B. Mukerji, J.
1. This is a petition under Article 226 of the Constitution praying for a writ of habeas corpus or any other appropriate writ or order.
2. The circumstances in which this petition arose were these: The petitioner alleged that he was an Advocate of this Court practising at Azamgarh and that the petitioner did some work of a newspaper correspondent in an honorary capacity being a representative of a Hindi Daily named 'Bharat' which is simultaneously published from Banaras and Allahabad.
3. That on the 2nd of September. 1958, the petitioner had gpne to the courts situate in the compound of the Collectorate, Azamgarh, in connection with his professional work when a procession of the Communist Party reached the compound of the Collectorate shouting slogans and that hearing these slogans the petitioner went to that place: that soon after a lathi charge was made by the police on the processionists who had at the time of the lathicharge collected in front of the Court of the District Magistrate.
The petitioner says that he was present there in order to enable him to send news of this incident to the newspaper the honorary representative of which he was. The petitioner further alleged that soon after the lathi charge the District Magistrate sent for the petitioner in his retiring roomwhere the Superintendent of Police of Azamgarh R. N. Sinha was also present and that these two officials gave to the petitioner an official version of the incident and 'threatened the petitioner not to fiend any news contrary to the official version'.
4. That on the 3rd of September, 1958, the news of the lathi charge appeared in the Bharat which, according to the petitioner, was a true version of the incident as has been observed by him. This publication, according to the petitioner, annoyed the authorities of the district including the Superintendent of Police who sent a C.I.D., Sub-Inspector to the petitioner to put pressure on him so that he did not, in future, send any news to the press which was contrary to the official version.
The petitioner alleges that he released this news also to the press and further that he convened information of this to the Leader of the Communist Party in the Lok Sabha, Sri Gopalan, when he visited Azamgarh on the 10th of September, 1958. It was further alleged by the petitioner that Sri Gopalan sent a telegram to the Prime Minister of India and to the Speaker of the Lok Sabha in regard to this matter.
5. That on the 3rd of September, 1958, a meeting of the District Bar Association was requisitioned by some members of the Bar in which a resolution was moved by a member condemning the lathi charge and calling for a judicial enquiry by a Judge of the High Court, which resolution was seconded by the petitioner.
6. That on the 11th of September, 1958, at about 12 noon, when the petitioner returned from the Court of the Judicial Officer to his chambers in the Bar Association and was attending to the work of a client, a Sub-Inspector of Police of Police Station Kotwali with some constables came along to his chambers and arrested him.
7. The arrest, according to the petitioner, was made without warrant. Further, the petitioner was not told by the police officer who arrested him the reason for the arrest even though he was asked to apprise the petitioner of the reasons for his arrest. After the arrest the petitioner was sent to the District Jail, Azamgarh, it is alleged, without his having been produced before a Magistrate as required under Section 61 of the Code of Criminal Procedure and as provided for by Article 22 of the Constitution.
8. In answer to the writ nisi a return was made by the opposite parties and three counter-affidavits were filed in support of that return. One counter-affidavit was filed by Kameshwar Nath Upadhya, Sub-Divisional Magistrate Sadar, Azamgarh, Along with his affidavit Kameshwar Nath Upadhya filed a true copy of the alleged order of remand which he made at the time the petitioner was produced before him.
The second counter-affidavit was filed by R. N. Singh, Superintendent of Police, Azamgarh, to controvert the allegations, made by the petitioner in regard to the incident and in regard to the alleged coercive methods resorted to by the police to deter the petitioner from sending the true news of the incident to the press. The third counter-affidavit was filed by Inderpal Singh, a Sub-Inspector of the Kotwali, Azamgarh.
He also lent support to the assertions made by R. N. Singh, the Superintendent of Police. Along with his affidavit Inderpal Singh filed an annexure which is alleged to be a copy of an order which Inderpal Singh states he received from one B. N. Khare, another police officer, asking him to arrest certain persons mentioned in that order, who were required to meet charges under Sections 143, 147 and 332/114 of the Indian Penal Code.
