State Of Bihar vs Kameshwar Prasad Verma

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 17 April, 1962

Coram: J.L. Kapur, K.C. Das Gupta, Raghubar Dayal

In this appeal, the State of Bihar contested a judgment and order of the Patna High Court that had arisen from proceedings under Article 226 of the Constitution and section 491 of the Criminal Procedure Code, the proceedings having sought a writ of habeas corpus concerning the detention of an individual named Bipat Gope. The respondent before this Court had been the petitioner before the High Court. Bipat Gope, who was a resident of the district of Patna, had been convicted under sections 323 and 324 read with section 511 of the Indian Penal Code. The conviction was recorded on 29 November 1957, and the High Court, on an appeal against an earlier acquittal under section 417 of the Code of Criminal Procedure, sentenced him to six months of rigorous imprisonment. However, the sentence was not executed until 6 January 1958, and when he was taken into custody he was placed under armed guard in a paying ward of Patna Medical College Hospital because he was reportedly seriously ill. Following an application by the respondent and a recommendation from the appropriate medical authority, the District Magistrate released Bipat Gope on 11 March 1958 pursuant to the rules of the Jail Manual; at that time four months and three days of his imprisonment remained unserved. The State contended that the release had been effected under Rule 549, which provides for conditional release of prisoners, whereas the respondent disputed that the release had been made under that rule. The sureties for Bipat Gope were summoned to produce him, but because they failed to do so, the District Magistrate issued notices on 27 April 1958 ordering them to show cause why their surety bonds should not be forfeited, and the same order directed that a non‑bailable warrant for his arrest be issued. Subsequently, on 29 April 1958, Bipat Gope filed a petition under Article 226 challenging the order of the District Magistrate, and the High Court directed that he should appear on the following Monday, 5 May 1958, for a preliminary hearing. On 1 May 1958, Bipat Gope appeared before the District Magistrate in Patna and applied, stating that he had already filed the aforesaid petition in the High Court and was required to be present there on the upcoming Monday. He prayed for permission to present his case before the High Court and sought protection from alleged maltreatment by the police, which he feared. No order from the District Magistrate is recorded in the file, but the respondent’s petition before the High Court indicates that the Senior …

The Deputy Collector of Patna ordered that Bipat Gope be taken into custody and conveyed to the jail. Bipat Gope’s earlier petition filed in the High Court was withdrawn on May 2, 1958, shortly before the hearing scheduled for May 5, 1958. On May 5, 1958, the High Court examined the respondent’s petition, permitted certain amendments, and consequently granted the petition, ordering the release of Bipat Gope from custody. The Court held that the District Magistrate’s order effecting his release was an unconditional discharge, thereby precluding any subsequent re‑arrest of the petitioner. The State challenged this conclusion before the Supreme Court by filing a special leave petition, although the High Court had already dismissed the State’s application under Article 134(1)(c). Thus, the present appeal arises from the State’s effort to overturn the High Court’s determination that the petitioner could not be rearrested after his unconditional release. The order of the Senior Deputy Collector directing the detention was based on an earlier instruction, but the record does not explain the legal basis for that instruction. Furthermore, the record shows that a non‑bailable warrant had been scheduled for issuance, yet no evidence of its execution appears in the file. Because the High Court had already ordered unconditional release, any subsequent detention without fresh legal authority would contravene the principle of liberty guaranteed by law.

In response to the respondent’s petition under Article 226, the High Court issued a rule requiring the State to show cause why a writ of habeas corpus should not be granted. No return was filed by the State, and the record does not clarify the precise legal authority under which Bipat Gope was again taken into custody. The District Magistrate’s order indicates that a non‑bailable warrant had been ordered, yet the petition merely notes that the Senior Deputy Collector ordered the arrest, leaving the collector’s power ambiguous. The High Court recorded that Bipat Gope surrendered on May 1, 1958, but did not specify to whom he surrendered, creating further uncertainty about the procedural steps. According to the petition, the non‑bailable warrant was ordered to be withdrawn, the file was sent to the District Magistrate for confirmation, and the magistrate subsequently withdrew it, though no documentary evidence of this confirmation appears in the record. Because a properly drawn return accompanied by appropriate documents is absent, the court cannot determine the exact circumstances of the alleged rearrest, and it stresses that filing such a return is essential in most jurisdictions. The State argued that the release had been effected under Rule 549 of the Jail Manual Rules, which are issued pursuant to the Prisons Act, and contended that such releases are conditional. However, the record does not disclose which specific rule governed the release, and the respondent’s Article 226 petition merely indicates an application for his release on health grounds.

