Subhash Bhandari v. State of U. P. — 1986 DIGILAW 683 (ALL)

Judgment Kamleshwar Nath, J. 1. WRIT petition No. 5480 of 1986 is the regular writ petition of Subhash Bhandari, on whose behalf a telegram was received in this Court which led to WRIT Petition No. 5397 of 1986. The writ petition of Kamlesh Pratap Singh raises common questions with the writ petitions of Subhash Bhandari ; hence they have been taken up together for disposal. 2. ON 10-8-86 at about 10.45 p. m. a criminal case crime no. 905 of 1986, for offences under Section 307 IPC and Section 3 U. P. Gangesters and Anti- Social Activities (Prevention) Act, 1986 (hereinafter called Gangesters Act), was registered against petitioner Subhash Bhandari and Kamlesh Pratap Singh at P. S. Hazratganj, Lucknow, on the report of one Surya Kumar Verma. A police force, including S. I. Chhote Lal Tewari of P. S. Hazratganj, arrested both the petitioners from their houses in the night between 10/11-8-86 between 1 and 2 a. m. ON 11-8-86 both the petitioners were produced before the Additional City Magistrate, Lucknow. The Additional City Magistrate passed an order, under Section 167 (2) Cr. P.C., remanding both the petitioners to jail custody upto 10-10-86. The custody of both the petitioners, in pursuance of that order of remand, has been challenged as illegal in these writ petitions. Counter affidavits, rejoinder affidavits, supplementary counter affidavits and supplementary rejoinder affidavits have been exchanged between the parties. The relevant facts were not fully set out in the writ petitions initially, but they have been brought out with the aid of the affidavits which have been exchanged between the parties. They may be stated briefly as hereunder. 3. BOTH the petitioners, among others, were detained under the National Security Act, against which their writ petitions were dismissed by this Court in the year 1985. The petitioners filed petitions for special leave to appeal, as well as habeas corpus petitions before the Hon'ble Supreme Court. In July, 1985 both the petitioners were granted bail pending disposal of the said appeal/writ petition in the Supreme Court. Some time, after release on bail, Subhash Bhandari was again arrested, and shortly thereafter released on bail by the concerned Magistrate. Subhash Bhandari then filed a petition in the Hon'ble Supreme Court for punishment of the concerned police officers for committing contempt of Court of Hon'ble Supreme Court. Some time, after release on bail, Subhash Bhandari was again arrested, and shortly thereafter released on bail by the concerned Magistrate. Subhash Bhandari then filed a petition in the Hon'ble Supreme Court for punishment of the concerned police officers for committing contempt of Court of Hon'ble Supreme Court. HONOURABLE Supreme Court directed the Sessions Judge of Lucknow to make an enquiry into and submit a report on the facts surrounding the contempt petition and directed that in the meantime investigation into any offence, which may be alleged to have been committed by Subhash Bhandari, be conducted under the supervision of the Senior Superintendent of Police, Lucknow. 4. IN compliance of the orders of the Hon'ble Supreme Court, a Criminal Contempt Enquiry Case No. 16 of 1986 was registered in the Court of Sessions Judge of Lucknow in which certain persons, including both the petitioners, were to be examined as witnesses. The statement of petitioner Kamlesh Pratap Singh had been recorded. The allegation of petitioner Subhash Bhandari that his statement had already been recorded in part and that the remaining part was to be recorded on 11-8-86 in the Court of Sessions Judge, Lucknow, has not been specifically denied on behalf of the opposite parties. The petitioners' case is that they were suddenly arrested by the opposite parties in the night between 10/11-8-86. They were not informed of the grounds of their arrest as required under Section 50 Cr. P.C. and Article 22 (1) of the Constitution of India. 5. IT is pointed out that investigation of the alleged offence against Subhash Bhandari was not done under the supervision of the Senior Superintendent of Police, Lucknow, despite the orders of Hon'ble Supreme Court as indicated above. 6. P.C. and Article 22 (1) of the Constitution of India. 5. IT is pointed out that investigation of the alleged offence against Subhash Bhandari was not done under the supervision of the Senior Superintendent of Police, Lucknow, despite the orders of Hon'ble Supreme Court as indicated above. 6. ON 11-8-86 both the petitioners were produced in custody in the Court of incharge Sessions Judge Lucknow at 9.50 a. m. (in connection with the enquiry in the contempt case referred to above) ; they were taken back to P. S. Hazratganj at 1.55 p. m. The petitioners' case is that the Special Court constituted under the Gangesters Act, presided over by Sri Inderjit Malhotra, Additional Sessions Judge, Lucknow, who had jurisdiction to try the offences for which the petitioners had been arrested, is located in the same building as the Court of Sessions Judge, Lucknow, but the petitioners were not produced in the Special Court ; on the contrary, they were taken to the court of an Executive Magistrate, namely, the Additional City Magistrate Lucknow, for obtaining remand under Section 167 (2) Cr. P.C. It is urged that the failure to produce the petitioners in the Special Court was arbitrary and malafide. It is next urged by the petitioners that the Additional City Magistrate did not apply his mind to the case at the time of passing the order of remand and ordered detention in judicial custody in a mechanical manner by authorising detention upto 10-10-86 which constitutes a duration of 61 days. The contention is that the Magistrate had no jurisdiction to remand the petitioners for a period in excess of 60 days and, therefore, the order of remand is illegal. 7. IT is further urged by the petitioners that the custody warrant for the detention of the petitioners also was signed by the Magistrate without applying his mind to the case, that the entries made in custody warrant are meaningless, and consequently the petitioners' detention is illegal. 8. 7. IT is further urged by the petitioners that the custody warrant for the detention of the petitioners also was signed by the Magistrate without applying his mind to the case, that the entries made in custody warrant are meaningless, and consequently the petitioners' detention is illegal. 8. ACCORDING to the opposite parties, the petitioners were informed of the grounds of their arrest immediately at the time of their arrest which was recorded in G. D. R. No. 9 dated 11-8-86 at 2.45 a. m., Annexure CA-2, (in the writ petition of Subhash Bhandari), It is stated in the second supplementary counter affidavit that in compliance of the orders of the Hon'ble Supreme Court, directions were given by the Senior Superintendent of Police, Lucknow, on 13-8-86 to the Inspector/Incharge of Hazratganj Police Station regarding the investigation of the crime case in question after perusing the case diaries. 9. IN the matter of non-production of the petitioners in the Special Court, under the Gangesters Act, and production in the Court of Additional City Magistrate, the stand taken by the opposite parties is that the action adopted is not contrary to law. The order dated 11-8-86 of remand has been filed as Annexure-4 with the counter affidavit (in the writ petition of Subhash Bhandari) and it is pointed out that there was proper application of mind by the Magistrate who examined the remand report and the case diary, besides the personal presence of the petitioners before him. It is contended that period from 11-8-86 to 10-10-86 should be computed to Constitute only 60 days, because the day of the order of remand, i. e.11-8-86, must be excluded from the period. 