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Judgment
R. Regupathi, J.—The petitioner herein is the brother of the detenu by name P. Kanagaraj, who is confined in Central Prison, Coimbatore.
He has preferred this Habeas Corpus Petition to call for the records relating to the remand of detenu Kanagaraj in PRC No. 49 of 2003 on the file
of the Judicial Magistrate, Tambaram, quash the same and consequently direct the respondents to set him at liberty.
It is stated that the detenu surrendered before Judicial Magistrate No. 1, Vellore, on 23.07.2004 and he was remanded to judicial custody for
15 days in respect of a case registered in Crime No. 378 of 2003 for offences punishable under Sections 147, 148, 341, 302 IPC. read with
Section 120B IPC. The investigation of the said case was over, final report was filed and the learned Magistrate had also taken cognizance of the
offence alleged against the accused in PRC No. 49 of 2003. The detenu has been arrayed as A-19 in the said case amongst 21 accused. The case
has not been committed to the Court of sessions and still, it is pending at PRC stage. The detenu was being produced before court and
periodically, the remand was extended till 04.08.2006. Thereafter, the detenu was not produced before court for further extension and
mechanically, without application of mind, the learned Judicial Magistrate adjourned the hearings without insisting for production of the detenu. It is
alleged that the Investigating Officer/Respondent No. 3 never filed any requisition for extension of remand and the detenu is kept in illegal
confinement without any valid order of remand. Since the detenu has been deprived of his personal liberty as a result of violation of the procedure
established by law, the petitioner seeks in this Habeas Corpus Petition, dated 31.08.2007, for setting the detenu at liberty.
Per contra, learned Additional Public Prosecutor, while admitting that the detenu was not produced before the learned Magistrate between
04.08.2006 and 30.08.2007, would however submit that, on 12.09.2007, he was produced before the Judicial Magistrate, Tambaram, and his
remand has been extended till 21.09.2007, thus, as on date, a valid remand order is in force as against the detenu. He pointed out that the detenu
was remanded initially as per the orders passed by the learned Magistrate and from time to time, his remand was being extended, but, due to non-
availability of transport/police escort and other exigencies, the detenu could not be produced before court during the said period. It is submitted
that, apart from the present case, the petitioner is involved in two other cases, of which, one ended in conviction on 29.08.2005 for offences
punishable under Sections 148, 449, 341 and 302 IPC., whereby, he was sentenced to undergo life imprisonment. Though he was granted bail
and sentence was suspended by this Court, sureties were not executed as on date and therefore, he is a convict prisoner. In the second case
against the detenu, i.e., Crime 320 of 2002, for offences punishable under Sections 392 and 397 IPC read with Section 120B IPC., on the file of
the Inspector of Police, Trichengode Police Station, trial of the case is pending on the file of the Presiding Officer, Fast Track Court, Namakkal. In
this case, though the detenu was earlier enlarged on bail, on his surrender for some other case, he has been produced through P.T. warrant and
remanded to judicial custody. By adverting to the above aspects, it is highlighted that the detenu is not only concerned with the case in PRC No.
49 of 2003 but also two other cases as stated above i.e., in one case, he is a life convict and in the other case, under-trial prisoner. The detenu
was initially kept in Central Prison, Madurai, and thereafter he has been shifted to Coimbatore. Further, the detenu is in judicial custody
simultaneously for the aforesaid three cases. Only under such circumstances, he was not produced before the learned Judicial Magistrate,
Tambaram, and, in view of his production on 12.09.2007, the irregularity committed in the instant case has been cured and, as on date, the detenu
is in remand in pursuance of a valid order by the Magistrate not only in respect of the case in PRC No. 49 of 2003 but also the other two cases. In
such circumstances, learned Additional Public Prosecutor submitted that the detenu is in lawful confinement and prayed to reject the claim of the
petitioner.
