P L D 1969 Lahore 1020 (PLP)

7. During the hearing of Criminal Miscellaneous No. 521‑H of 1969, Sub‑Inspector Latif Hussain Shah of C. I. A. made the following statement :‑ I obtained the remand orders of the nine detenus named by S.

1. Muhammad Sharif with regard to whom he is investigating the case. The remand of Muhammad Munir. Muhammad Afzal, Muhammad 1drees, Muhammad Salim Azad, Hamid Hassan and Sharafatuhah was taken on 28th of January 1969, from Mr. Masood Ansari, Magistrate "Section 30, Lahore. He had come to the Civil Lines Police Station in communication with an Emergency Duty. The detenus were in the lock‑up when the order of remand was obtained. Remand of Malik Hamid Sarfraz was obtained on 30th of January 1969, From Malik Muhammad Jahangir, Magistrate First Class, Lahore. This remand order was also passed in the Civil Lines Police Station. The remand of Mr. M. Rashid and Muhammad Arshad Ahsan was obtained on 29th of January 1969, from Malik Muhammad Jahangir, Magistrate "'First Class. These remand orders were also passed in the police station. Malik Hamid Sarfraz, M. Rashid and Muhammad Arshad Ahsan were also in the lock‑up when the orders of remand was passed. Remand orders with regard to the accused named in F. I. R. No. 1.4 of Police Station Civil Lines, F. I. R. No. 49 of Police Station Old Anakali and F. I. R. No. 32 of Police Station Civil Lines were also passed in the Civil Lines Police Station by the two Magistrates named above. The accused named in the above F. I. Rs. were in the police lock‑up when the remand was given.

8. A. S. I. Muhammad Yaqub of Police Station Civil Lines, bad obtained the remand of some of the accused mentioned in F. I. R. No. 32 dated 25th of January 1969, and some other detenus mentioned in Petition No. 521‑H of 1969. According to him, the accused were out of the lock‑up when the remand orders were passed, and the Magistrate was standing in the courtyard of the police station Civil Lines when he passed the orders of remand.

9. It was stated before me by Sardar Muhammad Zafrullah Khan, who interviewed the detenus mentioned in Cr. Misc. TJo. 521‑H of 1969 that all the detenus had told hire that they had never been produced before any Magistrate. Malik Hamid Sarfraz, Advocate, who was one of the detenus in that case, however, insisted on making a statement. He, apart from levelling certain allegations of the use of third degree by the police, categorically asserted that he was never informed of the charge against him at the time of his arrest from his house and was never produced before any Magistrate. In view of these statements which had been made before me earlier, I thought it proper to examine in these proceedings Malik Muhammad Jahangir Cantonment Magistrate, who had passed a number of remand orders with regard to the detenus before me and their co‑accused on 29th and 30th of January in connection with the F. I. Rs. mentioned in para. 3 above

10. The learned Magistrate appeared before me on 5th of February 1969, and stated that he was appointed by the District Magistrate as a Liaison Officer with the Army, from the evening of 27th of January 1969, and was asked to be present in the Civil Lines Police Station in that connection. He stated that he passed orders which were marked by me as Exhs. C, D, G, H, J, K and L with regard to the accused who had been mentioned in F. I. Rs. Nos. 25, 32, 34 and 49, mentioned above. He further stated that he had passed remand . . . orders with regard to Mushtaq alias Taqi detenu, and two others who were mentioned as accused persons in F. I. R. No. 24 pertaining to Civil Lines Police Station, registered on 27‑1‑1969, marked by the Court as Exh. M. He admitted that he was not the Ilaqa Magistrate relating to the F. I. Rs. in which the detenus were mentioned as accused persons. He also admitted that he had not been appointed by the District Magistrate as the Duty Magistrate for granting remands, but stated that since he was performing multifarious functions, he thought that he was competent to grant remand in these cases, particularly, when the police found it difficult to produce the detenus before the Duty Magistrate because of the curfew. It was further admitted by the learned Magistrate that there was no curfew in the Cantonment area, in which he was the Magistrate. According to the statement of this witness, he passed all these remand orders in the Civil Lines Police Station in a room where the detenus were produced before him. Two of these remand orders are in the hand of an A. S. I. and according to the learned Magistrate he dictated these orders which were taken down by the A. S. I. in pencil. He positively stated that Malik Hamid Sarfraz was produced before him for judicial remand in the same room in which he passed other remand orders, and that when this remand order was being passed, Hamid Sarfraz kept quiet. I recorded the supplementary statement of Malik Hamid Sarfraz who cate gorically repudiated the statement of the learned Magistrate that he had been produced before him.

