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: Criminal Appeal No. 242 of 1960
Decision Date: 17 April 1963
Coram: K.C. Das Gupta, Raghubar Dayal, Kapur J.L.
In this case the Supreme Court of India examined an appeal filed by the State of Bihar against an order of the Patna High Court dated 2 June 1958. The appeal, numbered Criminal Appeal No 242 of 1960, was taken on special leave and was heard by a bench comprising Justice Kapur, Justice Gupta, Justice K C Das and Justice Raghubar Dayal. The judgment was delivered on 17 April 1963 and is reported in 1965 AIR 575 and 1963 SCR (2) 183, with citator reference RF 1976 SC1207 (544). The matter arose under article 226 of the Constitution and section 491 of the Code of Criminal Procedure, 1898, in the context of a writ of habeas corpus challenging the legality of a release and subsequent rearrest.
The factual background involved a person identified as Bipat Gope, who had been convicted under sections 323 and 324 read with section 511 of the Indian Penal Code and sentenced by the High Court to six months of rigorous imprisonment on 29 November 1957, following an appeal against his earlier acquittal. Although the sentence was pronounced, Gope was not taken into custody until 6 January 1958; owing to a serious illness he was placed under armed guard in a paying ward of Patna Medical College Hospital. Upon application by the respondent and based on a recommendation from the appropriate medical authority, the District Magistrate ordered his release on 11 March 1958 under the provisions of the Jail Manual Rules.
The State contended that the release had been made subject to condition 549 of the Jail Manual Rules and argued that the subsequent arrest, effected by a non‑bailable warrant, was unlawful. The respondent moved the High Court under article 226, seeking an order directing his appearance at a preliminary hearing and an opportunity to present his case before the High Court. He also filed an application before the District Magistrate requesting a similar opportunity. The District Magistrate failed to issue any order, and the record showed that the Senior Deputy Collector, Patna, had directed Gope’s arrest and incarceration, after which the respondent withdrew his petition in the High Court. The High Court ultimately allowed the respondent’s petition, ordering his release from custody and holding that the release order issued by the District Magistrate was unconditional, thereby precluding any subsequent rearrest.
On appeal, the State argued that the release must have been made under Rule 549 of the Jail Manual Rules and not under any other provision. The Supreme Court held that the State had not identified the specific rule or legal authority under which the release was effected, nor had it demonstrated the lawful basis for the rearrest. In the absence of a clear statutory or regulatory sanction, the Court concluded that the detention was illegal and that the appeal must therefore fail. The Court applied the principles stated in Eshugbayi Eleko v. Officer Administering the Government of Nigeria and Anr. (1931) A C 662 in reaching its decision.
In this matter the proceedings before the Patna High Court were instituted under Article 226 of the Constitution and Section 491 of the Criminal Procedure Code for the purpose of obtaining a writ of habeas corpus concerning the detention of one Bipat Gope. The respondent in the present appeal had been the petitioner before the High Court. Bipat Gope, who lived in the Patna district, had been convicted of offences punishable under sections 323 and 324, read with section 511 of the Indian Penal Code. He received a sentence of six months’ rigorous imprisonment on 29 November 1957, the sentence being pronounced by the High Court on an appeal against an earlier acquittal under section 417 of the Code of Criminal Procedure. Although the sentence was passed in November, he was not taken into custody until 6 January 1958, and at that time he was placed under armed guard in a paying ward of Patna Medical College Hospital on the ground that he was seriously ill. Following an application made by the respondent and on the recommendation of the appropriate medical authority, the District Magistrate released Bipat Gope on 11 March 1958 pursuant to the provisions of the Jail Manual, when the remaining portion of his imprisonment amounted to four months and three days. The State of Bihar contended that the release had been effected under Rule 549 of the Jail Manual, a rule that provides for conditional release of prisoners, whereas the respondent disputed that the release had been made under that specific rule.
The sureties for Bipat Gope were subsequently called upon to produce him, but they failed to do so. Consequently, an order dated 27 April 1958 directed them to show cause why their surety bonds should not be forfeited, and the same order directed that a non‑bailable warrant for the arrest of Bipat Gope be issued. On 29 April 1958 Bipat Gope filed a petition under Article 226 challenging the order of the District Magistrate. The High Court, on 1 May 1958, directed that he should appear before it on the following Monday, which was 5 May 1958, for a preliminary hearing of the petition.
Accordingly, on 1 May 1958 Bipat Gope appeared before the District Magistrate of Patna and submitted an application stating that he had already filed the mentioned petition in the High Court and that he was required to appear there on the appointed Monday. He prayed that he be permitted to present his case before the High Court and that he be protected from any maltreatment he feared might be inflicted by the police. The record does not contain an order showing what action the District Magistrate took in response. However, from the respondent’s petition filed in the High Court it appears that the application before the District Magistrate was considered by the Senior Deputy Collector of Patna, who ordered that Bipat Gope be taken into custody and sent to jail. The earlier petition filed by Bipat Gope in the High Court was withdrawn on 2 May 1958. The High Court subsequently heard the petition filed by the respondent on 5 May 1958; after certain amendments were made to the petition, the Court allowed it and ordered the release of Bipat Gope.
