(1.) THIS is a petition under Articles 226 and 227 of the Constitution of India filed by the three petitioners, namely Raju alias Rajkumar, Santosh and Mahesh for issuance of a writ of Habeas Corpus on the following averments:

(2.) ALL the three petitioners were arrested on 6-4-1989 by Garha Police, in Crime No. 240/89 for an alleged offence under section 376/34 of the Indian Penal Code. They were produced before the Chief Judicial Magistrate, Jabalpur, who by a warrant issued on 7-4-1989 remanded them to judicial custody till 20-4-1989. Thereafter on 20-4-1989 as well as on several subsequent dates, the petitioners were produced before the Chief Judicial Magistrate who granted judicial remands from time to time in the absence of the petitioners and, therefore, it is alleged that their detention is illegal and they are entitled to be set at liberty by issuance of a writ of Habeas Corpus.

(3.) THE respondent/state had filed the return on 30-6-1989 through Shri C. D. Madan, Superintendent, Central Jail, Jabalpur, as Officer-in-charge of this case, candidly admitting that the petitioners were not produced before the Court on 20-4-1989; 4-5-1989; 18-5-1989 and 15-6-1989 due to non-availability of Police-guard to escort them before the Court concerned. It has been, however, stated that the petitioners were produced before the Magistrate concerned on 1-6-1989, the date on which charge sheet was filed on basis of which learned Magistrate took cognisance of the offence, supplied the copies of challan papers to the accused persons and remanded them to jail custody till 15-6-1989. On these premises, it has been submitted that the petition deserves to be dismissed.

(4.) SHRI R. K. Swarnkar, learned counsel for the petitioners, placing his reliance on the provisions contained in Clause (b) of sub-section (2) of section 167 of the Code of Criminal Procedure (Act No. 2 of 1974), 1974 (for brevity, referred to as the code), vehemently urged before us that if the Police or judicial remand is granted by any Magistrate authorised to do so, without the accused being physically produced before such Magistrate, the remand and detention of the accused, both will be illegal, and the accused would be entitled to be set at liberty by a writ of habeas corpus. He submitted that in the present case none of the petitioners was produced before the Magistrate on various dates as stated above on which the judicial remands were granted and, therefore, their detention is illegal and they deserve to be set at liberty. This argument was sought to be supported by two Single Bench decisions of this Court rendered in Subhash v. State of M. P. , 1988 MPLJ 508 [LQ/MPHC/1988/145] = 1988 J. LJ. 444, and Satish and Anr. v. State of M. P. , Cr. R. No. 572 of 1988, decided on 19-1-1989. As against this, Shri B. P. Singh, learned Government Advocate, appearing for the respondent/state submitted that there are occasions when the physical production of the accused becomes impossible on account of the non-availability of the escorts and for that reason the order of remand does not become illegal.

(5.) BEFORE we plunge into the aforesaid controversy we would first like to expose the ambit and scope of grant of habeas corpus writs and the relevant provisions dealing with the remands of accused and undertrial prisoners.

(6.) THE writ of Habeas Corpus is one of those celebrated writs which provide an expeditious procedure to test the propriety of official detention of a person and a protection to his personal liberty. Before the Constitution of India dawned on the blooming horizon of India, the power of issuance of a writ of habeas corpus was a part of the Old Code of Criminal Procedure, 1898, in the shape of section 491, which now stands repealed by the new Code of 1974, which is denuded with any such provision because of Article 226 (1) of the Constitution of India which confers comprehensive powers on the High Courts including the power to issue writs in the nature of Habeas Corpus as well. The expression Habeas Corpus is a Latin Phrase meaning literally "have the body". The writ of habeas corpus is addressed to the person or authority who is alleged to have detained the person in custody, ordering him to "have the body" of the prisoner/detenu before the Court or Judge on a specified date and time and also to present himself to explain by what authority the prisoner is being held by him. If the custodians answer does not state an adequate cause for detention the Court or the Judge will order the prisoners discharge forthwith, but if it does disclose an adequate cause of detention to the satisfaction of the Court or Judge, the writ would be refused.

