C.A. VAIDIALINGAM, J.
1. The petitioner has filed this petition under Article 32 of the Constitution for his release by a writ of habeas corpus from detention in the district jail, Dhanbad, Bihar State. The averments made in the petition are briefly as follows.
2. The petitioner along with nine others was arrested on August 9, 1970 at about 10.30 a.m. by the police officers headed by the Divisional Inspector Parasnath Singh at Village Het Kandra in police station Sindri, situated within the Dhanbad district. The arrest of the petitioner was stated to have been made under Section 151 CrPC. The petitioner is an activist of Samyukta Socialist Party and was also the former Chairman of the Bihar unit of the said party. On August 9, 1970, the petitioner and his companions were standing scattered unarmed over an area of land in Survey Plot No. 295 in Khata No. 49 of Village Het Kandra in Jharia Anchal in Dhanbad district. He was selecting suitable portion in the said land for cultivation by landless persons who were also present along with the petitioner. The land is stated to be Gair Mazarua land. After his arrest he was taken to Sindri police station and kept there till 2 p. m. and then brought to the District Jail, Dhanbad, to which he was admitted after 3.30 p.m. and is being kept in custody in the said jail under the control of the second respondent to the writ petition, the Superintendent of District Jail, Dhanbad. The petitioner was at no time produced before a Magistrate for remand in the jail custody. The petitioner learnt from the Superintendent of the Jail that he has been remanded to custody under Sections 151, 117(3) and 107 CrPC. He has not been informed about the grounds for his arrest nor furnished with any other information regarding the reasons for his arrest. The petitioner has been arrested by the officers of the Sindri police station due to the influence of Indian Iron and Steel Company who are bent upon grabbing all public lands including Survey Plot No. 295. The petitioner filed a petition for habeas corpus before the Patna High Court on August 11, 1970, but it has been withdrawn on September 4, 1970. There has been a violation of the mandatory provisions of Article 22 of the Constitution and the remand orders stated to have been passed are illegal as the petitioner has never been produced before the Magistrate.
3. In the return filed by the second respondent, the Superintendent of the District Jail, it has been stated that the petitioner was arrested not only under Section 151 CrPC, but also under Sections 151/107/117(3) CrPC on August 9, 1970, on a warrant issued by the Sub-Divisional Magistrate, Dhanbad. Another warrant for the detention of the petitioner under Sections 143 and 447 IPC, has been issued by the Sub-Divisional Magistrate, Dhanbad, in Sindri police station, Case No. 3(5) of 1970. A further warrant is also stated to have been issued by the same Magistrate on August 11, 1970 for detaining the petitioner under the same sections in Sindri police station Case No. 5(8) of 1970. The second respondent also refers to an order stated to have been issued on August 2, 1970, by the Sub-Divisional Magistrate under Section 144 CrPC, with which we are not at present concerned. He states that on August 9, 1970, at about 10 a.m. the petitioner and other members of the Samyukta Socialist Party forcibly entered Government lands as well as the lands of the Indian Iron and Steel Company in village Het Kandra within the Sindri police station. After fixing party flags on the land they started ploughing the land after mobilising the villagers. This highhanded act of the petitioner and his companions was objected to by the Halka Karamchari and by the management of the Indian Iron and Steel Company. The petitioner and his companions were, however, adamant in ploughing the fields forcibly despite the warning given by the police. The large number of villagers who had by then collected at the site in question were instigated by the petitioner and other leaders of the party to take part in the illegal action of ploughing the lands belonging to the Government and the Indian Iron and Steel Company. In those circumstances the police apprehended a serious and imminent breach of peace and arrested the petitioner and certain others. On complaints made by the Senior Manager of the Indian Iron and Steel Company and the Halka Karamchari to the Sindri police, the latter have registered cases under Sections 143/447 IPC, as Sindri police station Cases 3 and 5, dated August 9, 1970 and August 11, 1970, respectively. The second respondent has annexed to his return a report, dated September 7, 1970, sent by the Sub-Divisional Officer, Dhanbad, regarding the circumstances under which the petitioner and others were arrested on August 9, 1970.
