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Taju Khan Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1983CriLJ1518; 1982()WLN553
AppellantTaju Khan
RespondentState of Rajasthan
Cases ReferredKana v. State
Excerpt:
criminal procedure code - section 439 & 437--detention arising out of an invalid order of remand--subsequent valid remand order--held, bail application be considered in light of provisions of sections 437(1) & 439(1)--no question of curing an illegality arises;the accused will not be entitled to be released on bail even though at some anterior period his detention was illegal. in such a case if there is a last valid order of remand, the application for grant of bail under section 439, cr.p.c, is to be considered in the light of the provisions contained is section 437(1) and 439(1), cr.p.c. the question is not whether later order of remand validates the earlier order of remand, but the question is whether in the face of the later valid order of remand, the court can direct the.....1. this matter has come up before us on a reference made by s. c. agrawal. j. as he has noticed conflict between the two decisions of the learned single judges of this court.2. we may state a few material facts leading to the present reference.3. taju khan presented an application for bail under section 439. cr. p.c. in this court on july 17. 1982. on june 7, 1982, on a report lodged at. the police station, ladnu, a case under sections 147. 149. 148. 452. 323 & 307. i.p.c. was registered against, the petitioner and some other accused persons. the petitioner taju khan was arrested on june 20. 1982. he submitted an application for bail before the additional sessions judge, nagaur but, the said application was rejected by the additional sessions judge on july 9, 1982. thereafter a bail.....
Judgment:

1. This matter has come up before us on a reference made by S. C. Agrawal. J. as he has noticed conflict between the two decisions of the learned single Judges of this Court.

2. We may state a few material facts leading to the present reference.

3. Taju Khan presented an application for bail under Section 439. Cr. P.C. in this Court on July 17. 1982. On June 7, 1982, on a report lodged at. the Police Station, Ladnu, a case under Sections 147. 149. 148. 452. 323 & 307. I.P.C. was registered against, the petitioner and some other accused persons. The petitioner Taju Khan was arrested on June 20. 1982. He submitted an application for bail before the Additional Sessions Judge, Nagaur but, the said application was rejected by the Additional Sessions Judge on July 9, 1982. Thereafter a bail application was submitted in this Court. During the pendency of the bail application in this Court, the petitioner moved an application on August 13. 1982. wherein he stated that his present detention after August 9. 1982, is illegal inasmuch as on that date the case was fixed in the Court of Munsif and Judicial Magistrate, Ladnu but on that date the Magistrate was on leave and in his absence, the Reader of the Court signed the order-sheet adjourning the case to August 23. 1982. According to the petitioner, the Reader was not competent to pass an order of remand and. therefore, there is no valid authorisation for the detention of the petitioner in custody after August 9. 1982. When arguments on the bail application were heard, on August 24, 1982. on behalf of the petitioner, it was contended that, the petitioner is entitled to be released on bail, as the petitioner's detention was illegal and the illegality of detention on account, of an invalid order of remand cannot be cured subsequently by a valid order of remand and reliance was placed by the learned, counsel for the petitioner on a decision by P. D. Kudal, J.. in Rati Ram v. State of Rajasthan 1982 Cri LR (Raj) 313 and it. was further contended that even if it is assumed that the illegality in the detention can be cured by a subsequent valid order of remand the legality of detention has to be considered with reference to the date on which the bail application is submitted and not with reference to the date on which the bail application comes up ultimately for consideration before the court and since on August 13. 1982. when, the application came up for consideration, the detention of the petitioner was invalid, so he is entitled to be released on bail.

4. As against these submissions, the Public Prosecutor urged that thet illegality of detention arising out of an invalid order of remand can be cured by a subsequent valid order of remand and further the illegality of the detention has to be considered with reference to the date on which the bail application comes up ultimately for consideration before the Court. Reliance was placed by him on the decision of another single Judge of this Court in Kana v. The State 1980 Cri LJ 341 : 1979 Raj LW 538 by M.B. Sharma J. the learned single Judge noticed the conflict between the two decisions referred to supra on the following Questions.

(i) Whether any illegality in the detention arising out of an invalid order of remand, can be cured by a subsequent valid order of remand?

(ii) What is the date with reference to which the illegality of the detention should be considered in a bail application?

It is in these circumstances, the matter has come up before us.