(7.) NOW turning to the relevant provisions of Law, a reference may be made to section 167 and section 309 of the Code which deal with remand of an accused and undertrial prisoners at the investigation stage and during the course of trial. The relevant part of section 167 of the Code reads as under: "section 167. Procedure when investigation cannot be completed in twenty-four hours.---- (1). Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the Police Station or the Police Officer making the investigation, if he is not below the rank of sub-inspector shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2). xxx xxx xxx Provided that---- (a) xxx xxx xxx (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;"

It would be useful to refer to the provisions of sub-section (2) of section 309 of the Code which read as under:

"section 309. : Power to postpone or adjourn proceedings.---- (1) xxx xxx xxx (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing: Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. "

(8.) A perusal of section 57 and reading of sub-section (1) of section 167 of the Code reproduced above will reveal that it contemplates that if a person is arrested without a warrant and investigation cannot be completed within 24 hours, and there are grounds to believe that charge is well founded, then it is obligatory upon the investigating Officer to produce the accused with a copy of diary before the nearest Judicial Magistrate for a remand to custody to enable him to complete the investigation. This section 167 of the New Code, corresponds to the old section 167 of 1898 Code with certain changes. Section 167 (2) (b) is an addition which -did not exist in the old section 167 which now specifically provides for physical production of the accused before the Magistrate before he can be remanded to custody. The provisions of section 309 of the New Code which correspond to section 344 of the Old Code, are to some extent analogous to section 167 of the Code, and the powers under section 309 of the Code for remand can also be exercised even when investigation is not over and charge sheet has not been submitted. See: Gaurishanker v. State of Bihar, AIR 1972 SC 711 [LQ/SC/1972/40 ;] .

(9.) NOW reverting back to the contention advanced by the learned counsel for the petitioners, there can be no denial of the fact that the remands should not be granted in a routine manner but with due application of mind and in accordance with law. A detention of an accused person in custody after the expiry of remand order would be no doubt illegal without any fresh order of remand committing him to further custody. The word "remand" means, sending back the prisoner into custody. The expression "authorise the detention of the accused in such custody as such Magistrate thinks fit" occurring in sub-section (2) of section 167, and the expression "and may by a warrant remand the accused if in custody", in section 309 (2) of the Code, clearly imply that sending the prisoner back into the custody or committal to jail would be done only by a warrant issued by the Magistrate without which the custody cannot be justified. The extension of period of custody by making an endorsement to that effect in jail warrants would not conform to the requirement of Law. But, there should be specific order on the file accompanied with a warrant committing him to custody. It may be seen from the wording of section 309 (2), that if the enquiry or trial is to be postponed or adjourned, the order should be recorded in writing and with reasons for such postponement or adjournment. In the present case, the respondent/state has filed the photostat copies of the warrants when the petitioners were committed to custody from time to time which show that the learned Magistrate has remanded the petitioners by issuing necessary warrants authorising their detention, but of course without the accused/petitioners being produced before him on several dates as is clear from various order-sheets, the legal effect of which shall be examined by us hereinafter. In view of the facts discussed above, the two decisions in the case of Subhash and Satish (supra) relied on by the learned counsel for petitioners are quite distinguishable and have no application to the facts of the present petition.

(10.) AS regards, the attack of the learned counsel for the petitioners on the validity of various orders of remand having been granted without the physical production of the accused/petitioners before the Magistrate concerned, suffice to say that it is now well settled that in Habeas Corpus proceedings the Court has to consider the legality of the detention on the date of hearing of the petition. If on the date of hearing, it cannot be shown that the accused has been wrongfully deprived of his personal liberty and that his detention is contrary to law, then, in that event, no writ of Habeas Corpus can be issued. If any authority is needed to support the aforesaid view, a reference may be made to the decisions in Ram Narayan Singh v. State of Delhi, AIR 1953 SC 277 [LQ/SC/1953/27] , para 4, and Talik Hussain v. State of J. and K. , AIR 1971 SC 62 [LQ/SC/1970/269] . In the instant case before us, this petition was finally heard on 6-7-1989 and reserved for orders. Thereafter, we felt it necessary to look into the records and remand file to verify the correctness of the allegations. We, therefore, on 23-8-1989 requisitioned the said records, which revealed that all the accused/petitioners were not produced before the learned Magistrate on 20-4-1989, 4-5-1989 and 18-5-1989 because of the non-availability of Police guards. But the petitioner were produced before the learned Magistrate on the next date, i. e. , 1-6-1989 on which charge sheet against them was filed and copies thereof were supplied to them. Thereafter, the accused/petitioners were again not produced on 15-6-1989, 30-6-1989 and 13-7-1989. However, on subsequent dates, that is, on 27-7-1989, 9-8-1989 and 23-8-1989 the accused/petitioners were produced before the learned Magistrate from Jail custody and on 23-8-1989 committal order was passed, and the petitioners, along with some other co-accused were committed to sessions for trial with committal warrants. Thus in the facts and circumstances stated above it cannot be said that at present the custody or detention of the petitioners is illegal or wrongful so as to justify any interference by this Court in the present Habeas Corpus proceedings. In any case, there were valid orders for committing them to custody accompanied with warrants of remand for every period for which the petitioners were remanded to jail custody.