4. In the report of September 7, 1970, the Sub-Divisional Officer has referred to the fact that on August 9, 1970 at about 10 a.m. the petitioner and other workers of the Samyukta Socialist Party entered the Government lands and lands of the Indian Iron and Steel Company situated within the limits of the Sindri police station, in pursuance of land grabbing movement launched by their party. The petitioner and two others mentioned in the report, who are leaders of the party mobilised the villagers of Het Kandra and Upper Kandra to join hands with them and they along with twenty others belonging to the village fixed party flags on Plot Nos. 714, 719, 732, 733, 720 and 295 belonging to the Indian Iron and Steel Company and the Government. After entering the said lands the petitioner and others forcibly started ploughing the plots in spite of objections raised by the Halka Karamchari and the management of the Company on the ground that the action of the petitioner and others was illegal. The petitioner and his companions, however, were adamant to create mischief and continued ploughing the fields. As the villagers started collecting at the sites in question, the police apprehended serious and imminent breach of peace. The petitioner and nine others were, arrested and forwarded by the Officer-in-charge of Sindri police station to the Magistrate. The Sub-Divisional Officer further states that the arrested persons including the petitioner were produced before him and remanded to jail custody. The Sub-Divisional Officer refers also to two Cases 3 and 5, dated August 9, 1970 and August 11, 1970 respectively to have been lodged before the Sindri Police under Sections 143 and 447 IPC by the Senior Manager of the Indian Iron and Steel Company and by the Halka Karamchari of the area. In both the cases the time of occurrence and the accused persons are stated to be the same. The Sub-Divisional Officer winds up his report by saying that the two cases referred to in his report were under investigation and that all the accused persons arrested except the petitioner have been released on bail.
5. The petitioner in this rejoinder has disputed the claim made by the second respondent about his being personally aware of the facts mentioned in his return and reiterates that after his arrest under Section 151 CrPC on August 9, 1970, he has not been produced before any magistrate. He further alleges that if any remand order has been passed that must have been passed behind his back and he is not aware of the same. The cases stated to have been filed by the Halka Karamchari and the management of the Indian Iron and Steel Company must have been manufactured against him without any truth or basis. The petitioner disclaims all knowledge of the three warrants stated to have been issued by the Sub-Divisional Officer, Dhanbad under which the second respondent claims to keep him in custody. The petitioner further makes a grievance that he has never been informed of the grounds of his detention nor the provisions of law under which he is kept in custody. In any event, the petitioner states that he has been kept under detention without any order of remand from August 23, 1970 to August 25, 1970 and hence his detention is illegal.
6. The second respondent has filed a supplementary counter-affidavit in which he has stated that the facts mentioned in his return originally filed by him were all based on information derived by him from the record of the case. The second respondent has also stated that August 23, 1970 was a Sunday and August 24, 1970 was a holiday and the petitioner who had been directed to be produced before the Magistrate on August 25, 1970, could not be produced as he was sick and the jail doctor had certified that the petitioner was unable to attend the court. Even on the subsequent dates when the petitioner was to be produced before the Magistrate, the petitioner continued to be sick and therefore he could not be taken before the Magistrate.
7. The petitioner has filed a supplementary rejoinder again reiterating that the complaints Cases 3 and 5 of 1970, Sindri police station, have been purposely manufactured to forestall his attempt to be released by moving the courts for a writ of habeas corpus.
8. Mr Goyal, learned Counsel for the petitioner has attacked the petitioner's detention mainly on two grounds. The first ground of attack was that the petitioner was not informed of the grounds for his arrest and hence there is a violation of Article 22(1) of the Constitution. The second ground of attack is that the petitioner after, his arrest on August 9, 1970, has not been produced before a Magistrate and hence there is a violation again of Article 22(2) of the Constitution. There are certain other minor grounds of attack levelled against the order of detention, namely, that the cases 3 and 5, referred to in the report of the Sub-Divisional Magistrate have all been engineered by the police for the purpose of detaining the petitioner in jail and that even assuming that the remand orders have been passed by the magistrate, such orders are not valid as the petitioner has not been produced before the Magistrate on those occasions. These subsidiary contentions need not detain us long. So far as the merits of the complaints are concerned, this Court is not at present concerned with the allegations made therein or the defence that may be available to the petitioner which can be appropriately gone into only by the Magistrate trying the cases. In view of the majority decision of this Court in Raj Narain v. Superintendent, Central Jail, New Delhi1 the contention of the petitioner that remand orders have been passed by the Magistrate without the accused being produced before him cannot also be sustained. In the said decision the majority has held that there is nothing in law which requires personal presence of an accused before the Magistrate because that is only a rule of caution for Magistrate before granting remand at the instance of the police. Therefore, we are left only with the two major contentions referred to above based on violation of Article 22(1) and (2) of the Constitution.
