# KANU SANYAL v. DIST. MAGISTRATE, DARJEELING & ORS - **Citation:** [1974] 3 S.C.R. 279 - **Court:** Supreme Court of India - **Decided:** 1974-02-05 - **Bench:** P. N. Bhagwati, P. K. Goswami - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kanu-sanyal-v-dist-magistrate-darjeeling-ors-6042 - **Pages:** 8 ## Headnote Constitution of India, 1950, Art. 32-Petition for the issue of writ of habeas corpus-Date with reference to which legality of detention 1nay be tested. Priso11ers (Attendant:e in Courts) Act, 1955 s. b and its proviso-Scope of. The petitioner was remanded to the District Jail, Darjeeling, in connection with certain offences. Thereafter, two charge sheets were filed against him and others for various offences under the I.P.C., which were triable exclusively by a Sessions Court, before the Special Magistrate, Visakhapatnam, '.fhe Spe·cial Magistrate issued a warrant for the production of the petitioner in his Court, under s. 3(2) of the Prisoners (Attendance in Courts) Act, 1955, and the officer in charge of the Dt. Jail Darjeeling, sent the petitioner to the Court of. the Special Magistrate, Visakhapatnam. The petitioner was then remanded to t.he Central Jail. Visakhapatnam, pending the disposal of the committal proceedings. In a petition for· the issue of a writ of habeas corpus, the petitioner contended that his initial detention in the Dt. Jail, Darjeeling, was illegal, because, (l)(a) it was violative of Art. 22(1), (b) the concerned Magistrace in Darjeeling had no jurisdiction to try the Offences in connection with which be was detained in Darjeeling and hence could not order detention beyond 15 days; 3.nd (2) the officer In charge of the Dt. Jail, Darjeeling should have refused to comply with the warrant for production issued by the Special Magistrate, Visakhapatnam, by reason of s. 6 of the Prisoners (Attendance in Courts) Act. • HELD·: ( 1) As regards the earliest date With reference to which the legality of detention challenged iri.- a habeas corpus proceeding may be - exa~ .mined, there are 3 views, namely, (a) that it is the date on which the application for habeas corpus is made to the Court, (b) that it is the date of the return, and (c) that it is the date of hearing. Whichever be the correct view, the earliest of the dates would be the date of filing of the application for habeas corpus. In the present case, the application was filed after the petitioner was ordered to be detained in the jail at Visakhapatnam. Assuming that there was some infirmity_ in the detention in the jail at Darjeeling, that cannot irlvalidate the subsequent detention of the petitioner in the jail at Visakhapatnam. The legality of the detention at Visakbapatnam has. to be judged on its owp. merits. Therefore, it is unnecessary to examine the' legality of the detention of the petitioner in the jail at Darjeeling. [283 D-284 CJ (2) Under s. 3(1) of the Prisoners (Attendance in Courts) Act, the order contemplated is an order by a civil or criminal court, for· the production of a detained person for. giving evidence. But the order contemplated, by s. 3(2) is an . order of prqduction of a person for answering a charge in a criminal court. Under s. 5, when an order of production is made under s. 3(1) or (2), tJie officer in charge of a prison shall cause the detained Person to be taken to the court where his attendance is required. Under s. 6, such officer shall -abstain 'from complying with the order of production in certain circumstances. 1'.he pi'oviso to the sCctio'n carves out an exception if the 3 conditions foi' its applicability, laid down in the proviso, are satisfied. _The first con~ dition is that ~ order of production should be by a criminal court and the ~nd is that tlfe detained person should not be unfit to be removed, and the 280 SUPREME COURT REPORTS I 19741 3 s.c.a. !bird is that the plaoc where the evidence of the detained person is required A 1s not more than S miles from the priso.n where he is confined. (285 A-0] In the present case, the first two conditions are satisfied. The 3rd condi1ion can have nO application where an order is made by a criminal court under '8. 3(2) requiring ·production for answering a charge. The fulfilment ot the first two conditions would, in such a case, be sufficient to attract the appli· cabilit ## Text A B c D E F G H 279 KANU SANYAL v. DIST. MAGISTRATE, DARJEELING & ORS. February 5, 1974 [P. N. BHAGWATI AND P. K. GOSWAMI, JJ.J Constitution of India, 1950, Art. 32-Petition for the issue of writ of habeas corpus-Date with reference to which legality of detention 1nay be tested. Priso11ers (Attendant:e in Courts) Act, 1955 s. b and its proviso-Scope of. The petitioner was remanded to the District Jail, Darjeeling, in connection with certain offences. Thereafter, two charge sheets were filed against him and others for various offences under the I.P.C., which were triable exclusively by a Sessions Court, before the Special Magistrate, Visakhapatnam, '.fhe Spe·cial Magistrate issued a warrant for the production of the petitioner in his Court, under s. 3(2) of the Prisoners (Attendance in Courts) Act, 1955, and the officer in charge of the Dt. Jail