Blumalai and Others vs State of Tamil Nadu and Others

Ratnavel Pandian, J.—Of these three writ petitions Writ Petition No. 6975 of 1981 is filed by Elumalai Ramnad Prisoner No. 7330 confined

in the Central Prison, Madras, Writ Petition No. 9894 of 1981 by Mr. Ragupathi, Advocate placed in the ''A'' Panel of the Madras District

Committee for Legal Aid and Advice, on the instruction of Mr. P. Santiagorajan, Advocate of the Tirunelveli Bar, who has been appointed as duty

Counsel to visit the Central Prison, Palayamkouai, by the Tamil Nadu Legal Aid Board, and Writ Petitions No. 10131 of 1981 by Mr. Jagadeesan

Advocate of the Madras Bar, placed in the ''A'', Panel of the Madras District Committee For Legal Aid and Advice on the instruction of the above

said Mr. P. Santiagorajan. The Petitioner (Elumalai) in Writ Petition No. 6975 of 1981 has prayed for the issuance of a writ of Habeas

Corpusdirce it the Respondents to set him at liberty, whereas the prayer in Writ Petition No. 9894 of 1981 is for the issue of a writ of Habeas

Corpus directing the Respondents to set at liberty one Shanmugayya, son of Subba Reddiar, detained in the Central Prison, Palayamkottai, and

Writ Petition No. 10131 of 1981 is for the issuance of a writ of habeas corpus directing the Respondents to set at liberty one V. Nagarajan, son of

Venkatarama Iyer, the accused in Crime No. 40 of 1980 Sankarankoil Police Station, and detained in the Central Prison, Palayamkottai. In all

these three petitions, the first Respondent is the State of Tamil Nadu, represented by the Secretary, Home Department, and the other Respondents

are the Superintendent of the Central Prison and the Inspector-General of Prisons, and in Writ Petition No. 9894 of 1981 the Sub-Inspecter of

Police, Courtallam Police Station, is an additional Respondent.

As a common question of law is involved in all these Writ petitions, the decision of which would determine the validity of the detentions of the

innumerable prisoners detained in the various prisons of the State of Tamil Nadu for a considerable length of time, we are disposing of these three

writ petitions by a common order.

Before discussing the law involved, we shall briefly set out the facts of each case.

Writ Petition No. 6975 of 1981: The writ Petitioner was arrested by the Police u/s 41(2) of the Code of Criminal Procedure (hereinafter

referred to as the Code), two months before the filing of this writ petition, and detained in the Central Prison, Madras. The case pending against

him consequent upon the arrest was adjourned from time to time and the remand was extended without his being produced before the Court

except on the date of the initial remand. The reason for his non-production from the Central Prison before the Court is stated to be the non

availability of escort. The Petitioner contends that his detention is contrary to the provisions of law and the principles of natural justice and as such

it is illegal.

Writ Petition No. 9894 of 1981: The Petitioner, who is an ''A'' Panel advocate in the Legal Aid Board, on instruction from Mr. Santiagorajan

duty Counsel appointed to visit the Central Prison, Palayamkottai, states that the duty Counsel when he visited the Central Prison on 27th August,

1981, was informed that one Shanmugayya was arrested on 18th June, 1981 u/s 41(2) of the Code by the Sub Inspector of Police, Courtallam

Police Station, in Crime No. 235 of 1981, and the case has been pending before the Judicial Second Class Magistrate, Tenkasi, who has been

adjourning the case periodically, and the case ultimately stood posted to 31st July, 1981 on which date as understood, the Magistrate had

mechanically extended the date of remand without the production of the prisoner, for the reason that no escort was available. Hence it is submitted

that the detention of the Petitioner is illegal.

Writ Petition No. 10131 of 1981: The Petitioner herein who is also an advocate coming in the ''A'' Panel of the Madras District Committee for

Legal Aid and Advice, has filed this writ petition on the instruction of the duty Counsel Mr. P. Santiagorajan who had visisted the Central Prison.

Palayamkottai, on 21st August, 1981. As per the instruction of the duty Counsel, when he interviewed one Nagarajan a prisoner confined in the

Central Prison, he came to know that the said prisoner is a graduate confined in the jail since 24th April, 1980 for an alleged offered u/s 420,

Indian Penal Code on a case registered in Crime No. 40 of 1980 of Sankarankoil Police Station, and that the said case is pending before the Sub-

Divisional Judicial Magistrate, Kovilpatti and that the prisoner is kept in custody. The case was adjourned periodically and was posted on 6th

August, 1981 for production of the prisoner. But, on the said date, for want of police escort, he was not produced before the Court and the

Magistrate, notwithstanding the non production of the accused, had mechanically extended the date of remand without assigning any reason, which

order is contrary to the mandatory provisions of the Code as well as the principles of natural justice and hence the order of remand should be held

invalid.

In Writ Petition No. 6975 of 1981, a counter-affidavit is filed by the Sub-Inspector of Police, Teynampet, swearing that the Petitioner was

arrested on 1st July, 1981 as he was found in suspicious circumstances as set out in the first information for on and that he has been released on

3rd September, 1981 from detention.

The second Respondent, the Superintendent of Central Jail, has filed a separate counter stating that the Petitioner, who was remanded u/s 41(2)

of the Code, was first remanded on 2nd July, 1981, but for want of escort, he could not be produced before the Magistrate on 16th July 1981, on

which date the learned Magistrate extended the remand till 30th July, 1981 on being informed of the non availability of escort, and hence the

Petitioner continued to be a remand prisoner only under the orders of the Court Further, he would state that on 30th July, 1981 the Petitioner was

produced before the Court and the remand was extend till 13th August 1981 or which date also, for want, of escort, the Petitioner could not be

produced. However, the learned Magistrate extended the remand for a further period of fourteen days. According to him, the detention of the

Petitioner in the Cental Jail was not illegal.

The third Respondent, the Inspector-General of Prisons has filed as a para(sic) counter giving certain particulars gathered form the records of

the Central Prison, Madras, in a tabular form viz. the dates and the strength of the remanded under trial prisoners in jail, the number of prisoners to

be produced before the Court, and the number of prisoners not produced for want of police escort on the particular dates. This Respondent would

however and that in all these cases the remand periods were extended by the Magistrate.

