- (1.) No constitution nor Code nor Court can interdict illegal incarceration where conscientized agencies of the law at the grass-roots level are absent. Such is the only explanation for the lawless 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 officials and the magistracy that they wrote letters to the Hon'ble Chief Justice in reparation. The above habeas corpus petition is a legal incarnation of those letters. Sensitized by the prima facie hideous facts disclosed the court directed a rule to issue. Somehow, despite several adjournments the State did not even furnish the basic facts about the imprisonment of the petitioners, the offences for which they were kept in judicial custody, for how long and at what stage were the proceedings and the like. This gross indifference of the Bihar State in regard to citizens deprived of their liberty for indefinite and prolonged 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 finding a helpless counsel, we had to pass an order in the following terms : It is noticed that an order dated 17-12-1979 directed jail authorities and District Magistrate under whose jurisdiction the petitioners are kept in confinement to explain before 14-1-80 the nature of the charges against the petitioners, the stage of trial of each of these cases and the reason for the delay in proceeding with the trial. It is surprising that despite communication having been made to them through the State, counsel for the State represents that telex message to the concerned District Magistrate and jail authorities had been sent, but no information has yet been furnished in compliance with this court's order. We are constrained therefore to issue notice to the jail authorities and the District Magistrate 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 above.
(2.) When the directive of the court went beyond mere censorious observations into hint at action against the defaulting officials, the scene began to change and at the hearing on February 25, 1980, the Superintendent of the Jail and the District Magistrate who were in a sense vicariously responsible for the custodial condition of the petitioners appeared in person and prayed to be excused for the default or delay in furnishing vital information about those unfree individuals. Fuller facts have been furnished by the Superintendent, Central Jail, sufficient to enable us to discover the incontestable illegality of the detention and to direct the release on bail of the petitioners.
(3.) Law is what law does and not what law writes in the books beyond the reach of those behind bars. In this perspective, Art. 21 of the Constitution and S. 167 (2) of the Cr. P. C., are dead letter for each petitioner, Art. 21 guarantees personal liberty in these terms :- No person shall be deprived of his life or personal liberty except according to procedure established by law. S. 167 (2) of the Cr. P. C. contains the following mandate: 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; and if he has no 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 - (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding - (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any 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 on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.;