Darjeeling, sent the petitioner to the Court of. the Special Magistrate, Visakhapatnam. The petitioner was then remanded to t.he Central Jail. Visakhapatnam, pending the disposal of the committal proceedings. In a petition for· the issue of a writ of habeas corpus, the petitioner contended that his initial detention in the Dt. Jail, Darjeeling, was illegal, because, (l)(a) it was violative of Art. 22(1), (b) the concerned Magistrace in Darjeeling had no jurisdiction to try the Offences in connection with which be was detained in Darjeeling and hence could not order detention beyond 15 days; 3.nd (2) the officer In charge of the Dt. Jail, Darjeeling should have refused to comply with the warrant for production issued by the Special Magistrate, Visakhapatnam, by reason of s. 6 of the Prisoners (Attendance in Courts) Act. • HELD·: ( 1) As regards the earliest date With reference to which the legality of detention challenged iri.- a habeas corpus proceeding may be - exa~ .mined, there are 3 views, namely, (a) that it is the date on which the application for habeas corpus is made to the Court, (b) that it is the date of the return, and (c) that it is the date of hearing. Whichever be the correct view, the earliest of the dates would be the date of filing of the application for habeas corpus. In the present case, the application was filed after the petitioner was ordered to be detained in the jail at Visakhapatnam. Assuming that there was some infirmity_ in the detention in the jail at Darjeeling, that cannot irlvalidate the subsequent detention of the petitioner in the jail at Visakhapatnam. The legality of the detention at Visakbapatnam has. to be judged on its owp. merits. Therefore, it is unnecessary to examine the' legality of the detention of the petitioner in the jail at Darjeeling. [283 D-284 CJ (2) Under s. 3(1) of the Prisoners (Attendance in Courts) Act, the order contemplated is an order by a civil or criminal court, for· the production of a detained person for. giving evidence. But the order contemplated, by s. 3(2) is an . order of prqduction of a person for answering a charge in a criminal court. Under s. 5, when an order of production is made under s. 3(1) or (2), tJie officer in charge of a prison shall cause the detained Person to be taken to the court where his attendance is required. Under s. 6, such officer shall -abstain 'from complying with the order of production in certain circumstances. 1'.he pi'oviso to the sCctio'n carves out an exception if the 3 conditions foi' its applicability, laid down in the proviso, are satisfied. _The first con~ dition is that ~ order of production should be by a criminal court and the ~nd is that tlfe detained person should not be unfit to be removed, and the 280 SUPREME COURT REPORTS I 19741 3 s.c.a. !bird is that the plaoc where the evidence of the detained person is required A 1s not more than S miles from the priso.n where he is confined. (285 A-0] In the present case, the first two conditions are satisfied. The 3rd condi1ion can have nO application where an order is made by a criminal court under '8. 3(2) requiring ·production for answering a charge. The fulfilment ot the first two conditions would, in such a case, be sufficient to attract the appli· cability of the Proviso, and to take the case out of s. 6. Therefore, the officer in charge of the jail at Darjeeling waS bound to send the petitioner B ·to the Co.urt at Visakhapatnam and he· acted according to law. The subsequent detention in the jail at Visakhapatnam pending trial must be held-to be ·valid and a ·writ of habeas corpus cannot be granted where a person is committed to jail custody by a competent court by an Order which, prima facie, does not appear to be without jurisdiction or wholly illegal. [285 H-286 G] B~ R, Rao v. State of Ori.na, A.I.R. 1971 S.C.· 2197, followed. ORIGINAL JUR:ISDICTION: Writ Petition No. 205 of 1973. Under Article 32 of the Constitution of India for issue of a writ in the nature of babeas corpus. N. H. Hingorani, for the petitioner. P. K. Chatterjee, Sukumar Basu and G. S. Chatterjee, for respon. dents Nos. 1-5. P. Ram Reddy and I'. P. Rao, for respondent No. 6. B. D. Sharma and S. P. Nayar, for respondent No. 7. c D The Judgment of the Court was delivered by E BHAGWAT!, I .. This is a writ petition by the petitioner under Art. 32 of the Constitution challenging the legality of his detention h1 the Central Jail, Vizakhapatnam and praying for a writ of hebeas corpus for setting him at liberty forthwith. The petitioner is one of the acknowiedged leaders of the Naxalite movement which originated in the area within Naxalbari, Kharabari and Phansidewa police staF lions in Siliguri Sub-DiVision of Darjeeling District of West Bengal some ten years ago. The movement represents armed revolt of the peasantry against exploitation by landholders and it seeks to achieve its end by violent means calculated to overthrow the democratic process. The petitioner, as one of the top leaders of this movement, was engaged in violent and anti-social activities and was for quite some time underground evading arrest by the police. Eventually on 19th G August; 1970 the petitioner was arrested by the police alongwith some of his associates from a hideout within the jurisdiction of Phansidewa police station. A huge quantity of arms, ammunition and explosives was found with the petitioner and his associates at the time Of the arrest. Phansidewa PS case No. 3 was accordingly registered against the petitioner on 19th August, 1970 under s.5 of the Explosive Substances Act, s. 25(1) (a) of the Arms Act and ss. 120B, 121A, 122, H 309 and 402 of the Indian Penal Code. There was also another case, namely, Phansidewa P.S. Case No. 28 registered against the petitioner on 29th June, 1967. under s. 412 read with s. 34 of the Indian Penal A B c D E F G H K. SANYAL v. DIST. MAGISTRATE (Bhagwati, /.) 