(11.) NOW, we shall examine the contention of the learned counsel for the petitioners that in view of the provisions contained in proviso (b) of sub-section (2) of section 167 of the Code, reproduced in paragraph No. 7 above, the Magistrate had no power to remand the petitioners to jail custody as they were not actually produced before him. It was therefore, urged that since the remand orders were illegal, having been passed in the absence of the petitioners, they were entitled to be released. As pointed out earlier that section 167 of the New Code corresponds to section 167 of the repealed Code, but proviso (b) of section 167 (2) of the present Code is an addition which did to exist previously. Proviso (b) of section 167 (2) in very clear terms provides that no Magistrate shall authorise detention in any custody (Police or Judicial) unless the accused is produced before him. Not only this but there is an explanation appended after proviso (c) to section 167 (2) which contemplates that "if any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused may be proved by his signature on the order authorising detention. The plain and unambiguous language of proviso (b) to section 167 (2) of the Code which is further invigorated by the explanation quoted above manifestly reveal the legislative mind that the actual production of the accused before the Magistrate at time of making an order for remand, has been made statutorily obligatory. The primary purpose and object of the explanation is that the requirement of actual and physical production of the accused may not be evaded by the prosecuting agency. The reason is obvious. It affords a guarantee against any infraction of the valuable right of a person to liberty as well as it provides an access in person to the judicial authorities to advance his grievances, if any, and to make any representation if so desired,

(12.) THUS on a critical examination of proviso (b) of section 167 (2) together with the explanation, we find that the mandate of Law is that the accused should be physically produced before the Magistrate at the time when he is to be remanded in custody. But it may be pointed out that this principle and the requirement cannot be stretched to such an extent as to cover even those cases and circumstances where it is almost practically impossible to physically produce the accused in person before the Magistrate. There may be situation and circumstances where in spite of all due diligence, bona fide intention and precautions it may not be possible for the State to physically produce the accused in person before the Magistrate and, therefore, due to the absence of the accused the order of remand may not be vitiated. There may not be any dearth of such situations and circumstances, a few of which may, for example, be stated herein. Let us take the cases of terrorists and dangerous criminals whose escort from the place of their custody to the Court or Magistrate concerned and back may not be free from hazards and risk of attack by their associates and accomplices with a view to free them from lawful custody. There may also be a case where the accused himself may refuse to appear before the Court or Magistrate on the apprehensions of being shown to the witnesses who are supposed to identify him in a test parade. So also, where several cases are pending against an accused at different places or say in different States and if by chance same dates are fixed in two or more such cases or in close proximity so that it may not be practically possible to produce the accused before all the Courts. The accused may have been seriously injured in the same incident or otherwise by reason of which he may have been hospitalised making it quite impossible for him to move about. The accused may become seriously ill and it may be only at the risk of his life that he may be produced before the Court or Magistrate. These are only a few instances and there may be many more factors where it may not be practically possible for good and valid reasons to physically produce the accused.

(13.) IN the circumstances discussed above, the provisions contained in proviso (b) of section 167 (2) of the Code, therefore, have to be construed reasonably and logically so as to make them effective and not to render them nugatory and meaningless. It is for this reason that the apex Court in its several pronouncements took the view that the order of remand would not be vitiated even though passed in the absence of accused. Although, the decisions which we are going to mention were rendered under the old Code which did not contain the proviso (b) to section 167 (2) which is added now in new Code, but the rationale would be the same as we have discussed above, that is, where the circumstances are beyond the control, to produce an accused person, the order of remand may be validly- passed in the absence of the accused.