In Writ Petition No. 9894 of 1981, the Sub-Inspector of Police, Courtallam, has filed a counter stating that he arrested Shanmugayya the (sic)

concerned, u/s 41(2) of the Code and produced him before the Judicial Second Class Magistrate, Tenkasi, who remanded him to judicial custody,

that the finger prints, of the said Shanmugayya were taken for verification of his antecedents that the Finger Print Bureau sent its report on 23rd

September, 1981 stating that the finger prints of Shanmugayya do not tally with any of the recorded impressions available in the office of the Finger

Print Bureau, that on the same day he filed a charge sheet against the accused u/s 64(2) of the Madras City Police Act, and that in the meantime, at

his request the remand was periodically extended so as to enable him to find out whether the accused had any bad antecedents.

In Writ Petition No. 10131 of 1981, a common counter is filed by the Superintendent of Central Prison, on his behalf and on behalf of the

State represented by the Home Secretary stating that the detenu Nagarajan was remanded by the Sub-Divisional Judicial Magistrate, Kovilpatti,

on 24th April, 1980 in connection with Crime No. 40 of 1980 of Sankarar koil Police Station

under Section 420, Indian Penal Code that the prisoner was produced before the Court on all the subsequent 36 hearings out of 38 hearings and

that the reason for the non-production of the accused on the two hearings was the non-availability of police escorts in spite of his requisition given

to the police. Therefore, it is stated that there was no infringement of any fundamental right given to the prisoner under the Constitution.

Thus, it is clear from all the counters filed on behalf of the Respondents, that the remands were extended periodically without the production of

the prisoners before the remanding Magistrate has contemplated under proviso (b) to Section 167(2) of the Code. It was brought to the notice of

this Court by Mr. N.T. Vanamamalai and Mr. K.V. Sankaran, learned Senior Counsel of this Bar who appeared at the request of the Tamil Nadu

Legal Aid Board on behalf of Messrs R. Raghupathi and M. Jagadeesan learned Counsel who filed Writ Petition Nos. 9894 of l981and 10131 of

1981 respectively, and on behalf of Mr. A. Packiaraj, Counsel, who initially appeared for the Petitioner in Writ Petition No. 6975 of 1981 hat

similar to the case of the detenus in these case, there are a large number of prisoners kept detained in the various prisons in the State of Tamil

Nadu, suffering incarceration for several months consequent upon the prisoners being whisked away by the police in the pretext of arrests effected

under Sections 41(1) and (2) of the Code and consequent upon arrests made for various offences inclusive mostly of offences of trivial nature or

arrests made on suspicion, which prisoners are all languishing in cellular confinement for a considerable length of time without actually facing any

trial and without any hope of their cases being disposed of, and that their remands are being extended by the Magistrate without the prisoners

being produced before them as contemplated under the Code of Criminal Procedure and as such the remands of these prisoners are quite

Contrary to the provisions of the Constitution and the Code and also against the principles of natural justice.

Having regard to these submissions, we thought of making a detailed enquiry about the alleged lamentable state of the unfortunate prisoners

who are allegedly deprived of their personal liberties guaranteed under Article 21 of the Constitution, which insists that no man shall be deprived of

hit life or personal liberty except according to the procedure established by law. In this connection, reference can be had to the decision of the

Supreme Court in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, which elaborately deals with the rule of law vis-a-vis personal

liberty, by insisting on the procedure contemplated in Article 21 of the Constitution. Hence, following the procedure adopted by the Supreme

Court in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, and Gopalanachari Vs. State of Kerala, we directed the

learned Public Prosecutor to collect the data regarding the under trial prisoners kept under detention in the various jails in Tamil Nadu, with all

necessary particulars. Accordingly the learned Public Prosecutor has produced the charts furnished to him by the various jail Super intendeds in the

State, giving, in a tabular form, the following particulars available, with them, viz., the names of the under trial prisoners, the Sections under which

they were arrested the Courts which remanded then, the dates of their entry into jail custody, the dates on which the accused were actually

produced, the dates on which they were not produced and the reasons therefor, etc. Some of the jail Superintendents have also given the total

periods of remand of the undertrial prisoners arrested under Sections 41(1) and (2) of the Code and under the various penal provisions of the

various enactments, as on the date of submission of the charts.

It is apparent from these charts that a number of under trial prisoners arrested u/s 41(1) and (2) of the Code at initially remanded to judicial

custody, have, been subsequently produced from time to time before the Magistrates for extension of remands and on many occasions the

remands have been extended even without the production of the accused before them. Similarly, the remands of the undertrial prisoners arrested

for commission of offence under various enactments have also been extended without their being produced before the Magistrates. The reasons

assigned in the charts for such non-production of the accused is the nonavailability of the escorts to take the prisoners to the Courts from the jail. It

is also alarming to note that a vast majority of under trial prisoners have been kept for a considerable lergth of time, and in some cases extending

two years, in cellular confinement without any trial, obviously due to the fact that the charge sheets have not been filed or that the enquiries or trials

have not commenced. We are also very doubtful whether, on the expiry of 90 days or 60 days, as the case may be, from the date of the arrest, the

attention of the undertrial prisoners was drawn to the fact that they are entitled to be released on bail as contemplated under proviso (a) to Section

167(2) of the Code, or whether the remanding. Magistrates pointed out to the undertrial prisoners that they are entitled to be released on bail

despite the fact that the Supreme Court in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, , has ruled that:

When an undertrial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days as the case may be, the

Magistrate must, before making an order of further remand to judicial custody, point out to the under trial prisoner that he is entitled to be released

on bail.

As the charts reveal that countless extensions of remands have been granted, we find it difficult to believe that on each occasion on which the

undertrial prisoners were produced before the Magistrates, the Magistrates made the orders of remand after applying their judicial minds to the

necessity of extending their remand periods. Hence, in view of the highly regrettable state of affairs prevailing in the various prisons viz., the lives of

the undertrial prisoners suffering incarceration for several months or years, we feel that a detailed examination with regard to the scope and import

of Sections 41(1) and (2) of the Code, with reference to his allied provisions, and of Section 167(2) of the Code and other provisions connected

therewith, is necessary.

