IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.160 of 2009 Venkatesh Kumar Pandey s/o late Dwarika Nath Pandey, r/o New Godown, Maharani Road, Pahasi pakka Field, P.S.- Kotwali, District – Gaya, Bihar …….. Petitioner Versus 1. State Of Bihar 2. Chief Secretary, State of Bihar, 3. D.G.P, State of Bihar, 4. Dy.I.G. of Police, Magadh Range, Gaya 5. S.P., Gaya 6. Officer-in-charge, Tekari P.S., Gaya 7. Officer-in-charge, Muffasil P.S., Gaya 8. Officer-in-charge, Kotwali P.S. Gaya ………… Respondents ----------- For the petitioner: Mr. Kumar Dhirendra Pratap Sigh, Advocates For the respondents: Assistant Counsel to SC XVIII P R E S E N T Hon’ble the Acting Chief Justice & Hon’ble Mr. Justice Kishore K. Mandal --- C.K. Prasad, ACJ & K.K. Mandal, J. This writ application has been filed for issuance of a writ in the nature of habeas corpus to set the petitioner at liberty. Short facts giving rise to the present application are that the petitioner is an accused in Muffasil P.S. Case no.173 of 2008. He was arrested on 9.9.2008 but produced beyond 24 hours before the Magistrate on 11.9.2008 and - 2 - remanded to judicial custody. According to the petitioner as he was not produced within 24 hours of his arrest, his initial order of remand is illegal and consequently detention unlawful. Mr. Kumar Dhirendra Pratap Singh appearing on behalf of the petitioner contends that the initial order of remand having been passed beyond 24 hours of his arrest, the order of remand is illegal and hence the writ in the nature of habeas corpus deserves to be granted to set the petitioner free. In support of the submission reliance has been placed on a Division Bench judgment of this court in the case of Arvind Kumar vs. The State of Bihar, 2005(1) PLJR 117, and our attention has been drawn to paragraphs 10 & 11 of the judgment which read as follows: “But, when a simple question was put to the State Counsel (Additional Advocate General II and Government Advocate), as to how Arvind Kumar was detained in custody beyond 24 hours they candidly made a statement before the court that they cannot justify as the fact of the matter is that the person detained (Arvind Kumar) was not produced before the Magistrate within 24 hours and remained in policy custody beyond the Constitutional right given to the citizen under Article 22 and the legal protection under section 167 of the Code of Criminal Procedure, 1973. This court will always stand by a citizen’s constitutional guarantee that upon arrest he has to be produced before the Magistrate within 24 hours. This constitutional guarantee cannot be compromised . These are bad. Whenever a citizen is taken into custody he must have an opportunity to make a submission before - 3 - the Magistrate face to face when produced for being remanded to custody.” Reliance has also been placed on a Division Bench judgment of this Court in the case of Mahesh Kumar vs. The State of Bihar & Ors., 2008 (2) BLJ 135, and our attention has been drawn to paragraphs 10 to 13 of the judgment, which read as follows: “That being the position, despite honest efforts made by a Police Officer arresting a person, if he can not produce the arrested person before a Magistrate within the time as mentioned in sub-article (2) of Article 22 of the Constitution of India, the detention of the person in police custody beyond the time mentioned in sub-article (2) of Article 22 of the Constitution of India, as repeated in Section 57 of the Code of Criminal Procedure, 1973 becomes illegal, being violative of fundamental right of a citizen. The question is when by a remand order issued under Section 167 of the Code of Criminal Procedure, 1973, the detention or arrest of a citizen beyond the permissible limit prescribed by sub- article (2) of Article 22 of the Constitution is extended, what is the effect thereof. A Division Bench of this Court in the case of Sri Arbind Kumar vs. The State of Bihar & Ors., reported in 2005(1) PLJR 117 has held that such an order of remand is also vitiated. In the circumstances the petitioner as of now detained by the police illegally be set at liberty forthwith.” Assistant Counsel to Standing Counsel – XVIII, however, appearing on behalf of respondents submits that even if the order of remand passed at the initial stage is held to - 4 - be illegal, for issuance of writ in the nature of habeas corpus, the Court is required to see as to whether right now the petitioner is in custody illegally. According to him, even if the earlier order of remand is found to be illegal, in case the petitioner is in custody by virtue of a valid order of remand passed by the Magistrate custody cannot be said to be unlawful and writ in the nature of habeas corpus does not deserve to be issued. In support of the submission reliance has been placed on a judgment of the Supreme Court in the case of Talib Hussain vs. State of Jammu and Kashmir, AIR 1971 SC 62 and our attention has been drawn to paragraph -6 of the judgment which reads as follows: “In regard to the submission that the petitioner was arrested and deprived of his personal liberty long before the order of his arrest and this invalidated his detention, 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.” Reliance has also been placed on a decision of the Supreme Court in the case of Kanu Sanyal vs. District Magistrate, Darjeeling and others, 1974 Cri. L.J. 465 and our attention has been drawn to the following passage of - 5 - paragraph – 3 of the judgment which reads as follows: “These two grounds relate exclusively to the legality of the initial detention of the petitioner in the District Jail, Darjeeling. We think it unnecessary to decide them. 