5. The matter was heard by us on Oct. 22, 1982. Looking to the urgency we deferred the recording of reasons and answered the two questions as under on 23-9-1982:

(i) The accused will not be entitled to be released on bail even though at some anterior period his detention was illegal, In such a case if there is a last valid order of remand, the application for grant of bail under Section 439, Cr. P.C. is to be considered in the light of the provisions contained in Sections 437(1) and 439(1). Cr. P.C. The question is not whether later order of remand validates the earlier order of remand, but the question is whether in the face of the later valid order of remand, the Court can direct the release of accused. In other words, there is no question of curing an illegality in the earlier invalid order of remand.

(ii) The date of illegality of the detention of the accused is the date when the bail application is finally heard.

6. We now proceed to record our reasons for the aforesaid answers.

7. It is noteworthy that in the present case the period prescribed for filing the charge-sheet had not expired, as provided under Section 167. Cr. P.C. and the case was under investigation. There is no provision under the Code of Criminal Procedure 1973, authorising the Reader of any criminal court to order remand of the accused to the police custody or judicial custody, in the absence of the Presiding Officer of the Court, Such power authorising detention by an order of remand, is only possessed by the Presiding Officer of the court. It is common ground between the parties that the detention of the petitioner after Aug. 9. 1982. till Aug. 23, 1982, was an unauthorised detention. Admittedly on Aug. 23, 1982, the Judicial Magistrate, First Class. Ladnu, remanded the accused to judicial custody till September 6, 1982 and thereafter he again remanded the accused to the iudicial custody till Sept. 20. 1982. Orders dated Aug. 23. 1982 and Sept. 6, 1982, were valid orders of remand passed by the Judicial Magistrate. The question is as to whether the petitioner is entitled to be released on bail on the ground that, his detention as some anterior time was illegal. The controversy seems to have arisen in view of the views expressed in various decisions where the detention became illegal on account of the expiry of the time within which the challan could be filed under Section 167. Cr. P.C. but those decisions can be of no help in the present case. There are some other decisions as well to which we shall refer hereinafter. In the present case, the detention has not been illegal, because of the expiry of the period of filing of the challan. The paragraph (a) of the Proviso to Sub-section (2) of Section 167, Cr. P.C. lays down that no Magistrate shall authorise the detention of the accused person in custody for a total period exceeding 90 days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and 60 days, where the investigation relates to any other offence, and. it further provides that on the expiry of the said period of 90 days, or 60 days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail and every person so released . on bail under this sub-section shall he deemed to be released under the provisions of Chapter XXXIII for the purpose of that Chapter:

8. There have been a series of decisions of this Court as well as of other High Courts on this question.

9. In Umashankar v. State of Madhya Pradesh 1982 Cri LJ 1186 (Madh Pra) G.P. Singh, C.J. speaking for the Bench relying on the decisions of the Supreme Court in Natabar Parida v. State of Orissa : AIR1975SC1465 and Hussainara Khatoon v. State of Bihar : 1979CriLJ1052 . observed as under (at p. 1189):

If a challan is filed before the expiry of the maximum period for which an accused can be detained in custody under Section 167 further remand to custody can be ordered under Section 309. No maximum period of remand is provided for under Section 309. The Magistrate, however, cannot postpone the release of an accused under Proviso (a) to Section 167(2) after the expiry of 90 days or 60 days, as the case may be just to enable the police to file the challan and to alter the detention under Section 167 to one under Section 309. If the accused of his own or on being told, of his right by the Magistrate, is prepared to furnish bail the Magistrate must order the accused to be released on bail, without waiting for the challan and must release him when bail is furnished

For the view taken in this case, reliance has been placed on a decision of this Court in Premraj v. State of Rajasthan (1976) Cri LJ 455, Noor Mohd. v. State ILR (1978) 2 Delhi 442 : 1980 Cri LJ NOC 27. and on a Full Bench decision, of the Punjab High Court in Baldev Singh v. State of Punjab 1975 Cri LJ 1662. A Division Bench decision of the Gujarat High Court in Umedsingh v. State : AIR1977Guj11 . which was followed by a single Bench of the Madras High Court, in Pandi v. State 1979 Cri LJ 1503. was dissented. The Full Bench of the Gujarat High Court, overruled the above Division Bench decision in Babu-bhai Purshottamdas Patel v. State of Gui 1982 Cri LJ 284 : AIR 1982 NOC 72.

