KANU SANYAL versus DIST. MAGISTRATE, DARJEELING & ORS.

Citation: [1974] 3 S.C.R. 279 · Decided: 05-02-1974 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Dismissed
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Judgment (excerpt)

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279 
KANU SANYAL 
v. 
DIST. MAGISTRATE, DARJEELING & ORS. 
February 5, 1974 
[P. N. BHAGWATI AND P. K. GOSWAMI, JJ.J 
Constitution of India, 1950, Art. 32-Petition for the issue of writ of 
habeas corpus-Date with reference to which legality of detention 1nay be 
tested. 
Priso11ers (Attendant:e in Courts) Act, 1955 s. b and its proviso-Scope 
of. 
The petitioner was remanded to the District Jail, Darjeeling, in connection 
with certain offences. Thereafter, two charge sheets were filed against him 
and others for various offences under the I.P.C., which were triable exclusively 
by a Sessions Court, before the Special Magistrate, Visakhapatnam, '.fhe 
Spe·cial Magistrate issued a warrant for the production of the petitioner in 
his Court, under s. 3(2) of the Prisoners (Attendance in Courts) Act, 1955, 
and the officer in charge of the Dt. Jail Darjeeling, sent the petitioner to 
the Court of. the Special Magistrate, Visakhapatnam. The petitioner was then 
remanded to t.he Central Jail. Visakhapatnam, pending the disposal of the 
committal proceedings. 
In a petition for· the issue of a writ of habeas corpus, the petitioner con-
tended that his initial detention in the Dt. Jail, Darjeeling, was illegal, be-
cause, (l)(a) it was violative of Art. 22(1), (b) the concerned Magistrace in 
Darjeeling had no jurisdiction to try the Offences in connection with which 
be was detained in Darjeeling and hence could not order detention beyond 15 
days; 3.nd (2) the officer In charge of the Dt. Jail, Darjeeling should have 
refused to comply with the warrant for production issued by the Special 
Magistrate, Visakhapatnam, by reason of s. 6 of the Prisoners (Attendance 
in Courts) Act. 
• 
HELD·: ( 1) As regards the earliest date With reference to 
which 
the 
legality of detention challenged iri.- a habeas corpus proceeding may be - exa~ 
.mined, there are 3 views, namely, (a) that it is the date on which the 
application for habeas corpus is made to the Court, (b) that it is the date of 
the return, and (c) that it is the date of hearing. Whichever be the correct 
view, the earliest of the dates would be the date of filing of the application 
for habeas corpus. In the present case, the application was filed after the 
petitioner was ordered to be detained in the jail at Visakhapatnam. Assuming 
that there was some infirmity_ in the detention in the jail at Darjeeling, that 
cannot irlvalidate the subsequent detention of the petitioner in the jail at 
Visakhapatnam. The legality of the detention at Visakbapatnam has. to be 
judged on its owp. merits. Therefore, it is unnecessary to examine the' legality 
of the detention of the petitioner in the jail at Darjeeling. [283 D-284 CJ 
(2) Under s. 3(1) of the Prisoners (Attendance in Courts) Act, the order 
contemplated is an order by a civil or criminal court, for· the production of a 
detained person for. giving evidence. 
But the order contemplated, by s. 3(2) 
is an . order of prqduction of a person for answering a charge in a criminal 
court. Under s. 5, when an order of production is made under s. 3(1) or 
(2), tJie officer in charge of a prison shall cause the detained Person to be 
taken to the court where his attendance is required. Under s. 6, such officer 
shall -abstain 'from complying with the order of production in certain circum-
stances. 1'.he pi'oviso to the sCctio'n carves out an exception if the 3 conditions 
foi' its applicability, laid down in the proviso, are satisfied. _The 
first 
con~ 
dition is that ~ order of production should be by a criminal court and the 
~nd is that tlfe detained person should not be unfit to be removed, and the 
280 
SUPREME COURT REPORTS 
I 19741 3 s.c.a. 
!bird is that the plaoc where the evidence of the detained person is required 
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1s not more than S miles from the priso.n where he is confined. 
(285 A-0] 
In the present case, the first two conditions are satisfied. The 3rd condi-
1ion can have nO application where an order is made by a criminal court under 
'8. 3(2) requiring ·production for answering a charge. 
The fulfilment ot the 
first two conditions would, in such a case, be sufficient to attract the appli· 
cability of the Proviso, and to take the case out of s. 6. Therefore, the 
officer in charge of the jail at Darjeeling waS bound to send the petitioner 
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·to the Co.urt at Visakhapatnam and he· acted according to law. 
The subsequent 
detention in the jail at Visakhapatnam pending trial must
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