281 Code. That case was under investigation at the time when the petitioner was arrested. Immediately after his arrest, on the same day, 'i.e., !9th August, 1970, the petitioner was produced before the SubDivisional Magistrate, Siliguri. The learned Sub-Divisional Magistrate passed an order of remand directing that the petitioner be detained in the District Jail, Darjeeling and that he should be produced before the Sub-Divisional Magistrate, Darjeeling, The petitioner was accordingly produced before the Sub-Divisional Magistrate Darjeeling from time to time and orders of remand were passed by the Sub-Divisional Magistrate, Darjeeling at the interval of every fourteen days since the investigation in P.S. Case No. 28 dated 29th June, 1967 and P.S. Case No. 3., dated 19th August, 1970 was not complete. It appears that on 16th January, 1970 first information report in respect of certain criminal offences alleged to have been committed by the petitioner and a large number of other co-conspirators was lodged in Parvathipurillll police station and after the completion of the investigation, two chargesheets were filed against the petitioner and other 139 accused in the Court of the Special Magistrate, Visakhapatnam on I;Zth October, 1970 charging them with offences under s. 120B read with ss. 302, 395, 397, 121, 122, 123, and 124A of the Indian Penal Code. The offences charged under these two chargesheets were triable exclusively by the Court of Sessions, and therefore, inquiry proceedings under Ch. XVlll of the Cods of Criminal Procedure were initiated by the Special Magistrate, Visakhapatnam. Since the !'Otitioner, who was accused No. 138 in the~e two criminal cases, which were numbered as P.R.C. Nos. 1 and 2 of 1971, was under remand in the District Jail, Darjeeling pending investigation of the two Phansidewa P.S. cases, the Special Magistrat~, Visakhapatnam issued on 30th May, 1972 a warrant for production of the petitioner in .his Court under s. 3, sub-s, (2) of the Prisoners (Attendance in Courts) Act, 1955. The officet in-charge of the District Jail, Darjeeling, in obedience to this warrant for production, sent the petitioner to the Court of the Special Magistrate, Visakhapatnam on 14th June, 1972 and imme· diately on arrival, the .petitioner was produced In the court of the ~pecial Judge, Visakhapatnam on 17th June, 1972. The petitioner was remanded by. the Special Judge, Visakhapatnam from time to time pending tho disposal of the committal proceedings and pursuant to the orders of remand, the petitioner was detained in the Central Jail, VisakhapatniUll. On 6th January, 1973, whilst under detention in the Central Jail Visakhapatriam, the petitioner preferred a writ petition under Art'. 3 2 of the Constitution in this Court challenging the legality of his detention right from the time of its inception and praying that he may be set free by issue of a writ of habaas corpus. The District Magi•- trate, Darjeeling, the Sub-Divisional Judicial Magistrates, Si!iguri, Kurseon and Darjeeling, the State of West Bengal, the Superintendent Central Jail, Visakhapatnarn and the Post Master General, West Bengal were made respondents to the writ petition. This Court ordered a rule nisi to be issued on the writ petition but directed that the uetition~r 1;1eed not be produced in person. The District Magistrate, Dar1eelmg and the State of West Bengal filed their return to the rule· 282 SUPREME COURT REPORTS [ 1974 J 3 S.C,R. ni>i on 19th April, 1973 and the Superinlendent of Central Jail, Visakhapatnam filed his return to foe rule m'si on ! Ith May, 1973. When the writ petitiJn reached he:•r.ng, counsel appearing on behalf of the petitioner rai:;ed a contention that the writ petition could not be heard by the Court unless the petitioner \Vas produced in person and his argument was that once rule nisi was issued, the Co~1rt was b:Jund. to order production of the petitioner. Since this contention raised an important question of law affecting the practice of the Court while dealing With· petitions for a writ of habeas corpus, the Division Bench hearing the writ petition refrrred this question for decision by the Constitution Bench. The writ petition was thereafter placed before the Constitution Bench and by a judgment delivered by the Constitution Bench on 11th September, 1973, it was held that it was competent to the Court to dispense with the production of the body of the person detained while issuing rule nisi, and the rule