Sub-sections (1) and (2) of Section 41, coming under Chapter V, of the new Code correspond to Sections 54 and 55 respectively of the old

Code. This Section 41 gives the police wide powers of arresting persons falling in any one of Clauses (a) to (i) of Section 41(1), or persons

belonging to one or more of the categories of persons specified in Section 109 or Section 110 of the Code, as contemplated u/s 41(2), without

any order from the Magistrate and without a warrant. It is, however not a matter of caprice, limited only by the police officer''s own view as to

what persons they may arrest without such an order or warrant. The powers of the police officers are strictly defined by the Code, and being an

encroachment on the liberty of the subject, an arrest purporting to be made under the Section would be illegal, unless any one of the circumstances

specified in the various clauses exist. As the power of arrest u/s 41 is wide and drastic, it has to be exercised with caution and circumspection and

for substantial reasons. see Gulam Mohammad Azimuddin and Others Vs. State,

Sub-section (2) of Section 41 deals with matter which arc not offences, and it is independent of chapter VIII of the Code covering Sections

106 to 124 of the Code, viz., section, relating to security proceedings for keeping the peace and for good behaviour, although the proceedings

under Chapter VIII follow such arrests u/s 41(2) as a natural sequence. However, as already mentioned, only a person belonging to one or more

of the categories specified in Section 109 or Section 110 of the Code can be arrested under this section.

Arrest u/s 41(1) and u/s 151 of the Code. While Section 41(1) enacts that a police officer can arrest, without an order from a Magistrate and

without a warrant, any person in any of the specified circumstances mentioned therein, Section 151 which is preventive in nature, empowers a

police officer to arrest without order from a Magistrate and without a warrant, any person designing to commit any cognizable offence, the

commission of which cannot otherwise be prevented. Under the present Code a new Sub-section (2) has been added to Section 151, limiting the,

detention of the person so arrested under Sub-section (1) to a period of 24 hours from the time of his arrest, unless his further detention is required

or authorised under any of the provisions of this Code or of any other law for the time being in force. The moment a person is arrested without a

warrant under any of the various Sections inclusive of Sections 41 and 151 the Code, it is the bounder duty of the police officer or any other

person so arresting to forthwith communicate to the person arrested, the full particulars of the offence for which he is arrested or other grounds for

such arrest, as envisaged in Section 50(1) of the Code, which is corollary to Article 22(1) of the Constitution of India. See In re Madhu Limaye

AIR 1969 S.C. 1014. If the arrest is made without a warrant in a bailable case the persons should be informed of his right to be released on bail as

required in Sub-section (2) of Section 50. Section 56 requires the police officer making such an arrest without warrant, to take or send the person

arrested before a Magistrate having jurisdiction in the case on before the officer in charge of a police station without unnecessary delay, Section

57, which is in consonance with Article 22(2) of the Constitution, provides that no police officer shall detain in custody a person arrested without

warrant for a longer period than under all circumstances is reasonable and such period shall not, in the absence of a special order of a Magistrate

u/s 167, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate''s Court. When an investigation

cannot be completed within the period of 24 hours fixed by Section 57 and if it appears that there are grounds for believing that the accusation or

information against the arrested person is well-founded, the officer incharge of the police station or the police officer making the investigation

should immediately transmit to the nearest judicial Magistrate a copy of the entries made in the diary and forward the accused to such Magistrate

as required in Section 167(1) which is supplementary to Section 57. In this connection, it is to be noted that no person arrested u/s 151(1) can be

detained in custody for a period exceeding 24 hours from the time of his arrest, that is to say, he can be kept under police custody without

obtaining orders from the Magistrate for a maximum period of 24 hours. Thus, ordinarily a person arrested u/s 151 can be detained only for a

period of 24 hours from the time of his arrest, unless further detention is required or authorised under any other provisions of the Code. It follows,

therefore, that the detention of the arrested person u/s 151 also can be extended by the application of Section 167(2) if there are exceptional

circumstances warranting such a detention in view of the newly introduced Sub-section (2) of Section 151, which proviso has now settled the

conflict of judicial opinion� as to the applicability of Section 167(2) to arrests made u/s 151(1).

In Om Prakash Gupta In re AIR 1949 Mad. 744 an application u/s 491 of the Old Code to issue an order in the nature of Habeas Corpus for

setting at liberty the Petitioner therein (detenu) was filed. In that case, the Petitioner was arrested by the police and was produced before the

Commissioner of Police who remanded him to custody for a period often days. A Division Bench of this Court consisting of Satyanarayana Rao

and Viswanatra Shastry, JJ., rejected the contention urged on behalf of the Petitioner that the arrest u/s 151 was illegal and dismissed the petition,

impliedly holding that the remand, by the Commissioner of Police, of the Petitioner who was arrested u/s 151 was not illegal.

A single Judge of the Kerala High Court in Chakkappan and Others Vs. State of Kerala, relying upon the decision of this Court in Omprakash

Gupta In re AIR 1949 Mad. 744 observed that the correctness of the know ledge of the police officer as to the design of a person to commit a

cognizable offence cannot ordinarily be scrutinized by a Court of law and that there is no justification for limiting the scope of Section 167(2) where

arrest is made u/s 151 of the Code and held:

The conditions required to attract that Section (Section 167) are that there must be a person arrested and detained in custody and that it must

appear to the police officer that investigation against the arrested person cannot be completed within a period of 24 hours of his arrest and that

there are grounds for believing that the accusation or information against the arrested person is well-founded. The arrest need not necessarily be in

connection with a case for the actual commission of a cognizable offence. The arrest may as well be u/s 151 of the Code in order to prevent the

commission of a cognisable offence. In either case reasonable time may be required for investigating into the accusation of the person concerned

and it is to enable the conduct of such an investigation in an effective manner that the Magistrate has been empowered under Sub-section (2 of

Section 167 to pass an order remanding the accused to custody.

A Division Bench of the Karala High Court in A.K. Gopalan Vs. State of Kerala and Others, had occasion to consider the applicability of Section

167(2) to arrests made u/s 151 of Section 54(l) (of the Old Code)[Corresponding to Sections 15l and 41(1) of the new Code]. Govinda Menon,

J., who agreed with the conclusion of Anna Chandy, J., in his separate judgment, hold that;

Whether the arrest was u/s 151 or u/s 54, is not relevant for the purpose of remanding the accused u/s 167.