10. In Narayan v. State of Rajasthan (1982) Rajasthan LR 698 : 1982 Cri LJ 2319 a similar view has been taken by Hon'ble the Chief Justice Shri K. D. Sharma and reference therein has been made to the earlier decisions of this Court. It was laid down in that case that after the expiry of 90 days, an absolute right to be released on bail accrued to the petitoners. subject of course to the cancellation of the bail, if the requirements of Section 437(5). Cr. P.C. were satisfied. It was further observed, that (at p. 2321):-

Under Section 309(2). Cr. P.C. the Judicial Magistrate, no doubt, was empowered to remand the petitioners to custody by warrant after taking cognizance of the...offences, but in this case the petitioners were remanded to -judicial custody by the Judicial Magistrate without taking cognizance of the offence. The mandate of the Legislature, as set out in Section 167(2)(a). Cr. P.C. could not be flouted or ignored on the ground that after filing of the charge-sheet by the police before the Chief Judicial Magistrate, upon completion of investigation, the power of the Judicial Magistrate to enlarge the accused on bail under Section 167(2)(a). Cr. P.C. came to an end. In my opinion, once the period of 90 days or 60 days, as the case may be, mentioned in Section 167(2)(a), Cr. P.C. expired before taking cognizance Of the offence by the Court, the petitoners obtained a valuable right to be released on bail and their detention in this case after the expiry of the period of 90 days was clearly illegal.

In Narayan's case 1982 Cri LJ 2319 (Raj) (supra) an argument was advanced by the learned Public Prosecutor that even if any defect or illegality has crept in the antecedent detention of the petitioners, it. cannot contaminate the order of detention or remand subsequently made by the Additional Sessions Judge after commitment of the cases, which is otherwise legal and proper. This contention was repelled and it was observed that (at P. 2321):

Under the New Code of Criminal Procedure if the detention is illegal, it cannot be validated by order of remand subsequently made by the Judicial Magistrate or by the Additional Sessions Judge under Section 309(2). Criminal PC.

This observation, to our mind, is a general one. which should be read in this context that the time provided under para, (a) of proviso to Section 167 (2) had expired and a very valuable right had accrued to the petitioners to be released on bail, as their detention beyond the expiry of the period of 90 days, was illegal.

11. In Shabag v. State of Rajasthan 1982 Cri LR (Raj) 330 : 1982 Rajasthan LR358 also observations to the same effect were made and it was stated that:

The provisions of law contained in Proviso (a) to Section 167(2). Cr. P.C. are mandatory. The detention of the petitioners became illegal from Oct. 19, 1981. to Nov. 2. 1981. Once the detention becomes illegal, the accused-petitioners are entitled to be enlarged on bail as a matter of right. The subsequent order of remand under Section 309(2), Cr P.C. passed on Nov. 2. 1981. does not cure the illegal detention during the period Oct. 29, 1981 to Nov. 2. 1981'. Here again the observation 'The subsequent order of remand under Section 309(2). Cr. p. C. passed on Nov. 2. 1981 does not cure the illegal detention' has to be considered in the context of the provision contained in para (a) of the Proviso to Sub-section (2) of Section 167. Cr. P.C.

12. In Beni Madhav v. State of Rajasthan 1982 Raj Cri C 145 : 1983 Cri LJ 633 S.C. Agrawal, J. considered the question of illegality of detention from the point of view of Section 167(2). as well as from the point of view of Section 309(2). Cr. P.C. He observed that an illegality, in the detention of an accused Person arising on account of non-compliance with the provision of the Para |a) of the Proviso to Sub-section (2) of Section 167 cannot be cured by a subsequent order of remand under Sub-section (2) of Section 309 and the accused person would be entitled to be released on bail in spite of the fact that there is an order of remand under Section 309. a view, similar to the view taken in the above decisions, However, in connection with an illegality in the detention of an accused person on account of absence or any illegality in the order of remand under Sub-section (2) of Section 309. it was held that it would not enable an accused person to be released on bail if there is a valid order of remand at the time when the bail application has been filed/or it comes for consideration. Reference therein has been made to Kana v. State 1980 Cri LJ 344 (Rai) (supra).