We have carefully perused the materials available on record particularly the extract of the docket proceedings in PRC No. 49 of 2003 on the
file of the Judicial Magistrate, Tambaram. The endorsement made on 04.08.2006 is, ""....A19 (the detenu) Produced..."". When the matter came up
for hearing between 18.08.2006 and 12.04.2007, it has been simply endorsed, ""....A19 not produced..."". Strangely, on the dates of hearing from
26.04.2007 to 05.07.2001, not even such noting has been made and, by simply endorsing the petitions filed by the other accused, the case was
adjourned. The endorsements made on 19.06.2007, 02.08.2007 and 16.08.2007 again is to the effect ''A19 not produced''. Thus, it is ex facie
apparent that no valid extension of remand has been ordered and the endorsements speak to the non-application of mind on the part of the
Magistrate concerned inasmuch the vital aspects as to whether the detenu is in judicial custody or not and whether further extension must be
granted or not escaped his consideration.
Though it has been submitted on behalf of the State that the detenu is in valid remand for two other cases, we deem it worthwhile to emphasise
here that it is the bounden duty of the Magistrate to be watchful to see that the liberty of an individual is not violated by the police unreasonably
while remanding or passing extension of remand. In other words, only on production of the individual for the particular case in respect of which
remand/extension of remand is sought for, the Magistrate would be in a position to satisfy himself with regard to the above aspect. Further, remand
orders are not to be passed by courts mechanically without verifying diaries and without personally satisfying about the real necessity for remand or
its extension. Non-production of the accused will amount to violation of the provisions of the Criminal Procedure Code and the Constitution of
India. The Jail Authorities also do not have any right to keep any person without a valid order of remand or extension of remand from the judicial
Magistrate concerned beyond the period of remand. Once final report/charge sheet is filed before the Magistrate concerned and cognizance is
taken by him, remand order will be passed u/s 309 IPC. During the course of investigation, as per the requisition made by the Investigating Officer,
remand will be made u/s 167 Cr.P.C. After the Magistrate having taken cognizance, requisition from the Investigating Officer is not necessary and
it is the Magistrate who, u/s 309 Cr.P.C., on production of the person accused on the date of expiry of remand and on application of mind, can
extend the remand or release the person accused of the offence on bail. In this regard, it is pertinent to extract Section 309 IPC.,
Power to postpone or adjourn proceedings.--(1) ...
(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:
...
In the case on hand, though the learned Magistrate has mechanically made endorsements in the court diary, he never insisted upon production of
the detenu before court but simply adjourned the hearing from time to time. Thought the accused person is in custody for other cases, since remand
has been ordered for the case on hand also, periodical production of the accused in respect of the present case is necessary before the Magistrate
for extension of remand. Such a mandatory provision of law has not been followed during the course of proceedings from 04.08.2006 to
12.09.2007. The present Habeas Corpus Petition has been filed on 31.08.2007 and on coming to now of the same, it appears that the detenu has
been diligently produced on 12.09.2007 and an order of remand has been passed by the learned Magistrate. While holding that non-production of
the detenu during this period is violative of the procedure established by law and the provisions of the Constitution, we may have to enquire into the
validity of the detention as on today.
While disapproving the conduct of the learned Magistrate as well as the Jail authorities with reference to the proceedings between 04.08.2006
and 12.09.2007, by taking note of the fact that a remand order is in force as on to-day and in the light of the other surrounding circumstances as
pointed out earlier, we may hasten to hold that the detenu is in valid remand. Further, the submission made by the State cannot be so easily
brushed aside. In view of the reason that the petitioner is in judicial custody as a life convict in one of the cases and under-trial prisoner in remand
in another case, all put together, we are of the considered view that the petitioner is not in illegal detention as alleged.
The question as to whether the valid order of remand passed subsequently will cure the earlier defect is vividly answered in a Division Bench
decision of this Court reported in 1993 Law Weekly Criminal 392 (T. Mohan, etc. v. State by Inspector of Police, CBCID, Madras) and the
relevant portion is extracted below:
On facts, there is no doubt that the order extending the remand by the Judicial Magistrate, Chengalpattu, from 25.1.1993 to 25.2.1993 is totally
illegal and unsustainable. But that does not automatically enable or help the petitioner to get the relief as prayed for in this petition, notwithstanding
the valid and legal remand order passed by the learned District and Sessions Judge, Chengalpattu, on 14.2.1993. The contention of the learned
Counsel for the petitioner that on the date when the petitioner filed this H.C.P., there was no valid order of remand and, therefore, the subsequent
order, even if valid, will not cure the earlier defect, cannot be accepted, as the relevant date for the purpose of considering whether the custody is
legal or illegal is the date of hearing of the habeas corpus petition, and not the date of filing of the said petition, nor any earlier date. No doubt,
previously, there was some doubt whether an illegal custody, for any reason whatsoever, can be cured by a subsequent valid order or remand, and
whether the date of hearing of the Habeas Corpus petition is the relevant date for considering the legality of the custody. That doubt has
subsequently been put at rest by the Judgment of the Supreme Court in Kanu Sanyal Vs. District Magistrate, Darjeeling and Others, . The
Supreme Court, in the said Judgment, after noticing the earlier three types of view, observed thus:
...