11. The remand orders purport to show that the detenus were produced before the learned Magistrate. Two of them 3 were in the band of an A. S. I. and the rest are stated to have been written by the learned Magistrate himself. 1n view of the evidence of the two police officers and that of Malik Hamid Sarfraz, an Advocate of this Court, it is hard to believe that the detenus were actually produced before the learned Magistrate. S. I. Latif Husain Shah categorically stated that all the detenus including Malik Hamid Sarfraz re in the lock‑up when they orders of remand were passed. Muhammad Yaqub A. S. I. stated that the detenus, with regard to whom he obtained the order of remand, were outside the lock‑up when the Magistrate passed orders in the courtyard of the police station. There was not the slightest attempt on the part of the above two police officers to assert that there was a formal appearance of the detenus before the learned Magistrate in any room of the police station. Mr. Masood Ansari, who is one of the Magistrates who had passed various remand orders in the Civil Lines Police Station, categorically admitted before me during the hearing of Cr. Misc. No. 564‑H of 69 that the accused were in the lock‑up when he passed remand orders, and that he called the names of each one of them before passing the remand orders. It is not clear why the formality of a mechanical production should have been adopted with regard to Malik Jahangir. If the accused had been produced before Malik Jahangir Khan, at least Malik Hamid Sarfraz who is an Advocate of some standing and a vocal political worker, would have said something about the circumstances under which he was arrested. It is true that both S.

1. Latif Hussain Shah and Muhammad Yaqub became wiser during the present proceedings and attempted to say that the detenus were produced in a room before Malik Jahangir Khan in the police station but this position is not at all reconcilable with the categorical statements they had made before me on 31st of January 1969, during the hearing of Cr. Misc. No. 521‑H of 1969. Muhammad Yaqub when questioned about this difference in his statements failed to give any reason for this. I am, therefore, constrained to observe that tile statement of Malik Jahangir Khan that the detenus had been produced before him in a room in the Civil Lines Police Station does not appear to be correct. Two of the remand orders are in the hand of an A. S.

1. The learned Magistrate had signed these remand orders with a pen which shows that be had a pen and could write an order of three to four lines. There was no necessity for him to dictate these orders to an A. S. I. who took them down in pencil. It appears that these orders were already ready for the signatures of any Magistrate who might be available to the police. They were, therefore, got signed by Malik Muhammad Jahangir

12. Even if the detenus had been produced before the learned Magistrate in a room in the police station, their mere production could not be said Lo have met the requirements of law. Under section 61 of the Cr. P. Code (hereinafter mentioned as the Code), a person arrested without a war‑ant cannot be kept in police custody for a period exceeding 24 hours in the absence of a special order of a Magistrate under section 167 of the Code. Section 167 of the Code reads as under :‑ "S. 167 (1) Whenever any person is arrested and detained on custody, and it appears that the investigation cannot be completed within the period of twenty‑four hours fixed by section 61, and there are grounds for believing that the accusation or information is well‑founded, the officer in charge of the police station or the police officer making the investi gation if he is not below the rank of Sub‑Inspector shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has not jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction Provided that no Magistrate of the third class, and no Magistrate of the second class not specially empowered in this behalf by the Provincial Government shall authorise deten tion in the custody of the police. (3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing. (4) If such order is given by a Magistrate other than the District Magistrate or Sub‑Divisional Magistrate, he shall forward a copy of this order, with his reasons for making it, to the Magistrate to whom he is immediately subordinate." It would appear that under subsection (3) of section 167 of the, Code, a duty is cast on the Magistrate to record his reasons for ordering the detention of a prisoner in police custody. He has to weigh the evidence and decide whether there is any ground to remand a prisoner to custody. The law views with disfavour the continuation of prisoners' detention in police custody without good reasons.

13. The learned Magistrate in reply to a question put by me stated that whenever he grants a remand to police custody under section 167 of the Code, he puts a question to the person concerned as to whether he has any objection to the grant of remand, and if no objection is raised, he then passes an order remanding him to police custody. He further stated that while granting a remand to judicial custody he does not even put such a question.

14. In my view, a more erroneous view of the law of remand could not be taken. Whether a remand is to be granted to police custody or the judicial custody, it is a duty cast on the learned Magistrate himself, irrespective of the fact whether or not any objection is raised by the prisoner, to see whether there t is any reasonable ground to order a remand. While passing an order under section 167 of the Code, a Magistrate performs a judicial function, and the preliminary requirement of the performance of the functions is to look into the evidence judicial and to determine as to the sufficiency of the ground for passing an order.