13. In the present case we may again reiterate that we are not concerned with any non-compliance of the para, (a) of the proviso to Sub-section (2) of Section 167. Cr. P.C. In this case the detention has not been illegal on account of the expiry of the time prescribed under paragraph (a) Of the proviso to Sub-section (2) of Section 167. The case is still under investigation and 90 days' time has not expired, which is applicable to the present case and the question, with which we are faced, is. what is the effect of the order of remand passed by the Magistrate on Aug. 23. 1982. The cases based on the provision contained in para (a) of the proviso to Section 167. Cr. P.C. in our opinion, have no application,

14. We may refer to a Full Bench decision of the Patna High Court in Babu Nandan Mallah v. State 1972 Cri LJ 423. Three separate judgments have been rendered in this case. Justice Akbar Hussain has agreed with the view taken by Justice N. L. Untwalia. as he then was. That was a case under the old Code of Criminal Procedure. In that case the accused was arrested on July 11, 1970 in connection with a case under Section 395. I.P.C. Eventually, cognizance was taken on Nov. 23. 1970. on submission of the charge-sheet by the police. Before submission of the charge-sheet, he moved an application for bail in the High Court, which was rejected on August 20, 1970. The Sub-divisional Magistrate after taking cognizance transferred the case -to the file of Munsif-Magistrate, 1st Class. Hazaribagh. The petitioner's case was that during the period July 11. 1970 to Nov. 23, 1970 he was physically produced in court only on two dates and not on others and on some dates the Sub-divisional Magistrate did not record any specific order of remand. His further case was that on December 21. 1970 the Munsif-Magistrate Shri Ghosh was on casual leave and Shri Ramayan Singh, was in charge of the files of his court and he adiourned the case to January 23. 1971 for evidence without any specific order of remand and an implied order- 'accused as before'- was for a period more than 15 days in violation of the mandatory provision of Section 344 of the Code, His Lordship Untwalia J. considered the question as to whether the accused is entitled to a direction of release by grant of writ of habeas corpus, in the absence of order of remand and it was also considered that whether an order of remand exceeding 15 days is bad and whether the person so detained is entitled to be released by grant of writ of habeas corpus? In that case this question was also considered as to which is the relevant date with reference to which the question of illegality of detention is to be examined. In connection with the relevant date for the purpose of considering the question of legality of detention, reference was made to the two decisions of the Supreme Court in Ram Narayan Singh v. State of Delhi : 1953CriLJ113 and Talib Hussain v. State of Jammu and Kashmir : AIR1971SC62 and in connection with illegality of detention, the provision contained in Section 344(1-A) was considered and it was observed that an order of the Magistrate remanding the accused person to custody for a term exceeding 15 days at a time is bad and the person so detained, will have to be directed to be released by grant of a writ of habeas corpus. For our purposes, in the present case this observation has no relevance, but his Lordship had an occasion to consider the question that where there is a last valid order of remand, what would be the effect on detention on account of an earlier invalid order of remand. In para 10 Untwalia, J. observed as under:

I am of the opinion that even though there be an earlier order remanding an accused person to custody for a term exceeding 15 days but if on the date of the hearing it is found that he is in custody in pursuance of the last order which was not for a term exceeding 15 days the custody cannot be held to be illegal and no writ of habeas corpus can issue directing the release of the person in custody. It is not a condition precedent for a valid order under Section 344(1-A) that the accused must. at the time of the order, be in valid custody under a valid order. If it were to be held that it is a condition precedent for an order of remand under Section 344 that the accused is in proper and legal custody otherwise such an order is not Possible it. will lead to absurdity and impossibility in many cases. I find no warrant for the proposition that once an invalid order has been made remanding the accused person to custody for a term exceeding 15 days at a time, the subsequent order of remand for a term not exceeding 15 days will be bad on that account.

15. After reference to the above two decisions of the Supreme Court as regards the date when the detention should be illegal, it was held that the relevant date is the date of hearing of the application.

16. In Rati Ram v. State of Rajasthan 1982 Cri LR (Rai) 313 (supra) in para 8. P. D. Kudal, J. observed:-

From the proceeding in these two cases it is apparent at. certain point, of time that the accused remained in custody without any legal order of remand passed by the Magistrate, Once an order of remand expires and a fresh order of remand is not passed then the detention becomes illegal. The liberty of an individual is guaranteed under the provisions of the Constitution, By a subsequent order of remand for subsequent period the previous order of detention which was patently illegal cannot be cured. However, it is argued that the subsequent detention justified by orders of remand would cure all illegal detention. If this argument is accepted as such then the very purpose of liberty of an individual would be jeopardised.

