Dharampal and Another vs State of U.P. and Another

H.N. Seth, J.—Briefly stated the facts giving rise to these petitions under Article 226 of the Constitution which have been heard together are that the detention of the two Petitioners Dharam Pal and Prakash in District Jail, Meerut had been duly authorised by criminal courts of Ghaziabad in connection with criminal cases Nos. 3944 of 1981 u/s 323/324 IPC, 3733 of 1981 u/s 323/452/426 IPC and Sessions Trial No. 269 of 1980. While they were confined in District Jail, Meerut in connection with the aforementioned cases, requisitions dated 31st of May, 1981 were received by the Supdt., District Jail, Meerut from the Judicial Magistrate Ist Class, Narwana in the State of Haryana requiring the Supdt., District Jail to produce the two Petitioners before him on 2nd of June, 1981 as their presence was required in connection with Criminal Cases Nos. 297 to 301 u/s 302/328/ 420/109 IPC. Shortly thereafter second set of requisitions dated 2nd of June, 1981 in respect of the two Petitioners were received by the Supdt., District Jail, Meerut requiring him to produce the two Petitioners before the Sub-Divisional Judicial Magistrate, Narwana (Haryana) on 4th of June, 1981. Since the criminal cases in connection with which the two Petitioners had been committed to the custody of Supdt., District Jail, Meerut were pending, the Supdt., District Jail could not produce the Petitioners before the Sub-Divisional (J) Magistrate, Narwana on the dates mentioned in the requisitions. Thereafter no further requisitions from the Sub-Divisional Judicial Magistrate, Narwana were received by the Supdt., District Jail, Meerut requiring him to produce the Petitioners before that court in connection with the aforementioned criminal cases pending in Haryana. However, the Supdt., District Jail, Meerut received yet another requisition dated 4th of September, 1981 from the court of Sub-Divisional (Judicial) Magistrate Ist Class, Dubwali (Haryana) requiring him to produce Petitioner Dharam Pal before him in connection with Criminal Case No. 211 u/s 302/328/326/307/465/457/420/109/120 IPC before him on 16th of September, 1981. This requisition also could not be complied with because of the pendency of the criminal cases in connection with which the detention of the Petitioners had been authorised in District Jail, Meerut.

In the meantime the two Petitioners managed to obtain orders for their being released on bail in various criminal cases in connection with which the Supdt. District Jail, Meerut had been authorised to detain them. Before, however, the Petitioners could furnish the bail bonds in those cases and obtain orders from the court directing their physical release, the Petitioners came to know about the requisitions which had been received from the criminal courts in the Slate of Haryana and when contacted by their counsel, the Supdt., District Jail, Meerut informed their counsel that in view of the aforementioned requisitions received from the criminal courts in Haryana, the Supdt., would, as soon as the Petitioners furnished the bail bonds and they were accepted by the court which had authorised their detention, transfer them to Haryana. As the Supdt., did not accept the plea of Petitioners'' counsel that in the circumstances of the case it was not open to him to transfer the two Petitioners to Haryana, the Petitioners instead of furnishing bail bonds filed Civil Misc. Writ Petition No. 11907 of 1981 before this Court claiming a writ in the nature of mandamus restraining the Supdt., District Jail, Meerut from transferring the Petitioners from District Jail, Meerut to Haryana in the event of their furnishing bail bonds in various criminal cases in connection with which their detention in District Jail Meerut had been authorised. After admitting the said writ petition, this Court issued an interim order restraining the Supdt., District Jail, Meerut from transferring the two Petitioners till further orders. Thereafter the Petitioners submitted the bail bonds before the concerned courts and on 1-10-1981 obtained orders for being released from custody in all the cases in connection with which their detention had been authorised in District Jail, Meerut. The orders for releasing the Petitioners were served on the Supdt., District Jail, Meerut on October 3, 1981. The Petitioners filed Habeas Corpus Writ Petition No. 11881 of 1981 in this Court on Ist of October, 1981 claiming that their detention after they had been directed to be released on bail in all the cases in connection with which their detention had been aurhorised in District Jail, Meerut, had become unauthorised and they prayed for a writ of Habeas Corpus seeking directions from this Court for being set at liberty.