15. The proceedings regarding grant of a remand are proceedings within the meanings of section 340 of the Code and during these proceedings, an accused person has a right to be represented by a lawyer and to have access to his relatives for that purpose. It has been held in a number of cases that grant of remand under section 167 is a judicial function and that an accused person has a right to legal advice when he is in police custody during the course of investigation. Reference in this connection may be made to In re : Llewelyn Evans (A I R 1926 Bom. 551); Sunder Singh v. Emperor (A I R 1930 Lab. 945) ; Bal Krishna v. Emperor (A I R 1931 Lah. 99) ; In re Khairati Ram (A I R 1931 Lab. 476) and Amolok Ram v. Emperor (A I R 1932 Lab. 13).

16. In the case of Bal Krishna the petitioner was charged with an offence under section 302 and 120‑B of the Penal Code as well as under section 20 of the Arms Act. His first remand was obtained from the A. D. M., Lahore but the subsequent remands were obtained from the A. D. M., Amritsar and a Magistrate from Lahore. At the time of the first remand the legal advisers were allowed to have an interview but during the subsequent remand neither the relatives nor the legal advisers were given any clue as to where the accused was to be produced, although the stand of the Government was that some relatives of the prisoner had been allowed to see him. 7 he counsel of the petitioner applied to the A. D. M., Lahore to send a copy of the application to the S. P. enquiring as to before which Magistrate the accused was to be produced after the period of remand. No reply to this query was given till after a remand order had been obtained from Amritsar. The learned Single Judge directed the release of the petitioner on bail and made the following observations :‑‑ "An accused person is entitled to be represented by counsel in proceedings before a Magistrate under section

167. The object of requiring an accused person to be produced before a Magistrate for purposes of remand under S. 167, obviously is to enable the Magistrate to see that the remand is necessary and also to enable the accused to make any representation he may wish to make in the matter. Legal assistance may therefore be very frequently useful on each occasion. Section 167 requires a Magistrate remanding an accused person to police custody to state his reasons in writing. A remand to police custody ought not to be granted by a Magistrate without satisfying himself as to its necessity, and the period of remand ought also to be restricted to the necessities of the case. The practice of obtaining remand from any Magistrate at the choice of the police is objectionable. In absence of special reasons such as distance or other similar difficulties, the Magistrate in charge of the Ilaqa should be approached for purposes of remand."

17. It was held by a Division Bench in Khairati Ram's case cited above A I R 1931 Lah. 476 that the law views with disfavour detention in custody of the police and even in the case of an accused person such detention can be allowed only in special cases and for reasons to be stated in writing and not as a matter of course. In the case of Amolak Ram it was observed as under :‑ "The police were, however, clearly wrong in refusing to allow the legal advisers of the accused to interview him, and their refusal to allow the relatives of the accused to supply him food and clothing also seems to be unjustifiable. It seems to me obvious that a person who is merely arrested on suspicion during the course of police investigation cannot be placed on a worse footing than an unconvicted criminal prisoner to whom such amenities are allowed under the Prisons Act (vide sections 31‑33, Prisons Act, 1894). The police would, of course, be fully justified in satisfying themselves that no objectionable articles are supplied, but the grounds on which the refusal was based in this case were devoid of any substance."

18. The affidavit of the petitioners filed to the effect that the detenus were kept in different police stations without' intimating to them the offences for which they had been confined or permitting their relatives to have access to them, has not; been controverted by the State. According to the evidence of Sub‑Inspector Fazal Hassain Shah and Mr. Masood Ansari, Magistrate First Class, Lahore, who passed orders in respect of accused in F.

1. R. No. 49, the detenus were in the lock‑up when the remand orders were passed. Even if they had been produced before a Magistrate in the police station in this state of confinement and segregation from their relatives, it cannot be said to be a compliance with the spirit of the law.

19. According to para. 12 of Chapter 11‑B of the High Court Rules and Orders, Volume III when a prisoner is produced before a Magistrate for remand, it is the duty of the Magistrate to inform him that he is a Magistrate and that a remand has been applied for and whether the accused has any objection to the grant of remand. The order granting remand is to be written in the presence of the accused himself. if the accused wishes to be represented by a counsel, the Magistrate should allow him time for counsel to appear and argue the matter before him. He may grant a temporary remand in such circumstances until the arguments have been heard. The Government has itself issued circulars enjoining on the Magistrates strict com pliance with the provisions of section 167 of the Code. Sub para. (ii) of para. 12 of Chapter 1I‑B of the Rules and Orders of the High Court referred to above reads as under :‑ "The Punjab Government have issued the following instruc tion in regard to the right of accused to access to counsel and friends :‑‑An accused person should not be removed to a place which is either inaccessible or unknown to his friends or counsel. Information regarding his place of confinement should at all times be given to his friends on their application, and the prisoner himself should be informed that he is entitled to have the assistance of counsel and to communicate with his relations and friends."

