, thelearned Judicial Magistrate No.III, Vellore wentto Central Prison, Vellore and extended theremand from 16.3.2007 to 30.3.2007. On 30.3.2007the accused were produced before the learnedPrincipal District Judge, Thiruvallur and theremand has been extended till 10.4.2007.Subsequently the accused produced and remandextended periodically upto 26.7.2007 and the casewas made over to learned Assistant SessionsJudge, Poonamallee and the accused was directedto be produced before the learned AssistantSessions Judge, Poonamalee on 14.8.2007. All theaccused persons were produced before AssistantSessions Judge, Poonamallee on 14.8.07 and theirremand was extended upto 18.9.2007."7. Learned counsel appearing for the petitioner in support of hiscontention by placing reliance upon the decision of the Supreme Courtreported in 2002 SCC (Cri) 62 (STATE OF TAMIL NADU v. PARAMASIVAPANDIAN), confirming the Division Bench decision of this Court inHCP.Nos.1401 to 1403 of 2000 dated 28.9.2000 and stated that theorder dated 16.3.2007 passed by the Magistrate extending the remandis illegal and without jurisdiction.8. In the above stated case the accused were charged for offencesunder the Tamil Nadu Essential Trade Articles (Regulation of Trade)Order, 1984 read with Section 7(1)(a)(ii) of the EssentialCommodities Act, 1955. They were initially produced before the AreaMagistrate who remanded them to police custody and thereafter theSpecial Court at Madurai extended the orders of remand periodically.The stand taken by the accused before the High Court as has beendealt with in para 7 of the Apex Court judgment is as hereunder :-"7. The three accused persons filed HabeasCorpus Petitions Nos.1401, 1402 and 1403 of 2000in the High Court of Madras challenging thevalidity of the remand orders passed by theSpecial Court at Madurai and questioned thelegality of their detention in pursuance of thesaid order of remand. The case of the petitionersshortly stated was that after the EC (Special https://hcservices.ecourts.gov.in/hcservices/ Provisions) Act, 1981 lapsed by efflux of time in1998, the Special Court constituted under Section12-A of the said Act ceased to have jurisdictionto try cases under the EC Act, and therefore, theremand orders passed by the Special Courtconstituted for trial of cases under the NDPS Acthad no jurisdiction to pass remand order in the ECAct cases. Thus the successive orders of remandpassed by the Special Court under the NDPS Act atMadurai being without jurisdiction were invalidand the detention of the petitioners on the basisof such orders was illegal. The petitionersprayed for being released from custody forthwith." (Emphasis supplied)The conclusion of the Division Bench of the Madras High Court inParamasiva Pandian's case on the above stated factual background isextracted in para 10 of the Apex Court judgment, which is to thefollowing effect :-"10. The High Court summed up its findingsin the following words:"But in this case as alreadypointed out it is clear that neither onthe date of first remand nor on the dateof subsequent extension, or of takingcognizance, nor as on date there islegal order of remand or extension ofremand at all by the Special Court forEssential Commodities Act cases, Maduraiwhich ceased to exist long ago and as itis not a validly constituted court orMagistrate its orders and proceedingsare without jurisdiction. Hence, thereliance placed upon the abovepronouncement is of no consequence orassistance, nor it could be consideredas a mere irregularity as sought to bemade out. In the foregoing circumstances theorder of remand and the extension of theremand of the detenus from time to timeare without jurisdiction, such ordercannot be continued and there shouldnaturally be a direction to the https://hcservices.ecourts.gov.in/hcservices/ respondent herein as well as theSuperintendent of the jails concerned,namely, Central Jail, Vellore, CentralJail, Palayamkottai, Central Jail,Trichirapalli, to set the three detenusat liberty.Though the detenus as already heldare in remand which remand is beingwithout jurisdiction, ordinarily thedetenus should be set at liberty.However, in the interest of justice andon the facts in the case instead ofsetting the detenus at liberty andthereafter allowing the respondent to gobefore the Magistrate concerned to avoiddelay and technical objections and torender substantial justice, we hold thatthis is