Bhabani Prasad Chandra vs The King

Imam, J.—This is an application by the petitioner under the provisions of Section 491, Criminal P.C. In the petition he prayed that a rule may be issued upon the District Magistrate to show cause why the petitioner should not be set at liberty at once.

A few facts have to be stated in order to appreciate the purpose of this application and the point raised on behalf of the petitioner. The petitioner was convicted on 3-5-1943, by a first class Magistrate, Gaya, for an offence under Sections 411 and 379 read with Section 75, Penal Code. He was sentenced to rigorous imprisonment for two years and a fine of Rs. 300 in default to undergo rigorous imprisonment for six months u/s 411, Penal Code; no separate sentence was passed u/s 379, Penal Code. Against his conviction the petitioner filed an appeal before the Sessions Judge of Gaya, who was pleased to ''admit the appeal on 13-5-1943, but refused to grant bail. The Sessions Judge delivered his judgment on 21-9-1943, in which he upheld the sentence of two years'' rigorous imprisonment and the fine of Rs. 300 but was of the view that the said sentence should be u/s 879, Penal Code, rather than u/s 411, Penal Code. He then went on to state in the judgment that the appellant who was in jail must work out his sentence and that the fine must be paid, or the appellant would suffei imprisonment in default as ordered by the trying Magistrate. Against the decision of the Sessions Judge the petitioner moved this Court by filing Criminal Revision No. 1157 of 1943, which appears to have ''been summarily dismissed by Varma and Reuben JJ on 18-11-1943. The order of this Court was communicated to the Sessions Judge who recorded on it: "Seen. Note result. Copy to D.M. File" and then appended his signature to the note. So far as the Courts were concerned, there was the sentence of two years'' rigorous imprisonment commencing from 3-6-1943 to be served by the petitioner and in addition whatever sentence he may possibly have to serve in default of payment of fine.

It should be observed that the petitioner at some time or other was sent to Buxar Jail from where he was transferred to Deoghar Sub Jail. On 29th January 1943 the Superintendent of Deoghar Sub Jail wrote to the Sessions Judge of Gaya a letter in which be informed that Court:

From the entries in the Sub-Jail register it appears that one prisoner Bhawani Prasad, Chandra convicted and sentenced to undergo 2 years'' register imprisonment and fined Rs. 300/-. in default 6 months'' R.I u/s 411/75, Penal Code by Mr. S.W. Rahman, Magistrate, 1st class Gaya on 3-6-48 was released from this sub-jail by an order of your Court dated 11-12-1943, communicated to this, office through the Superintendent Buxar Central Jail and received here as 23-12-1943. The said order is unfortunately not available in this office at present. Under the circumstances 1 have the honour to request you to the so good as to kindly let me have a copy of the release order for sending a copy of the same to the Senior Dy. Magistrate Gaya, who is pressing for it.

To this a report was placed before the Sessions Judge to the effect that no release order was issued by the Sessions Judge against the conviction and the Sentence of the petitioner. The Sessions Judge then, passed the order on 31-1-1945: "Inform accordingly," Accordingly a letter was sent, by the. Sessions Judge of Gaya to the Superintendent Sub-Jail, Santal Parganas, on 7-2-1945, in "Which the latter was informed that the revision application of the petitioner had been dismissed by the High Court, and hence no release order could be issued in respect of the conviction and sentence passed against the petitioner on 8-5-1948, which was the subject-matter of Criminal Appeal No. 144 of 1948 before the Sessions Judge. According to the petition the petitioner was suddenly arrested at Deoghar on 10-11-1947, by the Government railway Police Jagidin in connection with a theft case and that on 10-11-1947, by the Superintendent Sub-Jail informed the Sub-divisional Officer that a case u/s 225(b). Penal Code was pending against the petitioner. The border-sheet of the Magistrate Shows that after various adjournments, the case against" the petitioner" u/s 225(b) was dismissed, and we understand that there was a final report so. Far as the case of theft was concerned.

Mr. Bashiruddin on behalf of the ''petitioner has urged that it could not be said that the petitioner had escaped from jail custody as he had been released by an order which may now be alleged to be a bogus one, but nonetheless when the petitioner left the jail it was, with the permission of the Jail Authorities Since he was released not by any act bf his, he could not be now detained legally without a fresh warrant committing him to custody. The two cases under Sections 379 and 225(b) having failed against the petitioner, his present detention, so it was contended, was illegal. It was further contended that the prisoner having been released, the previous warrant committing him to jail custody to serve his sentence passed by the Magistrate of Gaya on 3-5-1943, had spent its force and there could be no legal custody of the prisoner without a fresh warrant.

One thing is clear that there was no order of a Court directing the release of the petitioner, and certainly there was no order of the Sessions Judge directing the release of the prisoner. Apart from what the Sessions Judge himself has stated that there was no release order passed by him, it is evident from the order sheet of the appeal which was heard by him and the judgment delivered by him that since the date of conviction until the'' appeal was disposed of by the Sessions Judge, the petitioner was in jail custody. Furthermore, it would appear that the application in revision was dismissed by this Court. Therefore, until the petitioner either served his sentence or the same had been remitted or pardoned by the Provincial Government or a lawful authority, the sentence imposed by the Court had to be carried into execution. It is obvious that the prisoner could not have served his sentence of two years'' rigorous imprisonment passed oh 3rd May 1943, by 23rd December 1943, when he was released ''on what is said to be a bogus order.