Superintendent, District Jail, Meerut has appeared to contest the prayers made by the Petitioners in both the petitions. He docs not deny that the two Petitioners have become entitled to be released from custody in criminal cases in connection with which they had been committed to his custody by the criminal courts at Ghaziabad. He, however, claims that the requisitions issued by the criminal courts at Haryana showed that the Petitioners were wanted by those courts in various cases u/s 302 IPC etc., and the criminal courts at Haryana had directed him to produce the Petitioners before them. He was, under the law, bound to comply with the requisitions issued by Haryana courts and that is why it was not possible for him to release the Petitioners from his custody despite the fact that they have been admitted to bail in all the criminal cases in connection with which they had been committed to his custody by the criminal courts at Ghaziabad.

Section 3 of the Prisoners Act, 1900 authorises the officer in charge of a prison to receive and detain all persons duly committed to his custody either under the Prisoners Act, 1900 or otherwise, by any Court and he is entitled to detain the persons so committed to his custody only till such time as such person is not discharged or removed from his custody in due course of law.

Section 3(2) of the Prisoners (Attendance in Courts) Act, 1955 enables any criminal court to, in a case where a charge of an offence against a person confined in any prison is made or pending before it, make an order directing the officer in charge of the prison where such person is being detained to produce the prisoner before it so that he may answer the charge pending before that court and after such charge has been disposed of or the said court has dispensed with his further attendance, cause him to be conveyed under sale and sure conduct back to the said prison. Similar provision is contained in Section 267(1) of the Code of Criminal Procedure which runs thus:

267(1) Whenever, in the course of an inquiry, trial or other proceeding under this Code, it appears to a Criminal Court -

(a) that a person confined or detained in a prison should be brought before the Court, for answering to a charge of an offence, or for the purpose of any proceedings against him, or

(b) that it is necessary for the ends of justice to examine such person as a witness,

the Court may make an order requiring the officer in charge of she prison to produce such person before the Court for answering to the charge or for the purpose of such proceeding or, as the case may be, for giving evidence.

It is obvious that in this case the requisitions which had been received by the Supdt., District Jail, Meerut from the criminal courts in Haryana were requisitions of the nature contemplated by Section 3 of the Prisoners (Attendance in Courts) Act, 1955 and Section 267(1) of the Code of Criminal Procedure.

Section 6 of the Prisoners (Attendance in Courts) Act, 1955 lays down the conditions in which the officer in charge of prison to whom the requisition for production of a prisoner is addressed may abstain from carrying out the order and to send to the court from which the requisition may be received a statement of reasons for so abstaining thus:

(a) If the prisoner is in accordance with the rules made in this behalf, declared to be unfit to be removed from the prison where he is confined by reason of sickness or other infirmity, or

(b) if the prisoner is under committal for trial,

(c) if the prisoner is under remand pending trial or pending a preliminary investigation; or

(d) if the prisoner is in custody for a period which would expire before the expiration of the time required for removing him under this Act and for taking him back to the prison in which he is confined.

Likewise Section 269 of the Code of Criminal Procedure lays down:

Where the person in respect of whom an order is made u/s 267-

(a) is by reason of sickness or infirmity unfit to be removed from the prison; or

(b) is under committal for trial or under remand pending trial or pending a preliminary investigation; or

(c) is in custody for a period which would expire before the expiration of the time required for complying with the order and for taking him back to the prison in which he is confined or detained; or

(d) is a person to whom an order by the State Government u/s 268 applies,

the officer in charge of the prison shall abstain from carrying out the Court''s order and shall send to the Court a statement of reasons for so abstaining:

Provided....

Section 55 of the Prisons Act, 1894 which deals with extramural custody, control and employment of prisoners lays down that a prisoner, when being taken to or from any prison in which he may be lawfully confined, or whenever he is working outside or is otherwise beyond the limits of any prison in or under the lawful custody or control of prison-officer belonging to such prison, shall be deemed to be in prison and shall be subject to all the same incidents as if he were actually in prison.

A consideration of the aforementioned provisions indicate that the requisition u/s 3(2) of the Prisoners (Attendance in Courts) Act, 1955 and Section 267(1) of the Code of Criminal Procedure can be addressed to Supdt. of a District Jail who is already holding a prisoner under an authority of law. The requisition by itself does not authorise the detention of any person. It merely requires the officer in charge of the prison (1) to produce the detenu before the requisitioning court on the date fixed by it and (2) after the purpose of requisition is over, to take him back and to keep him in custody in accordance with the writ or direction issued by the court which had authorised his detention in jail. As laid down in Section 55 of the Prisons Act, 1894 during the period the prisoner is away from the prison in pursuance of the requisition, he would throughout be deemed, to be in the custody of the prison and would be subject to all the same incidents as if he were actually in prison.