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. Government of India: (1966) 2 SCR 427 = (AIR 1966 SC 816 ). “ 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 the hearing”. In two early decisions of this Court, however, namely, Naranjan Singh v. State of Punjab 1952 SCR 395 = (AIR 1952 SC 106) and Ram Narain Singh v. State of Delhi, 1953 SCR 652 = (AIR 1953 SC 277) a slightly different view was expressed and that view was reiterated by this Court in B.R.Rao v. State of Orissa, AIR 1971 SC 2197 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 Husain vs. State of Jammu & Kashmir, AIR 1971 SC 62 Mr. Justice Dua, sitting as 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 - 6 - issuing a writ of habeas corpus. But, for the purpose of the present case, it is immaterial which of these three views is accepted as correct, for it is clear that, whichever be the correct view, the earliest date with reference to which the legality of detention may be examined is the date of filing of the application for habeas corpus and the Court is not , to quote the words of Mr. Justice Dua in AIR 1971 SC 2197 “ concerned with a date prior to the initiation of the proceedings for a writ of habeas corpus”. Now the writ petition in the present case was filed on 6th January, 1973 and on that date the petitioner was in detention in the Central Jail, Vizakhapatnam.” Having appreciated the rival submission, we do not find any substance in the submission of Mr. Singh and the decisions relied on are clearly distinguishable. It is not in dispute that right now the petitioner is in custody by virtue of a legal order of remand. Initial illegal remand of the petitioner in our opinion itself shall not make his present custody as unlawful entitling the writ of habeas corpus. In our opinion, initial illegality in the order of detention shall not be a ground to issue a writ in the nature of habeas corpus in case later on by virtue of valid order of remand the accused kept in custody. The view which we have taken finds support from the judgments of the Supreme Court in the case of Talib Hussain (supra) and Karu Sanyal (supra) Now referring to the decision of the Supreme - 7 - Court in the case of Arvind Kumar (supra) relied on by the petitioner though held that initial remand was illegal but had not directed for release but the State conceded to set at liberty the person in custody in that case. In the said case further the Court had not gone into the question as to the effect of an illegal order of remand to the liberty of an accused who later on by virtue of subsequent valid order of remand is kept in custody. This would be evident from the following passage of the judgment. “In the circumstances, in the present case, the State Counsel have been good enough to be fair and accept on this habeas corpus petition that Arvind Kumar be set at liberty forthwith.” This Court in the case of Mahesh Kumar (supra) observed that in view of the decision of Arvind Kumar (supra) the latter order of remand is also vitiated. This Court as observed earlier has come to this conclusion without any discussion, solely relying on its earlier decision in the case of Arvind Kumar (supra). In Arvind Kumar (supra) this Court has no where held that the latter order of remand would be vitiated but recorded concession of the State to set at liberty the person in custody. Therefore, what has been said by the - 8 - Division Bench in Mahesh Kumar (supra) relying on the earlier decision in the case of Arvind Kumar (supra) does not flow from that. A Division Bench of this Court later had considered the ratio of the judgments in the case of Arvind Kumar (supra ) and Mahesh Kumar (supra) in Cr.WCJ. No.416 of 2008 (Vinay Chaudhary vs. the State of Bihar through Secretary. DEPA) disposed off on 20.5.2008 and on consideration of the same held those decisions to be distinguishable. In the said case it has been observed as follows: “We are afraid that the contentions advanced by counsel for the petitioner overlook the factual matrix of the case. It is not in dispute that after his arrest on 6.9.2007, the petitioner was produced before the Chief Judicial Magistrate, Sitamarhi on 11.9.2007. It is also not in dispute that on that date the order of remand came to be passed by that court and subsequently the Investigating Officer submitted chargesheet to the concerned court based on which cognizance of a offence under Section 304 B has been taken against the petitioner and the petitioner has been committed to the court of Sessions and the concerned trial Court has now framed charge against the petitioner. In the backdrop of these facts, none of the decisions cited by the counsel for the petitioner has any application and the petitioner’s detention by no stretch of imagination can be said to be illegal as he is confined to judicial custody under the orders of the court of competent jurisdiction.” Any observation made in this order shall have no - 9 - bearing on the application said to have been pending for grant of regular bail. We do not find any merit in this application and it is dismissed accordingly but without any order as to cost. Patna High Court, Patna Dated, the 6th March, 2009 Neyaz/-(AFR) C. K. Prasad, ACJ. Kishore K. Mandal, J.