10. IN respect of the custody warrant, the contention of opposite parties is that the errors and omissions, relied upon by the petitioners, are more technical than real, and that in the custody warrants, as they stand, there is substantial compliance of the law. We have heard learned counsel for the parties at Considerable length. On the question of the length of the period of remand, we agree with the contention of the learned counsel for the petitioners that the date on which the order of remand was passed, i. e.,11-8-86, has to be counted within the period. We have heard learned counsel for the parties at Considerable length. On the question of the length of the period of remand, we agree with the contention of the learned counsel for the petitioners that the date on which the order of remand was passed, i. e.,11-8-86, has to be counted within the period. When a person is arrested by a police officer, he may be detained in custody for a reasonable period which must not exceed 24 hours, exclusive of the time necessary for journey from the place of arrest to the Magistrate's court under Section 57 Cr. P.C. The period of detention from the time of arrest to the time of production before the Magistrate, is governed by the provisions of Section 57, read with Section 167 (1) Cr. P.C. Upto that stage, remand is not required to be obtained from a Magistrate. As soon as the prisoner is produced before the Magistrate under Section 167 (1) Cr. P.C., the further custody of the prisioner must be authorised by the Magistrate's order of remand under section 167 (2) Cr. P.C. It is obvious, therefore, that the authorisation for custody, beyond the time of production of a prisoner before a Magistrate, operates from the time of the order of remand, with the result that the period of detention under the remand must start running from the time of the passing of the order of remand under Section 167 (2) Cr. P.C. 11. LEARNED counsel for the petitioners has referred to the case of Prabhu Narain Singh v. Supreintendent, Central Jail, Varanasi, ILR 1961 (1) Allahabad 427 where the period of twelve days in Section 3 (3) of the Preventive Detention Act 1950 was interpreted to include the actual date of the order. He has also relied upon the case of L. R. Chawla v. Murari, 1976 Cr. L.J. 212 where it was held that on grant of a remand under Section 167 (2) Cr. P.C., Proviso (a), of Code of Criminal Procedure, the day on which the custody is granted, cannot be excluded for the purposes of computing the period of 60 days stipulated in the proviso. 12. THE cases of Harinder Singh v. S. Karnail Singh, AIR 1957 SC 271 , Suresh Chandra v. Birdichand, AIR 1965 Raj. P.C., Proviso (a), of Code of Criminal Procedure, the day on which the custody is granted, cannot be excluded for the purposes of computing the period of 60 days stipulated in the proviso. 12. THE cases of Harinder Singh v. S. Karnail Singh, AIR 1957 SC 271 , Suresh Chandra v. Birdichand, AIR 1965 Raj. 229 and I. M. Lall v. Gopal Singh, AIR 1963 Punjab 378 relied upon by the learned Additional Government Advocate, have no bearing upon the question under consideration before us ; they all relate to civil matters and in some of them assistance of General Clauses Act was taken. We may refer to a very recent decision of the Supreme Court in the case of Chaganti Satyanarayana v. State of Andhra Pradesh, (1986) 3 SCC 141 = 1986 AWC 901=1986 A. Cr. R. 521 (2) where it has been clearly laid down that the period of 90 days under Proviso (a) to Section 167 (2) Cr. P.C. has to be computed from the date of remand of the accused. In that case the appellants were arrested on 19-7-85, were produced before a Magistrate on 20-7-85 and the Magistrate remanded the appellants to judicial custody initially for a period of 15 days which was extended from time to time till 18-10-85. The charge sheet was submitted on 17-10-85. The Supreme Court observed in Para 5 that October 17, 1985, was the 90th day of remand. Clearly, the date on which the order of remand was passed, i.e. 20-7-85, and the date on which the charge sheet was submitted, i.e., 17-10-85, were counted to determine the duration of remand. We hold, therefore, that in this case the commencement of the period of remand was on 11-8-86 and the duration of the period of remand continued upto 10-10-86 which in all constituted 61 days. 13. IT may be added that learned counsel for the petitioners has pointed out that in the remand order itself it has been specifically mentioned that the petitioners shall be kept in judicial custody till 10-10-86, signifying that in terms of the order, judicial custody had been authorised by the Magistrate from 11-8-86 to 10-10-86 and, therefore, both the days have to be counted for determining the duration of remand. The contention is Correct. 14. The contention is Correct. 14. AT the same time, we do not agree with the learned Counsel for the petitioners that the order of remand per se was illegal and void simply because the total duration is 61 days. The consistent view in a number of decisions, including those stated by the learned counsel for the petitioners, is that illegality would attach to the period beyond the period which is permissible under the statute. The decision in the case of Prem Raj v. State of Rajasthan, 1976 Cr. L.J. 455 (Rajasthan) held the detention of an accused under Section 167 (2) Cr. P.C. over a period, in excess of 60 days stipulated in proviso (a) to that sub-section, to be illegal beyond the period of 60 days. In the case of Babu Nandan Mallah v. State of Bihar, 1972 Cr. L.J. 423 (Patna) an order remanding the accused for a period in excess of 15 days, under Section 344 (i-A) of the old Code of Criminal Procedure, was held to be illegal for the period beyond 15 days. Both these decisions were relied upon by the learned counsel for the petitioners to show that an order of remand, in excess of the statutory period, is illegal but as pointed out above, the illegality according to these decisions attaches to the period in excess of the statutory period and not to the period of time within this statutory limit. In a Full Bench decision of this Court in the case of Muneshwar State of U. P., 1984 AWC 704 it was observed that the word ' shall ' in th first proviso to Section 309 (2) Cr. P.C. is not mandatory and, therefore, disagreed with the view taken in Babu Nandan's case (Supra), it was held that an order c remand under Section 309 (2) Cr. P.C. for a period in excess of 15 days is no illegal. That view may not be very relevant for the purposes of the present case because we are not examining a remand order under Section 309 Cr. P.C., but remand under Section 167 Cr. P.C. The remand of the petitioners for ft period from 11-8-86 to 10-10-86 cannot be challenged to be invalid for the first 60 days only on the ground that the total period constitutes days. 15. P.C., but remand under Section 167 Cr. P.C. The remand of the petitioners for ft period from 11-8-86 to 10-10-86 cannot be challenged to be invalid for the first 60 days only on the ground that the total period constitutes days. 15. AN extention of the argument of the learned counsel for the petitioner on the matter of the period of remand is that the order of remand has been passed mechanically and without application of mind. Since the period from 11-8-86 to 10-10-86 constitutes 61 days, the learned