In this case, the record contained a medical certificate dated 21 February 1958 issued by Dr V.N. Sinha, F.R.C.S., who was Professor of Clinical Surgery at Patna Medical College. The certificate described the illness suffered by Bipat Gope, observed that his condition was not improving under the treatment being administered, and expressed the opinion that his health would improve if he were released from custody. Subsequently, on 1 March 1958, the Civil Surgeon of Patna wrote to Dr Sinha requesting confirmation as to whether the prisoner was in danger of death from the illness. Dr Sinha replied on 3 March 1958, stating that the complications of the disease—specifically a ventral hernia, a peptic ulcer and a stress‑and‑strain syndrome—sometimes proved fatal. On 5 March 1958, Dr Sinha further affirmed that the prisoner was indeed in danger of death but that his condition was likely to improve if he were released from jail. Following these medical communications, the Superintendent of the District Jail, Patna, forwarded a letter to the District Magistrate summarising all the medical particulars. In response, the Judicial Peshkar entered a note that referred to Jail Manual Rules 548(1), 548(2), 548(3) and Rule 549, observing that the District Magistrate possessed the authority to order the release of a prisoner whose remaining sentence did not exceed six months under those rules. The note also recorded that the sentence sheet indicated Bipat Gope had only four months and three days left on his term, and therefore requested that the Magistrate consider issuing the appropriate order.

The District Magistrate subsequently issued an order allowing the prisoner’s release under the circumstances. The record, however, did not specify precisely which rule had been invoked for the release. The appellant contended that the release must have been made under Rule 549 and not under any other provision. To support this assertion, reliance was placed upon the release order recorded in Form No. 105. That form mentioned Rules 548, 549 and 552, and although it required the inappropriate rule to be struck out, none of the rules was actually crossed out. At the bottom of Form 105, two individuals affirmed their willingness to take charge of Bipat Gope and to surrender him at any time before his scheduled expiry on 9 July 1958, should such a request be made. The form further set out the application of the relevant rules as follows: (i) Rule 549—there was no hope of recovery either inside or outside the jail, and it was considered desirable to allow the prisoner the comfort of dying at home; and (ii) Rule 549—while the prisoner was in danger of death from his illness, there existed a probability of his recovery if he were released. On the basis of the District Magistrate’s order and the statements contained in Form 105, the appellant argued that the release had indeed been effected pursuant to Rule 549.

Referring to the order dated 7 March 1958 and to Form 105, the parties submitted that the release of Bipat Gope must have been made under Rule 549. The documents placed on record, however, did not clarify this point. Neither the order issued by the District Magistrate nor Form 105 demonstrated that Bipat Gope was released specifically under Rule 549 and not under any other rule. The State did not clarify, in any return sworn to an affidavit, the particular rule on which Bipat Gope’s release had been predicated, and consequently it was not shown what lawful authority existed for his subsequent rearrest. In this connection, the Court observed that the remarks of Lord Atkin in Eshugbayi Eleko v. the Officer Administering the Government of Nigeria [(1931) A.C. 662, 670] were appropriate and applicable. The quoted passage stated: “In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice. And it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the executive.” The Court noted that the same jurisprudence had been adopted in this country and formed the basis upon which Indian courts exercise their jurisdiction. The Court found that the State had not demonstrated any lawful authority authorising the rearrest of Bipat Gope; in the absence of such authority, the detention could not be sustained and was therefore illegal. Accordingly, the Court held that the remedy under Article 226 was rightly applicable to the facts of the case. On that basis, the Court dismissed the appeal and entered the order that the appeal be dismissed.