Full Judgment Text
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PETITIONER:
MANTOO MAJUMDAR & BASDEV SINGH
Vs.
RESPONDENT:
STATE OF BIHAR
DATE OF JUDGMENT27/02/1980
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
GUPTA, A.C.
PATHAK, R.S.
CITATION:
1980 AIR 847 1980 SCR (2)1105
1980 SCC (2) 406
ACT:
Code of Criminal Procedure 1974-Section 167(2)-Accused
persons detained in prison for over six years without
investigation or framing of charges-Legality of.
HEADNOTE:
The two petitioners have been imprisoned for seven
years in various prisons on the basis that they were
implicated in several cases of 1971 and 1972. In their
habeas corpus petition they impugned their continued
detention in prison without trial.
Allowing the petition,
^
HELD : The petitioners should be released forthwith.
[1109E]
(1) Section 167(2) of the Code of Criminal Procedure
empowers the magistrate to authorise the detention of an
accused in such custody as he thinks fit for a term not
exceeding 15 days in the whole. The section also provides
that no magistrate shall authorise the detention of the
accused person exceeding 90 days in grave cases and 60 days
in lesser cases, and that on the expiry of the said period
the accused shall be released on bail if he is prepared to
and does furnish bail. [1108H]
(2) Apart from mentioning the sections in the Penal
Code by way of a passport into the prison house, there is no
mention of any investigation of the cases, nor was a charge
sheet laid before the court against either accused. Even the
Magistracy have bidden farewell to their primary obligation.
[1108E]
(3) Although in these cases many years have passed the
magistrates have been mechanically authorising repeated
detentions unconscious of the provisions of law. [1109B]
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 1149 of 1979.
(Under Article 32 of the Constitution.)
V. N. Ganpule for the Petitioners.
U. P. Singh for the Respondent.
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The Judgment of the Court was delivered by
KRISHNA IYER, J.-No Constitution nor Code nor Court can
interdict illegal incarceration where conscientized agencies
of the law at the grass-roots level are absent. Such is the
only explanation for the lawless lot of the two prisoners
who are petitioners before us. These two humans sojourning
for long years in some jail or other in Bihar since 1972
found their personal liberty subverted by the police, prison
officials and the magistracy that they wrote letters to the
Hon. Chief Justice in desperation. The above habeas corpus
petition is a legal
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incarnation of those letters. Sensitized by the prima facie
hideous facts disclosed the court directed a rule to issue.
Somehow, despite several adjournments the State did not even
furnish the basic facts about the imprisonment of the
petitioners, the offences for which they were kept in
judicial custody, for how long and at what stage were the
proceedings and the like. This gross indifference of the
Bihar State in regard to citizens deprived of their liberty
for indefinite and prolonged spells is an unconscionable
aspect of that State’s unconcern for human rights. Indeed,
counsel for the State did his level best to get relevant
information. Being at the end of our patience and finding a
helpless counsel, we had to pass an order in the following
terms :
It is noticed that an order dated 17-12-1979
directed jail authorities and District Magistrates
under whose jurisdiction the petitioners are kept in
confinement to explain before 14-1-80 the nature of the
charges against the petitioners, the stage of trial of
each of these cases and the reason for the delay in
proceeding with the trial. It is surprising that
despite communication having been made to them through
the State, counsel for the State represents that telex
message to the concerned District Magistrate and jail
authorities had been sent, but no information has yet
been furnished in compliance with this Court’s order.
We are constrained therefore to issue notice to the
jail authorities and the District Magistrates to show
cause why action for violation of this Court’s
direction should not be taken against them. The Court
will issue notice to be personally served on these
authorities with a direction that they shall appear in
Court in person on 25-2-1980. Counsel for the State
undertakes to furnish the names of the District
Magistrate concerned and jail authorities by 12-2-1980.
Post the matter on 13-2-1980 with office report whether
the counsel has submitted names and addresses of the
authorities concerned as directed above.
When the directive of the court went beyond mere
censorious observations into hint at action against the
defaulting officers, the scene began to change and at the
hearing on February 25, 1980, the Superintendent of the Jail
and the District Magistrate who were in a sense vicariously
responsible for the custodial condition of the petitioners
appeared in person and prayed to be excused for the default
or delay in furnishing vital information about these unfree
individuals. Fuller facts have been furnished by the
Superintendent, Central Jail, suffi-
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cient to enable us to discover the incontestable illegality
of the detention and to direct the release on bail of the
petitioners.
Law is what law does and not what law writes in the
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books beyond the reach of those behind bars. In this
perspective, Art. 21 of the Constitution and s. 167(2) of
the Criminal Procedure Code, are dead letter for each
petitioner. Article 21 guarantees personal liberty in these
terms :-
No person shall be deprived of his life or personal
liberty except according to procedure established by
law.
