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1966 DIGILAW 397 (ALL)

Mohammad Aslam Khan v. State of Uttar Pradesh

1966-10-03

GANGESHWAR PRASAD, MAHESH CHANDRA

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JUDGMENT Mahesh Chandra, J. - This is a petition under Article 226 of the Constitution read with Section 491, Code of Criminal Procedure by Mohammad Aslam Khan. On 21-3-1966 at about 5 a.m. the Petitioner was arrested by Sub-Inspector Police Station Deogaon u/s 151, Code of Criminal Procedure. On 22-3-1966 at about 12.30 p.m. according to the Petitioner's case, an application was moved on his behalf that he had been illegally arrested and had not been produced before a Magistrate. At 3 p.m. the same day another application was moved before the Sub-Divisional Magistrate to the same effect alleging that Section 61, Code of Criminal Procedure and Article 22 of the Constitution had been violated. The Sub-Divisional Magistrate started proceedings u/s 117, Code of Criminal Procedure and the report of the arrest u/s 151, Code of Criminal Procedure was also put up before him at the same time. The Magistrate passed an order on 22-3-1966 directing the Petitioner to furnish two sureties of Rs. 2,000/- each and a personal bond in the like amount to keep the peace during the pendency of the proceedings (although he used the words 'preliminary proceedings') u/s 107/117, Code of Criminal Procedure failing which they were ordered to remain under jail custody. On the same date he passed another order on the application of the Petitioner for being released on bail in respect of his arrest u/s 151, Code of Criminal Procedure. He was directed to be released on bail on furnishing two reliable sureties of Rs. 2,000/- each and a personal bond in the like amount subject to the compliance of the order u/s 117, Code of Criminal Procedure. 2. The Petitioner contends that his detention is in violation of Article 22 of the Constitution of India and Section 61, Code of Criminal Procedure and that he is entitled to be released. 3. It appears that on 18-3-1966 the Additional Sub-Divisional Magistrate Lalganj, acting u/s 114, Code of Criminal Procedure, required the Petitioner to show cause why he should not be ordered to execute a personal bond of Rs. 5,000/- with two reliable sureties each to keep the peace for a period of one year. This order was read over and explained to the Petitioner on 22-3-1966. 5,000/- with two reliable sureties each to keep the peace for a period of one year. This order was read over and explained to the Petitioner on 22-3-1966. In his order dated 22-3-1966 the Magistrate mentioned that Sri Ram Shanker Misra SI had reported that there was imminent danger of breach of peace if the Petitioner and his companions are not bound down u/s 117, Code of Criminal Procedure during the pendency of the proceedings and that he was satisfied that it was absolutely necessary to bind these persons during the pendency of the proceedings to avoid breach of the peace. Consequently he directed the Petitioner (and also his companions) to furnish two sureties of Rs. 2,000/- each and a personal bond in the like amount to keep the peace daring the pendency of the proceedings as already mentioned. 4. The contention of the learned Counsel for the Petitioner is that the enquiry u/s 117, Code of Criminal Procedure had not started and that such an order for furnishing of sureties and a personal bond during the pendency of the proceeding; could not possibly be passed. 5. The Petitioner himself stated in paragraph 8 of the petition that proceedings u/s 117, Code of Criminal Procedure had been started against him. This was verified in paragraph 2 of the affidavit which says that the contents of paragraph 8 of the petition were true to his personal knowledge. The Petitioner himself had thus come to Court with the case that proceedings u/s 117, Code of Criminal Procedure had been started against him. The Magistrate had, therefore, the power to direct the Petitioner to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry and could detain him in custody until such bond, was executed or, in default of execution, until the inquiry was concluded. 6. The next contention was that the Magistrate had not complied with the provisions of Sub-section (3) of Section 117, Code of Criminal Procedure inasmuch as he had not recorded his reasons in writing for directing the Petitioner to furnish sureties and personal bond. The order of the Magistrate says that the sub-Inspector Sri Ram Shanker Misra had reported that there was imminent danger of the breach of peace if the Petitioner and his companions were not bound down during the pendency of the proceedings. The order of the Magistrate says that the sub-Inspector Sri Ram Shanker Misra had reported that there was imminent danger of the breach of peace if the Petitioner and his companions were not bound down during the pendency of the proceedings. He considered this matter and on being satisfied that it was absolutely necessary to bind the Petitioner and his companions during the pendency of the proceedings to avoid breach of peace, he passed the order. The Magistrate has thus recorded his reasons for the direction to the Petitioner to furnish sureties and a personal bond. 7. The order cannot, therefore, be said to be against the provisions of Sub-section (3) of Section 117, Code of Criminal Procedure. The surety bonds and the personal bonds had been furnished on the date of the return. The bonds furnished were only to the effect that the Petitioner would not commit breach of peace during the pendency of the enquiry. After the bonds had been furnished he was no longer in the custody of the Court and the furnishing of such bonds is only for keeping the peace or maintaining