(14.) IN Gauri Shanker v. State of Bihar, AIR 1972 SC 711 [LQ/SC/1972/40 ;] = 1972 Cr. L. J. 505, it was held, that an order of remand can be passed in absence of accused if his presence at the time could not be secured. Similarly, in Sambasiva Rao v. Union of India, AIR 1973 SC 850 [LQ/SC/1972/311] = 1973 Cr. L. J. 663, the opinion expressed was that an order of remand cannot be considered to be invalid merely because an accused has not been produced before the Magistrate. But, at the same time, Their Lordships of the Supreme Court in several decisions took the view that as a rule of caution it is highly desirable that the accused should be personally produced before the Magistrate so that he may, if he so chooses, make a representation against his remand and for his release on bail. See A. Lakshmanrao v. Judicial Magistrate, AIR 1971 SC 186 [LQ/SC/1970/456] = 1971 Cr. L. J. 253. A bench of seven Judges with a majority of five to two, the Supreme Court in case of Raj Narayan v. Supdt. Central Jail, AIR 1971 SC 1878 [LQ/SC/1971/237] - 1971 Cr. LJ. 244, expressed the view that when a undertrial prisoner is brought before Supreme Court on rule nisi, the Magistrate cannot recall the prisoner from custody of Supreme Court. In the absence of accused the Magistrate is only required to intimate the jail authorities, the prisoner and the Supreme Court that original remand has been extended while adjourning the case and this would be suficient compliance with the requirements of production of the prisoner in such special circumstances. The Supreme Court however observed that even if it be desirable for the Magistrate to have the prisoner produced before him, when he commits him to further custody, a Magistrate can act only as the circumstances permit. Similar opinion has been expressed by Supreme Court in S. K. Dey v. Officer-in-charge, Sakchi, 1974 (2) Cr. LJ. 740 SC, Manoharlal v. State of Rajasthan, 1983 (2) Cr. LJ. 1231 (S. C.). It is also the view of a Full Bench of Patna High Court rendered in a recent decision in the case of Ramesh Kumar Ravi v. State of Bihar, AIR 1988 Pat. 199. It is thus a settled view that though it is desirable to have the accused produced before the Magistrate when they are remanded to further custody, but an order of remand made in the absence of accused will not be per se invalid. Consequently, the contention of the learned counsel for petitioners that order of remand having been passed in absence of accused/petitioners is vitiated, cannot be accepted, in view of the consistent stream of binding precedents discussed above.

(15.) THERE is yet another hurdle in the way of the petitioners in the matter of grant of a writ of habeas corpus by quashing the orders of remand passed by the learned Chief Judicial Magistrate. The tenor of the petition will go to show that on the basis of non-production of the petitioners before the Magistrate on the various dates on which remands were granted, they seek a writ of habeas corpus after quashing the said orders of remands. There is no dispute that the learned Magistrate had passed the orders remanding the petitioners to jail custody under the provisions of the Code of Criminal Procedure. There is also no dispute that the said orders are judicial orders passed by a Court established by law under the Code. The question, therefore, arises whether a judicial order of the criminal Court is amenable to writ jurisdiction of this Court under Article 226 of the Constitution of India or may be assailed only by the judicial remedies expressly provided by way of an appeal or revision, as the case may be, to the High Court or under its inherent jurisdiction under section 482 of the Code.

(16.) IN this connection the parent decision appears to be one rendered in the case of Naresh v. State of Maharashtra, AIR 1967 SC 1 [LQ/SC/1966/75] , decided by a Constitution Bench of Nine Judges. It was suit for damages for alleged malicious libed filed on the original side of Bombay High Court by one Mr. Krishnaraj M. D. Thackersay against Mr. R. K. Karanja Editor English Weekly "blitz". One Bhaichand who was examined as a witness made a request to the Court to withhold his evidence from publication in the newspapers in order to save him from huge business and financial loss. The High Court allowed this prayer. Naresh Shridhar, the petitioner in that case, who Was reporter in Blitz, filed a petition in Bombay High Court itself under Article 226 of the Constitution challenging the order withholding the publication of evidence of the witness Bhaichand. The said petition was dismissed on the short ground that the order which was challenged was a judicial order of the High Court and was not amenable to a writ jurisdiction under Article 226 of the Constitution of India. Naresh Shridhar then along with few other journalists moved Supreme Court under Article 32 of the Constitution for enforcement of their right under Article 19 (1) (a) and (g) to publish the proceedings in their newspapers. Gajendragadkar, C. J. (as he then was) speaking for the Court, with a majority of eight to one observed, "that it would, however, not be open to them to invoke the jurisdiction of this Court under Article 32 and contend that a writ of certiorari should be issued in respect of it. The impugned order is passed in exercise of the inherent jurisdiction of the Court and its validity is not open to be challenged by writ proceedings". It was further observed that, "the essence of the matter is whether the order is that of a Court established by law and the character of the said order is judicial in nature. Once it is so, such an order may be challenged by way of an appeal or revision provided by law, but its validity is not open to be challenged and quashed by certiorari writ proceedings". It was a case where the rights of a third party were alleged to have been affected who were strangers to the suit, yet it was held, that if a Court of competent jurisdiction makes an order in a proceeding before it, its validity cannot be challenged by invoking the writ jurisdiction even though the said order affects fundamental rights of the aggrieved party.

