Holding

Detention beyond the statutory limits of Section 167(2) CrPC without charge is illegal and the petitioners must be released.

Summary

Mantoo Majumdar and Basdev Singh were detained for over seven years in Bihar prisons on the basis of alleged involvement in 1971-72 offences, without any charge sheet or completed investigation. They filed a habeas corpus petition under Article 32 of the Constitution challenging the legality of their continued detention. The Supreme Court examined Section 167(2) of the Code of Criminal Procedure, which limits pre‑trial detention to a maximum of 15 days, and mandates release on bail after 60 days for lesser offences and 90 days for grave offences. Finding that the magistrates had repeatedly authorized detention beyond these statutory limits and that no charges were framed, the Court held the detention illegal and ordered the petitioners’ release on personal bond without sureties. The petition was allowed, directing immediate release of the two prisoners.

Issues considered

Whether detention of an accused beyond the period prescribed under Section 167(2) of the CrPC is lawful.
Whether the petitioners' right to personal liberty under Article 21 is violated by prolonged detention without charge.
Whether a habeas corpus petition under Article 32 is maintainable in such circumstances.

Legislation cited

Code of Criminal Procedure, 1973s. 167(2)
Constitution of Indias. Article 21

Subjects

habeas corpusillegal detentionSection 167personal libertyArticle 21bailcriminal procedureconstitutional law

Judgment

1105

MANTOO MAJUMDAR & BASDEV SINGH A
-• I
v.
STATE OF BIHAR
February 27, 1980
[V. R. KRISHNA IYER, A. C. GUPTA AND R. S. PATHAK, JJ.] B
Cod• of Criminal Procedure 1914--&ction 161(2)-Accused persons detained
in prison for over six years without investigation or fra1ni11g: of charges-
Legality of.
The two petitioners have been imprisoned for seven years in various prisoas
on the basis that they were implicated in several cases of 1971 and 1972. In
their habeas corpus petition they impugned their continued detention in prison c
without trial.
Allowing the petition,
HELD : The petitioners should be released forthwith. [1109E]
(1) Section 167(2) of the Code of Criminal Procedure empowers the
magistrate to authorise the detention of an accused in such custody as he D
thinks fit for a term not exceeding 15 days in the whole. The section also
• provides that no magistrate shall authorise the detention of the accused person
exceeding 90 days in grave cases and 60 days in lesser cases, and that on the
expiry of the said period the accused shall be released on bail if he is prepared
to and does furnish bail. [1108H]
(2) Apart from mentioning the sections in the Penal Code by way of "
passport into the prison house, there is no mention of any investigation of the E
cases, nor was a charge sheet laid beifore the court against either accused. Even
the magistracy have bidden farewell to their primary obligation. [!108E]
(3) Although in these cases many years have passed the magistrates have
been mechanically authorising repeated detentions unconscious of the provi·
sions of law. [1109B]
ORIGINAL JURISDICTION : Writ Petition No. 1149 of 1979. F
(Under Article 32 of the Constitution.)
V. N. Ganpu/e for the Petitioners.
' U. P. Singh for the Respondent.
The Judgment of the Court was delivered by
G
KRISHNA IYER, J.-No Constitution nor Code nor Court call ink:r-
dict illegal incarceration where couscientized agencies of the law at the
grass-roots level are absent. Such is the only explanation for the law-
less lot of the two prisoners who are petitioners before us. These two
humans sojourning for long years in some jail or other in Bihar since
1972 found their personal liberty subverted by the police, prison offi- n
cials and the magis'racy that they wrote letters to the Hon. Chief
Jnstice in desperation. The above habeas corpus petition is a legal
1106 SUPREME COURT REPORTS [1980] 2 s.c.R.