It is now well settled that the earliest date with reference to which the legality of detention challenged in a Habeas Corpus proceeding may be
examined is the date on which the application for Habeas Corpus is made to the Court. This Court speaking through Wanchoo, J. (as He then
was) said in A.K. Gopalan Vs. The Government of India, :
It is well settled that in dealing with the petition for Habeas Corpus the Court is to see whether the detention on the date on which the application is
made to the Court is legal, if nothing more has intervened between the date of the application and the date of hearing.
In two early decisions of this Court, however, namely, Naranjan Singh Nathawan Vs. The State of Punjab, and Ram Narayan Singh Vs. The State
of Delhi and Others, a slightly different view was expressed and that view was reiterated by this court in Col. Dr. B. Ramachandra Rao Vs. The
State of Orissa and Others, where it was said:
In Habeas Corpus 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.
And yet in another decision of this Court in Talib Hussain Vs. State of Jammu and Kashmir, Mr. Justice Dua, sitting as a single Judge, presumably
in the vacation, observed that:
In habeas corpus proceedings the court has to consider the legality of the detention on the date of the hearing.
Of these three views taken by the court at different times, the second appears to be more in consonance with the law and practice in England and
may be taken as having received the largest measure of approval in India, 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....
...
The question can be viewed from another angle, namely, in the light of the principle ''actus curiae neminem gravabit''. The Supreme Court, on
this aspect, has observed in the decision reported in A.R. Antulay Vs. R.S. Nayak and Another, , as follows:....
It has been said long ago that ''Actus Curiae Neminem Gravabit'' an act of the Court shall prejudice no man. This maxim is founded upon justice
and good sense and affords a safe and certain guide for the administration of the law.
Lord Cairns in Alexander Rodger v. The Comptoir D''e scompte de Paris (1869) LR.3 PC.465 observed thus:
Now, their Lordships are of opinion, that one of the first and highest duties of all courts is to take care that the act of the Court does no injury to
any of the Suitors, and when the expression ''the act of the Court'' is used, it does not mean merely the Primary Court, or of any intermediate Court
of appeal, but the act of Court as a whole, from the lowest Court which entertains jurisdiction over the matter upto the highest Court which finally
disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the
course of the whole of the proceedings does an injury to the suitors in the Court.
In the light of the above settled proposition, the detenu cannot be set at liberty holding the detention as illegal.
In spite of instructions issued to the subordinate judiciary and the authorities concerned emphasising for strict adherence to the procedure,
instances of violation have become routine and usual, of course, in some cases, the prosecution, having realised irregularities, rectified the same at a
later stage. In this regard, we deem it beneficent to highlight the procedure and guidelines to be followed in cases similar to the instant one by
referring to the case law reported in 1983 LWC 121 (Elumalai v. State of Tamil Nadu). We here-under quote the relevant paragraph from the said
decision,
The production of the person before the Magistrate is now clearly made a condition precedent in the newly introduced proviso (b) of Section
167(2), with Explanation 2 thereto, which we extract below:
(1) ...
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from
time to time, authorised the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the
whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to
be forwarded to a Magistrate having such jurisdiction:
Provided that -
(a) ...
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) ...
Explanation 1. ...
Explanation 2. If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the
production of the accused person may be proved by his signature on the order authorising detention.