17. Although the cases Kana v. State 1980 Cri LJ 344 (Rai) (supra) and Ram Narayan Singh v. State of Delhi 1953 Cri LJ 1113 (SC (supra) were cited, before Kudal, J., in Ratiram's case (supra) but it appears that attention was not invited to the relevant, observations made in those cases having bearing on the question with reference to what date the question of legality of detention has to be considered.

18. In Kana v. State 1980 Cri LJ 344) (Raj) (supra) Mahendra Bhushan. J.. after referring to the decision of the Federal Court in Basanta Chandra v. Emperor AIR 1945 FC 18 : 1945-46 Cri LJ 559 and Ram Narayan Singh v. State of Delhi 1953 Cri LJ 1113 (SC) (supra) and Babu Nandan Mallah v. State 1972 Cri LJ 423 (FB) (Pat) (supra), categorically observed as under at p. 347):

It. can, therefore, be said that except in a case where Section 167. Cr. P.C. applies and where the detention of the accused cannot be authorised, exceeding period of 90 days, and on this account the accused becomes entitled for being released on bail, if he is prepared to and does furnish bail, there is no warrant to hold that all cases, in which at some anterior date the detention of the accused was illegal the accused is entitled to be released on bail if the detention is legal at the time when the bail application is filed or it comes for consideration, It the detention of the accused is legal when the ball application is preferred, his previous illegal detention should be considered.

In that case on facts it was found that the present detention of accused is legal. The accused is not entitled to be releases bail, because some period of his detention before commitment to the Court of Sessions was illegal.

19. In Jalu Singh v. State of Rajasthan. S.B. Criminal Misc. Bail Appln. No. 584 of 1980 (Jodhpur) decided on December 15, 1980, by D. P. Gupta. J. the petitioners were remanded to judicial custody from time to time up to Sept. 22, 1980 under the provisions of Section 167(2), Cr. -P.- C. On Sept. 20. 1980, a challan was filed and cognizance was taken and the accused were directed to foe produced before the court on Sept; 25, 1980 and as no order was passed under Section 309(2) on Sept. 20. 1980, their custody on Sept; 20, 1980. and Sept. 21. 1880 was illegal and they were brought from illegal custody, so no order under Section 309(2), Cr. P.. C. could. have been, passed, as they were not in legal custody -on Sept. 22 1982. Reliance' was placed on a decision of this Court in Khinvdan v. State of Rajasthan 1975 WLN 132 : 1973 Cri LJ 1984. Relying on the decision of the Supreme. Court in Talib Hussain v. State of Jammu and Kashmir : AIR1971SC62 (supra), Saptawna v. State of Assam AIR 1971 SC 313 : 1971 Cri LJ 679 (SCI and Kana v. State 1980 Cri LJ 344 (Raj) (supra), D. P. Gupta J. expressed the same view that if a valid order is passed by a Magistrate remanding the accused to custody; then any previous invalid order of remand or any previous custody without a lawful order, would not have the effect of invalidating the custody of the accused' in pursuance of a lawful order passed under Section 209. Cr. P.C. The accused persons have already been committed to the Court. of Session and a proper order of remand has been passed under Section 209. Cr. P., C. and as such the alleged illegality of earlier detention is of no consequence.

20. In Saptawna v. State of Assam 1971 Cri LJ 679 (SC (supra) their Lordships had an occasion to consider the question as to what is the effect of illegal detention when subsequently the detention became lawful. In that case one of the grounds urged for grant of writ, of habeas corpus was that the petitioner was arrested on Jan. 10, 1968. and he was not produced before a Magistrate within 24 hours, so the petitioner is entitled to be released. His Lordship S.M. Sikri. C.J., speaking for the court, observed that, even if the petitioner had been under illegal detention between Jan. 10 to Jan. 24, 1968, (though this point was not decided), the detention became lawful on Jan. 24. 1968 when he was arrested by the Civil Police and produced before the Magistrate on Jan. 25, 1968, and he is now an under trial prisoner.:

21. So far as the present, case is concerned, the petitioner was under judicial custody in pursuance of the orders of remand during the investigation stage, where the tune prescribed under para, (a) of the proviso to Sub-section (2) of Section 167, Cr. P.C. had not expired and during such custody on Aug. 9, 1982. order of remand was not passed by the Magistrate. Under Section 167. Cr. P.C. it is only the Magistrate, who can authorise the detention of the accused, in such custody the Magistrate thinks fit. Though the accused was not in custody from Aug. 9. 1982 to Aug. 23, 1982. under a valid order of remand, that is. under an order of remand, by a person competent to authorise detention of the accused,. still his custody subsequent to that period was lawful, as the detention after August 23. 1982 was authorised by the Magistrate, so the petitioner's custody after Aug. 23. 1982. was lawful. Under para (a) of the proviso to Sub-section(2).of Section 167, Cr. P. C: the authority of the Magistrate to detain the accused persons in custody, extends to a total period of 90 days or 60 days, as the case may be. The words used in this regard are clear and they are to the effect that 'no Magistrate shall authorise the detention of the accused person in custody under this Paragraph for a total period exceeding ninety days or 60 days', as the case may be. Although'by Explanation I. it has been declared for the avoidance of doubts that notwithstanding the expiry of the period specified in para (a), the accused shall be detained in custody so long as he does not furnish bail. Thus, from the provision contained in para, (a) it is clear that the Magistrate is competent to authorise detention of the accused up to a total period prescribed under this paragraph. The cases, 'in which the words occurring at the end of the sentence in Section 309(2), Cr. P.C. namely may by warrant remand; the accused', 'if in custody' have been construed, are cited before us. These cases are Hari parsad Dubey 'Tyagi' v. District Magistrate. Farrukhabad U.P. 1976 All LJ 62 : Kedar v. State 1977 Cri LJ 12301 (All) and Rhinvdan v. State of Rajasthan 1975 Cri LJ 1984 (Rai) (supra). In our opinion, these cases have no application. In these cases it has been considered that the words 'if in custody' occurring under Section 309(2) would mean legal custody. The question of remand under Section 309 would arise only after taking cognizance of offence or commencement of a trial.

22. If these decisions purport to lay down that even after taking cognizance of offence, the accused is validly remanded to judicial custody and thereafter during inquiry or trial the accused is not remanded by a competent authority and the custody during that period becomes illegal, a right will accrue to the accused to be released on bail in spite of the fact that the accused was subsequently remanded by the competent Magistrate or Court, then we respectfully differ from this view.

23. In Basant Chandra Ghose v. Emperor 1945-46 Cri LJ 559 (FC) (supra) it was observed as under (at p. 562):-

The analogy of civil proceedings in which the rights of parties have ordinarily to be ascertained as on the date of the institution of the proceedings cannot be invoked here. If at any time before the Court directs the release of the detenu a valid order directing detention is produced, the Court cannot direct his release' merely on the ground that at some prior stage there was no valid cause for detention. The question is not whether the later order validates the earlier detention but whether in the face of the later valid order the Court can direct the release of the petitioner.

It would appear from the above observations that the real question is whether in the face of a later valid order, the court can direct the release of the petitioner and the question is not whether the later order validates the earlier illegal detention. After the valid order of remand the around of illegal detention does not subsist. It was a case relating to issuance of writ of habeas corpus, but the principles and considerations of bail based on the around of legality of detention, can be of no different from the principles and considerations relating to the issuance of habeas corpus. We would be examining the question as to which date is relevant for the purpose of considering the legality of detention. Here we only want to emphasise that so far as the present case is concerned, a valid order of remand has been passed by the Magistrate on Aug. 23, 1982. and no question of curing or validating the earlier invalid order of remand arises. What can be said is that the remand by the Reader was unauthorised. That cannot be cured though that the subsequent order of remand is an authorised one, passed by the Magistrate, who is competent to authorise detention under Section 167, Cr. P.C.

24. Coming to the second question., we may refer to the decisions of. the Supreme Court, wherein the matter has been considered in, habeas corpus proceeding's. In the Federal Court decision Basant.Chandra Ghose's case. (1945-46 Cri LJ 559) (supra), it was clearly observed that the Court cannot direct the release merely on. the ground that at some prior stage, there was no valid cause for detention.

25. In the. decisions of the Supreme Court views have been expressed differently, but from the authorities, it will emerge that, question of legality of detention should be examined on the date of final hearing and not. on the date of filing of the writ petition and not even on the date of the return.