The requisitions issued by the criminal courts in Haryana, therefore, did not authorise the Supdt., District Jail, Meerut to keep the two Petitioners in his custody. They merely required the Supdt., to produce the two Petitioners before the concerned courts only if the Supdt. was entitled to keep them in his custody under some valid authority. Since various requisition orders did not authorise the Supdt., District Jail, Meerut to keep the two Petitioners in custody and the moment the Petitioners had been admitted to bail in all the criminal cases in connection with which their detention in District Jail, Meerut had been authorised, the authority of the Supdt., District Jail, to keep the Petitioners under detention came to an end and the Petitioner''s detention after being released on bail, became illegal and without authority of law. The requisitions received from the criminal courts at Haryana u/s 3 of the Prisoners (Attendance in Courts) Act, 1955 or u/s 267 of the Code of Criminal Procedure could not confer any valid authority on the Supdt. of jail to keep the Petitioners under detention and render his custody in District Jail, Meerut valid.

Moreover, Section 3 of the Prisoners (Attendance in Courts) Act, 1955 and Section 267 of the Code of Criminal Procedure merely enables a criminal court to require the attendance of a prisoner before it on the date specified in the requisition. If for the reason contained in Section 6 of the Prisoners (Attendance in Courts) Act, 1955 and Section 269 of the Code of Criminal Procedure the officer in charge of the prison is not able to comply with the requisition, he has to submit a report to the court concerned whereupon the said requisition comes to an end. If the presence of the prisoner is still required by the said Court, the requisitioning court will have to issue a fresh requisition u/s 3 of the Prisoners (Attendance in Courts) Act, 1955 and Section 267 of the Code of Criminal Procedure requiring the officer in charge of the prison to produce the prisoner before it on some other date to be nominated by it. It therefore, follows that after the date mentioned in the requisition issued by the criminal court to produce a prisoner before it expires, no further obligation remains upon the officer in charge of the prison to produce the prisoner before that court on any other date till such time as a fresh requisition for the purpose is not received by him. In the circumstances in no case can, a requisition issued by a criminal court u/s 3 of the Prisoners (Attendance in Courts) Act, 1955 and Section 267 of the Code of Criminal Procedure, ever be construed as authorising the officer in charge of the prison to keep a person under detention after the date mentioned in the requisition has expired and he has made a report, to the concerned court stating the reason for his omission to comply with the requisition. In the instant case, we find that the Supdt., District Jail, Meerut had been required by a criminal court at Haryana to produce both the Petitioners before it on 2nd of June, 1981 and thereafter on 4th of June, 1981. Those dates have passed long time back and no further requisition has been received for the production of the two Petitioners from that court. Another requisition was received from another court in Haryana requiring production of one of the Petitioners (Dharam Pal) before that court on 16th of September, 1981. That date has also passed. At present there is no direction by any criminal court requiring production of the two Petitioners either u/s 3 of the Prisoners (Attendance in Courts) Act, 1955 or u/s 267 of the Code of Criminal Procedure. In the circumstances, it is not open to the Supdt., District Jail, Meerut, to transfer the two Petitioners to Haryana on the basis of the requisitions which had been received by him. Further, as the Petitioners have been directed to be released on bail in all the criminal cases in connection with which they had been committed to the custody in District Jail, Meerut and release orders had been received by the jailor, no authority remains in him to keep the Petitioners in custody.

In the result, both these petitions succeed and are allowed. The Superintendent, District Jail, Meerut is directed not to transfer the Petitioners to Haryana in pursuance of the requisitions which had been received from the criminal courts in that State for production of the Petitioners before them on 2nd of June, 1981, 4th of June, 1981 and Petitioner Dharam Pal on 16th of September, 1981. He is also directed to release the Petitioners from custody forthwith. This order passed by us today will not stand in the way of the Petitioners being re-arrested or dealt with in accordance with law.

A copy of the ordersheet may be given to the Petitioners on payment of requisite charges today.