imminently a fit case where thisCourt would be justified in enlargingthe detenus on bail as in two casesinitially there was a valid order ofremand by the Area Magistrate and in thethird case even though there was noremand by the Area Magistrate and theremand was made by the Special Court atthe first instance. But on that scoreit would not be proper for us to treatthe third case as differently and togive a disposal differently." (emphasissupplied)9. While upholding the order of the High Court, the Apex Couldheld that the Special Court constituted for trial of NDPS Act casesat Madurai did not have the power to extend the remand of an accusedunder the provisions of the Essential Commodities Act. In para 17,the Apex Court held as follows :-"17. Coming to the question whether theSpecial Court constituted for trial of cases underthe NDPS Act could exercise the power of remand ofan accused in the EC Act case, which it was doingwhen the Special Court constituted for the EC Actcases was in existence, the answer to the questionis in the negative, for the simple reason that theSpecial Court constituted for the NDPS Act casesis a court of exclusive jurisdiction for trial ofthe particular class of cases provided under theNDPS Act and it has not been vested with power of https://hcservices.ecourts.gov.in/hcservices/ a Judicial Magistrate for the purpose of dealingwith the EC Act cases. To accept the contentionraised on behalf of the appellant in this regardwould in our view be contrary to the scheme ofthings under the Criminal Procedure Code whichspecifically vests the power of remand underSection 167 in a Judicial Magistrate. The HighCurt was, therefore, right in negativing thecontention raised on behalf of the StateGovernment in this regard. It is relevant to notehere that even after holding that the remandorders were passed by the court not competent topass such orders, the High Court has not grantedthe prayer of the writ petitioners for theirrelease but has only ordered their release onconditions as noted in the judgment."The Apex Court, however, upheld the order of the High Court directingthe release of the accused on bail while refusing to interfere withthe detention in the Habeas Corpus Petitions filed.10. Learned counsel for the petitioner has relied upon theDivision Bench decisions of this Court including the decisionreported in 1983 L.W. (Crl.) 121 (ELUMALAI v. STATE OF TAMIL NADU,REP. BY THE INSPECTOR OF POLICE, E-3 POLICE STATION, TEYNAMPET,MADRAS AND 2 OTHERS) and contended that the order extending theremand is illegal and has to be interfered with.11. In the aforesaid case, a large number of accused weredeprived of their Constitutional right by orders of Magistratesmechanically extending the remand from time to time. Paras 35 and42, which are relevant, read as follows :-"35. It is very alarming to note that a hugenumber of prisoners arrested under S.41(1) orS.151(1) or arrested in connection with penaloffences coming under various enactments are keptin jail custody under the periodical orders ofextension of remand passed by the Magistrates - inmany cases even without the production of theprisoners - but also the commencement of theinquiry or trial is delayed or such an inquiry ortrial is prolonged and consequent upon the failureof the speedy inquiry or trial, the accusedpersons are kept in cellular confinements behindthe bars for months together, and especiallypersons who are poor, have no other option exceptto spend their lives in jail-custody. This kindof situation came for serious comments by the https://hcservices.ecourts.gov.in/hcservices/ Supreme Court in a number of cases Yet, thissorry state of affairs has not come to an end.""43. In view of all the above discussions, wemake the following propositions :(1) S.167(2) of the Code would apply toarrests made under S.41(1) and in exceptionalcircumstances, to arrests made under S.151(1).But the Judicial Magistrates, while remanding orpassing extensions of remands, should be verywatchful to see that the liberty of a citizen isnot violated by the police arbitrarily andunreasonably.(2) S.167(2) is not at all applicable toarrests made under S.41(2) of the Code and as suchno court can order remand or extension of remandof persons arrested under S.41(2).(3) The Courts should not mechanically passorders of remand without verifying the entries inthe diaries and satisfying themselves about thereal necessity for granting the remand orextension of remand.