In the list the petitioner was also mentioned as one of the persons who were required to be arrested. Inderpal Singh controverted the assertion of the petitioner that he was not apprised of the charges under which he was being arrested, for Inderpal Singh stated that he showed the 'writing dated 4-9-1958, issued by the C. I. (the Investigating Officer of the case)' which was annexed to his affidavit and to which we have referred earlier.
9. The original order under which the petitioner was held in detention in prison by the jailor of the prison was, however, not filed with the return to the writ nisi.
10. A few circumstances may be noticed at this stage before we come to state the points which arose for determination in the case and the decision on those points, for these undoubted circumstances would have a bearing on the decision.
11. It is admitted that there was an incident on the 2nd September, 1958, which led to certain arrests including that of the petitioner. It is further not disputed that the arrest itself was made on the 11th of September, 1958, and that the arrest was by a police officer without a warrant. No explanation has been suggested on behalf of the opposite parties as to why, when the arrests were made several days after the incident, the arrests were made without warrant.
On behalf of the opposite parties no denial was made to the allegation made on behalf of the petitioner that he was an honorary correspondent of the daily newspaper Bharat and that news of the incident appeared in the newspaper Bharat which appeared to be not in accordance with the official version of the incident, if there was an official version of it and further that a news item appeared in the daily newspaper Bharat to the effect that the petitioner had been threatened by C. I. D. Sub-Inspector not to send news for publication which was not in accordance with the official version.
12. On the allegations made by the petitioner and the allegations made in the counter-affidavits to which we have referred earlier the questions that arose for determination were both questions of fact as also questions of law. The questions of fact that arose for determination were:
(1) Whether the petitioner was apprised at the time of his arrest or soon after, of the charges for which he was being arrested?
(2) Whether the petitioner had in fact been produced before a Magistrate within 24 hours of his arrest?
(3) Whether the petitioner was remanded into custody by such Magistrate?
13. The questions of law that arise are:
(1) Even if there was an apprisement of the petitioner of the charges for which he was being arrested, was it sufficient compliance with the constitutional direction contained in Article 22(1) of the Constitution?
(2) In case the petitioner had been produced before a Magistrate within 24 hours of his arrest, whether that production before the Magistrate whom he was alleged to have been produced was a production in law?
14. Another mixed question of law and fact which was canvassed was, whether on the facts and circumstances of this case it could be said that the action of the opposite parties, in particular opposite parties nos. 1 and 2, was not mala fide and if it was found to have been mala fide, whether on that finding the petitioner was entitled to have the order nisi made absolute.
15. We shall now take up the decision of the questions of fact. In regard to the question whether the petitioner was apprised of the charges or not, we have two conflicting versions, one of the petitioners on oath to the effect that he was not apprised, and the other, the statement on oath of Inderpal Singh, Sub-Inspector, contained in paragraph 4 of his counter-affidavit, that the petitioner was so apprised.
What Inderpal Singh stated in regard to this matter was that the petitioner was wanted in connection with Criminal Case No. 131 which was a case under Sections 143, 147 and 332/114, I. P. C. He further states that he showed the petitioner the order dated the 4th September, 1958, issued by the Circle Inspector, who was the Investigating Officer of the case, which he had received from him and which was filed as an annexure to Inderpal Singh's affidavit. We think it necessary to quote the relevant portion of this annexure in order to judge whether by showing the annexure there could be an apprisement to the petitioner of the 'grounds of his arrest' as contemplated by Article 22(1) of the Constitution:
'The following accused persons are wanted in Case Crime No. 131 u/s 143/147/332/114. I. P. C. of P. S. Kotwali, Azamgarh. Please arrest them and then remand them to jail and report compliance:
(5) Shri Bir Bhadra Pratap Singh, Vakil, r/oMoh. Brahmasthan, P. S. Kotwali......'
The aforequoted 'order' or 'request' of B. N. Khare is dated the 4th of September, 1958. No reason has been shown why compliance with the aforequoted direction or order was deferred to the 11th of September. 1958. The aforequoted order appears to be in compliance with the provisions of Section 56 of the Code of Criminal Procedure which provides that when a police officer in chargeof a police station or any police officer making an investigation under Chapter XIV of the Code requires any officer subordinate to him to arrest any one without a warrant, he has to deliver to the officer required to make the arrest an order in writing] specifying the person to be arrested and the offences or other causes for which the arrest is to be made.