A incarnation of those letters. Sensitired by the prima jacie hideous facts
disclosed the court directed a rule to issue. Somehow, despite several
I +
adjournments the State did not ewn furnish the basic facts abont the
imprisonment of the petitioners, the offences for which they were
kept in judicial custody, for how long and at what stage were the
proceeding.; and the like. This gross indifference of the Bihar State
B in regard to citizens depriYed of their liberty for indefinite and pro-
longed spells is an unconscionable aspect of that State's unconcern
for human rights. Indeed, counsel for the State did his level best to
get relevant information. Being at the end of our patience and find-
ing a helpless counsel, we had to pass an onder in the following
terms : -
It is noticed that an order dated 17-12-1979 directed
jail authorities and District Magistrates under whose juris-
diction the petitioners are kept in confinement to explain
- · b.efore 14.. 1-80 the nautre of the charges against the peti-
tioners, the stage of trial of each of these cases and the r
D reason for the delay in proceeding with the trial. It is sur-
prising that despite communication having been made to
them thr011gh the State, counsel for the State represents •
that telex message to the concerned District Magistrate and
jail authorities had been sent, but ho information has yet
been furnished in compliance with this Court's order. We
E are constrained therefore to issue notice to the jail authorities
ltnd the District Magistrates to show cause why action for
violation of this Court's direction should not be taken against
them. The Court will issue notice to be personally served
on these authorities with a direction that they shall appear
in Court in person on 25-2-1980. Counsel for the State
undertakes to furnish the names of the District Magistrate
concerned and jail authorities by 12-2-1980. Post the
matter on 13-2-1980 with office report whether the
counsel has submitted names and addresses of the authorities
concerned as directed abow.
G
When (he directive of the court went beyond mere censorious ob·
servations into bint at action against the defaulting officers, the sceire '
began to change and at the hearing on February 25, 1980, the Superin-
tendent of the Jail and the District Magistrate who were in a sense
vicariously responsible for the custodial condition of the petitioners
H appeared in person and prayed to be excused for the default or delay
in furnishing vital informatio\1 about these unfree individuals. Fuller
facts have been furnished by t11e Superint~ndent, cmitral Jail, suffi-
MANTOO MAJUMDAR v. BIHAR (Krishna Iyer, J.) 1107

cient to enable us to discover the incoiltestable illegality of the deten- A
tion and to direct the release on bail of the petitioners.
Law is what Jaw d<l'Cs and not what Jaw writes in the books beyond
the reach of those behind bars. In this perspective, Art. 21 of the
Constitutioil and s. 167(2) of the Criminal Procedure Code, are dead
letter for each petitioner. Article 21 guaran~~es personal liberty in B
these terms : -
No person shall be deprived of his life or personal liberty ex-
cept according to procedure established by law.
Section 167 (2) of the Criminal Procedure Code contains the following
mandate: c
The Magistrate to whom an accused person is forwarded
under this section may, whether he has or has not jurisdic-
tion to try the case, from time to time, authorise the deten-
tion of the accused in mch custody as such Magistrate thinks
fit, for a term not exceeding fifteen days in the whole; and if D
• he has no jurisdiction to try the case or comrnil it for trial,
and considers further detention unnecessary, he may order
the accused to be forwarded to a Magistrate having such·
jurisdiction :

Provided that- E
(a) the Magistrate may authorise the detention of the
·accused person, otherwise than in the custody of the polioe,
beyond the period of fifteen days, if he is satisfied that ade-
quate grounds exist for doing so, but no Magistrate shall
authorise the detention of the accused person in custody F
under this paragraph for a total period exceeding-
(i) ninety days, where the inve1.>tigation !dates to an
offence punishable with death, imprisonment for life or im-
prisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to, any G
other offence,
and, on the expiry of the said period of ninety days, or
sixty days, as the case may be, the accused person shall be
released on bail if he is prepared to and does furnish bail,
and every person released an bail under this sub-section shall H'
be deemed to be so released under the provisions of Chaprer
XXXIII for the purposes of that Chapter;
1108 SUPREME COURT REPORTS [1980] 2 S.C.R.

A (b) no Magistrate slrnll authorise detention in any
f
custody under this section unless the accused is produced
before him;
( c) no Magistrate of the second class, not specially em-
powered in this behalf by the High Court, shall . authorise
B detention in the custody of the police.
In Maneka Gandhi's case(') and a crop of cases thereafter this
Court has emphasised the need for fair procedure to justify deten- '
tion of persons. To put a man in prison and forget his personhood
thereafter, to deprive a man of his personal liberty for an arbitrary
c ~riod without monitoring by the law, to keep a man in continued
custody unmindful of just, fair and reasonable procedure-these shake
the faith in the rule of law and militate against the mandates of Part
III of the Constitution. And yet, that is precisely what has happened
in the present case.

