Vinod Prasad, J. - (1.) Heard Sri G.S. Hazela Advocate, counsel for the applicants and the learned A.G.A. on behalf of respondent State. As the facts are not disputed and the argument of the counsel for the applicant is confined only on the impugned order dated 6.3.06, passed by I/C ACJM (Railways), Farrukhabad, in case No. 378A of 05 State v. Masrruddin, therefore this stage itself as has been agreed between both the parties.
(2.) The facts stated lies in a narrow compass. A, NCR No. 60 of 05 was registered at the instance of one Mohd. Hanif at the police station Jahanganj, District Farrukhabad on 17.8.05 at 2.30 PM under Sections 323/504/506 IPC against four persons as malefactors namely Mazruddin, Bashruddin, Muzzavil, and Wasin in respect of an incident alleged to have taken place on 17.8.2005 at 1.15 PM. The incident was regarding abusing filthy and beating by lathis and dandas by the accused to the brother of the informant namely Noor Mohd. On 1.9.05 an application was filed by the informant to convert the said NCR into offence under Sections 323/504/506/308 IPC before Superintendent of Police Fatehgarh. This application was accompanied by medical report dated 17.8.05, x-ray report dated 18.8.05 and supplementary report dated 4.8.2005 of the injured Noor Mohd. which indicated that the injured had received two injuries - one on the root of the nose and other on arm. The injury at the root of the nose was found to be grievous in nature as the nasal bone was found fractured. Additional SP, on that application ordered for converting the case in accordance with injury report and act accordingly. The NCR was converted into a cognizable offence vide crime number 378A of 05 under Sections 147/323/324/504/506/338 IPC. Three of the accused Masrruddin, Shamim and Phaiku were arrested on 6.3.05 by the police who sought their remand for fourteen days from 6.4.05 upto 19.3.05 from the Court of ACJM (R) in the case State v. Masrruddin. However the Magistrate ACJM (R) vide his impugned order allowed remand only for two days from 6.3.05 to 8.3.05. Aggrieved by the aforesaid order this application has been filed by the applicants, who are thirteen in number, invoking the inherent power of this Court under Section 482 Cr.P.C. with the prayer that the remand under Section 308 IPC is bad in law and the same has been passed by the Magistrate mechanically, without any basis and without any application of mind and is a cyclostyled order on a printed form and the Magistrate has just put his signature on it. He further contended that the impugned order is not in accordance with Section 167 Cr.P.C. nor it is in accordance with Article 22 of the Constitution of India and hence deserves to be set aside. The learned AGA contrarily, submitted that since there was fracture of nasal bone the remand was rightly granted and this application being merit less deserves to be dismissed. To adjudicate the correctness of the rival submissions a glimpse of Section 167 Cr.P.C. here in after referred to as the 'code' is desirable as it is related with the controversy involved directly. Section 167 of the 'code' reads thus: 167. Procedure when investigation can not be completed in twenty four hours-(1) when any person is arrested and detained in custory, and it appears that the investigation can not be completed within the period of twenty four hours fixed by Section 57, 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 investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary herein after prescribed relating to case, and shall at the same time forward the accused such Magistrate. (2) The Magistrate to whom the accused person is forwarded under this section may, whether he has or has not the jurisdiction to try the case, from time to time, authorizes the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding as a 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 - ... ... (2-A) Notwithstanding any thing contained in Sub-section (1) or Sub-section (2), the officer - in Charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, may, where a judicial Magistrate is not available, transmit to the nearest executive Magistrate, on whom the power of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary herein after prescribed relating to the case, and shall, at the same time, forward the accused to such Executive magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing authorizes the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorized the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by the Executive Magistrate, under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to Sub-section (2): Provided that before the expiry of the period aforesaid, the Executive Magistrate shall, transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer-in-charge of the police station or the police officer making the investigation, as the case may be. (3) A Magistrate authorizing under this section detention in custody of police shall record his reasons for doing so. (4) Any Magistrate other than Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate. (5) ... (6) ... (under lines emphasis Supplied) (That portion of the section which was not relevant for the decision of this application has been omitted from being quoted above). Thus it is clear from the section itself that the legislature has laid much emphasis on the entries of the diary to be forwarded to the magistrate, by the Police, at the time of seeking remand and for the magistrate to record it's reasons for granting remand of the accused in custody. This has duel purpose. Firstly, it gives the Magistrate to look into case diary to ascertain as to whether there exists reasonable grounds in the diary to grant remand for the offence mentioned in the remand prayer. This procedure, thus, checks the power of investigation to be misused by the police and at the same time expedite the investigation conducted by the police under judicial scrutiny by the Magistrate at regular intervals. This, inturn, checks the arbitrary misuse of power by the investigating officer. Secondly, it gives a chance to the higher courts to verify the correctness of the remand order passed by the Magistrate, in case it is challenged