nisi could be heard without requiring the body of the person detained to be brought before the Court. On this view being taken by the Constitution Bench, the writ petition again came back to the Division Bench for final disposal. In the meantime the committal proceedings which were being held by the Special Judge, Visakhapatnam against the petitioner and his other associates concluded and by an order dated 12th July, 1973 the petitioner and 66 other accused were commited to the court of Sessions to stand their trial for various offences. The trial of this Sessions Case, being Sessions Case No. 46 of 1973, is still pending against the petitioner in the Court of the Second Additional Sessions Judge, Visakhapatnam and the petitioner is under detention in the Central Jail, Vis~khapatnam pursuant to the orders made by the Second Additional Sessions Judge, Visakhapatnam pending trial. The learned counsel appearing on behalf of the potitioner p·ut forward three grounds challenging the legality of the detention of the petitioner and they may be briefly summarised as follows : A The initial detention of the petitioner in the District Jail, Darjeeling was illegal because he was detained without being informed of the grounds for his arrest as required by cl (iJ of Art. 22 of the Constitution; B. The Sub-Divisional Magistrate, Darjeeling h.ad no jurisdiction to try the two Phansidewa P.S. cases against the petitioner and he could not, therefore, authorise the detention of •h~ petitioner urtdcr s. 157 of the Code of Criminal Procedure for a term exoeeding fifteen days in the whole. It was only the Sub Divisional Magistrate Siliguri who had jurisdiction to try the two Phansidewa P.S. cases and he alone could remand the petitioner to custody after the expiration of tic initial ncriod of fifteen davs under s. 344 of the Code of Criminal Procedure. The orclers of remand under which the petitioner was dcttiined in the District Jail; Darjeeling were, however, made by the Sub-Divisional Magistrate, Darjeeling and the detention of the petitioner in ;the Disttict Court, Darjeeling was, therefore illegal. A B c D E F c; H .\ B c D E F G H ' K. SANYAL v. DIST. MAGISTRATE (Bhagwati, !.) 283 C. The officer in charge of the District Jail, Darjeeling was bound to abstain from compiying with the warrant for production issued by the Special Judge, Visakhapatnam by reason of s. 6 of the Prisoners (Attendance in Courts) Act, l 955 and the production of the petitioner before the Special J ndge, Visakhapatnam pursuant to such warrant for production and his detention in the Central Jail, Visakhapatnam were consequently without the authority of law. Re : Grounds A and H. These two grounds relate exclusively to the legality of the initial detention of the petitioner in the District Jail. Darjeeling. We think i; unnecessary to decide them. It is now well settled that the earliest date with reference to which the legality of detention challenged in a habeas corpus proceeding may be examined is the date on which the application for habeas corpus is made to the Court. This Court speaking through Wanchoo, J., {as he then was) said in A. K. Gopala11 v. Government of India( 1) :. "It is well settled that in dealing with the petition for habeas .corpus the Court is to soc whether the detention on the date on which tile application is made to the Court is legal, if nothing more has intervened betw,en the date of the application and the date or hearing". Jn two early decisions of this Cou.rt, however, namely, Naranjan Singh v. State of Punjab(') and Ram Narain Singh v. State of Delhi(') a slightly different view was expressed and that view was reiterated by this Court in B. K Rao v. State of Orissa(') where it was said : "In habeas corpus the Court is to have regard to the legality or otherwise of the detention at the time of the retnrn and not with reference to the institution of the proceedings". And yet in another decision of this Court in Talib Husain v. State of Jammu & Kashmir(') Mr. Justice Dua, sitting as a Single Judge, presumably in the vacation, observed that "in habeas corpus proceedings the Court has to consider the legality of the detention on the date of the hearing". Of these three views taken by the Court at different times, the second appears to be more in consonance with the law and practice in England and may be taken as having received the largest meltl!ure of approval in India, though the third view also cannot be discarded as incorrect, because an inquiry whether the detention is legal or not at the date of hearing of the application for habeas corpus would be quite relevant, for the simple reason that if on that date the detention is legal, the Court cannot order release of the person detained by issuing a writ of habeas corpus. But, for the purpose of the present case, it is immaterial which of these three vieV.S is accepted as correct, for it is clear that, whichever be the correct view, the earliest da•e with reference to which the legality of detention may be examined is the date of filing of the application for habeas corpus and the Court is not. to quote the words of Mr. Justice Dua in B. R. Ran v. State nf Ori.'