This section also provides that the officer shall before making the arrest notify to the person to be arrested the substance of the order, and if so required by such person, shall show him the order. The counter-affidavit of Inderpal Singh does not disclose that the petitioner was apprised verbally by him of the substance of the order, nor does it show that the petitioner ever required Inderpal Singh to show him the order.
So that, the showing of the order by Inderpal Singh was in the nature of a voluntary act in order to obviate the necessity of his apprising the petitioner of the substance of the order. There is no affidavit by B. N. Khare to show under what circumstances it was thought necessary for him to require Indierpal Singh, an officer subordinate to him, to make the arrest. As we have said earlier, there was no circumstance disclosed on which we could say that in this case the arrest of the petitioner without a warrant was proper.
We should not, however, be understood to hold that there was no power to arrest without a warrant for the offences which the petitioner was alleged to have been guilty of. What we mean to say is that even if there was a power of arrest without warrant that power was to be exercised in such cases where the obtaining of a warrant from a Magistrate would involve unnecessary delay which might defeat the arrest or which would cause unnecessary delay in effecting the arrest. In this case there could be no such difficulty.
The arrest had not been made immediately after the alleged crime, nor was it made with any great expedition, AS we have already noticed, the incident took place on 2-9-1958, and the arrest was made on 11-9-1958. The person who was to be arrested was a fairly known individual. So that the arrest in such a case without a warrant did call for some explanation and if no explanation was offered then it could not be said that any one, who insinuated mala fides to the police, was doing much violence to fair reason.
It was contended on behalf of the petitioner that the writing, has now been exhibited as an annexure to the counter-affidavit of Inderpal Singh as an order by B. N. Khare, was not in existence on 4-9-1958, which is the date shown on the face of it, but that this document was brought into existence at a later date in order to provide corroboration to the assertion which was made by Inderpal Singh that the petitioner was apprised of the grounds for his arrest.
There can be no doubt on the affidavits of the petitioner and Inderpal Singh that the petitioner was not told anything in respect of the reasons for his arrest verbally. Except the assertion of Inderpal Singh that he showed the order which had been made by B. N. Khare to the petitioner there was nothing else either on the circumstances or in the allegations made in the various counter-affidavits filed on behalf of the opposite parties to indicate that the petitioner was actually apprised of the grounds for his arrest.
After having given this matter our careful consideration we are unable to hold positively that the petitioner was shown the original writing, copy of which has been exhibited as an annexure to Inderpal Singh's counter-affidavit. There was, apart front this, no communication to the petitioner of the grounds for his arrest. We may further mention herethat in the view that we are going to take, which we shall state in due course, the apprisement, if there was any, of the charges was not, at any rate, in law sufficient compliance with the provisions of Article 22(1) of the Constitution.
16. The next question of the fact that falls for determination is whether the petitioner was produced before a Magistrate within 24 hours of his arrest. On this question of fact we have the averment of the petitioner and the counter-averment of the Magistrate, Kameshwar Nath Upadhya. In paragraph 7 of his counter-affidavit Kamaeshwar Nath Upadhya, among other things, says this :
'The petitioner was produced before the deponent by the S. O. Kotwali Sri Harendra Singh on 11-9-1958 at about noon. The S. O. Kotwali requested the deponent to remand the accused to goal custody, as he was wanted in crime No. 131 under Section 143/147/332/114, I. P. C. The deponent informed the petitioner that he was wanted in connection with the aforesaid case and granted the remand up to 16-9-1958'.
A copy of the order of remand was filed as Annexure 1 to the counter-affidavit of Kameshwar Nath Upadhva. This annexure indicates that on 11-9-1958, the petitioner was produced before the deponent-Magistrate and that on the report of the police he was remanded to jail custody for six days. The next date fixed for appearance, according to this annexure; was 16-9-1958.