In Gaibjdingpao Kabul v. Union Territory of Maniour AIR 1963 Mani 12 it has been held that in cases of arrests made either u/s 151 or

Section 54(1) (of the Old code) [corresponding to Sections 151 and 41(l) of the new Code] there is to be investigation and the arrested person

has to be produced before a Magistrate u/s 167. Code of Criminal Procedure if his detention is desired pending the investigation.

Contrary to the view taken in the above cases, a Division Bench of the Allahabad High Court in Shravan Kumar Gupta Vs. Superintendent

District Jail and Others, has held that Section 167 could not apply to arrests made u/s 151.

Kailasam J., of this Court as he then was, in Kannan In re (Order of this Court dated 22nd November, 1963 in Criminal Miscellaneous

Petition No. 3073 of 1963) has held that Section l67 could not be invoked for remanding a person arrested u/s 151 of the Code.

In view of the in Section of Sub-section (2) in Section 151, about which we have made a discussion in the preceding paragraph the opinion

expressed by the Allahabad High Court and Kailasam J., of this Court (as he then was) in Kannan In re, is no more good law and therefore, as

pointed out in the other decisions, Section 167(2) would apply even to arrests made u/s 151, but under exceptional circumstances.

Thus, it is clear that when an arrest is made u/s 41(1) or u/s 151(1) of the Code relating to a cognizable offence and if a case is registered and

there are grounds for believing that the accusation or information against the arrested persons is well founded and the investigation cannot be

completed within a period of 24 hours the police officer has to comply with Section 167(1) for obtaining further detention of the accused and the

Magistrate on being satisfied from the entertain the diary transmitted to him that a further detention is necessary, can extend the detention of the

person in custody. But the remand should not be made mechanically and as a matter of routine, and such routines should he deprecated.

Particularly in the case of a person arrested on mere suspicion u/s 41(1), 1 he Magistrate has to be watchful as the power to arrest without warrant

on suspicion under that provisions is liable to be abused. Needless to say that when a person is thus arrested u/s 41(1), it is the duty of the police

officer to carry out prompt investigation without necessary delay, as provided in Section 173, and collect evidence to satisfy the Court that there is

sufficient evidence to raise a suspicion that the arrested person may have committed an offence and that it is likely that further evidence may be

obtained and collected by such a remand:

Arrests Effected u/s 41(2): Sub-section (2) of Section 41 reads, thus:

Any officer in charge of a police station may, in like manner arrest or cause to be arrested any person, belonging to one or more of the categories

of persons specified in Section 109 or Section 110.

The above provision empowers any police officer to arrest, without an order from a magistrate and without a warrant, only, a person belonging to

one or more of the categories of persons specified in Section 109 or Section 110 of the Code and thus it deals with matters which are not

offences. These two Sections viz., Sections 109 and 110, are preventive and not punitive in nature and they are aimed at protecting the society

from dangerous characters against the perpetration of crimes by placing them under security as would prevent them from resorting to evil forces

since their acts, which do not amount to substantive offences, are such as to make it difficult to deal with them under the ordinary provisions of law.

In cases of arrests made either u/s 41(1) or u/s 151 of the Code, there have to be investigations and hence the persons arrested u/s 41(1) of

Section 151(1) have to be produced before the Magistrate in compliance with Section 167(1) for obtaining, the order of detention either in police

custody to a maximum period of 15 days or in judicial custody was warranted by the facts and circumstances of each case. In this connection, we

would like to add that the procedure to be followed in making the arrests u/s l4(1) should not be arbitrary, unfair or unreasonable.

A plain reading of Section 41(2) shows that this provision for arrest is quite different from the provision for the arrest either u/s 41(1) or u/s

151(1). In cases of arrests made u/s 41(2), there is no question of trial of any criminal case and there is no consummation of the case by its ending

in any conviction or in acquittal, and as such no investigation is required. As pointed out in Rex v. Ram Dayal AIR 1950 All. 135 a person

proceeded against under the preventive Sections like Section 109 Code of Criminal Procedure is not accused of any offence So when the arrested

person is produced before a Magistrate u/s 57 and Section 167 of the Code, no question of his detention either police or judicial would arise at all.

In fact, there is no provision in Section 109 or Section 110 of the Code to detain a person in jail pending the proceedings under the said preventive

Sections. If a person is produced before a Magistrate in connection with a proceedings either u/s 109 or u/s 110, What the Magistrate may do is

to make an order u/s 111 setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to

be inforce, and the number, character and class of the sureties (if any) required. Thus, it is apparent that the Magistrate has no authority u/s 167 to

order detention of the person arrested u/s 41(2) into custody, whether police or judicial. But the Magistrate is empowered u/s 116(3) to order

detention of the person against whom an order u/s 111 is made to execute a bond after the commencement and before the completion of the

inquiry under Sub-section (1) of Section 116 until such bond is executed, or in default of its execution, until the inquiry is concluded, for the

reasons to be recorded in writing. However, as per the proviso to Sub-section (6) of Section 116, such detention shall not exceed six months.

Further, as per Section 122, if a person ordered to give security u/s 106 or u/s 117, does not give security, he can be committed to prison until

such period expires or until within such period he gives the security ordered. It may be clear that the order of detention or committal to prison, as

contemplated u/s 116 or Section 122, as the case may be, is entirely different from the order of detention to be made u/s 167(2) of the Code.

Hitherto the power of taking security in the proceedings initialed u/s 109 or Section 110 of the Code, ''vested only with the Presidency

Magistrate, District Magistrate, Sub-Divisional Magistrate or the Magistrate of the First Class under the old Code, and with a Judicial Magistrate

of the First Class under the new Code. But, by Sections 2 and 3 of Central Act LXIII of 1980, the expression an Executive Magistrate its

substituted for the words a Judicial Magistrate of the First Class, of which came into effect from 23rd September, 1980, and hence as both the

Sections stand at present, the power of initiating the proceedings is vested with the Executive Magistrate, and the Judicial Magistrates have no

authority to in itiate security proceedings under Sections 109 and 110. But an Executive Magistral has no power, except u/s 167(2-A) introduced

by Act XLV of 1978, to order detention to custody of a person brought or produced before him in a proceeding taken u/s 109 or Section 110 of

the Code, by availing of Section 167, since the power no order detention or to extend the detention is given only to a Judicial Magistrate. In fact,

as pointed out in Ram Dayal''s Case AIR 1950 All. 135 persons to be proceeded against u/s 109 or 110 need not be arrested u/s 41(2) before

the initiation of the proceedings, and Sections 109, 110 and 55 are independent proceedings.