D The frightful facts fraokly furnished iu the return filed are that the
two- petitioners have been enduring incarceration for over seven years
in various prisons in Bihar on the basis that they are implicated in
several cases of 1971 and 1972. A long list has been annexed to the
counter-affidavit. But what scandalises us is that apart from mention-
ing the sections in the Penal Code by way of a passport into the prison
E house, there is, no mention of any investigation of the case, nor a
single charge-sheet laid before the court against either accused. What
flabbergasts us is that even the magistracy have bidden farewell to
their primary obligation, perhaps, fatigued by over-work and un-
interested in the freedom of others. If we see the chart produced
by the Superintendent of the Jail we find that a large number of dates
F
are given on which the prisoners have been produced before the magis·
trates concerned from 1973 to 1980 without so much as the court
checking up whether the investigations h~ve been completed, charge-
sheets have b~en laid and there is justification for keeping the peti-
tioners in custody.

Section 167(2) which we have extracted above, empowers the
magistrate to authori~e the detention of an accused in such custody as
he thinks fit for a term not exceeding 15 days in the whole. More
importantly, there is a precious interdict protective of personal freedom
which states that no magistrate shall authorise the detention of the_
H accused person exceeding 90 days in grave cases and 60 days in
(1) Maneka Gandhi v. Union of India [1978] l S.C.C. 248.
~[197812 S.C.R. 621.
MANTOO MAJUMDAR v. BIHAR (Krishna lyer, !.) 1109

lesser cases. "On the expiry of the said period .... the accused person A
shall be released on bail if he is prepared to and does furnish
bail. ... " Not 60 days but six years have passed in the present case;
not 90 days but 1900 days or more have passed; and yet, the magis-
trates concerned have been mechanically authorising repeated detentions
unconscious of the provisicms which obligated them to monitor the
B
proceedings which warrant such detention. In short, the police have
abdicated their function of prompt investigation. The prison staff
have not bothered to k'now how long these internees should be conti-
nued in their custody and, most grievous of all, the judicial officers
concerned have routinely signed away orders of detention for years by
periodically appending their incarceratory authorisations. We know c
nat how many others are languishing in prison like the petitioners
before us. 'If the salt hath lost its savour, wherewith shall it be
salted ?' If the law officers charged with the obligation to protect the
liberty of persons are mindless of constitutional mandates and the
code's dictates, how can freedom survive for the ordinary citizen ?
D
We must record our deep appreciatiollj of Shri Ganpule who has
appeared amicus curiae and proceed further to register our profound
satisfaction at the fair and frank statement made by Shri U. P. Singh
for the State who rightly pointed out that the ccmtinued detentions \n
the face of s. 167(2) were indefensible. E

We direct the release forthwith of the two petitioners on their own
bond without sureties. This Court has held in earlier cases that bail
does not involve a necessary component of sureties. We, therefore,
~·. direct that on taking the personal recoguizance from the petitioners,
both of them will be set free subject to such other legal proc~cdings F
that the State may take if so warranted.

We have stated earlier that in the populatioo of prisoners there
may be many other whose legal illiteracy and pecuniary indigence
may have forbidden their moving this Court or the High Court by way G
of habeas corpus petition. It is a bad state of affairs when we see the
Bihar State being oblivious or callous to the prisoners whom it is
warehousing. For what purpose, one knows: not. It may be an act
of penitence on the part of the authorities of the state and also of
cleansing of conscience if only a special officet with judicial experience
or other law officer familiar with criminal justice were appointed to B
make an extensive survey and study all the cases of prisoners to find out
whether illegal custody has become a large scale phenomenon. After
1110 SUPREME COURT REPORTS [1980] 2 S.C.R. "

A all, the State is also the guardian of the p:!Ople's freedom and must,
activist fashion set in motion measures to enlarge those prisoners who ,•
are held in custody without the warrant of fair procedure.

With these directions we direct the release of the petitioner• on
their ow'n bonds in a sum of Rs. 1,000/- each.
B
l'.13. R. Petition allowed.

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