before it. If the entries are not produced before the Magistrate at the time of granting remand then the Magistrate does not get a chance to verify the need for granting remand and thus allows criticism to be raised against his order. It is reminded that remand of an accused is not an empty formality and a mechanical process based on the whims of the police. If granted, it takes away the Fundamental Right of an individual enshrined under Chapter III of The Constitution and, therefore, is of very serious consequences. For a law abiding prestigious citizen it is worst than death. It not only snatches away the liberty of an individual but in most of the cases it affects the whole family adversely and tarnish their image in society. In a democratic country like our's the liberty is a precious attribute of an individual and he can be deprived of it only by "due process of law" as provided for it. Infraction of the due process of law will offence Article 14, 19 and 21 immediately, Due process of law means doing an ad as the law requires it to be done. It is a cardinal principle of law that if a thing is required to be done in a particular way then either it is done in that way or not at all. Thus, unless the entries are produced before the Magistrate by the police, the Magistrate cannot grant remand mechanically merely by asking of it by the police. The Magistrate must insist on the diary to be placed before him, and he must scan it for the purposes of granting remand. Granting of remand is a judicial exercise taken by the Magistrate based on sound discretion, which must satisfy legal brain. In this view of the matter when the facts of the present application are being glimpsed at, it is found that the Magistrate himself has written that the police has forwarded only the Parcha of the arrest. It has not sent the case diary nor the injury report. The Magistrate has acted on the application filed by the informant, alongwith the medical reports of Noor Mohd., Riyazzuddin, Mohd. Aslam, Mohd. Wasim and x-ray report of Noor Mohd, which was submitted through public prosecutor. The Magistrate has observed that public prosecutor has also opined that the police should have produced the complete case diary at that stage. The Magistrate has granted remand by adding Section 308 merely on the basis that there was a fracture of nasal bone of Noor Mohd. aforesaid. This in my opinion was a wrong exercise of power. Firstly, because the Magistrate prejudged the issue of making out an offence under Section 308 IPC, by the accused, which was never prayed for by the investigating agency. Secondly, because, at the stage of remand, the Magistrate was not required, in law, to look into any material other that the police records and it's case diary. No alien fact can be taken into consideration by the Magistrate at the stage of granting of remand. Investigation is the province of Police and the Magistrate can only come to a conclusion on the basis of police papers that the remand is needed or not and for what offence. I do not mean to say that the hands of the Magistrate are tied by the writings of the police and he does not have any independent discretion into the matter of granting remand but what I mean to say is that the Magistrate can come to an independent opinion, when more serious offence is disclosed, and for that he can add or subtract the offence for the purposes of remand but he can do so only on the basis of police papers alone. (Emphasis supplied by me). Thirdly, even assuming the injury reports to be correct, merely by fracture of nasal bone the offence under Section 308 IPC will not be made out. The ingredients of the offence of Section 308 IPC are not satisfied in such a case because there cannot be any knowledge of causing death attributable to the accused in case death occurs from such fracture. The need for reasons to be recorded by the Magistrate came up for consideration before this Court in the case of Bir Bhadra Pratap Sing v. D.M. Azamgarh and Ors. reported in 1959 ALJ 50 where it has been observed thus: Section 167 of the Code makes a further provision that along with the accused person will be forwarded to the Magistrate a copy of the entries in the diary. This clearly indicates that the purpose of producing an accused before a Magistrate is to ensure that the arrest and the detention of the accused person is, at any rate, prima facie justified. The law apparently did not rely on the judgment of the police for purposes of accepting that the charge being levelled against a person was, even prima facie, sustainable. Therefore, that obligation the law placed on the Magistrate. It was for the magistrate to decide though prima facie, on certain material placed before him, namely, the material contained in the diary relating to the case, whether or not detention in prison of an accused was necessary. In coming to his conclusion the Magistrate had, in our opinion, to exercise his mind-his judicial mind- and only when the Magistrate could and did apply that mind that it could be said that the order made by the magistrate for the detention in prison of a person was a valid order. We cannot contemplate that the intention of the legislature in making this provision was merely to provide for orders which, in the words of Lord Goddard made them 'rubber stamp orders. ' If that were so then there could be absolutely no reason for providing in Section 167(1) of the code the necessity of producing a copy of the entries in the diary before the Magistrate along with the accused. In our opinion, this provision clearly indicates that the Magistrate was under an obligation to see the entries in the diary for the propose of seeing, if only prima facie, whether or not the accusation made against the prisoner was sustainable.
(3.) In Hussainara Khatoon (V) v. Home Secretary 1980 SCC (Cr) 50, the Supreme Court has noted a not of caution in this respect in the following words "It is difficult to believe that on each of the countless occasions on which these under trial prisoners were produced the Magistrate and the Magistrates made order of remand, they must have applied their mind to the necessity of remanding those under trial prisoners to judicial custody.";