Magistrate is being considered not to have applied his mind at all. We do not agree. It is admitted that having regard to the provisions of Section 19 (2) of the Gangesters A the reference to 15 days, 90 days and 60 days in Section 167 (2) Cr. P.C. has to construed as 60 days, one year, and one year respectively. That is how to original stipulated period of 15 days in Section 167 (2) Cr. P.C. in connection was offences generally has been enlarged to 60 days in connection with the offence against the Gangesters Act. The noticeable feature is that the period of remand fixed by the learned Magistrate in this case is in terms of dates and not terms of days, i. e.,it is for the period from 11-8-86 to 10-10-86 and not 61 days in terms. It has also been seen that there is a controversy over number of days constituted in the period from 11-8-86 to 10-10-86. For 1 purposes of Section 167 (2) Cr. P.C. it is not at all unlikely that the lean Magistrate thought, even though mistakenly, that the duration which he had fixes really constituted 60 days. It appears to be a case of mistake of law and not non-application of mind. 16. IN the order of remand, Annexure-4, the learned Magisti specifically mentioned that with the remand report and the case diary, both petitioners were produced before him, that he perused them, and that thereafter remand of both the petitioners to judicial custody upto 10-10-86 was extended and they were forwarded to the jail along with custody warrant under Section 167 Cr. P.C. The material which the learned Magistrate Considered obviously included the FIR, the record of the investigation till that time, and the remand report. P.C. The material which the learned Magistrate Considered obviously included the FIR, the record of the investigation till that time, and the remand report. Since the order was passed on a perusal of that material, it cannot be said that the order of remand was made without application of mind. In support of his contention that the petitioners had not bees informed of the grounds of their arrest when they were arrested, in consequence of which there was violation of Section 50 (1) Cr. P.C. and Article 22 (1) of the Constitution of India, it is pointed out by the learned counsel for the petitioners that in the counter affidavit of the arresting officer, namely. Chhote Lai Tewari, Sub- Inspector of Police, P. S. Hazratganj, Lucknow, the fact that the grounds of arrest had been communicated to the petitioners, was not sworn to be true to his personal knowledge. Chhote Lal Tewari's statement is contained in Para 7 of his short counter affidavit dated 13-8-86 where it is specifically stated that " the deponent informed Subhash Bhandari as well as Kamlesh Pratap Singh of the reasons of their arrest. " However, in the verification clause, the contents of that para are stated to be true to his information derived from the records. In Para 13 of his detailed counter affidavit, dated 20-8-86, Chhote Lal Tewari again stated that the petitioners had been informed of the offences registered against them and the grounds of their arrest at the spot whose entry had been made in the General Diary. Again in the verification clause, he stated that the contents of Para 13 of the affidavit were true on the basis of the records. In Kamlesh Pratap Singh's writ petition the same position is set out in Para 6 of the counter affidavit of Chhote Lal Tewari and its verification. It is strange that having said in the short affidavit that he had informed the petitioners, in his detailed affidavit he said that the petitioners had been informed of the grounds of arrest. The verification of these statements not on personal knowledge belies the statement that he had informed the petitioners about the grounds of arrest. 17. THE record consists of a copy of the General Diary Report No. 9 dated 11-8-86 made by Chhote Lal Tewari himself on return to the police station along with the petitioner under arrest. The verification of these statements not on personal knowledge belies the statement that he had informed the petitioners about the grounds of arrest. 17. THE record consists of a copy of the General Diary Report No. 9 dated 11-8-86 made by Chhote Lal Tewari himself on return to the police station along with the petitioner under arrest. It is recorded in this entry that both the petitioners were informed of the offence which had been registered against them and of the grounds of arrest at the spot itself. THE copy of General Diary is Annexure CA-1. 18. LEARNED counsel for the petitioners has relied upon the case of Ram Chandra alias Munai v. Superintendent Central Jail, Lucknow, 1982 LLJ 160 where the custody of the accused was held to be illegal because the court disbelieved the statement of the Sub-Inspector of Police in the counter affidavit of having given information of the grounds of arrest to the accused as a fact true on a perusal of the record. An important feature in that decision is that the General Diary did not contain any entry indicating that the Sub-Inspector who arrested the accused had forthwith communicated to him either the particular of the offence or the grounds of arrest. It is obvious that where a fact is stated to be true on the basis of the record, but the record is not placed before the court, an inference could legitimately be drawn that the statement in the affidavit informing the accused of the grounds of arrest was not reliable. The case, in the matter of Madhu Limaye v. State of U. P., 1969 SC 1014 is of no help to learned counsel for the petitioners because it is obvious from Para 10 of the report that in the return filed by the State, the assertion of the detenu that they were not informed of the grounds of arrest had not been controverted at all. We may refer to the following observations of the Supreme Court in the case of Sadhu Singh v. State, (1978) 4 SCC 428 in Para 7 :- " As is well-known, the entries are made in general diary about all the events that take place in the police station in chronological order and it is ordinarily difficult to fabricate false entries in the general diary. " LEARNED counsel for the petitioners has urged that a mere statement in the counter affidavit or in the General Diary, that the petitioners had been informed of the reasons of their arrest and of the offences registered against them, does not satisfy the requirements of Section 50 (1) Cr. P.C. in the absence of their detail. The contention is that the counter affidavit and the General Diary should indicate the name of the first informant, the date, time and place of the offence, and the offence allegedly committed by the petitioners Reference may be made to certain decisions relied upon by the learned counsel for the petitioners. In the case of Khudiram Das v. State of West Bengal, 1975 SC 550 it was held that the grounds in Article 22 (5) of the Constitution of India mean all the basic facts and material which have been taken into account by the detaining authority in making the order of detention. The case was under the Maintenance of Internal Security Act, 1971. The considerations of a case under the Maintenance of Internal Security Act 1971 are entirely different from the considerations relevant for the purposes of Section 167 Cr. P.C. Indeed, the decision relates to the provisions of clause (5) of Article 22 Constitution of India and not to clause (1) of Article 22 Constitution of India with which we are concerned. It will be noticed that the right to be informed of the grounds of arrest under clause (1) of Article 22, and the right to be produced before the nearest