9. At the outset we may state that it would have been highly desirable if a return had been filed by the Sub-Divisional Officer, Dhanbad or at any rate by the police officer who effected the arrest of the petitioner and is in-charge of the investigation of the two cases referred to in the counter-affidavit of the second respondent. The petitioner has squarely stated in his affidavits that he has never been informed of the grounds for his arrest and that he has never been produced before a Magistrate after his arrest. These are very serious allegations made by the petitioner and the best persons who could speak to correct facts would be either the Magistrate or the police officer concerned. But in this case the second respondent has filed along with his return, Annexure I, the report, dated August 7, 1970, of the Sub-Divisional Magistrate, Dhanbad. The petitioner is, no doubt, attacking the statements made in the said report of the Sub-Divisional Officer, on the ground that the Sub-Divisional Officer himself has not sworn the affidavit. Though we do see considerable force in this contention of the petitioner, we are not inclined to reject the report as untrue specially when the second respondent has clearly stated in his return that the Annexure I filed with his counter-affidavit is a true copy of the original report of the Sub-Divisional Officer. If that is so, it is clear that two complaints have been filed, one by the Halka Karamchari and the other by the management of the Indian Iron and Steel Company. They have been registered on the file of the Sindri police station as Cases 3 and 5. One has been filed on August 9, 1970 and the other on August 11, 1970 and investigation is stated to be proceeding in respect 61, those two complaints. The arrest of the petitioner, in the circumstances mentioned in the report of the Sub-Divisional Officer, cannot, in our opinion, be considered to be illegal. It has been held by this Court to Habeas Corpus proceedings the Court is to have regard to the legality or otherwise of the detention of a person at the time of the return and not with reference to the institution of the proceedings. (See Ram Narain Singh v. State of Delhi2). It is clear that on the date when the return was filed by the second respondent the cases against the petitioner have already been filed and as we will presently show, proper remand orders have also been passed by the Magistrate. The petitioner was admittedly arrested on August 9, 1970 and the petitioner, as is evident from his own affidavit, had entered government lands and the lands of the Indian Iron and Steel Company and started ploughing the same. The counter-affidavit of the second respondent shows that the petitioner along with other leaders of the Samyukta Socialist Party was instigating the people who had assembled on the plots in question to plough the lands in spite of objections raised by the Halka Karamchari and the management of the Indian Iron and Steel Company. He was warned by the police, who were on the spot, not to do such illegal acts but the petitioner persisted in his acts, obviously on the wrong ground that he was not doing anything contrary to law. The circumstances under which the petitioner was arrested along with others clearly establish that the petitioner knew the nature of the alleged offence for which he was arrested.
10. There is also an additional circumstance that even according to the petitioner, at the time of his arrest, he was informed by the Police Officer who effected his arrest that the arrest was being made under Section 151 CrPC. The various warrants issued by the magistrate also refer to the fact that the petitioner was being remanded to jail custody for offences under Sections 143 and 447 IPC, which were the subject-matter of Cases 3 and 5 on the file of the Sindri police station. The decision reported In the matter of Madhu Limaye3 relied on by Mr Goyal has no application to the facts of the case before us. Therefore, m the particular circumstances of this case, the contention of the petitioner that he was not informed of the grounds for his arrest cannot be accepted and it follows that there has been no violation of Article 22(1) of the Constitution.
11. Coming to the second contention of Mr Goyal, here again the report of the Sub-Divisional Officer, annexed to the return of the second respondent, shows that after the arrest of the petitioner and others on August 9, 1970 at about 10 a.m., they were all produced before him by the Officer In-charge of the Sindri police station, who effected the arrest and that he, the Sub-Divisional Officer, remanded them to jail custody. Therefore, it is clear that the petitioner was produced before the Magistrate within the period referred to in Section 61 of the Criminal Procedure Code and Article 22(2) of the Constitution. We cannot accept the plea of the petitioner that after his arrest he was never produced before the Magistrate at all. The question as to whether he was produced before the magistrate subsequently when further remand orders were passed has no bearing on this contention which is really based on Article 22(2) of the Constitution.
