2 s.c.R. STATE OF BIHAR fl· KAMESHW AR PRASAD VERMA (J. L. KAPUR, K. C. DAs GUI'TA and RAGHUBAR DAYAL, JJ.) HoheaB Oorpus-Release and rearrest-Legality-Princi- ples applicable-Code of Criminal Procedure, 1898
(V of 1898), s. 491. Bipat Gope was convicted under ss. 323 and 324 read with s. 511 of the Indian Penal Code and sentenced to six months rigorous imprisonment by the High Court on appeal
against acquittal, but, was not taken into custody and on the ground of serious illness was kept in the Hospital under Armed Guards. On application moved by the respondent and on ' recommendation of the medical authority he was released by the District' Magistrate under the Jail Manual Rules. The
Appellant contended that his release was conditional under r, 549 of the Jail .Manual Rules, which was challenged by the respondent. A nonbailable warrant for arrest was issued against him upon which he moved the High Court under
Art. 226 of the constitution and was directed to appear at the preliminary hearing. He presented an application before the District Magistrate praying for his appearance and an oppor- tunity to , present his case before the High Court.
The. District Magistrate passed no order but from the respondent's petition in the High Court, it appeared that Senior Deputy Collector, Patna, ordered his arrest and sent him to jail and his petition in the High Court was withdrawn. The High
Court allowed the respondent's petition and ordered his release from custody. The High Court held, that the order of release 'passed by the District Magistrate was an uncondi· tional release and therefore, he could not be rearrested.
Against that. order, State came In appeal by special leave. The appellant contended that the release must have been under Rule 549 of the Jail Manual Rules and not under any other rule.
Held, that the State did not make it clear under which rule he was released and under what lawful authority he was rearrested and thus _in absence of such Ia:wful authority, the detention was illegal and the appeal must fail.
EshU{lbayi Eleko v. Officer Adminis!M'ing the Government' of Nig•ria and Anr.,(1931) A. C. 662, applied. Stat~ of Bi,~•r • . v. _,.I 184 · CnnuNAL APPELLATE JURISDICTION : Criminal
AppealNo. 242 of 1960. Ki1111uhw"' Pr.;Jad Vnm• Appeal by special leave from the judj!ment ·{ .and o;der ,dated'June 2, 1958, of the Patna High Court m Cr. 1\Iisc. J:!.4/G8 • . S. P. Verma for the '1ppel!ant.
A. -S .. R. Chari, D. P. Singh, R. K. Garg, S.C • . Agarwal, and M. K. Ramamurthi, for the respon- · . dent. 1962. April 17.· The Judgment of the· Court ·was delivered by ·. _ KAPUR, J.-The State of Bihar has brought
. this appeal against the judgment and order of the . High Court of Patna and it arises·out of proceedings under. Art. 226 of the Constitution ana;s. 491 . of the Criminal Procedure Code for.a writ of habeas corpus
·in the matter of detention of one Bipat Gope. The · present respondent was the petitioner in . the High Court.. Bipat Gope, a resident of the district' of Patna, · .. was convicted under s 323 & ~· 324 read with s. 511. · of the Indian Penal Code and. sentenced on
November 29, 1957, to six months' rigorous imprisonment by the High Court on appeal against acquittal under s. 417 of the Code of ·criminal Procedure but he was not taken into custody till
January 6, 1958 and even then he was kept .under armed guard in the Patna l\Iedical College Hospital · . in one of the paying wards, on the ground that he was seriously ill. On an application by the respon·
dent and on the recommendation of the appropriate· medical authority Bipat Gope was released · by the District 1\Iagistrate on 1\Iarch II; 1958 under the rule•. ot the Jail Manual wh~n his unexpi~ed period
of imprisonment wa8 four months and three days. The contention of tho appellant State is that he was .. ; '!' . 2 s.c.R. released under R. 5i9 which is the rule providing for conditional release of prisoners but the respon-
dent challenges the factum of release under this Rule·. The sureties for Bipat Gope were called upon to produce him but as they had failed to do so notices were issued to them by an order dated
April 27, 1958, to show cause why their surety bonds 6hould not be forfeited. By the same order non- bailable w11orrant for arrest was ordered to be isHued. On April 29, 1958, Bipa.t Gope moved a peti-
tion under Art. 226 against the order of the District Magistrate and the High Court directed on May l, 1958, that Bipat Gope should appear on Monday following which was May 5, 1958, when the petition
was to be taken up for preliminary ht>aring. On May l, 1958, Bipat Gope appeared in the Court of the District Magistrate, Patna and made an application stating that he had filed the above
mentioned petition in the High Court and that he had to appear there on Monday and he prayed that he be allowed an opportunity to present his case t,o the High Court and to avoid his maltreatment at
the hands of the police of which he was apprehen- sive. 'l'here is no order on the record showing what die District Magistrate did but from thJ respondent's petition in the High Court it appears that the
application before District Magistrate was taken up by the Senior Deputy Collector, Patna, who ordered Bipat Gope to be taken into custody and sent him to jail. The earlier petition of Bipat Gope filed in
the High Court was withdrawn on May 2, 1958. The High Court heard the petition filed by the respondent on May 5, 1958, and after some amend- ments were made the petition was allowed and
Bipat Gope was ordered to be released from custody. The High Court held that the order of "f release by the District Magistrate of Patna above referred to was an order for his unconditional
release and therefore he could not be rearrested. It S.ate of Bihar v. Kameshwar P10,fad Vnma Kapur J. ltaU •/bill• v. K amtJhwd' P1u-1 Y1tms SUPREME OOURT REPORTS [1963] is against that order that the State has come to this
Court by special leave, its application under Art.134 (IX cl having been dismissed by the High Court. On the petition under Art. 226 filed by the respondent, the High Court issued a rule calling
upon the appellant State to show cause why a writ of habeas COf"Pt£8 should not issue. It is unfortu· nate that no return was filed by the Sta.te and it is not clear from the record as to how exactly or under
what authority Bipat Gope was taken into custody and under what authority the jailor was rletaining him in jail. The order of the Dilltriot Magistrate shows that a non-bailable warrant was ordered to
be issued. The petition of the respondent shows that Bifat Gope was arrested under the order o thl• Senior Deputy Collector ; what authority the Senior Deputy Collector had of ordering
Bipat Gope'• rearrest is not clear from this record. The High Court has stated that Bipat Gope HUrrendered on May l, 1958, to whom he surrt-ndered is not clear. It is also stated in the petition that non-bailable warrant of arrest
was ordered to be withdrawn and the record was sent to the Distric:t Magistrate for confirmation who withdrew thu non· bailable warrant ordered to be issued. Wh•m the record was sent to the District
Magistrate for 001tfuma.tion and that was done by the District Magistrate thereafter is also not. shown. In the absEnce of a properly drawn up return accompanie¢. by proper documents it is not pOBBible
to find out what •lxact.ly happened in regard to the rearrest of Bi pat Gopo and it is for that reason that the filing of a proper return is neceBSary and is insisted upon in most jurisdictions.