The charts furnished by the Public Prosecutor show that almost all the persons arrested u/s 41(2) are shown to have been remanded and sent

to jail and such remands have also been periodically extended and in some cases, the extension have been made even without the production of the

remand prisoners before the Magistrate. Therefore, in view of our finding that Section 167 would not apply to arrests made u/s 41(2) the remands

of all the persons arrested u/s 41(2) are to be held illegal and contrary to law. It is appropriate to refer to the decision in Subbraya In re AIR 1918

Mad. 1186 in which a Division Bench of this Court has observed that a Stationary Sub-Magistrate has no power to remind the accused to custody

and keep him in the sub Jail as a prisoner with a view to proceedings being taken against him u/s 110 Code of Criminal Procedure and that such a

remand being illegal, the escape from custody was not illegal and so it would not amount to an offence u/s 225-B, Indian Penal Code. The above

said observation still holds good as a correct proposition of law and hence we hold that a person arrested u/s 41(2) cannot be produced before a

Judicial Magistrate for obtaining an order of remand, and no Judicial Magistrate has the power to rom and such a person so produced or brought

before him, to custody, as a prisons with a view to take proceedings against him u/s 109 or Section 110 Code of Criminal Procedure and the

person arrested u/s 41(2) cannot be characterised as an accused within the meaning of the term occurring in Section 167(1) nor can it be said that

he is an accused of any offence so as to direct him to furnish bail in compliance with the provisions relating thereto. In security proceedings, a

person arrested is termed only as a counter-Petitioner. The duty of the police Officer after making the arrest u/s 41(2) is to place the information

before the Executive Magistrate so as to enable him to take proceedings u/s 109 or u/s 110, under the mode prescribed in the various provisions

relating to security proceedings under Chapter VIII of the Code.

In this connection it is necessary to stress the point that the Executive Magistrate in order to protect the innocent and economically depressed

people belonging to the poor states of society from being harassed by misuse of its preventive Sections, must insist on specificity of facts for being

satisfied that the information�s received by them do really require initiation of security proceedings, and bear in mind the observations by Krishna

Iyir J., in Gopalanachari Vs. State of Kerala, while dealing with the validity of a proceeding taken u/s 110 of the Code, which observation thus:

But, liberty is a prized value and that is why we have insisted not merely upon the police having to be careful before marching poor people into

Court u/s 110. But the Court itself having to be gravely concerned about using preventive provisions against helpless persons not on formal

testimony readily produced to order as we have acted in a recent case Prem Chand (Paniwala) Vs. Union of India (UOI) and Others, but on

convincing testimony of clear and present danger to society.

In this connection it would be useful to refer to the following observation of the Supreme Court in Khatri and Others Vs. State of Bihar and

Others, :

The provision inhibiting detention without remand is a very healthy provision which enables the Magistrates to keep check over the police

investigation and it is necessary that the Magistrates should try to enforce this requirement and where it is found to be disobeyed come down

heavily upon the police.

Import of Section 167(2) of the Code:

Section 167 of the new Code corresponds to Section 167 of the Old Code. Apart from certain minor changes from the old provision, provisos (a)

and (b) and Explanations 1 and 2 under the provisos (a) to (c) have been added to Sub-section (2). Sub-sections (5) and (6) of this Section are

new introductions. This Section 167 comes under Chapter XII of the Code under the heading Information to the Police and their Powers to

Investigate covering Sections 154 to 176. As pointed out Sub-section 57 provides that no person shall be detained in custody by a police officer

Without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a

special order of a Judical Magistrate u/s 167, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the

Magistrate''s Court. Therefore if the police wants to detain the accused for a longer period for the purpose of investigation the police has to follow

the procedure prescribed in this behalf u/s 167 which provides that if any person is arrested and detained in custody and it appears that the

investigation cannot be completed within a period of 24 hours fixed by Section 57, and there are grounds for believing that the accusation or

information is well founded, the officer incharge of the police station or the officer making the investigation shall forthwith transmit to the nearest

Judicial Magistrate a copy of the entries in the diary relating to the accused and shall at the same time forward the accused to such Magistrate. The

Magistrate, to whom the accused is thus for warded, may, whether he has or has not jurisdiction to try the case, from time to time authorise the

detention of the accused in such custody, police or judicial as such Magistrate thinks fit for a term not exceeding 15 days in the whole. If the

Magistrate has no jurisdiction to try the case or commit for trial, and considers further detention unnecessary, he may order the accused to be

forwarded to a Magistrate having such jurisdiction. Thus it follows that under Sub-section (2) the duration of detention, police or judicial to be

ordered by the Magistrate with or without jurisdiction, is limited to a maximum period of 15 days in the whole and not Sine Die. Under the old

Code, in cases involving serious and complicated offences, where investigation could not be completed with in fifteen days, the police developed a

practice of filing an incomplete report known as preliminary report before the Magistrate having jurisdiction and then moving for further remand of

the accused and getting his judicial detention extended from time to time by resorting to Section 344 [corresponding to Section 309(2) of the new

Code]. See Matabar Parida, Bisnu Charan Parida, Batakrushna Parida and Babaji Parida Vs. The State of Orissa, . The validity of this procedure

was very much doubted because that Section 344 was intended to operate only after the Magistrate had taken cognizance of the offences which

could properly done only after a final report u/s 173 had been received and not while the investigation was will proceeding. Therefore, on the

recommendation of the Law Commission, proviso (a) to Section 167(2) was introduced empowering the Magistrate, having jurisdiction to

authorise detention of the accused person, otherwise than in the custody of the police, beyond the period of 15 days and the Magistrate being

satisfied that awed quate grounds exist for so doing, for a maximum period of 90 days if the investigation relates to an offence punishable with

death, imprisonment for life or imprisonment for a term not less than ten years, and for a period of 60 days if the investigation relates to any other

offence. On the expiry of the period of 90 days or 60 days. As the case may be the accused is entitled to be released on bail subject to the

conditions contemplated therein. Of course, as per Explanation 1, notwithstanding the expiry of the above mentioned period, the accused is liable

to be detained in custody so long as he does not furnish bail. Therefore, from the above position of law, it is clear that an accused person can be

detained by the police for a period of 24 hours without any authority from the Magistrate and for 15 days in the whole under the order of the