(4) Under no circumstance a Magistrate canorder the detention of any person in custody orextend such detention without the production ofthe accused before him in violation of theprovisions of the Code, viz., proviso (b) to S.167(2), whatever may be the reason stated by theauthorities concerned for the non-production ofthe accused before the Court, such as the non-availability of police escorts, etc., as shown inthe charts, given by the learned Public Prosecutorin pursuance of the directions of this Court.(5) The jail authorities, who are also verymuch concerned in the matter of keeping theprisoners in cellular confinement, should not keepany person without orders of remand from theconcerned Judicial Magistrates even for a momentbeyond the period of detention already ordered,because, if the jail staff keep any person insidethe prison, without proper orders of the court,such keeping would be tantamounts to an illegaldetention."12. The fact in the present case is different from the decision https://hcservices.ecourts.gov.in/hcservices/ relied upon by the petitioner's counsel. In this case, the accusedwere arrested for serious crime and a report was filed on 16.5.2005before the learned Judicial Magistrate No.II, Poonamallee, and wastaken on file in P.R.C.No.40 of 2005 on 20.7.2005. Subsequently, thecase was committed to the District and Sessions Court, Thiruvallur inso far as 10 out of 33 persons, who were involved in grave crimes ofdacoity and injuries to persons. As far as the accused in thepresent case are concerned, the case is pending on the file of theDistrict and Sessions Judge, Thiruvallur as Sessions Case No.11 of2007(S.C.No.11 of 2007). In due course the case was listed forhearing on 16.3.2007 for appearance of accused, due to administrativedifficulties as explained above, the accused could not be producedbefore the concerned Court. However, based on the proceedings issuedby the Chief Judicial Magistrate, the Judicial Magistrate, Vellore,extended the order of remand to 30.3.2007. On 30.3.2007 and onsubsequent dates, the accused were produced before the Sessions Courtperiodically and the orders of remand was extended as per report.On the date of hearing of the Habeas Corpus Petition, the accusedwere in judicial custody under valid orders of remand. The factualsituation in Paramasiva's case and Elumalai's case will notapplicable to the facts of the present case. In Paramasiva's case,the Court found that the initial order of remand and subsequentorder extending the remand was illegal and without jurisdiction. The Division Bench specifically held that the said Court passedsuccessive orders of remand which was without jurisdiction and therewas infirmity even at the time of initial remand. In that case, theoriginal order of remand and the further extension were found to beillegal which is not the case in this Habeas Corpus Petition. It isin this factual background, the Apex Court confirmed the order of theDivision Bench of this Court as has been set out above. It was acase of a Court which had no jurisdiction passing orders extendingthe remand from time to time. Prejudice to the accused was manifestin the said case. In Elumalai's case it is mechanical extension ofremand in terms of Section 167(2) in many cases without producing theaccused before the Magistrate. It is also a case primarily dealingwith arrest of persons under Section 41(1) and Section 151(1). Inthe present case, the breach if any is only on 16.3.2007 and theorder of extension of remand is relatable to Section 309 of theCriminal Procedure Code and it is a case on trial. Therefore, thepetitioner's plea to invoke the extraordinary jurisdiction of thisCourt by way of writ of habeas corpus has to be judged from theevents on and after 16.3.2007 and also at the time of hearing of theHabeas Corpus Petition. 13. In AIR 1988 Patna 199 FB (RAMESH KUMAR RAVI @ RAM PRASAD ANDETC., v. STATE OF BIHAR AND OTHERS), a Full Bench of Patna HighCourt, while considering a plea of defective or illegal order ofremand, framed the following questions for consideration:- https://hcservices.ecourts.gov.in/hcservices/ (i) Whether a Magistrate has no jurisdiction to pass an orderof remand unless an application or a request to that effectis made by the Police or the prosecution?