It was argued on behalf of the appellant that the release of Bipat Gope was under R. 549 of the Jail Manual Rules whioh are i88Ued under the Prisons Act and that releases thereunder are condi-
tional. The appellant was anxious to get the "l ~' ' 2 S.C.R. .187 opinion of this Court a.s to the true meaning and extent of Rule 549 under which, according to the appellant, Bipat Gope wa.s released. On .this record
it is not clear as to the rule under which he was released. It appears from the petition of the res· ponrlent under Art. 226 that the respondent ma.de an application for the release of Bipat Gope en the
ground that he was seriously ill. There are on the record certificates by Dr. V. N. Sinha, F. R. C. S., Professor of Clinical Surgery at the Patna Medical College stating the disease Bipat Gope was suffering
from and that he was not improving under the treatment he was being given. It was also stated therein that he would improve if he was released. Tllis was on February 21, 1958. The Civil Surgeon
of Patna on March, I, 1958, again enquired from Dr. V. N. Sinha if the prisoner (Bipat Gope) was in danger of death from illness. Upon this on March 3, 1958, Dr. V. N. Sinha said:-
.–i "The complications of the diseaae i. e. of ventral hernia, peotio ulcer and strees and strain syndrome sometilne prove fatal". and on March 5, 1958, it wi;s stated that he was in
danger of death but was likely to improve if relea· ~~d. The ,superintendent of District Jail, Patna, sent a letter to the District Magistrate giving all these various particular11. Upon that .a note was
ma.de by Judicial Peshkar in whicli he stated: "In this connection Jail Manual Rule 548(1) and (2) and (3) and Rule 549 may be seen. The District Magistrate has power to pass order for the release of the prisoner, if
the petitioner's sentence does not exceed sil months under the above Rules. From the sentence sheet of release from the Jail autho· rity it appears that the prisoner has only 4 (four) months and 3 (three) days unexpired
period of sentence. These rules may kindly be seen and necessary orders passed". J9f.J — Sta,. oj Biht1r v. K•mes111oar Prae •ii V1rnia K11tm,/rwn Pruod Verma The order of the District Magistrate was "Allowed
releaee in the circumstances". It is not clear from this as to the Rule under which Bipa.t Gope was rPleased. It waa contended on behalf of the appel- lant that the release must have been under R. 549
and µot under any other Rule and in support reliance is placed on the relea.e1> order of Bipa.t Gope whic'h ia in Form No. 105. That Form mentions Rules 548, 549 and 552 and the Rule which was not
appropriate had to be scored out but none of these Rules was scored out. But at the b'ottom of the Form tbere is a. declaration of two persons who stated that they a.re willing to take charge of Bipa.t
Gope and bound themselves to surrender him at any time before the date of his expiry i. e. July 9, J 958 if required to do so. Here it may he stated that the support of the relevant Rules is set out in Form
105 as follows:- "(i) Rule 549-Tbere is no hope of his recovery either in or out of Jail; I consider it —,I desirable that he be allowed the comfort of dying at home. (ii) Rule 549-The prisoner is in danger
of death from illness and there is probability of his recovery if he is released". On the basi,s of the order of the District Magis- trate which is referred to above dated March 7, 1958
and Form 105 it was submitted that the release must have been under R. 549. The urders on the record do not make that clear. Neither the order of the District Magistrate nor the Form 105
shows that Bipa.t Gope was released under R. 549 and not under any other Rule. The State has not ca.red to make it clear in any return made on an affidavit filed as to the Rule under which Bipa.t
Gope wae released and then it is not shown as to what lawful authority there was for his rearrest. •' 2 s.c.R. In this connection the observations of Lord Atkin in Eshugbayi Eleko v. The Officer Administering
The Government of Nigeria('} are appropriate and l\PPlicable : "In accordance with Britain jurisprudence no member of the executive can interferl' 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 i9sues in the face of the execu·
tive" It is the same jurisprudence which has been adopted in this country on the basis of which the courts of this co•mtry exercise jurisdiction. It has not. been shown in this c&se that there was any lawful autho·
rity under which Bi pat Gope w.i.s rearrested and in the abse:1ce of such lawful authority Bipa.t Gope's detention cannot be supported and is illegal. In the circumstances the remed v under Art. 226 is rightly
applicable to the facts of this case. We.therefore dismiss this appeal. Appeal dismissed. (1) (1931) A.C. 662 670 Stall af Bih!lr v. Eameshwo.r P ;osad v,,ma