Magistrate. A Magistrate with or without jurisdiction can order detention of the person police detention or judicial detention for a maximum period

of 15 days in the whole, and the Magistrate having jurisdiction can extend the period of judicial detention either to 90 days or 60 days, as

envisaged in proviso (a) of Section 167(2), the underlying object being to enable the police to complete the investigation within that period of

detention, so that the investigation may not be hampered by the accused. But the Code has not specifically fixed any period of limitation within

which the investigation of any case has to be completed ana the final report u/s 173(2) has to be submitted before the Court. In this connection it

may be noted that for the first time in the new Code, Section 468 has prescribed periods of limitation for taking cognizance of offences of the

categories specified in Sub-section (2) of that Section, viz., (a) six months, if the offence is punishable with fine only (b) one year, if the offence is

punishable with imprisonment for a term not exceeding one year, and (c) three years if the offence is punishable with imprisonment for a term

exceeding one year and not exceeding three years. Of course, no period of limitation is prescribed for taking cognizance of offences punishable

with imprisonment exceeding three years or with death. But to this, Section 473 is an exception, where under the Court is given the discretionary

power to extend the period of limitation in certain cases. Thus, the periods of limitation prescribed u/s 468(2)(a) or (c) impliedly suggest that the

investigation has to be completed within the periods relevant to the particular categories of cases. Sub-sections (5) and (6) are newly introduced,

where under a Magistrate trying a summons case is vested within the power of stopping further investigation unless the officer making the

investigation has obtained an order for continuation of the investigation beyond the period of six months. In a number of cases, he question arose

whether the remand of an accused can be tended without his being produced before the Magistrate.

In In Re: V. Venkataraman, a Bench of this Court has obeserved:

...it does seem certain that an illegality was committed by the Magistrate in issuing an order of remand without having the prisoners produced

before him and (without) asking them whether they wished anybody to represent their cause and (without) giving them an opportunity of showing

cause why they should not be further remanded.

The Supreme Court in Gouri Shankar Jha Vs. The State of Bihar and Others, following the judgment in Raj Narain Vs. Superintendent,

Central Jail, New Delhi, held that the orders of remand could be passed in the absence of the accused if his presence of the time could not be

secured. The have view was reiterated in M. Samabasiva Rao v. Union of India AIR 1973 S.C. 850 holding thus:

The Petitioner''s complaint is that he and other accused have not been produced before a Magistrate for remand, as required by the Criminal

Procedure Code, but have been kept in jails and the remand orders have been passed in their absence, which according to the Petitioner is illegal.

This contention, however, is not sustainable having regard to a Full Bench decision of seven Judges of this Court, reported in Raj Narain Vs.

Superintendent, Central Jail, New Delhi, , which by a majority of five to two, has held that the remand cannot be considered to be invalid merely

because an accused has not been produced before the Magistrate.

The above two decisions were rendered by the Supreme Court while construing the scope of Section 344 of the Code of Criminal Procedure,

1898. The validity or otherwise of an order extending the remand without the accused being produced before the Magistrate, came once again for

consideration before the Supreme Court in Sandip Kumar Dey Vs. The Officer-in-charge, Sakchi P.S., Jamshedpur and Others, , Sakchi P.S. In

this case, the Supreme Court, after having referred to all the decisions pointed out above, expressed its view as follows:

The counter-affidavit filed on behalf of the Respondents is not clear on the question whether the Petitioner was produced before the Magistrate

when the various orders of remand were passed and therefore we asked the Respondents counsel to furnish to us a copy of the proceedings of the

Magistrate''s Court at Jamshedpur. Those proceedings also do not indicate clearly whether the Petitioner was produced before the Magistrate

when the remand orders were passed. This is a highly unsatisfactory state of affairs and must be deprecated. Orders of remand ought not to be

passed mechanically and even though this Court has ruled that the non production of the accused will not vitiate an order of remand, the Magistrate

passing an order of remand ought, as far as possible, to see that the accused is produced in the Court when the order of remand is passed.

The last mentioned ruling was rendered while considering the scope of Section 167 of the 1898 Code.

The production of the person before the Magistrate is now clearly made a condition precedent in the newly introduced, proviso (b) of Section

167(2), with Explanation 2 thereto which we extract below:

(1)....

(2) The Magistrate to whom an accused person is forwarded under this Section may, whether he has or has not jurisdiction to try the case, from

time to time, authorised the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the

whole; and if he has no jurisdiction to try the case or commit if for trial, and considers further detention unnecessary, he may order the accused to

be forwarded to a Magistrate having such jurisdiction.

Provided that�

(a)....

(b) as no Magistrate shall authorise detention in any custody under this Section, unless the accused is produced before him:

(c)....

Explanation 1.

Explanation 2. If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the

production of the accused person may be proved by his signature on the order authorising detention.

The above proviso and the explanation are introduced by the Parliament for the first time in the new Code obviously for the purpose of affording

an opportunity to the accused of being heard by the Magistrate in person as to whether he wishes to make any representation and also giving him

an opportunity of showing cause why he should not be remanded.