The above proviso and the explanation are introduced by the Parliament for the first time in the new Code obviously for the purpose of affording
an opportunity to the accused of being heard by the Magistrate in person as to whether he wishes to make any representation and also giving him
an opportunity of showing cause why he should not be remanded. Therefore, as per the new provision of law, the production of the accused
before the remanding Magistrate is a condition precedent for an order of detention to any custody being passed by the Magistrate. Explanation 2
makes it clear that if any question arises regarding the production of the accused before the Magistrate as required under proviso (b), the
production of the accused may be proved by his signature on the order authorising detention. It follows that the order of remand cannot be made in
the absence of the production of the accused before the remaining Magistrate and if such an order is made mechanically contrary to the provision,
that order of remand or extension of remand is not legally sustainable, and as such the accused cannot be kept in jail custody even for one minute
after the expiry of the period of remand already ordered by the court and the jail authorities cannot keep them inside any longer. Under sub-
Section (2) of Section 309, the Court is given power to postpone the commencement of or adjourn any inquiry or trial from time to time after
taking cognizance of the offence and also to remand the accused, being in custody, by a warrant. From the Bar it was represented that instances
are not rare wherein Magistrates, on requisition, go to jails, hospitals, etc., to make an initial order of remand and also to pass extension of the
remand already passed. According to them while proviso (b) of Section 167(2) would specifically state that the accused should be produced
before the Magistrate, the Magistrate going to the jails merely because sufficient escorts are not available or because the authorities concerned
entertain an apprehension that there will be law and order problem in a turmoil situation when large number of accused persons are to be taken to
the Court, for example, persons arrested in agitation, etc., would not satisfy the requirements of Section 167(2), proviso (b), and such a procedure
should be highly deprecated as in such circumstances the accused persons would not be having an opportunity of freely making any complaint or
statement before the remanding Magistrates. In this connection, it would be appropriate to refer to the decisions rendered by M.N. Moorthy, J., in
Mrs. Bartley v. State wherein the learned Judge, holding that a remand is essentially a judicial function, has observed--
The object of requiring the presence of the accused before the Magistrate for purpose of remand is only to enable him to make representation he
wishes to make in the matter.
In the very same decision, certain propositions have been laid down for the guidance of all the criminal courts and we extract here-under the
relevant ones:
...
3) The courts should not mechanically pass orders of remand without verifying the entries in the diaries and satisfying themselves about the real
necessity for granting the remand or extension of remand.
4) Under no circumstance a Magistrate can order the detention of any person in custody or extend such detention without the production of the
accused before him in violation of the provisions of the code, viz., proviso (b) to Section 167(2), whatever may be the reason stated by the
authorities concerned for the non-production of the accused before the Court, such as the non-availability of police escorts, etc., as shown in the
charts, given by the learned Public Prosecutor in pursuance of the directions of this Court.
5) The Jail authorities who are also very much concerned in the matter, of keeping the prisoners in cellular confinement, should not keep any
person without orders of remand from the concerned Judicial Magistrates even for a moment beyond the period of detention already ordered,
because, if the jail staff keep any person inside the prison, without proper orders of court, such keeping would tantamount to an illegal detention.
The subsequent case law reported in 1990 (Cri)LW 113 (G.K. Moopanar v. State) is also relevant, wherein, referring to Elumalai''s case, it
has been observed thus,
There is nothing to indicate on the face of the order that the learned Magistrates applied their minds in this regard. Admittedly, the copies of the
diaries were not produced before the learned Magistrates. The learned magistrates had no occasion to consider the length of time required for
investigation. Such orders have been deprecated with a strong language by the bench, which decided Elumalai''s Case.
In the light of the case laws referred to above and taking note of the violation of prisoners'' human rights due to failure on the part of the
authorities in strictly adhering to the established procedure and also the shocking feature that several such prisoners are not being produced by the
Jail Authorities before the Judicial Magistrates in time for extension of remand and equally the Judicial Magistrates also fail to monitor such
production, we feel it necessary and appropriate to direct,
(a) the Additional Director General of Prisons to furnish statistics pertaining to such prisoners confined throughout the State of Tamil Nadu
including all sub-Jails; and
(b) the Registry to call for statistics/particulars from all courts of Judicial Magistrates in Tamil Nadu with reference to the observations made in this
order, within a period of two days from to-day so that necessary further action could be taken in this regard.
Post the case on 24.09.2007 for further orders.