20. These clear instructions with regard to the grant of remand were clearly violated. The offences for which the detenus were arrested were not made known to them. According to their averment which remained unrebutted, as no counter affidavit was filed, they were not produced before any Magistrate and their relatives were not permitted to have access to them. The production of an accused person, who does not know what is the charge against him, before a Magistrate at a place where he is in a state of helplessness and complete detachment from the world outside, and where he has no freedom of communication with his lawyer or relatives, will actually amount to a travesty of judicial procedure. It is a condition of lawful arrest that the person arrested should know on what charge or suspicion or crime he has been arrested so that he is in a position to communicate the information for the purpose of arranging his defence. The Magistrates on their part have to perform their duties with vigilance and in accordance with law. Where two constables were taking a man before a Magistrate on the charge of disorderly conduct, and the Magistrate met them in the street and sent the prisoner back to the lock‑up and told the constables bring him up for examination the next day, it was held that the Magistrate was liable to an action for trespass for sending the plaintiff back to the lock‑up, as he ought either to have inquired into the case on the first day, or to have told the constables to take the prisoner before another Magistrate Edwards v. Ferris ((1836) 7 C & P 542).

21. Similarly, where a Magistrate adjourned a case registered under section 436,

1. P. C. on 6th of May 1869, and then took it up in the month of August in the same year and convicted the accused of the offence of rioting, it was held by the Calcutta High Court that if the conviction had been set aside by the appellate Court, the Magistrate would have been liable for an action for damages notwithstanding the provisions of Judicial Officers' Protection Act XVIII of 1850. (See 1869 Sutherland Weekly Reporter page 19 (Criminal Rulings)). These judgments are not directly applicable to this case but the principle deductible from them is that where a Magistrate passes an order regarding the liberty of a citizen in subversion or utter disregard of the provisions of law, he not only commits an illegality but may in a given case make himself liable to damages for false imprisonment. 22. "Whether the detenus were in the lock‑up or were standing in the courtyard or were produced before the Magistrate in a room in the police station, the orders of their remand were clearly in violation of the law. In Jahangiri Lal and others v. Emperor (A I R 1935 lab. 230) a Division Bench of Lahore High Court observed as follows :‑ "In all cases where remands are granted it is the duty of the Magistrate to inform the accused that he is a Magistrate, that a remand is applied for and to ask the accused how long he has been in police custody and whether he has any objection to offer to the remand. It is not enough to walk past the cell where the accused is confined and to announce the order which is subsequently written at home. If the accused wishes to have counsel to represent him, it is the duty of the Magistrate to allow time for counsel to appear and argue the matter before him. He may grant a temporary remand in such circumstances until the arguments have been heard. Similarly, in The Crown v. Shera and others ((1867) P R 39) and In re : M. R. Yenkataraman and others (I L R 1948 Mad. 279) it was held that where a prisoner is not produced before a Magistrate, the remand is clearly illegal.

23. Under section 167 of the Code, an accused is to be forwarded to the Magistrate and not that the Magistrate has to make himself available to the police at the place of confinement of a prisoner. This practice is not only against the clear intention of the Legislature as contained in section 167 of the Code, but is likely to create an impression that the magistracy has made itself subservient to tire police in utter disregard of the judicial functions entrusted to it with regard to the determination of the question of the liberty of citizens. It was held in The State v. Muhammad Yusuf (P L D 1965 Lab. 324) that the act of the Additional District Magistrate granting remand to the accused person in the C. I. A. Office was illegal and against section 61 of the Code and Fundamental Right No. 2 of the Constitution. It was held in Nazir Ahmad v. The State (A I R 1936 P C 253) that a thing is to be done according to law or not at all. In this latter case a Magistrate had taken certain notes of a confession have been made by an accused person. It was held by their Lordships of the Privy Council that a confession had to be recorded in the Court under section 164 of the Code and that the confession recorded by the Magistrate in the manner stated above was vitiated by an illegality.

24. I find that the detention of the detenus was illegal as they were not informed of the offence with which they had been charged, and the orders remanding them either to police custody or to judicial custody were passed in utter disregard of the provisions of law on the subject. Since they have been charged 1 with substantive offences, their trials will take their due course. But in view of the fact that I found that their present detention is illegal, I ordered their release on bail by a short order passed earlier today. S. A. H. Petition allowed.