Therefore, as per the new provision of law, the production of the accused before the remanding Magistrate is a condition precedent for an order of

detention to any custody being passed by the Magistrate. Explanation 2 makes it clear that if any question arises regarding the production of the

accused before the Magistrate as required under proviso (b), the production of the accused may be proved by his signature on the order

authorising detention. It follows that the order of remand cannot be made in the absence of the production of the accused before the remanding

Magistrate and if such an order is made mechanically contrary to the provision that order of remand or extension of remand is not legally

sustainable and as such the accused cannot be kept in jail custody even for one minute after the expiry of the period of remand already ordered by

he Court and the jail authorities cannot keep them inside any longer. Under Sub-section (2) of Section 309, the Court is given power to postpone

the commencement of or adjourn any inquiry or trial from time to time after taking cognizance of the offence and also to remand the accused being

in custody, by a warrent. From the Bar it was represented that instance are not rare wherein Magistrates, on requisition, go to jails, hospitals, etc.,

to make an initial order of remand and also to pass extension of the remand already passed. According to them while proviso (b) of Section

167(2) would specifically state that the accused should be produced before the Magistrate, the Magistrate going to the jails merely because

sufficient escorts are not available or because the authorities concerned entertain an apprehension that there will be law and order problem in a

turmoil situation when large number of accused persons are to be taken to the Court for example, persons arrested in agitations etc., would not

satisfy the requirements of Section 167(2) proviso (b), and such a procedure should be highly deprecated as in such circumstances the accused

persons would not be having an opportunity of freely making any complaint or statement before the remanding Magistrate, In this connection, it

would be appropriate to refer to the decision rendered by M.N. Moorthy J., in Mrs. Bartley v. State (1983) L.W. (Crl.) 71 wherein the learned

Judge, holding that a remand is essentially a judicial function, has observed;

The object of requiring the presence of the accused before the Magistrate for purpose of remand is only to enable him to make representation he

wishes to make in the matter. Rule 76(4) of the Criminal Rules of Practice, which alone deals with the mode of ordering an extension of remand of

the prisoners detained in the hospital, reads thus:

Where an accused detained in hospital, is not in a position to be moved and produced before the Magistrate concerned the appropriate procedure

would before the Magistrate to proceed to the hospital, see the accused person and order an extension of the remand....

A plain reading of the above rule would show that it speaks only of the extension of remand, and does not speak of the initial remand to be made

of an accused person admitted in the hospital. Similarly the rule also does not provide for the mode of passing an order of extension of the remand

of the prisoners kept in jail or any other place and the rule is conspicuously silent about it. It is true that there may be some grave and explosive

circumstances when it would become practically difficult to bring the arrested accused persons to Court for their being produced before the

Magistrate and there may be a possible apprehension of the disturbance of the law and order when leaders of some organisations or political

parties or huge numbers of persons arrested in connection with agitations etc. are involved, and the question may arise as to the procedure to be

adopted in passing the orders of remand or extension of remand in their cases. This position, in our view has to be examined by the Rules

Commitee and necessary amendments to the Criminal Rules of Practice have to be made taking into consideration the various circumstances and

also at the same time complying with the mandatory provisions of Sections 167(2).

It is very (sic) to note that a huge number of prisoners arrested u/s 41(1) or Section 151(1) or arrested in connection with penal offences

coming under various enactments are kept in jail custody under the periodical orders of extension of remand passed by the Magistrates in many

cases even without the production of the prisoners but also the commencement of the inquiry or trial is delayed for such an inquiry or trials

prolonged and consequent upon the failure of the speedy inquiry or trial, the accused persons are kept in cellular confinements behind the bars for

months together, and especially persons who are poor, have no other option except to spend their lives in jail custody. This kind of situation came

for serious comments by the Supreme Court in a number of cases. Yet, this sorry state of affairs has not come to an end.

In Sunil Batra Vs. Delhi Administration and Others etc., the Supreme Court has held as follows:

The detention of any person in jail without any reasonable cause is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counter

productive. It is unarguably unreasonable and arbitrary. If the arrests of these persons are inflicted with procedural unfairness, it falls foul of Article

Part III of the Constitution does not part company with prisoner as the gates and judicial oversight protects the prisoner''s shrunken

fundamental rights if flouted, frowned upon of frozen by the prison authority. Is a person under trial unilaterally dubbed dangerous, liable to suffer

extra torment too deep for tears? Emphatically no, lest social justice, dignity of the individual, equally before the law, procedure established by law,

would become chimerical constitutional clap-trap. The prisoners have got every right to re-pell the deadening impact of unconscionable

incarcerator inflictions based on some lurid legislative test or untested tradition.

It has further been pointed out in that decision thus:

Prisoners are built with stores of law (sang William Blake) and so when human lights are hashed behold bars, constitutional justice impeaches such

law. In this sense Courts which sign citizens into prisons have an onerous duty to ensure that, during detention and subject to the Constitution,

freedom from torture belongs to the detenu.

In Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, Bhagwati J., speaking for the Bench of the Supreme Court, has

emphasized the need for a speedy trial which is a fundamental right to life and liberty as enshrined in Article 21 of the Constitution of India, in the

following words:

If a person is deprived of his liberty under a procedure which is not reasonable, fair or just, such deprivation would be violate of his fundamental

right under Article 21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by

law for depriving a person of his liberty cannot be reasonable, fair or just unless that procedure ensures a speedy trial for determination of the guilt

of such person. No procedure which does not ensure a reasonably quick trial can be regarded as reasonable, fair or just'' and it would fall foul of

Article 21 there can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential

part of the fundamental right to life and liberty enshrined in Article 21.

In another case in the series of Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, it has been pointed out that it is

absolutely essential that persons accused of offences should be speedily tried, so that in cases where bail, in proper exercise of discretion, is

refused, the accused persons have not to remain in jail longer than is absolutely necessary.

In yet another case coming in the series of Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, Bhagwati J., speaking for

the Bench, has expressed his grief over certain unpleasant facts which were brought to the Bench (as in the batch of cases before us and as may be

gathered from the charts produced before us). As we feel that the observation made in that case would to certain extent apply to the facts of these

cases, we extract the same below:

It is highly regrettable that those under trial prisoners should have remained in Jail without trial for periods longer than the maximum term for which

they could have been sentenced if convicted. We fail to see what moral or ethical justification could the State have to detain these unfortunate

persons for such unreasonably long periods of time without trial. We feel a sense of relief that they should once again be able to breathe the air of

freedom. But we find that there are still many more undertrial prisoners who fall within this category of person than the maximum term without their

trial periods having been commenced.

See also another case falling in the series of Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, and Thirumala Bhaskara Reddy

v. State of Andhra Pradesh (1983) M.L.J. 74

It is interesting to note that in the United States, speedy trial is one of the constitutionally guaranteed rights. The sixth amendment of the Constitution

provides that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial... Similarly Article 3 of the European

Convention of Human Rights provides that:

... everyone arrested or detained shall be entitled to trial within a reasonable time or of release pending trial.

LORD DENNING, in his book Due process of law published in 1980, speaks about the role of the police in the following terms:

In safeguarding our freedoms, the police play a vital role. Society for its defence needs a well led, well trained and well disciplined force of police

whom it can trust and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to

justice.