(ii) Whether the physical production of the accused before theMagistrate for the purpose of remand is so mandatory that afailure to do so would vitiate the same even if thecircumstances for non-production were beyond the control ofthe prosecution and the Police? (iii) Whether a defect or illegality in the order of a remandof an accused person is incurable and he can claim a writof habeas corpus despite the fact that on the date ofhearing he is in custody under a valid order of remand ?(iv) Whether the judicial orders of a Criminal Court (strictosensu) under the Code of Criminal Procedure, are amenableto quashing by a writ of certiorari ?" 14. While dealing with question No.(ii), the Full Benchobserved :-"14. However, whilst holding so one cannotpossibly go to the other extreme and accept thedoctrinaire stand that the absence of thephysical production of an accused person wouldvitiate the order of remand incurably. If it isphysically impossible to produce the accused inperson then his mere non-production would notrender his remand to further custody illegal.The wholesome provisions of the Code requiringphysical production have to be viewed reasonablyand not to an impossibly logical extreme. Oneexample which inevitably comes to one's mind iswhere the accused person himself may be not in aposition to be produced before the Magistrate -he may be mortally injured or grievously ill andlying in hospital. The law would not and cannotpossibly require that he must nevertheless beproduced in person before the Magistrate even tohis detriment and danger to his very life. Casesare not lacking where an accused person chargedwith many offences may have to be produced on aparticular date in two different courts at twodifferent places. It is obvious that by no magiccan he be physically produced at both the placesat the same time. There may be many otherfactors which may hinder or even bar the actualphysical production of the accused. In thesomewhat turbulent times through which we are https://hcservices.ecourts.gov.in/hcservices/ passing a patent one is where a curfew is imposedand the accused person cannot possibly be carriedto the venue of the Magistrate's Court withoutinfracting the law Examples of this nature can bemultiplied and infinitum and it is somewhatunnecessary to labour the obvious." (Emphasis added)Answering to Question No.(iii), the Full Bench observed:-"24. To sum up on question No.(iii), theanswer thereto is rendered in the negative. Itis held that the true test for the legality orotherwise of the detention is on the date of thehearing itself. A defect in an earlier order ofremand of an accused person is not incurable andhe cannot claim a writ of habeas corpus on thatscore alone if on the date of hearing he is incustody under a valid order of remand." (Emphasis added)15. The said view of the Patna High Court was subsequentlyendorsed by a Full Bench of Andhra Pradesh High Court in the decisionreported in 1992 CRL.L.J. 3485 FB (KURRA DASARATHA RAMAIAH AND OTHERSv. STATE OF ANDHRA PRADESH).16. The Full Bench decision of the Patna High Court was againfollowed by a Division Bench of this Court in the decision reportedin 1993 L.W (Crl.) 392 (T. MOHAN v. STATE OF INSPECTOR OF POLICE,C.B.C.I.D., MADRAS).17. The Division Bench of this Court in T.Mohan's case, eventhough found that the order of the Magistrate extending the remandwas illegal and unsustainable held that on subsequent dates theaccused were produced before the competent court and the remand wasextended. On the date of hearing of the Habeas Corpus Petition theCourt held there was a valid order extending the order of remand anddismissed the petition. The procedural infirmity was condoned ascurable.18. It is well settled that, while hearing a Writ of HabeasCorpus, the test would be whether there is any illegality orinfirmity in the detention on the date of hearing. In the abovecontext, the Supreme Court in the decision reported in AIR 1971 SC 62(TALIB HUSSAIN - v. - STATE OF JAMMU AND KASHMIR) has held as follows:-"...that in habeas corpus proceedings theCourt has to consider the legality of thedetention on the date of hearing. If on the date https://hcservices.ecourts.gov.in/hcservices/ of hearing it cannot be said that the aggrievedparty has been wrongfully deprived of his personalliberty and his detention is contrary to law, awrit of habeas corpus cannot issue." 