Magistrate, within 24 hours of the arrest and the necessity of an authority of a Magistrate for further detention under clause (2) of Article 22, have been made expressly inapplicable to arrest and detention under any law providing for preventive detention, vide clause (3) of Article 22. The right of being informed of the grounds on which an order of preventive detention is made and of the earliest opportunity to make a representation against the order under clause (5) of Article 22, is very different from the rights enshrined in clauses (1) and (2) of that Article. The interpretation of the expressions contained in clause (5) of Article 22, therefore, are of no assistance for interpretation of the provisions contained in clause (1) of that Article. The interpretation of the expressions contained in clause (5) of Article 22, therefore, are of no assistance for interpretation of the provisions contained in clause (1) of that Article. The further contention of learned counsel for the petitioners is that even the information spoken of in the counter affidavits of Chhote Lal Tewari and the General Diary entry does not satisfy the requirements of the expression " grounds for such arrest " in Article 22 (1) of the Constitution and " full particulars of the offence for which he is arrested or on other grounds for such arrest " in Section 50 (1) of the Code of Criminal Procedure. There is substance in this contention. Learned counsel has correctly relied upon the decision in the case of Vimal Kishore v. State of U. P., 1956 Alld. 56 which lays down that for the purposes of clause (1) of Article 22, although it is not necessary for the authorities to furnish full details of the offence, but the information should be sufficient to enable the arrested person to understand why he has been arrested. It was observed that the ground to be communicated to the arrested person should be somewhat similar to the charge framed by the court for the trial of a case. It is well-known that a charge must contain a statement of the date, time and place of the commission of the offence, the victim, and the specification of the offence committed. This decision was followed by another Division Bench in Criminal Misc. Habeas Corpus Petition No. 3028 of 1973. Gyan Chand Gaur v. State of U P. decided on 19-10-73 where the only information furnished to the petitioner was that he had committed an offence punishable under section 7 of the Criminal Law Amendment Act and Rule 36/43 of Defence of India Rules, the detention of the petitioner was held illegal. It is obvious that the information furnished to the accused at the time of his arrest fall short of the requirements of Article 22 (1) of the Constitution as interpreted in Vimal Kishore's case (supra). 19. SECTION 50 (1) Cr. P.C. is a new provision in Code of Criminal Procedure 1973, there was no corresponding provision in the Code of Criminal Procedure 1898. It is noticeable that section 50 (1) requires " full particulars " of the offence or other grounds for his arrest. 19. SECTION 50 (1) Cr. P.C. is a new provision in Code of Criminal Procedure 1973, there was no corresponding provision in the Code of Criminal Procedure 1898. It is noticeable that section 50 (1) requires " full particulars " of the offence or other grounds for his arrest. In a way these expressions carry the provisions of Article 22 (1) of the Constitution a little further as a limb of ' procedure established by law " under Article 21 of the Constitution. If there could ever have been a debate about the extent of the requisite information contemplated under Article 22 (1), it was set at rest by section 50 (1) Cr. P.C. The section confers a valuable right, and a nonconformance to its mandatory provisions is a non-conformance to the procedure established by law, as held by Calcutta High Court in the case of Govind Prasad v. State of West Bengal, 1975 Cr. L.J. 1249 (para 9). A Division Bench of the Gauhati High Court had arrived at the same view in the case of Ajit Kumar Sarmah v. State of Assam, 1976 Cr. L.J. 1303. In that case the petitioner had stated in the affidavit that communication of the particulars of the offence had not been made to him. The State relied upon a police diary entry, but the court found that it did not know what kind of communication was made, whether the communication of the full particulars, or mere section of the offence, was made to the petitioner ; it was, therefore, held that the detention of the petitioner was in violation of section 50 Cr. P.C. and, therefore illegal. 20. IN the case before us, the General Diary entry records that the petitioners were informed about the crime registered against them and the ground of arrest. This entry obviously lacks the statement that the petitioners were informed of the " full particulars of the offence which normally includes the name of the complaint and the date, time and place of the alleged offence. Sri Chhote Lal Tewari was one of the members of the police party who arrested the petitioners. He has filed an affidavit in both the cases but has verified the relevant clause dealing with the assertion of compliance with the requirements of section 51 Cr. Sri Chhote Lal Tewari was one of the members of the police party who arrested the petitioners. He has filed an affidavit in both the cases but has verified the relevant clause dealing with the assertion of compliance with the requirements of section 51 Cr. P.C. not on the basis of personal knowledge but only on the basis of the General Diary. The values of the entry in the General Diary cannot, for obvious reasons, be under-rated in so far as it goes; but once the arresting officer swears the affidavit, he could very well state in explicit terms as to what the petitioners were informed and whether full particulars of the offence against them, including the name of the complainant, date, time and place of the alleged occurrence, were communicated to them. The fact that Chhote Lal Tewari has chosen not to say anything on his personal knowledge is a material factor which can hardly be overlooked, more so when the entry in the general diary falls short of stating that the full particulars of the crime were given out to the petitioners at the time of their arrest. IN this situation it is difficult to accept that the compliance of the mandatory provision of section 50 of the Code of Criminal Procedure, was done and for that reason the detention of the petitioners has to be held illegal on this ground. There is no substance in the contention of learned counsel for the petitioners that investigation of the alleged offence against petitioner Subhash Bhandari was not made under the supervision of the Senior Superintendent of Police despite the orders of the Supreme Court. There is distinction between 'initiation ' of an investigation and ' supervision ' over the investigation. There is nothing to show that the Supreme Court directed that investigation into an offence, allegedly committed by Subhash Bhandari. should not be initiated without the orders of the senior Supreintendent of Police. The powers of the Officer Incharge of a police station to initiate the investigation in a cognizable offence are absolute under section 156 (1) Cr. P.C. Similar powers may also be exercised by a superior officer under section 36 Cr. P.C., but the powers of the superior officer do not curtail the powers of an Officer In-charge of a police station to initiate investigation in a cognizable offence. P.C. Similar powers may also be exercised by a superior officer under section 36 Cr. P.C., but the powers of the superior