LexSTATE OF BIHAR versus KAMESHWAR PRASAD VERMA
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2 s.c.R.
SUPREME COURT REPORTS
183
STATE OF BIHAR
fl·
KAMESHW AR PRASAD VERMA
(J. L. KAPUR, K. C. DAs GUI'TA
and
RAGHUBAR DAYAL, JJ.)
HoheaB Oorpus-Release and rearrest-Legality-Princi-
ples applicable-Code of Criminal Procedure, 1898
(V of 1898), s. 491.
Bipat Gope was convicted under ss. 323 and 324 read
with s. 511 of the Indian Penal Code and sentenced to six
months rigorous imprisonment by the High Court on appeal
against acquittal, but, was not taken into custody and on the
ground of serious illness was kept in the Hospital under Armed
Guards. On application moved by the respondent and on
' recommendation of the medical authority he was released by
the District' Magistrate under the Jail Manual Rules. The
Appellant contended that his release was conditional under
r, 549 of the Jail .Manual Rules, which was challenged by the
respondent. A nonbailable warrant for arrest was issued
against him upon which he moved the High Court under
Art. 226 of the constitution and was directed to appear at the
preliminary hearing. He presented an application before the
District Magistrate praying for his appearance and an oppor-
tunity to , present his case before the High Court.
The.
District Magistrate passed no order but from the respondent's
petition in the High Court, it appeared that Senior Deputy
Collector, Patna, ordered his arrest and sent him to jail and
his petition in the High Court was withdrawn. The High
Court allowed the respondent's petition and ordered his
release from custody. The High Court held, that the order of
release 'passed by the District Magistrate was an uncondi·
tional release and therefore, he could not be rearrested.
Against that. order, State came In appeal by special leave.
The appellant contended that the release must have been
under Rule 549 of the Jail Manual Rules and not under any
other rule.
·
Held, that the State did not make it clear under which
rule he was released and under what lawful authority he was
rearrested and thus _in absence of such Ia:wful authority, the
detention was illegal and the appeal must fail.
.
EshU{lbayi Eleko v. Officer Adminis!M'ing the Government'
of Nig•ria and Anr.,(1931) A. C. 662, applied.
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1962
Stat~ of Bi,~•r • .
v.
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184 ·
SUPREME COURT REPORTS-(1963]
CnnuNAL APPELLATE JURISDICTION : Criminal
AppealNo. 242 of 1960.
Ki1111uhw"' Pr.;Jad
Vnm•
Appeal by special leave from the judj!ment ·{
.and o;der ,dated'June 2, 1958, of the Patna High
Court m Cr. 1\Iisc. J:!.4/G8 •
. S. P. Verma for the '1ppel!ant.
A. -S .. R. Chari, D. P. Singh, R. K. Garg, S.C • .
Agarwal, and M. K. Ramamurthi, for the respon- ·
. dent.
·
1962. April 17.· The Judgment of the· Court
·was delivered by
·. _
. ·
.
KAPUR, J.-The State of Bihar has brought
. this appeal against the judgment and order of the
. High Court of Patna and it arises·out of proceedings
under. Art. 226 of the Constitution ana;s. 491 . of the
Criminal Procedure Code for.a writ of habeas corpus
·in the matter of detention of one Bipat Gope. The ·
present respondent was the petitioner in . the High
Court..
·
Bipat Gope, a resident of the district' of Patna,
· .. was convicted under s 323 & ~· 324 read with s. 511. ·
of the Indian Penal Code and. sentenced on
November 29,
1957, to six months' rigorous
imprisonment by the High Court on appeal against
acquittal under s. 417 of the Code of ·criminal
Procedure but he was not taken into custody till
January 6, 1958 and even then he was kept .under
armed guard in the Patna l\Iedical College Hospital
· . in one of the paying wards, on the ground that he
was seriously ill. On an application by the respon·
dent and on the recommendation of the appropriate·
medical authority Bipat Gope was released · by the
District 1\Iagistrate on 1\Iarch II; 1958 under the
rule•. ot the Jail Manual wh~n his unexpi~ed period
of imprisonment wa8 four months and three days.
The contention of tho appellant State is that he was
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2 s.c.R.
SUPREME COURT REPORTS
185
released under R. 5i9 which is the rule providing
for conditional release of prisoners but the respon-
dent challenges the factum of release under this
Rule·. The sureties for Bipat Gope were called upon
to produce him but as they had failed to do so
notices were issued to them by an order dated
April 27, 1958, to show cause why their surety bonds
6hould not be forfeited. By the same order non-
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