There appears to be a little inconsistency between the date fixed for appearance and the period of remand granted: this, however, to our minds, was immaterial. On the circumstances of this case and in view of what we would presently state it appears to us to be unnecessary to decide this question of fact, namely, whether there was an actual production of the petitioner before the Magistrate or not. We shall assume that there was such production for our pre-sent purposes.
17. Before we come to scrutinise whether or not the production of the accused before the Magistrate vas in accordance with law, we should like to draw attention to one fact which, in our opinion, deserves specific attention. The learned Magistrate in this case made the order of remand on a small sheet of ordinary paper. That order was produced before us by Mr. Uniyal, though it had not been attached to the return as it should have been.
That order did not contain any specific direction of the Magistrate in regard to the detention of the petitioner in jail, nor did the order clearly indicate the period for which the petitioner was to be detain-ed. This Court has prescribed a form for use on such occasions. The form is Form No. 29 as mentioned in Appendix B of the General Rules (Criminal). These rules were framed under the provisions of Section 554 (2) (b) of the Code of Criminal Procedure.
In our opinion, when Magistrates make orders of remand under Section 167 of the Code of Criminal Procedure they should make the order in the prescribed form and not on mere 'chits of papers'. On behalf of the petitioner it was contended that an order, which was not made in accordance with the prescribed form, was an illegal order. We do not consider it necessary to go into this question in view of what, we shall presently say. Article 22(2) of the Constitution says this :
'Every person who is arrested and detained in custody shall, be produced before the nearest Magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate and no person shall be detained in custodybeyond the said period without the authority of aMagistrate.'
Section 61 of the Code of Criminal Procedure saysthis :
'No police-officer shall detain in custody any person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.'
Section 167 of the Code of Criminal Procedure is in these words :
'(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 61, 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 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) 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 authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. 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.'
(We are not concerned with the other parts of this section. So we do not quote them).
Article 22(2) of the Constitution merely requires production of the arrested person before the nearest Magistrate and provides that such person shall not be detained in custody beyond a certain period without the authority of a Magistrate. Section 61 of the Code of Criminal Procedure contains more or less the same provision as is contained in Article 22(2) of the Constitution.
Section 167 of the Code makes a further provision that along with the accused person will be forwarded to the Magistrate a copy of the entries in the diary. This clearly indicates that the purpose of producing an accused before a Magistrate is to ensure that the arrest and the detention of the accused person is, at any rate, prima facie justified. The law apparently did not rely on the judgment of the police for purposes of accepting that the charge that was being levelled against a person was, even prima facie, sustainable.
Therefore, that obligation the law placed on the Magistrate. It was for the Magistrate to decide though prima facie, on certain material placed before him namely, the material contained in the diary relating to the case, whether or not the detention in prison of an accused was necessary. In coming to his conclusion the Magistrate had, in our opinion, to exercise his mind--his judicial mind--and only when the Magistrate could and did apply that mind that if could be said that the order made by the Magistrate for the detention in prison of a person was a valid order.
We cannot contemplate that the intention of the Legislature in making this provision was merely to provide for orders which, in the words of Lord Goddard made them 'rubber stamp orders'. If that, were so then there could be absolutely no reason for providing in Section 167 (1) of the Code the necessity ofproducing a copy of the entries in the diary before the Magistrate along with the accused.
In our opinion, this provision clearly indicates that the Magistrate was under an obligation to see the entries in the diary for the purpose of seeing, if only prima facie, whether or not the accusation made against the prisoner was sustainable. In this case there is no averment that along with the prisoner-petitioner a copy of the entries in the diary was forwarded to the Magistrate. All that Annexure I to the counter-affidavit of Kameshwar Nath Upadhya shows is that the petitioner was produced before him with some sort of a police report.
From the context in which reference to the police report has been made in that annexure it appears that reference to police report in that annexure was to the police wanting remand and their reasons for wanting such remand. No material appears to have been placed before the Magistrate on which the Magistrate could exercise any kind of judicial discretion in regard to the sustainability or otherwise of the charges preferred by the police against the petitioner.
