LexGOURI SHANKAR JHA versus THE STATE OF BLHAR AND ORS.
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129
GOUR! SHANKAR JHA
v.
THE STATE OF BlllAR AND ORS.
January 20, 1972
(J. M. SHELAT AND ff. R. KHANNA, JJ.]
Habeas ('orpus-Reniand order-Mcgistrate can pass Order if for some
reason the accused cannot he productd--Order sheet showing lvrongly that
person in custody was produced before magistrate-Such wrong entry does
not 1nean that renuznd order was not in fact oasstd •
. Code of Criminal Procedure, 1898-Ss. 167, 344-Scope of-Power
under s. 34 can1bt exercised even lnjore submission of charge-shtet.
Jn the appeal against the order of the Hiah Court dismissing the appel-
lant's petition for a writ of habeas corpus the appellant urged that be
was not produced before a magistrate within 24 hours after biJ arrest as
required by s. 167 of the Code of Criminal Procedure or even ·later; that
he was never informed of the grounda for his arrest; that no custody
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warrant was ever issued warran\ing the jail authorities to keep the appeal-
lant in jail custody; that the remand P.rders passed by the magistrate were
under s. 167 and not under s. 344 !>f the Code, as the latter section did
not apply at the stage of investigation and that even if s. 344 applied the
magi>tiate could not order detention for more than JS days in the whole.
He also urged that the Jail Superintendent did not prbduce befo!e the High
Court the jail records but only produced his report. thus disabling the
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appellant from establishing his case.
Dismissing the appeal,
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HELD : ( 1) The order sheet produced before the Hifh Coo.rt showed
that the appellant wa< produced before the magistrate within 24 llours after
his arrest and that the magistrate remanded him to jail custody. Tilough
the order sheet had entries showing that on subsequent occasions when
remand orders were made the appellant wa produced before the magistrate,
the High Court has found that the Magistrate had wrongly recorded that
the appellant was produced before him on those occasions. However, the
wron,11 entries made by him do not mean that the remand orders were not
in fact passed by him though he did so in the absence of the appellant;
Such orders can be lawfully passed if an accused person caMot for some
reason or the other be brought before the magistrate. [134 E-FJ
Raj Nt:rain v. S1tf.trintelllle111, Central Jail, New Delhi, Writ Petition
No. 330 of 1970, decided on Sept. 1, 1970, referred to.
(ii)
The facts negative the suggestion of the appellant being kepi in
ignoranee of the reasons for his arrest. [135 Fl
(iii) There is no reason to think that the magistrate ord.ered the appel-
lant to be taken into jail custody without custody warrant. [ 136 A]
(iv) S. 167 operates at a stage when a person is arrested and either
an hlvestiption has started or is yet lo start, but is such that it cannot be
completed within 24 hours. Section 344, on the other·band, ahowa that
investiption has already begun and sufficient evidence has been obtained
raising a suspicion that the accu"'d person may have committed the offence
130
SUPREME COURT REPORTS
[1972] 3 S.C.R.
and further evidence may be obtained, to enable tbe polioe to d\) which,
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a remand to jail custody is necessary. The fact that s. 344 occurs in the
Chapter dealing with. inquiries and trials does not mean that it does not
apply to cases in which the process of investigation
and collection of
evidence is still going on. Therefore, it is not as if the stage at which tbe
Magistrate passed the remand orders was still the stage when s. 167 applied
and not s. 334. The Magistrate, provided he complied with tbe condition
to the Explanation, was competent to pass remand orders from time to
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time subject to each order being not for a period exceeding 15 days. The
Magistrate had satisfied that tondition.
[136 GJ
View contra in Artatran v. Orissa AIR 1956 Orissa 129 disapproved.
A 'Lakshamanrao v. Judicial Magistrate, A.LR. 1971 S.C. 186, Chan-
araattr v Slate, (1953) 3 B.L.J.R., 323 and Ajit Singh v. State, (1970) 76
Crl.L.H. 1075, referred to
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The appellant was content with the production of the superintendent's
report.
No prejudice was caused to the appellant's case since the jail re-
cord could not have proved anything more than what the jail Sliperinten·
dent's report proved.
CRIMINAL APPELLATE JTJRISDICTION : Criminal Appeal No.
123 of 1968.
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Appeal by special leave ftom the judgment and order dated
May 3, 1968 of the Patna High Coun in Criminal W.J.Excerpt shown. Read the full judgment & AI analysis in Lexace.