12. Mr S.C. Prasad, learned Counsel appearing for the State of Bihar, has placed before us copies of the warrants issued by the Sub-Divisional Magistrate, Dhanbad, to the Officer-In-charge of the District Jail of Dhanbad, for receiving the petitioner in custody. We have also perused the original warrants issued to the jail authorities. They contain the orders of the Magistrate in respect of three cases. Those remand orders relate to three different matters, namely, (i) M.P. No. 629 of 1970, (ii) Sindri police station Case No. 3(6) of 1970 and (iii) Sindri police station Case No. 5(6) of 1970. The last two cases, as already mentioned are under Sections 143 and 447 IPC.
13. We will first take up M.P. No. 629 of 1970. The warrant shows that the petitioner is charged under Sections 151/107/117(3) CrPC and that he has been remanded to jail custody till August 23, 1970. The first order of remand is dated August 9, 1970. There are endorsements, dated August 25, 1970, August 26, 1970, September 5, 1970 and September 21, 1970, that the petitioner was sick and unable to attend the court. But fresh orders of remand have been passed on August 26, 1970, September 6, 1970 and September 21, 1970. On September 21, 1970 an order of remand was issued till October 6, 1970. It will be noted that actually there has been no order of remand effective for 24th and 25th August, 1970. In the mean while on September 26, 1970 the petitioner was transferred to New Delhi for being produced before this Court. So far as detention under M.P. No. 629 of 1970 is concerned there is no material placed before us on behalf of the respondents to show that the provisions of Sections 112, 113, 114 and 117 CrPC have been complied with. The warrant purports to be under Section 117(3) CrPC. In regard to the proposed action under Section 107 CrPC the magistrate has to conform to the provisions mentioned above. Neither the return filed by the second respondent nor the report of the Sub-Divisional Officer annexed to it shows that any of the above provisions has been complied with before the petitioner was committed to custody under Section 117(3) CrPC, therefore the order of detention issued under Section 117(3), CrPC in M.P. No. 629 of 1970 cannot be sustained. However, we make it clear that if any proceedings have been initiated under Section 107 CrPC as against the petitioner, those proceedings can be proceeded with according to law. We are only deciding to this limited extent that the stage for passing an interim order of detention under Section 117(3) CrPC has not been shown to have been reached before committing the petitioner to jail custody on August 9, 1970 in M.P. No. 629 of 1970 and it is on this short ground that the detention under Section 117(3), CrPC is held to be illegal. But our holding that the detention of the petitioner under Section 117(3) CrPC is not legal, will not assist the petitioner as we will presently show that he is being kept under proper custody in respect of the offence alleged against him under Sections 143 and 447 IPC in Cases Nos. 3 and 5 of 1970, Sindri police station.
14. Coming to Case No. 3 of 1970 it is seen that a warrant for remand has been issued by the magistrate on August 11, 1970 and the remand is up to August 24, 1970. A fresh order of remand was passed on August 20, 1970 up to September 8, 1970. On September 8, 1970 a further remand order was passed up to September 22, 1970, which was followed by another order of remand up to October 6, 1970. The petitioner was reported to be sick and unable to attend the court on August 25, 1970 and on all other subsequent occasions. He was transferred to New Delhi on September 28, 1970 for being produced before this Court.
15. In Case No. 5 of 1970 in the warrant there is a slight mistake regarding the date. The date of remand is shown as September 9, 1970 instead of August 9, 1970 and the remand is also mistakenly shown as up to September 22, 1970 instead of August 22, 1970. The position that emerges now is that there have been remand orders passed against the petitioner on various dates even though the petitioner was not produced before the Magistrate because the jail doctor had certified that the petitioner was unable to be taken to the court. We have already referred to the majority decision of this Court in Raj Narain v. Superintendent, Central Jail, New Delhi that an order of remand passed under such circumstances is not illegal. It is true that on August 25, 1970, when the petitioner was in custody in Case No. 3(6) of 1970, there was actually no remand order in force. On that date, as we have already pointed out, the doctor had stated that the petitioner was sick and unfit to attend the court. But in view of the fact that we have to consider the legality of the petitioner's detention on the date when the return has been filed in this Court, that is, on September 24, 1970, the petitioner's detention on that date cannot be considered to be illegal because he was kept in detention under proper orders of remand as an undertrial prisoner. Therefore, the second contention of Mr Goyal has also to be rejected.
16. In the result we discharge the rule issued by this Court on September 7, 1970 and dismiss this petition.