18. In State of Punjab v. Ajaib Singh, AIR 1953 SC 10, their Lordships of the Supreme Court expressed the following opinion :
'The provision that the arrested person should within 24 hours be produced before the nearest Magistrate is particularly desirable in the case of arrest otherwise than under a warrant issued by the Court, for it ensures the immediate application of a judicial mind to the legal authority of the person making the arrest and the regularity of the procedure adopted by him.'
19. Their Lordships further pointed out that the guarantee contained in Article 22 was intended to offer protection to the subject against the act of the executive or other non-judicial authorities.
20. In our opinion, the protection would become meaningless if one, who was supposed to be the protector of the subject, was merely to act mechanically without applying a judicial mind to see whether the arrest of the person produced before him was legal and further regular and in accordance with law.
In Swami Hariharanand Saraswati v. Jailor, AIR 1954 All GOT, a Bench of this Court of which one of us was member held that -
'The provisions of Section 167(1), Criminal P. C. indicate that the policy of the law is to bring an independent judgment to bear on the matter for, it is provided in that section that the Magistrate before whom an arrested person is produced is also to have before him 'a copy of the en tries in the diary'. That means that the Magistrate before whom the production has to be made has to scrutinise the act of others and to see whether the act was legal and proper and further whether the formalities required by law had been complied with'.
We are clearly of the opinion that in this case the learned Magistrate did not apply his mind to the question that he had to consider under the provisions of the law.
20a. There is yet another circumstance which, in our view, made the order of remand in this case an improper order. The Magistrate, who passed the order of remand, had been present at the time when the incident happened on the 2nd of September, 1958. It also appears that a lathi charge was made on the orders of this Magistrate, so that the Magistrate who made the order of remand, could be a competent witness in the case.
The question that arises is whether a Magistrate, who could be a competent witness in a case,could justifiably and legally make an order of remand of the accused in that very case. We are of the opinion that he could not, for in our view in this case the learned Magistrate having himself been a witness of the incident could not bring to bear an impartial and judicial mind to decide whether or not the accused-petitioner was to be remanded to custody.
We have earlier noticed that there was nothing to indicate that along with the petitioner a copy of the entries in the diary was also forwarded to the Magistrate. This may have been the case because it was thought unnecessary to forward a copy of the entries in the diary to a Magistrate who knew all about the case. The Magistrate in this case al-most acted 'as a judge in his own cause'. We know that the law never countenances a Judge who is a judge in his own cause.
21. We are, therefore, of the opinion that the order of remand under which the petitioner was suffering detention was illegal and therefore his further detention too was illegal.
22. Mr. D. P. Uniyal, appearing on behalf of the State, strenuously contended that even if the earlier detention of the petitioner by virtue of the order of remand was illegal, his present detention was legal, for, according to him, the petitioner had now been remanded to custody under the provisions of Section 344 of the Code of Criminal procedure. We have no materials before us on which this contention of Mr. Uniyal could be justified, The return which was made to the writ nisi does not claim validity of the detention of the petitioner on this ground at all.
As was pointed out in Hariharanand's case, referred to earlier, the return to a writ of habeas corpus has to be an unambiguous return and that it has got to set forth clearly, and with sufficient particularity the facts and the cause for the accused person's detention. The return has to state all the facts and the grounds which could constitute valid and sufficient grounds for the detention. There could be no scope for a presumption being pressed into service or a verbal assertion being pressed into service in order to justify a detention which on the materials placed before the Court appeared unjustified.
23. For the reasons given above we have come to the conclusion that the detention of the petitioner was illegal and unconstitutional and that therefore he was entitled to being released from such detention. On the 26th of September, 1958, after hearing learned counsel for the parties at great length we arrived at this conclusion which we have stated above and ordered the release of the petitioner.
It is, therefore, not necessary for us now to direct the release of the petitioner in this judgment. We may, however, point out that the fact that we have directed the release of the petitioner in these proceedings would be no bar to his being arrested again in accordance with law, nor would it mean that the charges that had been levelled against him were unjustified. The matter will have to be gone into and decided in accordance with law.