19. The aforesaid view of the Supreme Court is reiterated in thedecision reported in AIR 1971 SC 2197 (COL.Dr.B. RAMACHANDRA RAO v.THE STATE OF ORISSA).20. The very purpose of extension of remand is to ensure thatpersonal liberty of the accused is not trampled. In Elumalai's case,it is a case of mechanical extension of remand periodically. Thisproposition will not be applicable to the facts of the present case.In any event, as per the report filed, when the Habeas CorpusPetition was heard by this Court the accused were in judicial custodyand under valid orders of remand passed by the Court of competentjurisdiction. The reason for production of the accused on 16.3.2007before the Judicial Magistrate, Vellore, as per the proceedings ofthe Chief Judicial Magistrate, is explained in the wireless messageof the Superintendent, Central Prison, Vellore and in the reportdated 13.9.2007. Therefore, permission was sought for by the JailSuperintendent and the Chief Judicial Magistrate nominated a JudicialMagistrate to take up the matters relating to remand of the accused.The report now furnished reveals that the accused were subsequentlyproduced before the proper Court and on the date of hearing of theHabeas Corpus Petition they were in custody under a valid order ofremand. Considering the exigencies of the State, provision has beenmade to ensure that the accused are produced before a Magistrate andthereby their rights are protected. [See 1983 LW Crl.71 (Mrs. Bartleyvs. State)]. In the present case, on 16.3.2007, the date on whichthe breach is alleged by the accused, they were produced before aMagistrate Court though not the competent Court, which Courtauthorised the extension of the order of remand. Even in the caseof non-production before the Magistrate, if it is found justified,the order extending remand was held valid and curable. 21. In view of the decisions reported in AIR 1971 SC 62 and AIR1971 SC 2197 (cited supra) and considering the views expressed by theDivision Bench of this Court in 1993 L.W. (Crl.) 392 (T.Mohan – vs. -State of Inspector of Police, C.B.C.I.D., MADRAS, following the FullBench decisions of Patna High Court and Full Bench of Andhra PradeshHigh Court, we hold that non-production of the accused before theconcerned Court on 16.3.2007 as explained by the authorities iscurable. The accused were thereafter produced before the competentcourt and remand was extended from time to time and the same is setout in the report filed. At the time of hearing of the Habeas CorpusPetition and thereafter the accused are in custody under valid ordersof remand, there is no illegality in the detention as alleged. https://hcservices.ecourts.gov.in/hcservices/

22. In the light of the above factual position, we find noreason to grant the relief as prayed for. The Habeas Corpus Petitionis dismissed. It goes without saying that notwithstanding thedismissal of this H.C.P., it would be always open to the trial Courtto consider any application for bail in accordance with law. P.K. MISRA, J.I agree.Even though we have not accepted the contention of the learnedcounsel for the petitioner, I feel it necessary to place on record myanguish for the cavalier manner in which such important mattersregarding production of remand prisoners is being treated by theconcerned officials. The practice of producing prisoners beforeMagistrates or Courts otherwise having no jurisdiction practicallyserves no purpose so far as the remand prisoners are concerned thoughtechnically it may serve the purpose of the State in as much as therequirement in law regarding the production of the prisoners iscomplied with. There is no doubt that because of many unforeseensituations, at times, it may become well nigh impossible for thepolice to make adequate security arrangement for accompanying remandprisoners. Utmost care is required to be taken in order to avoidsuch a situation. It is high time for the authorities concerned tothink of specifically earmarking sufficient number of securitypersonnel exclusively for the purpose of accompanying the remandprisoners so that such pernicious practice can be avoided to themaximum extent possible.Sd/Asst.Registrar/true copy/Sub Asst.Registrardpk/ts. https://hcservices.ecourts.gov.in/hcservices/ To1. The Superintendent of Central Prison, Vellore.2. The Superintendent of Central Prison, Puzhal, Chennai.3. The Inspector of Police, Vellavedu Police Station, Chennai.4.The Public Prosecutor,High Court, Madras.LA (CO)km/5.10. HCP.NO.408/2007