STATE OF BIHAR versus KAMESHWAR PRASAD VERMA

KAPUR, J.-The State of Bihar has brought . this appeal against the judgment and order of the . High Court of Patna and it arises·out of proceedings under. Art. 226 of the Constitution ana;s. 491 . of the Criminal Procedure Code for.a writ of habeas corpus ·in the matter of detention of one Bipat Gope. The · present respondent was the petitioner in . the High Court.. ·

p. 184

Bipat Gope, a resident of the district' of Patna, was convicted under s 323 & ~· 324 read with s. 511. of the Indian Penal Code and. sentenced on November 29, 1957, to six months' rigorous imprisonment by the High Court on appeal against acquittal under s. 417 of the Code of ·criminal Procedure but he was not taken into custody till January 6, 1958 and even then he was kept .under

p. 184

armed guard in the Patna l\Iedical College Hospital · . in one of the paying wards, on the ground that he was seriously ill. On an application by the respon· dent and on the recommendation of the appropriate· medical authority Bipat Gope was released · by the District 1\Iagistrate on 1\Iarch II; 1958 under the rule•. ot the Jail Manual wh~n his unexpi~ed period of imprisonment wa8 four months and three days. The contention of tho appellant State is that he was ~ .. ~ released under R. 5i9 which is the rule providing for conditional release of prisoners but the respondent challenges the factum of release under this Rule·. The sureties for Bipat Gope were called upon to produce him but as they had failed to do so notices were issued to them by an order dated April 27, 1958, to show cause why their surety bonds 6hould not be forfeited. By the same order nonbailable w11orrant for arrest was ordered to be isHued.

pp. 184–185

On April 29, 1958, Bipa.t Gope moved a petition under Art. 226 against the order of the District Magistrate and the High Court directed on May l, 1958, that Bipat Gope should appear on Monday following which was May 5, 1958, when the petition was to be taken up for preliminary ht>aring.

p. 185

On May l, 1958, Bipat Gope appeared in the Court of the District Magistrate, Patna and made an application stating that he had filed the above mentioned petition in the High Court and that he had to appear there on Monday and he prayed that he be allowed an opportunity to present his case t,o the High Court and to avoid his maltreatment at the hands of the police of which he was apprehensive. 'l'here is no order on the record showing what die District Magistrate did but from thJ respondent's petition in the High Court it appears that the application before District Magistrate was taken up by the Senior Deputy Collector, Patna, who ordered Bipat Gope to be taken into custody and sent him to jail. The earlier petition of Bipat Gope filed in the High Court was withdrawn on May 2, 1958.

p. 185

The High Court heard the petition filed by the respondent on May 5, 1958, and after some amendments were made the petition was allowed and Bipat Gope was ordered to be released from custody. The High Court held that the order of release by the District Magistrate of Patna above referred to was an order for his unconditional release and therefore he could not be rearrested. It is against that order that the State has come to this Court by special leave, its application under Art.134 (IX cl having been dismissed by the High Court.

pp. 185–186

On the petition under Art. 226 filed by the respondent, the High Court issued a rule calling upon the appellant State to show cause why a writ of habeas should not issue. It is unfortu· nate that no return was filed by the Sta.te and it is not clear from the record as to how exactly or under what authority Bipat Gope was taken into custody and under what authority the jailor was rletaining him in jail. The order of the Dilltriot Magistrate shows that a non-bailable warrant was ordered to be issued. The petition of the respondent shows that Bifat Gope was arrested under the order o thl• Senior Deputy Collector ; what authority the Senior Deputy Collector had of ordering Bipat Gope'• rearrest is not clear from this record. The High Court has stated that Bipat Gope HUrrendered on May l, 1958, to whom he surrt-ndered is not clear. It is also stated in the petition that non-bailable warrant of arrest was ordered to be withdrawn and the record was sent to the Distric:t Magistrate for confirmation who withdrew thu non· bailable warrant ordered to be issued. Wh•m the record was sent to the District Magistrate for 001tfuma.tion and that was done by the District Magistrate thereafter is also not. shown. In the absEnce of a properly drawn up return accompanie¢. by proper documents it is not pOBBible to find out what •lxact.ly happened in regard to the rearrest of Bi pat Gopo and it is for that reason that the filing of a proper return is neceBSary and is insisted upon in most jurisdictions.