officer do not curtail the powers of an Officer In-charge of a police station to initiate investigation in a cognizable offence. The fact that the offence, allegedly committed by the petitioner and investigated by the concerned personnel, namely, Chhote Lal Tewari, immediately after the registration of the case, was communicated to the Senior Superintendent of Police on 13-8-86 who, thereupon issued directions on that date vide Annexure B-1, satisfies the requirements of Senior Superintendents supervision over the investigation. Moreover, the initiation of investigation with or without the orders of the Senior Superintendent of Police, does not affect the question of validity of the petitioners detention in pursuance of an order of remand passed by the Magistrate under section 167 (2) Cr. P.C. The contention of learned counsel for the petitioners that failure of the petitioners' police escort to produce them before the Special Court under the Gangesters Act, but to produce them in the court of the Additional City Magistrate, is arbitrary and mala fide, also is not adequately made out. The explanation in the counter affidavit of Chhote Lal Tewari is that the petitioners were produced in the Court of Sessions Judge, Lucknow/Incharge Sessions Judge, Lucknow, on the information given by them at P. S. Hazratganj, Lucknow, that they were required for their evidence in that court, with the result that after they were taken to the Court of Sessions Judge, Lucknow/ Incharge Sessions Judge, Lucknow, they were again taken to P. S. Hazratganj, in order to collect the necessary papers for obtaining a remand from the Magistrate under section 167 (2) Cr. P.C. There is substance in the contention of learned Addl. Government Advocate that the Officer Incharge, P. S. Hazratganj, was competent in law to produce the petitioners in the court of Addl. City Magistrate, Lucknow, under section 167 (2) Cr. P.C. as amended by the Gangesters Act, rather than in the Special Court constituted under the Gangesters Act and, therefore, no valid grievance of that act can be made. Arbitrariness and mala fides are questions of fact ; foundation for relevant facts in this regard have not been laid in the averments on behalf of the petitioner. 21. P.C. as amended by the Gangesters Act, rather than in the Special Court constituted under the Gangesters Act and, therefore, no valid grievance of that act can be made. Arbitrariness and mala fides are questions of fact ; foundation for relevant facts in this regard have not been laid in the averments on behalf of the petitioner. 21. THE last point urged by the learned counsel for the petitioners, and urged most vehemently, is that the custody warrant of the petitioners is illegal and meaningless and, therefore, their detention is illegal. We do not propose to decide this point finally because for reasons recorded, the petitioners are entitled to be released under the provisions of section 50 (1) Cr. P.C. and also because certain aspects of the law, which have struck us, did not come up for consideration at the time of arguments. Since the angles of law which have occurred to us are of considerable significance, we are placing them in this judgment so that if an occasion arises to consider the question again in future, they may be thrashed out fully. 22. THE first point urged by the learned counsel for the petitioners is that the custody warrants of both the petitioners are addressed to "Jailor Lucknow" and, therefore, are not properly addressed to an appropriate Officer Incharge of a jail as there are atleast two jails, in Lucknow, namely, (1) District Jail and (2) Model Jail. THE Additional Government Advocate says that petitioners are undertrials and as a matter of practice undertrials are detained in the District Jail where the petitioners are admittedly in custody. His contention is that the address "Jailor Lucknow" signifies the Jailor of District Jail, Lucknow. We notice that the Prisons Act 9 of 1984 which purports to amend the law relating to prisons and to provide for regulation thereof, confers powers on the State Government by section 59 (27) to frame rules regarding admission, custody etc. of prisoners in a prison. We notice that the Prisons Act 9 of 1984 which purports to amend the law relating to prisons and to provide for regulation thereof, confers powers on the State Government by section 59 (27) to frame rules regarding admission, custody etc. of prisoners in a prison. A ' prison ' means any jail for detention of a prisoner under section 3 (1) of the Prisons Act, and although that section does not include a ' subsidiary jail ' declared as such by the State Government in the definition of ' prison ' the Prisoners Act 3 of 1900 which consolidates the law relating to prisoners confined by order of a court includes a ' subsidiary jail ' in the definition of ' prison ' under section 2 (b) of that Act. A subsidiary jail is also included in the definition of ' Prison ' under section 2 (b) of the Prisoners (Attendance in Courts) Act 32 of 1955 which provides for attendance of persons, confined in prisons, in court for answering in criminal charge. 23. U. P. Jail Manual by Sri S. N. Srivastava, 1984 Edition, sets out the classification of jails in para 1. According to paras 4 and 13, Lucknow has a Distt.Jail and a Model Prison. According to para 8 undertrials " shall ordinarily be confined in a Distt. Jail ". According to para 13, read with Appendix 'A' at page 327, the Lucknow Model Prison is for detaining male convicts and not male undertrials. The upshot is that having regard to the provisions of the Act and Jail Manual, the ordinary place of custody of the undertrials, like the petitioners, is the District Jail where admittedly the petitioners are being kept. The impugned address in the custody warrants, therefore, can fairly be read to imply the District Jail, Lucknow, at any rate, substantial compliance of the law in regard to the place of custody may fairly be held to have been done. 24. THE next ground of challenge is that the authorisation of the detention in the custody warrants has been recorded in such manner that it is ' meaningless '. Reliance has been placed upon a Full Bench decision of our Court in the case of Urooj Abas v. State of U. P 1973 CrLJ 1458 . 24. THE next ground of challenge is that the authorisation of the detention in the custody warrants has been recorded in such manner that it is ' meaningless '. Reliance has been placed upon a Full Bench decision of our Court in the case of Urooj Abas v. State of U. P 1973 CrLJ 1458 . That case related to the validity of remands under section 344 (1-A) of Code of Criminal Procedure 1898, corresponding to section 309 (2) of Code of Criminal Procedure 1973. By virtue of the powers under Article 227 (2) (b) of the Constitution of India, General Rules (Criminal) 1957 for subordinate criminal courts of U. P. were framed by our High Court. Rule 157 of those Rules runs as follows :- "list of printed forms authorised for use in criminal courts is given in Appendix ' B '. No printed form other than an authorised form shall be used in any court." The list in Appendix ' B ' specifies, inter alia, Form no. 47 for " warrants for intermediate Custody of remands : Section 344 ". The Full Bench in Urooj Abbas's case (supra) went into full details of the form. It was noticed that the form begins with the particulars of the jailor who is informed that the accused, whose particulars and offences are indicated, has been remanded, and goes on to direct the jailor to receive the accused into his custody and to produce him before the