The Court noted that Bipat Gope had been ordered to be released from custody. The High Court had examined the order issued by the District Magistrate of Patna and concluded that that order amounted to an unconditional release; consequently the High Court held that the petitioner could not be rearrested. The State challenged that finding by obtaining special leave to appeal to this Court, invoking Article 134(1)(c), after the High Court had dismissed the State’s application. In the petition filed under Article 226 by the respondent, the High Court issued a rule directing the State to show cause why a writ of habeas corpus should not be issued. The Court observed with regret that the State had not filed a return as required, and that the record did not clearly indicate the legal authority under which Bipat Gope was initially taken into custody nor the authority by which the jailer continued to detain him. The order of the District Magistrate showed that a non‑bailable warrant had been ordered, while the respondent’s petition indicated that Bipat Gope had been arrested pursuant to an order of the Senior Deputy Collector. The Court found that the basis for the Senior Deputy Collector’s power to order a rearrest was not evident from the material before it. Moreover, the High Court had stated that Bipat Gope surrendered on 1 May 1958, but the record did not disclose to whom the surrender was made.
The Court further observed that the petition asserted that the non‑bailable warrant of arrest had been ordered to be withdrawn and that the file had been sent to the District Magistrate for confirmation, after which the Magistrate allegedly withdrew the warrant. However, the record did not contain any confirmation that the Magistrate had indeed taken that step. In the absence of a duly prepared return supported by appropriate documents, the Court could not determine the precise circumstances of Bipat Gope’s rearrest, and it emphasized that filing a proper return is a requirement in most jurisdictions. Counsel for the State argued that the release had been effected under Rule 549 of the Jail Manual Rules, which are framed under the Prisons Act, and contended that releases made under that rule are conditional. The State sought this Court’s opinion on the exact meaning and scope of Rule 549, claiming that it governed the release. The record, however, did not specify which rule had been applied to effect the release. The respondent’s petition under Article 226 sought release on the ground that Bipat Gope was seriously ill. The files included certificates from Dr V N Sinha, F.R.C.S., Professor of Clinical Surgery at Patna Medical College, describing the disease afflicting Bipat Gope and stating that he was improving under the treatment he was receiving. The same certificates also indicated that he
The medical report dated 21 February 1958 stated that the prisoner, Bipat Gope, would improve if he were released from custody. On 1 March 1958 the Civil Surgeon of Patna wrote to Dr V N Sinha, the surgeon who had examined the prisoner, asking whether the prisoner was in danger of death because of his illness. In response, on 3 March, a statement was recorded indicating that the complications of the disease—namely a ventral hernia, peptic ulcer and a stress‑and‑strain syndrome—could sometimes prove fatal. A further note dated 5 March 1958 affirmed that the prisoner was indeed in danger of death, but also expressed the opinion that his condition was likely to improve if he were released from the jail.
The superintendent of the District Jail at Patna forwarded a letter containing all of these medical particulars to the District Magistrate. Following receipt of that letter, a Judicial Peshkar prepared a note in which he referred to the relevant provisions of the Jail Manual, specifically Rules 548 (clauses 1, 2 and 3) and Rule 549, and observed that the District Magistrate possessed the authority to issue an order for the release of a prisoner when the remaining term of imprisonment did not exceed six months, as provided by those rules. The release‑sentence sheet prepared by the jail authorities showed that Bipat Gope had only four months and three days of his sentence remaining, which fell within the six‑month limit. Accordingly, the Judicial Peshkar requested that the applicable rules be examined and the necessary order be passed.
The District Magistrate, after considering the medical reports and the note from the jail, issued an order permitting the release of the prisoner in the circumstances. The order, however, did not specify which of the cited rules—Rule 548, Rule 549 or any other—served as the basis for the release. The appellant contended that the release must have been effected under Rule 549 and not under any other provision. To support this contention, the appellant relied on the release order recorded in Form No 105. Form 105 lists Rules 548, 549 and 552, and indicates that any rule that was not appropriate should be crossed out; none of the three rules was crossed out in the form. At the bottom of the form, two individuals declared their willingness to take charge of Bipat Gope and agreed to surrender him whenever required before the expiry of his sentence on 9 July 1958.
Form 105 also reproduced two statements that were said to be made under Rule 549. The first statement read, “There is no hope of his recovery either in or out of jail; I consider it desirable that he be allowed the comfort of dying at home.” The second statement read, “The prisoner is in danger of death from illness and there is probability of his recovery if he is released.” Relying on the District Magistrate’s order dated 7 March 1958 and on Form 105, the appellant submitted that the release had been authorized under Rule 549. Nevertheless, the documents on record did not conclusively demonstrate that Rule 549, and not any other rule, had been the basis for the release. Neither the District Magistrate’s order nor Form 105 expressly identified the rule that justified the release, and the State did not provide any clarification on this point.
The record demonstrated that no return had been filed on an affidavit specifying the particular rule under which Bipat Gope was originally released, and the material on record failed to indicate any lawful authority that justified his subsequent rearrest. In this regard, the observations of Lord Atkin in Eshugbayi Eleko v. The Officer Administering The Government of Nigeria (1) were deemed appropriate and applicable. Lord Atkin had stated: “In accordance with Britain 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 execu- tive”. The Court noted that the same jurisprudential principle has been adopted in this country, forming the basis upon which domestic courts exercise their jurisdiction. Accordingly, the Court found that the prosecution had not demonstrated any lawful authority for the rearrest of Bipat Gope, and in the absence of such authority his continued detention could not be sustained and was therefore illegal. Given these facts, the Court held that the remedy provided under Article 226 was rightly applicable to the circumstances of the case. Consequently, the appeal was dismissed. (1) (1931) A.C. 662 670.