p. 186

It was argued on behalf of the appellant that the release of Bipat Gope was under R. 549 of the Jail Manual Rules whioh are i88Ued under the Prisons Act and that releases thereunder are conditional. The appellant was anxious to get the opinion of this Court a.s to the true meaning and extent of Rule 549 under which, according to the appellant, Bipat Gope wa.s released. On .this record it is not clear as to the rule under which he was released. It appears from the petition of the res· ponrlent under Art. 226 that the respondent ma.de an application for the release of Bipat Gope en the ground that he was seriously ill. There are on the record certificates by Dr. V. N. Sinha, F. R. C. S., Professor of Clinical Surgery at the Patna Medical College stating the disease Bipat Gope was suffering from and that he was not improving under the treatment he was being given. It was also stated therein that he would improve if he was released. Tllis was on February 21, 1958. The Civil Surgeon of Patna on March, I, 1958, again enquired from Dr. V. N. Sinha if the prisoner (Bipat Gope) was in danger of death from illness. Upon this on March 3, 1958, Dr. V. N. Sinha said:-

pp. 186–187

"The complications of the diseaae i. e. of ventral hernia, peotio ulcer and strees and

p. 187

strain syndrome sometilne prove fatal". and on March 5, 1958, it wi;s stated that he was in danger of death but was likely to improve if relea· ~~d. The ,superintendent of District Jail, Patna, sent a letter to the District Magistrate giving all these various particular11. Upon that .a note was ma.de by Judicial Peshkar in whicli he stated:

p. 187

"In this connection Jail Manual Rule 548(1) and (2) and (3) and Rule 549 may be seen. The District Magistrate has power to pass order for the release of the prisoner, if the petitioner's sentence does not exceed sil months under the above Rules. From the sentence sheet of release from the Jail autho· rity it appears that the prisoner has only 4 (four) months and 3 (three) days unexpired period of sentence. These rules may kindly be seen and necessary orders passed".

p. 187

The order of the District Magistrate was "Allowed releaee in the circumstances". It is not clear from this as to the Rule under which Bipa.t Gope was rPleased. It waa contended on behalf of the appellant that the release must have been under R. 549 and µot under any other Rule and in support reliance is placed on the relea.e1> order of Bipa.t Gope whic'h ia in Form No. 105. That Form mentions Rules 548, 549 and 552 and the Rule which was not appropriate had to be scored out but none of these Rules was scored out. But at the b'ottom of the Form tbere is a. declaration of two persons who stated that they a.re willing to take charge of Bipa.t Gope and bound themselves to surrender him at any time before the date of his expiry i. e. July 9, 958 if required to do so. Here it may he stated that the support of the relevant Rules is set out in Form 105 as follows:-

p. 188

"(i) Rule 549-Tbere is no hope of his recovery either in or out of Jail; I consider it desirable that he be allowed the comfort of dying at home.

p. 188

(ii) Rule 549-The prisoner is in danger of death from illness and there is probability of his recovery if he is released".

p. 188

On the basi,s of the order of the District Magistrate which is referred to above dated March 7, 1958 and Form 105 it was submitted that the release must have been under R. 549. The urders on the record do not make that clear. Neither the order of the District Magistrate nor the Form 105 shows that Bipa.t Gope was released under R. 549 and not under any other Rule. The State has not ca.red to make it clear in any return made on an affidavit filed as to the Rule under which Bipa.t Gope wae released and then it is not shown as to what lawful authority there was for his rearrest. In this connection the observations of Lord Atkin in Eshugbayi Eleko v. The Officer Administering The Government of Nigeria('} are appropriate and l\PPlicable :

pp. 188–189

"In accordance with Britain jurisprudence no member of the executive can interferl' with the· liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice. And it is the tradition of British justice that Judges should not shrink from deciding such i9sues in the face of the execu·

p. 189

tive" It is the same jurisprudence which has been adopted in this country on the basis of which the courts of this co•mtry exercise jurisdiction. It has not. been shown in this c&se that there was any lawful autho· rity under which Bi pat Gope w.i.s rearrested and in the abse:1ce of such lawful authority Bipa.t Gope's detention cannot be supported and is illegal. In the circumstances the remed v under Art. 226 is rightly applicable to the facts of this case.

p. 189

We.therefore dismiss this appeal.

p. 189

Appeal dismissed.

p. 189