good behaviour until the conclusion of the enquiry and under these bonds the Petitioner cannot be said to have been in the custody of the Court on the date of the return. In Naranjan Singh Nathawan Vs. The State of Punjab, AIR 1952 SC 106 it was held that "in habeas corpus proceedings 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 date of the institution of the proceedings". This proceeds on the principle that it is the state of affairs existing on the date of the return which is to be taken into consideration and not what it was on the date of the institution of the proceeedings, when under the bonds executed he was not under the custody of the Court and had been only required to keep the peace, the order passed by the Sub-Divisional Magistrate under Sub-section (3) of Section 117, Code of Criminal Procedure does not call for any action in these habeas corpus proceedings. 8. 8. As far the other order passed on the same date which mentioned his release on bail it is obvious that under this other order he continues to be in the custody of the Court during the period he is on bail. It was held by this Court in Zahir Ahmad v. Ganga Prasad 1962 AWRJ 543 that although after bail is granted the person is no longer in physical custody in the sense of being in a prison, but it is difficult to say that he had liberty of action or even complete liberty of movement. It was further held that taking into consideration the provisions contained in Sections 499, 500, 502, 514 and 367(4) of the Code of Criminal Procedure it was clear that whereas a person released on bail was not in physical confinement he still remained under the control of the Court and notionally in the custody of the Court and that the persons, who were his sureties, were only the agents of the Court and that consequently even a person, who had been temporarily let out on bail could present an application for a writ of habeas corpus Under Article 226 of the Constitution. 9. The present order of the Magistrate was passed on an application of the Petitioner himself in which he had mentioned his arrest u/s 151, Code of Criminal Procedure and had requested for release on bail. It is clear from this application and the order which is passed on the back of the application that the order for his release on bail related to his arrest u/s 151, Code of Criminal Procedure. Section 151, Code of Criminal Procedure runs as follows: A police-officer knowing of a design to commit any congnizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented. It provides that the police-officer may arrest a person on knowing of a design to commit a cognizable offence. This provides merely for an arrest and not for any detention, vide Shravan Kumar Gupta v. The Superintendent District Jail Mathura and Ors. 1957 AWR 14 . It provides that the police-officer may arrest a person on knowing of a design to commit a cognizable offence. This provides merely for an arrest and not for any detention, vide Shravan Kumar Gupta v. The Superintendent District Jail Mathura and Ors. 1957 AWR 14 . The provisions of Section 167, Code of Criminal Procedure also permit a Magistrate only to order remand to custody when the case related to an offence of cognizable or non-cognizable offence being investigated and the order is during which the investigation remains pending. As held in Shravan Kumar Gupta's case (supra) Section 167, Code of Criminal Procedure could not apply as there was no allegation at all that the Petitioner had committed any offence. There was no question of ordering his release on bail when he could only be arrested and not detained u/s 151, Code of Criminal Procedure. 10. The contention on behalf of the State is that this order of release on bail was passed in connection with the proceedings u/s 117(3), Code of Criminal Procedure. This contention is without force in view of the clear contents of the application on which the order was passed. The application related to the arrest u/s 151, Code of Criminal Procedure and the order passed also related to that very arrest. 11. It was next contended that the reference at the end of the order to the compliance of order u/s 117, Code of Criminal Procedure showed that this order was passed u/s 117(3), Code of Criminal Procedure. This contention is also without force. It was necessary because the order for furnishing of sureties and personal bond to keep the peace and to be of good behaviour during the pendency of the enquiry had already been passed and the Magistrate did not intend to modify his earlier order. 12. Nor can the request of the Petitioner to release him on bail from an arrest u/s 151, Code of Criminal Procedure, justify the order on bail. For, even if an application is made by the Petitioner without knowing his legal position it was for the Magistrate to pass a correct order. The mere request of the Petitioner would not enable the Magistrate to detain him in custody or to pass an order which would amount to his virtual detention in custody. 13. For, even if an application is made by the Petitioner without knowing his legal position it was for the Magistrate to pass a correct order. The mere request of the Petitioner would not enable the Magistrate to detain him in custody or to pass an order which would amount to his virtual detention in custody. 13. The order of the Magistrate directing Applicant's release on bail for appearance on furnishing sureties and personal bond is accordingly held to be illegal and the habeas corpus petition is allowed to the extent that the Applicant will not be deemed to be in the custody of the Court and will not be considered to be on bail. This order will not affect the bonds furnished by the sureties and the Petitioner u/s 117(3), Code of Criminal Procedure for keeping peace.