In the introduction to Part III Arrest and Search, in chapter I of which the above observation occurs, it is stated by LORD DENNING thus:

Every society must have means to protect itself from marauders. It must have powers to arrest, to search and to imprison those who break its

laws. So long as those powers are properly exercised, they are the safeguards of freedom. But powers may be abused, and if those powers are

abused, there is no tyranny like them.

The Supreme Court in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, has pointed out thus:

We think that even under our constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep

and content of Article 21 as interpreted by this Court in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, .

For a speedy trial, the prosecuting agencies also must take a prompt step incompleting their investigations and filing their final reports as

contemplated under the Code as expeditiously as possible. In case the investigating officer fails to take speedy action in a case registered against

any person arrested u/s 41(1), Section 151(1) or any other penal provision of the law and keeps it in cold storage, forgetting his obligation to the

society and in contravention of the principles of natural justice and allow, by his conduct, the arrested persons to be kept behind the bars for

months together and if the Courts, without being conscious of the mandatory provisions of Section 167(2). mechanically authorise repeated

detentions and also do not show any diligence in completing the trial of the case speedily, the result would be that prisoners, especially those

coming from the society of have nots to suffer untold physicaland mental agony and spend their lives in the jail without having any ray of hope of

their release. Krishna Iyer J. in Manto Majumdar and Dasdev Singh v. State of Bihar (Judgment of the Supreme Court in Writ Petition No. 1149

of 1979, dated 27th February, 1980,) noting this kind of situation existing in the country, has observed thus:

...and yet, the Magistrates concerned have been practically authorizing repeated detentions, unconscious of the provisions which obligated them to

monitor the proceedings which warrant such detention. In short, the police have abdicated their function and of prompt investigation. The prison

staff have not bothered to know how long these internees should be continued in their custody and most grievous of all, the judicial officers

concerned have routinely signed away orders of detention for years by periodically appending their incarceratory authorizations. If the salt hath lost

its savour, wherewith shall it be salted? If the law officers charged with the obligation to protect the liberty of persons are mindless of constitutional

mandates and the Code''s dictates, how can freedom survive for the ordinary citizen?

In view of the above proposition of law laid down by the Supreme Court, we hold that all possible breach that may result from delays between the

time a prosecuting officer discovers sufficient evidence to proceed against one and the time of instating these proceedings, is to be guarded against

by Courts which are obliged to the society. The invocation of the right of any arrested person need not wait indictment, information or other formal

charge, but begins with the actual restraints imposed by arrest and the Court grant relief either for the purpose of testing the legality of the arrest or

for preventing the long delay for the arraignment and formal charging of the arrested persons 34. In view of all the above, discussions, we make the

following propositions:

(1) Section 167(2) of the Code would apply to arrests made u/s 41(1) and in exceptional circumstances to arrests made u/s 151(1). But the

Judicial, Magistrates while remanding or passing extensions of remands, should be very watchful to see that the liberty of a citizen is not violated by

the police arbitrarily and unreasonably.

(2). Section 167(2) is not at all applicable to arrests made u/s 41(2) of the Code and as such no Court can order remand or extension of remand

of persons arrested u/s 41(2).

(3). The Courts should not mechanically pass orders of remand without verifying the entries in the diaries and satisfying themselves about the real

necessity for granting the remands or extension of remand.

(4). Under no circumstance a Magistrate can order the detention of any person in custody or extend such detention without the production of the

accused before him in violations of the provisions of the Code, viz. proviso (b) to Section 167(2), whatever may be the reason stated by the

authorities concerned for the non-production of the accused before the Court, such as the non-availability of police escorts etc., as shown in the

charts, given by the learned Public Prosecutor in pursuance of the directions of this Court.

(5) The jail authorities, who an also very much concerned in the matter, of keeping the prisoners in cellular confinement, should not keep any

person without orders of remand from the concerned Judicial Magistrates even for a moment beyond the period of detention already ordered,

because, if the jail staff keep any person inside the prison, without proper orders of the Court, such keeping would be tantamount to an illegal

detention.

In the result, we conclude that all the Magistrates concerned in the State should examine and verify the records of all those persons arrested

under Sections 41(1) and 151(1) of the Code and taken prompt actions for the expeditious disposal of the cases in the light of the observations

made by us in this judgment. We also direct all the Magistrates who have passed the orders of remand of all the persons arrested u/s 41(2).,

withdraw or cancel the said warrants of remand and set the concerned persons at liberty forthwith, since the detentions of those arrested persons

u/s 41(2) and the extension of remands periodically are all not legally sustainable, and no Magistrate should entertain an accused and pass orders

of remand for the purpose of taking proceedings u/s 109 or Section 110, Code of Criminal Procedure as they stand at present. We also direct the

State Government and the Inspector General of Prisons to take prompt actions in getting the orders from the Courts for release of all those

persons arrested u/s 41(2) of the Code.

All the writ petitions are ordered accordingly.

Before parting with this judgment, we would like to record our deep appreciation of the services rendered by Mr. N.T. Vanamamalai and Mr.

K.V. Sankaran, learned Senior Counsel, who appeared on behalf of the Petitioners and also Mr. A. Packiaraj, Counsel on record in Writ Petition

No. 6975 of 1981, by taking us through the various decisions of the Supreme Court and other Courts and in assisting this Court by giving a lucid

interpretation of Article 21 of the Constitution and the various provisions of the Code of Criminal Procedure, and we proceed further to register

our profound satisfaction at the fair and frank submissions made by Mr. P. Rajamanickam, learned Public Prosecutor. We also record our

appreciation of the valuable service rendered with a high civic sense of duty by Messrs. R. Raghapathy and M. Jagadeesan, in filing two of these

petitions as Petitioners but for which this lamentable state of the prisoners confined in the various prisons of Tamil Nadu would not have come to

light and this Court would not have been given this opportunity to call for the reports from the various jails and to deeply examine the cases of the

hundreds of unfortunate prisoners who are unconscious of their fundamental right to life and personallibery guaranteed under the Constitution and

who, in our view, but for the assistance of the Legal Aid Board, would not have the means to enter into the portals of this Court, present their

grievances and secure their release.