specified court " as required on the reverse ". The court noticed that the reverse side of the form contained a table of four columns :- (1) Serial number of accused (subsequently corrected to be Serial number of remand); 2) Date of order ; (3) Date on which the accused is to be produced ; (4) Signature of the Magistrate. The whole of the form had not been used; it had been split vertically at the middle and only one half torn form was used to serve as remand warrant for one accused, just as in the present case. The left vertical-half of the form was used whose reverse side contained part of column no 3 and whole of column no. 4. Remands made on 4-1-71 and 13-1-71 were challenged as invalid. The left vertical-half of the form was used whose reverse side contained part of column no 3 and whole of column no. 4. Remands made on 4-1-71 and 13-1-71 were challenged as invalid. It was found that the date of 4-1-71 was mentioned in the fourth column, and then it was again mentioned in the third column with the date of 13-1-71 opposite it. Again 13-1-71 was mentioned in the third column with 21-1-71 in the opposite column. The dates so mentioned were followed by initials by the Magistrate in the fourth column. The contention on behalf of the accused was that the manner in which the dates were entered on the reverse of the form conveyed no meaning and, therefore, there was no remand in any manner. Relying upon an earlier Division Bench decision in Crl. Misc. Case no. 737 of 1969, decided on 27-10-69, where the remand was exactly similar to that in Urooj Abbas's case, it was held in para 12 that read with the headings, the entries on the reverse were meaningless. The Court ruled as follows :- "It was accordingly held, in the absence of any other order on the record remanding the accused, that the so called warrant was not a warrant as required u/Sec.344 Criminal P. C. and therefore the detention of the accused petitioner was illegal. We may however add that if the warrant Form in full had been made use of and the entries in the columns of the reverse had been duly made, then the warrant upon reading both sides of the Form, would inspite of the defect mentioned earlier, have amounted to a substantial compliance with the requirements of section 344 (1-A), since the intention of remand would have been fairly clear. But with the so-called warrant in regard to the petitioner produced before us, that is to say, a half of the warrant Form in which the entries on the reverse are so made as to be meaningless even when read with the front side of the Form, we cannot hold that the petitioner was remanded by warrant on 4-1-71 or 13-1-71 within the meaning of section 344 (1-A) of the Code of Criminal Procedure. In consequence, his detention beyond 4-1-71 was illegal." Again, the court observed in para 18 as follows :- "The warrant of remand in the instant case is a nultilated document. In consequence, his detention beyond 4-1-71 was illegal." Again, the court observed in para 18 as follows :- "The warrant of remand in the instant case is a nultilated document. Either due to inadvertence or carelessness or with a view to utilize one printed form for two prisoners, a practice seems to have developed in the subordinate criminal courts to separate the printed form in two halves vertically and to utilize one half for one prisoner and the other half for another. The result, as pointed out by learned brother G. S. L. Srivastava, leads to confusion and uncertainty. The requirements of the printed form, if faithfully observed, will make the position clear as to the number of the accused, the date of the order and the date on which the accused is to be produced. As it is, however, the warrant for intermediate custody in the instant case consists only of the third and fourth columns and the entries in these two columns do not subserve the purpose. I agree, therefore, that the warrant in the instant case is illegal and the petitioner should be set at liberty forthwith." In the cases before us, the vertical right half portion of the form has been used in such a way that full columns nos.1 and 2 and only half of column no. 3 are available and have been made (sic) use of. Through columns nos.1 and 2 the dates 11-8-86 and 10-10-86 are spread out and in part column no. 3, opposite these dates, the initials of the Magistrate are found. It is absolutely plain that, read with the headings of the columns, these entries, as Urooj Abbas's case (supra) put it, are meaningless " even when read with the front side of the form including the date 11-8-86 of signature of the warrant by the Magistrate. 25. SRI Bireshwar Nath, learned Addl. Government Advocate has tried to distinguish Urooj Abbas's case (supra) on two grounds :- 1, The court noticed the distinction between the first order of remand and subsequent order of remand and observed in para 11 that while the warrant in question was "certainly a warrant committing the accused to jail custody for the day, on which it is first signed on the front side, the position is not clear for the under dates on which it is signed only on the reverse". (Emphasis supplied). (Emphasis supplied). The learned Addl. Government Advocate says that the case before us is a case of first remand, hence the invalidity for the subsequent dates of remand is not relevant. 2. The Division Bench in Criminal Misc. Case No. 737 of 1969, on which the Full Bench relied had held (as observed in para 12 of the Full Bench Report " that in the absence of any other order on the record remanding the accused, the so-called warrant was not a warrant as required u/Sec.344 Criminal P. C. and therefore the detention of the accused petitioners was illegal." But, in the present case the existence of an order on record, remanding the accused, is not disputed. 26. IN our opinion, both the grounds fail on a close appreciation of the decision of the Full Bench. The observation regarding the validity of the first remand is confined " to jail custody for the day on which it is signed on the front side ", it does not extend to the period beyond that particular day, as the period has to be ascertained only from the entries on the reverse side. Since the entries on the reverse side are meaningless, the entry on the front side cannot be read authorised remand to custody beyond the day on which the warrant has been signed on the front side. On the question of existence or absence of an order of remand on the record of the case, the Full Bench not only held that an order of remand was not necessary on record for the purposes of section 344 (1-A) Cr. P.C. but went on to observe in para 12 that if the Warrant Form in the full had been made use of then " the warrant upon reading both sides of the Form, would inspite of the defect mentioned earlier, have amounted to a substantial compliance with the requirements of section 344 (1-A) since the intention of remand would have been fairly clear. " It is plain, therefore, that the fatal factor is the intelligibility or meaninglessness of the entries in the custody warrant itself and not the existence of Magistrate's order of remand on the record. " It is plain, therefore, that the fatal factor is the intelligibility or meaninglessness of the entries in the custody warrant itself and not the existence of Magistrate's order of remand on the record. Learned counsel for the petitioners has correctly pointed out that the decision in Urooj Abbas's case (Supra) was referred to in the case of Radhey Shyam v. State, 1982 LLJ 208 relating to remand under Section 309 (2) Cr. P.C. (of 1973), after the accused had been committed