26. In Ram Narayan Singh v. State of Delhi 1953 Cri LJ 1113 (SC) (supra) their Lordships observed that in habeas corpus proceedings, the court is to have regard to the legality or otherwise of the detention at the time of return and not with reference to the institution of the proceedings. In the matter of Madhu Limaye AIR 1969 SC 1014 : 1969 Cri LJ; 1440 it was observed that the detention must be illegal at the time of return filed by the authorities in the petition for writ of habeas corpus. A similar view was expressed in Narain Singh Nathwan v. State of Puniab : 1952CriLJ656 . However. in a later decision in Talib Hussain v. State of Jammu and Kashmir : AIR1971SC62 (supra) their Lordships of the Supreme Court observed that it is sufficient to point out that in habeas corpus proceedings the Court has to consider the legality of the detention on the date of hearing. If on the date of hearing it cannot be said that the aggrieved party,has been wrongfully deprived of his personal, liberty and his detention is contrary to law, a writ of habeas corpus cannot issue. In Katiu Sanyal v. Dist. Magistrate. Darieelina : 1974CriLJ465 their Lordships of the Supreme Court observed that in a petition for habeas corpus writ, the earliest, date with reference to which the legality of the detention is to be considered is the date of filing the petition for such writ. Therefore any defect in the leality of the detention of the petitioner prior to the date of filing the petition cannot affect the detention if it is legal on the date of the petition. These observations have been made while examining the Question of legality of the detention on the date of the petition and the question has not been considered on the basis that valid and lawful order of detention had been passed after the date of the petition. We are inclined to take the view on Question No. 2 on the basis of the decision of the Supreme Court in Talib Hussain's case : AIR1971SC62 (supra) and hearing would mean final hearing of the petition, so on that basis, in our opinion, the date of the illegality of the detention should be the date when the application for bail is finally heard.

27. There is another decision of this Court by Shri S. K. Mal Lodha, J. (one of us) in S. B. Criminal Misc. Appeal No. 115 of 1981, decided on June 19, 1981. in which the detention of the accused-petitioners from Jan. 17. 1981 to Jan. 31, 1981 was not legal and it was not. in dispute that when an application for grant of bail was submitted before the Additional Sessions Judge and when the order dated February 3. 1981, was passed, the accused non-petitioners were in judicial custody and their detention was in order. It was held that, though at some anterior period, the detention of the accused is illegal, that by itself will not entitle the accused to be released on bail if his detention at the time when bail application is filed or it comes up for consideration is legal.

28. From the report in Ratiram's case 1982 Cri LR (Raj) 313 (supra) it is not clear under what provision of the Code of Criminal Procedure, the accused were remanded to custody and what was the stage of the case, i.e. whether the accused were remanded under Sections 167. 209 or Section 309(2) and the question has been considered in a general way. A general argument was advanced that the detention of the accused petitioners in custody had become illegal as no order of remand was specifically passed on certain dates. The excerpt reproduced above from the decision in Ratiram's case contain demonstrably contradictory observations. At one place the learned Judge observes that once an order of remand expires and a fresh order of remand is not passed then the detention becomes illegal. Then the learned Judge observes that by subsequent order of remand for a subsequent period, the previous order of detention, which was patently illegal, cannot be cured. If the argument that, subsequent detention justified by orders of remand, would cure an illegal detention, is accepted as such, then the very purpose of liberty of an individual would be jeopardised. With great respect, to the learned Judge we are unable to persuade ourselves to subscribe to the later observation. It is only in the case of illegal detention under Section 167 on account of expiry of the time specified in paragraph (a) of the proviso to Sub-section (2) of Section 167. Cr. P.C. that, the position is different. There, after the expiry of the time. order of remand or no order of remand, a valuable right would accrue to the accused to be released on bail as his detention would be illegal.

29. Thus relying on the decision in Saptawna v. State of Assam 1971 Cri LJ 679 (SO (supra): Babu Nandan Mailah v. State 1972 Cri LJ 423 (FB) (Pat) (supra): Basant Chandra Ghose v. Emperor 1945-46 Cri LJ 559 (FC) (supra) and Talib Hussain v. State of Jammu and Kashmir : AIR1971SC62 (supra), we approve of the view taken by M. B: Sharma. J. in Kana v. State 1980 Cri LJ 344 (Raj) (supra).

30. For the reasons stated above our answers to the two questions are as already reproduced supra.

31. We answer the reference accordingly.


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