When the petitioner was convicted by the Magistrate of Gaya on 3rd May 1943, he was committed to prison to serve the sentence, and presumably the warrant committing him to prison was in Form No. 29, Schedule 5, Criminal P.C. The material portion of such a warrant-may be quoted as to be found in the said Schedule:

This is to authorise and require you, the said Superintendent (or keeper) to receive the said (prisoner''s name) into your custody in the said Jail, together with this warrant and there carry the aforesaid sentence into execution according to law.

In Schedule 5, this Form 29 is headed as "Warrant of commitment on a sentence of imprisonment or fine if passed by a Magistrate." It had been urged on behalf of the petitioner that the original warrant committing him to prison after his Conviction by the Magistrate on 3rd May 1943, Was not before this Court. Reference, however, may be made to Illustration to Section 114, Evidence Act, which states that the Court may presume that judicial and official acts have been regularly performed, that is to say, that the Magistrate who convicted the petitioner properly committed him to prison and that the Superintendent or Keeper of the jail, to which he Was committed, admitted him into prison on a proper and valid warrant. It is true that the petitioner in the course of his imprisonment was transferred from one Jail to another until he was improperly let out of Deoghar Sub-Jail on 23rd December 1948. The absence of the original warrant committing the petitioner to Jail on his conviction in May 1948, does not, in my opinion, affect the'' question before this Court, namely as to" whether the present detention of the petitioner is illegal.

It was urged that the original warrant committing the petitioner to Jail custody must be regarded as having spent its force from the moment the petitioner was released from Jail and that he could no longer be detained in Jail custody without a fresh warrant. The Code of Criminal Procedure does not provide for a situation where once ''the Courts have disposed of a case and a prisoner has been properly committed to prison, they have the authority to recommit the prisoner on a fresh warrant where the prisoner has been improperly released. The warrant by which a prisoner is committed to jail custody specifically enjoins upon the Superintendent or the Keeper of the jail to carry out the sentence finally imposed by a Court of law into execution according to law, that is to say, in the case of imprisonment, it is the bounden duty of the Superintendent or the Keeper of the jail to see that the said sentence is fully served subject to any remission which the prisoner may have earned under the Jail Code. Section 8, Prisoner''s Act (Act III of 1900) states that the. officer-in-charge of a prison shall receive and detain all persons duly committed to his custody under this Act or otherwise, by any Court, according to the exigency of any writ, warrant, Or order by which such person has been committed or until such person is discharged or removed in due course of law. As I read this section, it is the bounden duty of the officer in charge of a prison to detain every personally committed to his custody according to the exigency of any writ or warrant by which such person has been committed to him or Until such person is discharged or removed in due course flaw. It follows, therefore, that the original warrant committing the petitioner to jail must be deemed to be still in force and it was the bounden duty of the Jailor in whose Custody the petitioner was to detain such person according to the exigency of that warrant, It is not the case of the petitioner that he had been ordered to be released by any pardon from the Provincial Government or by way of remission of the balance of the sentence by the said authority. According to the entry in the register of the Deoghar Sub-Jail, the petitioner was released by an order purporting to be that Of the Sessions Judge of Gaya We now know for a fact from the records of the Sessions Judge that he had in fact issued no such order, and indeed he could not have done so in view Of the fact that the sentence of the petitioner had been finally affirmed by this Court.

This being the situation, can it be said with any reason that the present detention of the petitioner in order that he may serve out the sentence, which was imposed according to law upon him, is illegal? It is true that he was brought into Jail custody on charges which were quite different to the charge on which he was convicted and which are no longer binding against him. I can quite understand the position that the new charges under Sections 879 and 225(b) having failed, in ordinary course the accused should have been released from Jail custody. The prison authorities however, did not see their way to release the prisoner, as in their ''opinion, they are bound to detain the petitioner to serve out the sentence which was imposed on him by the Magistrate of Gaya on 3rd May 1948. In my opinion, it is of little relevancy as to how a prisoner was brought back to Jail. For the purpose of an application u/s 491, Criminal P.C., what is to be seen is whether the detention was illegal. That the petitioner was bound to serve out his sentence admits of no doubt, and he is now within the precincts of a Jail constituted under lawful authority. In my opinion his present detention cannot be said to be illegal. The application accordingly fails and must be dismissed.

I would, however, direct that the papers of these proceedings should be placed before the Provincial Government and their attention drawn to the circumstances in which the petitioner was improperly released by some one from Deoghar Sub-Jail. According to the letter of the Superintendent of that Jail to the Sessions Judge of Gaya, no order of release purporting to have been issued by that Judge dated 11th December 1943, could be found in the office of that Jail. There was however, an entry in the Jail Register to the effect that the petitioner had been released on 23rd December 1943, by an order dated 11th December 1943, purporting to be that of the Sessions Judge of Gaya. Who was responsible for this state of affairs it is impossible to indicate, but that some one has been guilty of, to say the least, improper conduct or perhaps guilty of forgery seems to be strongly indicated in the circumstances. This Court cannot look upon the incident without the gravest misgivings that it is possible for a prisoner to effect his release either by means of a false and forged order of release by a Court of law or perhaps by means of illegal gratification to a person who was in a position to let him out of the Jail. Whatever be the situation, it is impossible for this Court with the material before it just now to come to any definite conclusion, but I think the matter, is serious enough for at least a Departmental enquiry if no such enquiry has already been held. Let the papers of these proceedings be sent to the Provincial Government without delay.

Narayan J.

I agree.