to the Court of Sessions under Section 209 Cr. P.C. The custody warrant, during the pendency of the case in the Court of Session, did not contain the directions of the Sessions Judge. Relying upon Urooj Abbas's case (Supra), it was held that the petitioners detention was illegal, 27. IN the case before us the entries in the custody warrant forms of the petitioners are unintelligible and meaningless and could not constitute a valid remand beyond the first day, i. e.11-8-86 when the warrant was signed by the Magistrate on the front side. But, perhaps the matters do not rest there and it is at this stage that we did not have the benefit of the submissions of the learned counsel for both the side on what we are going to point out. 28. IT is well settled that no court has inherent power of remanding the accused to any custody unless the power is conferred by law vide Natabar Parida v. State of Orissa, 1975 Cr. L.J. 1212 SC. Till the time of the filing of the charge sheet, the power to remand is to be found in Section 167 (2) Cr. P.C. The power to remand after the filing of the charge sheet is to be found in Section 309 Cr. P.C., but we notice the use of different phraseology in these provisions for achieving substantially the same object, namely, the custody of a prisoner and his production in court. Section 167 (2) says that the Magistrate may " authorise the detention of the accused in such custody as the Magistrate thinks fit. " Section 309 (2) Cr. P.C. provides that the court while adjourning the case " may be a warrant remand the accused if in custody. Section 167 (2) says that the Magistrate may " authorise the detention of the accused in such custody as the Magistrate thinks fit. " Section 309 (2) Cr. P.C. provides that the court while adjourning the case " may be a warrant remand the accused if in custody. " The difference in the phraseology is obvious, although the object of both of them is the same, namely, to provide for the custody of the prisoner for a specified time. This distinction in phraseology was noticed by a Division Bench of Madhya Pradesh High Court in the case of Shrilal Nandram v. R. R. Agrawal S.D.M. First Class, Gwalior, AIR 1960 M. P. 135. The Court observed in Para 4 of the Report that extension of time, referred to in Section 167 Cr. P.C. has been described in the Section as " authorised detention " and not remand. In Para 5 we find the following observation :- "From this, it would be clear that in the first stage, under Section 167 of the Cr. P.C., that which is usually called remand to Police is really authorised detention. The second stage arises when investigation is not completed within 15 days and more time is needed for collecting further evidence. IT is at the second stage that remand is granted and the word accused is actually used in Section 344 of Code of Criminal Procedure." Having said so, the Bench, however, did not proceed further to interpret and to thrash out the distinction in the purport of the two provisions. We, however, notice certain relevant connected features. The form of custody warrant has been prescribed by statutory rules, as already indicated, only for a remand under Section 344 Cr. P.C. and not for a remand under Section 167 Cr. P.C. The importance of this concept flows from the legal position as set out in Urooj Abbas's case and followed subsequently by a chain of decisions for the purposes of remanding an accused to custody at the time of adjournment of the case. Under old Section 344 (1-A) or new Section 309 (2) of Code of Criminal Procedure 1973 an order of remanding the accused to custody is not required to be passed by the Magistrate on the record of the case. Under old Section 344 (1-A) or new Section 309 (2) of Code of Criminal Procedure 1973 an order of remanding the accused to custody is not required to be passed by the Magistrate on the record of the case. The Magistrate is required to pass only an order of adjournment and to record reasons therefor ; the remand of the accused in custody is accomplished by warrant of remand. Thus the statutory authority for further detention of an undertrial in the course of any pending proceeding under Section 309 (2) Cr. P.C. is not the order of remand but the warrant of remand. It is, therefore, absolutely necessary that the warrant of remand, given under Section 309 Cr. P.C. must be strictly correct in its own terms. We do not find it necessary to set out a number of decisions which have laid down that where an act is required to be done in a particular manner, it must be done only in that manner and its performance in any other manner is forbidden. The doctrine of substantial compliance, in matters of violation of statutory procedural acts, must be confined only to such errors as may constitute to be an irregularity not amounting to illegality ; it is this kind of situations where a defect in a wrrant is saved by Section 465 Cr. P.C. 29. LEARNED Additional Government Advocate has referred to the case of Prakash Chandra Mehta v. Commissioner and Secretary Government of Kerala, 1985 SCC (Cr.) 332. An observation of the Supreme Court in Para 82 would indicate that the necessity of compliance with the formalities is not higher than the interests of the security of the State. That was a case of detention under the COFEPOSA Act. The detention with which we are concerned in this case has nothing to do with the security of the State or with public interest. 30. A doubt in an order of detention must be resolved in favour of a detenu as held in the case of Ram Manohar Lohia v. The State of Bihar, AIR 1966 SC 740 relied upon by the learned counsel for the petitioners. Learned counsel for the petitioners has also correctly relied upon a decision in the case of Ram Narain v. Delhi Administration, 1953 SC 277 which says that forms and rules have to be strictly complied with. Learned counsel for the petitioners has also correctly relied upon a decision in the case of Ram Narain v. Delhi Administration, 1953 SC 277 which says that forms and rules have to be strictly complied with. The learned Additional Government Advocate has relied upon the decision of a Division Bench in the case of Kunjan v. State of U. P., 1980 LLJ 119 where the custody warrant on adjournment under Section 344 (1-A) Cr. P.C. had the same defects as in Urooj Abbas's case (Supra) and the Court observed as follows :- "No doubt, if the document is technically read, the result will be as indicated in the case of Urooj Abbas, but with great respect to the learned Judge we think it a hyper technical view which is not warramed in the circumstances of the case. It has already been observed in Urooj Abbas's case that the practice had grown to this effect that the printed document is cut into two pieces and utilised for two accused. There is no complaint that it misleads any body. The two dates on the reverse obviously indicate the date of the order and the date on which the accused is to be produced. The entries bear the Magistrate's signatures also : No section of the Code of Criminal Procedure prescribes any particular form. The Rules of the Court prescribe the form for the purpose of convenience and if the writings on the reverse are clear and nobody is misled from the writings thereon, it must be held that there is a valid warrant for the accused being kept in custody. The endorsement on the front page of the warrant to the effect that the accused has to be kept in custody and produced before the court as required on the reverse, makes clear what the intention and meaning of the writings on the reverse is. We would have thought it proper to refer the matter to a larger Bench for a re-consideration of the opinion expressed in Urooj Abbas's case, but as in the present case the warrant of remand is otherwise invalid it is not necessary to do so, we accordingly proceed to decide the case without making any reference to a larger Bench." Learned Additional Government Advocate says that the accuracy of the decision in Urooj Abbas's case has been doubted. In our opinion, this does not help the learned Addl. Government Advocate. As the decision stand, we must follow the Full Bench which itself had approved the earlier Division Bench decision and in its turn has been followed in Radhey Shyam's case (Supra). Further we are of the view, with great respect, that the intermediate custody warrant Form no. 47 prescribed under Section 157 of the General Rules (Criminal) has a statutory force in view of Article 227 (2) (b) of Constitution of India. 