Section 167(2) of the Criminal Procedure Code contains the
following mandate :
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,
authorise 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) the Magistrate may authorise the detention of
the accused person, otherwise than in the custody of
the police, beyond the period of fifteen days, if he is
satisfied that adequate grounds exist for doing so, but
no Magistrate shall authorise the detention of the
accused person in custody under this paragraph for a
total period exceeding-
(i) ninety 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;
(ii) sixty days, where the investigation relates
to any other offence,
and, on the expiry of the said period of ninety days,
or sixty 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 released on bail under
this sub-section shall be deemed to be so released
under the provisions of Chapter XXXIII for the purposes
of that Chapter;
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(b) no Magistrate shall authorise detention in any
custody under this section unless the accused is
produced before him;
(c) no Magistrate of the second class, not
specially empowered in this behalf by the High Court,
shall authorise detention in the custody of the police.
In Maneka Gandhi’s case and a crop of cases thereafter
this Court has emphasised the need for fair procedure to
justify detention of persons. To put a man in prison and
forget his personhood thereafter, to deprive a man of his
personal liberty for an arbitrary period without monitoring
by the law, to keep a man in continued custody unmindful of
just, fair and reasonable procedure-these shake the faith in
the rule of law and militate against the mandates of Part
III of the Constitution. And yet, that is precisely what has
happened in the present case.
The frightful facts frankly furnished in the return
filed are that the two petitioners have been enduring
incarceration for over seven years in various prisons in
Bihar on the basis that they are implicated in several cases
of 1971 and 1972. A long list has been annexed to the
counter-affidavit. But what scandalises us is that apart
from mentioning the sections in the Penal Code by way of a
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passport into the prison house, there is no mention of any
investigation of the case, nor a single charge-sheet laid
before the court against either accused. What flabbergasts
us is that even the magistracy have bidden farewell to their
primary obligation, perhaps, fatigued by over-work and
uninterested in the freedom of others. If we see the chart
produced by the Superintendent of the Jail we find that a
large number of dates are given on which the prisoners have
been produced before the magistrates concerned from 1973 to
1980 without so much as the court checking up whether the
investigations have been completed, charge-sheets have been
laid and there is justification for keeping the petitioners
in custody.
Section 167(2) which we have extracted above, empowers
the magistrate to authorise the detention of an accused in
such custody as he thinks fit for a term not exceeding 15
days in the whole. More importantly, there is a precious
interdict protective of personal freedom which states that
no magistrate shall authorise the detention of the accused
person exceeding 90 days in grave cases and 60 days in
1109
lesser cases. "On the expiry of the said period....the
accused person shall be released on bail if he is prepared
to and does furnish bail...." Not 60 days but six years have
passed in the present case; not 90 days but 1900 days or
more have passed; and yet, the magistrates concerned have
been mechanically authorising repeated detentions
unconscious of the provisions which obligated them to
monitor the proceedings which warrant such detention. In
short, the police have abdicated their function of prompt
investigation. The prison staff have not bothered to know
how long these internees should be continued in their
custody and, most grievous of all, the judicial officers
concerned have routinely signed away orders of detention for
years by periodically appending their incarceratory
authorisations. We know not how many others are languishing
in prison like the petitioners before us. ’If the salt hath
lost its savour, wherewith shall it be salted ?’ If the law
officers charged with the obligation to protect the liberty
of persons are mindless of constitutional mandates and the
code’s dictates, how can freedom survive for the ordinary
citizen ?
We must record our deep appreciation of Shri Ganpule
who has appeared amicus curiae and proceed further to
register our profound satisfaction at the fair and frank
statement made by Shri U. P. Singh for the State who rightly
pointed out that the continued detentions in the face of s.
167(2) were indefensible.
We direct the release forthwith of the two petitioners
on their own bond without sureties. This Court has held in
earlier cases that bail does not involve a necessary
component of sureties. We, therefore, direct that on taking
the personal recognizance from the petitioners, both of them
will be set free subject to such other legal proceedings
that the State may take if so warranted.
We have stated earlier that in the population of
prisoners there may be many other whose legal illiteracy and
pecuniary indigence may have forbidden their moving this
Court or the High Court by way of habeas corpus petition. It
is a bad state of affairs when we see the Bihar State being
oblivious or callous to the prisoners whom it is
warehousing. For what purpose, one knows not. It may be an
act of penitence on the part of the authorities of the state
and also of cleansing of conscience if only a special
officer with judicial experience or other law officer
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familiar with criminal justice were appointed to make an
extensive survey and study all the cases of prisoners to
find out whether illegal custody has become a large scale
phenomenon. After
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all, the State is also the guardian of the people’s freedom
and must, activist fashion set in motion measures to enlarge
those prisoners who are held in custody without the warrant
of fair procedure.
With these directions we direct the release of the
petitioners on their own bonds in a sum of Rs. 1,000/- each.
P.B.R. Petition allowed.
1111