(17.) THE same principle has been applied even in respect of remand orders as would be apparent from the observations in the case of A. Lakshamanrao (supra) where the Supreme Court, at the end of paragraph No. 12, observed as under:

"detention pursuant to an order of remand which appropriately falls within the terms of section 344 (now section 309) is accordingly not open to challenge in habeas corpus. "

In almost similar circumstances as those of those of the present case before us, the Supreme Court in a petition challenging remand order, re-affirmed the same view in case of B. R. Rao, AIR 1971 SC 2197 [LQ/SC/1971/381] , by making following observations in paragraph 5 of the said report:

"this Court does not, as a general rule, go such controversies in proceedings for a writ of habeas corpus. Such a writ is not granted where a person is committed to jail custody by a competent Court by an order which prima facie does not appear to be without jurisdiction or wholly illegal and we are not satisfied that the present is not such a case. "

Relying the aforesaid decisions, a Full Bench of Patna High Court also in the case of Ramesh Kumar Ravi (supra) took the view that the judicial orders of a criminal Court (stricto sensu) under the Code of Criminal Procedure, are not ameanble to quashing by a writ of certiorari.

(18.) IN the present case before us, there can be no doubt that the orders of remand are judicial orders passed under the Code by the Chief Judicial Magistrate who is fully competent to do so, under the judicial process established by law. Consequently, the said orders would fall out of the purview of writ jurisdiction under Article 226 of the Constitution of India but amenable only to the process of appeal or revision as the case may be, or under the inherent jurisdiction of the High Court under section 482 of the Code and, thereafter, by way of appeal to Supreme Court by special leave. This petition for Habeas Corpus under Article 226 of the Constitution is, therefore, incompetent even otherwise.

(19.) HOWEVER, at the end, we shall be failing in our duty if we do not make it clear that simply because this petition fails on the conclusions recorded by us in the foregoing paras of this order, it should not, in any manner, be assumed that we approve the grant of remand in the absence of the accused in a routine manner as a matter of course without due application of mind. Having regard to the relevant provisions of law, we would emphasise that remands in the absence of an accused should be granted only under such circumstances where the production of the accused in person before the Magistrate is beyond the control of the State or prosecuting agency. From the plain language of section 167 (2) (b) read with the explanation appended at the end of sub-clause (c) of section 167 (2) of the Code, the mandate of law is clear in very unequivocal terms that the statute has now made it obligatory on the Magistrate concerned granting remand to insist on the physical production of the accused before him before granting any remand. In other words, the mandate of law is that the routine remands have to be deprecated. If the State through its agency of Police has the authority to arrest a person in connection with certain offences and the law Courts have power to order for their Police or judicial custody impairing their personal liberty, in order to enable the Police to complete the investigation, the State and the prosecution as well as the law Courts have the corresponding duty to strictly observe the mandate and rule of law, and the law Courts have a further duty to scrupulously see that the statutory obligations are truly followed and fulfilled. In the present case, as stated above, the petitioners were not produced before the learned Chief Judicial Magistrate on various dates when they were remanded to jail custody on the ground of non-availability of the Police guard. No abnormal circumstances have been mentioned by reason of which the Police guard could not be made available to escort the petitioners from jail to the Court so that the propriety of the same could be examined. In the absence of such reasons as may be said to be beyond the control to produce the accused, the conduct of the authorities concerned has to be viewed with great seriousness and has to be deprecated in strict terms. The most surprising part is that the learned Magistrate also took it lightly in not even insisting upon the physical production of the accused persons on a single occasion so that the accused persons had a direct access to him to have their say and advance their grievances, if any. Nor he reported/brought to the notice of higher authorities that such a repeated conduct could not be approved, being contrary to the mandate of law. The non-availability of the escort or police guard is no excuse for non-production of the accused before the Magistrate of Court concerned except in very exceptional circumstances pointed out above and not otherwise. It is not the first case where such lapses have occurred on the part of the State in not producing the accused physically before the Magistrate or Court concerned, but the experience shows that it has become a frequent feature which besides hampering the progress of the case violates the statutory obligations which has to be viewed with great concern and seriousness before it assumes an alarming situation. It is, therefore, expected that the State Government shall make adequate arrangements in the State by providing escort and Police guard to escort the prisoners from jail custody to Court concerned, to safeguard the interests of the accused persons and undertrial prisoners and to avoid infraction of law.

(20.) IN the light of the above discussion, the petition fails and is hereby dismissed but with the aforesaid observations.