31. LEARNED counsel for the petitioners has urged that the case of Kunjan (Supra) has been over-ruled by a Full Bench of this Court in the case of Munsehwar v. State of U. P., 1984 AWC 704 but the contention is only partially correct. The Full Bench held only so much of the decision in Kunjan's case (Supra) to be incorrect as dealt with a remand for a priod in excess of 15 days to be bad in law ; it did not touch the question of the so-called substantial compliance of the provisions of remand warrant referred to in Kunjan's case (Supra). 32. NEVERTHELESS, the doctrine of substantial compliance can perhaps be made applicable to the authorisation of the detention of an accused in custody under Section 167 (2) Cr. P.C. because no statutory form is prescribed therefor. All that Section 167 (2) Cr. P.C. requires the Magistrate is to, subject to other conditions, authorise the detention of the accused in custody. Perhaps, the order of remand, passed by the Magistrate and contained in Annexure-4 could constitute requisite authorisation for detention, but we do not know whether copy of the order, Annexure-4, was also sent to the Superintendent, District Jail, Lucknow, along with the custody warrant so as to save the defects contained in the custody warrant. Again, if the contents of the custody warrant can be read in the manner in which it was done in Kunjan's case (Supra), there may be substantial compliance of the law of authorisation as contained in Section 167 (2) of the Code of Criminal Procedure. Under Section 3 of the Prisoners Act No. 3 of 1900 the Officer-In-charge of a prison is bound to receive and detain all persons duly committed to his custody by any court according to the exigency of any writ, warrant or order by which such person has been committed. Under Section 3 of the Prisoners Act No. 3 of 1900 the Officer-In-charge of a prison is bound to receive and detain all persons duly committed to his custody by any court according to the exigency of any writ, warrant or order by which such person has been committed. Perhaps, the order contained in Annexure-4 could constitute the ' order ' contemplated by Section 3. If the Officer-in-charge of the prison doubts the legality of a warrant or an order, he is expected to refer the matter to the State Government under Section 17 (1) of the Prisoners Act No. 3 of 1900 and pending such reference is bound to keep the prisoner in detention in the manner specified in the warrant or order. In the case of undertrial prisoners, if the jailor finds that the entries in the warrant are not correct, he is required, after admitting the prisoner, to make a report immediately to the concerned Magistrate (vide Para 410 of Jail Manual). If the warrant is incomplete or the remand granted is for an indefinite period, the Supreintendent of Jail is required to return the warrant for correction to the court (Vide Para 411 of the Jail Manual). Provisions in Paras 15, 29 and 28 of the Jail Manual may also have some impact upon these matters. An over all examination of these provisions of law may indicate that a custody warrant, ordinarily invalid for the purposes of Section 309 Cr. P.C., may still be used to support a valid detention under Section 167 (2) Cr. P.C. on the doctrine of substantial compliance. However, we do not express final opinion on these matters, because, as already indicated, we do not have the benefit of the submissions of the learned counsel for the parties on these aspects of the case. 33. ALL the petitions succeed only on the ground of non-compliance of the provisions of Section 50 (1) Cr. P.C. of 1973. 34. BEFORE we part with this case, shall we give a call to stop the utter disregard of duty even in simple matters of which this Court has spoken time and again ? At-least from 1969 this Court has been repeatedly pointing out the evil practice and consequence of vertical splitting of the printed prescribed remand custody form into two and using only one-half portion for obtaining remands, and yet the evil practice continues. At-least from 1969 this Court has been repeatedly pointing out the evil practice and consequence of vertical splitting of the printed prescribed remand custody form into two and using only one-half portion for obtaining remands, and yet the evil practice continues. At-least from 1955 it has been pointed out by this Court that the information which the police officer has to give to a person at or about the time of his arrest must contain particulars similar to what would be requisite for framing a charge at a criminal trial, and yet neither the Police General Diary nor the affidavit of the arresting officer set out these particulars. A simple thing like giving the correct address of the prison or of the prisoner in the custody warrant is not done. As already pointed out, the custody warrants in this case are addressed to "Jailor Lucknow ", as if Lucknow is a Jail. Why it is not possible to say " Jailor, District Jail, Lucknow ? The particulars and address of petitioner, Kamlesh Pratap Singh, in his custody warrant are not his particulars, but of the first informant, Surat Kumar Verma. No effort has been made to get the defects in the custody warrants rectified even by the jail authorities despite provision in the U. P. Jail Manual. The old saying is : " you can take the horse to the water, you cannot make him drink. " The ideal of attaining excellence in every field of life and of performing one's duty, enshrined in Article 51-A of our Constitution, is thrown to the winds by the officials and authorities that be. The aggrieved persons are tempted to knock at the doors of the Court at substantial detriment to their mental peace and property, and the courts are expected to invoke the limited doctrine of substantial compliance to save the errors, irregularities and illegalities which could and ought to have been avoided at the inception with some attention. We have made these observations to invite the attention of the State Government so that efforts may be made to remedy the decay. Habeas Corpus Writ Petition Nos.5480 of 1986 and 5397 of 1986 of Subhash Bhandari and 5555 of 1986 of Kamlesh Pratap Singh are allowed, Their present detention is quashed, they shall be set at liberty forthwith, unless wanted in some other case. 35. Habeas Corpus Writ Petition Nos.5480 of 1986 and 5397 of 1986 of Subhash Bhandari and 5555 of 1986 of Kamlesh Pratap Singh are allowed, Their present detention is quashed, they shall be set at liberty forthwith, unless wanted in some other case. 35. COPY of this judgment be sent to the Chief Secretary, Government of Uttar Pradesh, in the light of our observations in paragraph 50 of this judgment. Petitions allowed.