Kapur, J.— The State of Bihar has brought this appeal against the judgment and order of the High Court of Patna and it arises out of proceedings under Article 226 of the Constitution and Section 491 of the Criminal Procedure Code for a writ of habeas corpus in the matter of detention of one Bipat Gope. The present respondent was the petitioner in the High Court.
2. Bipat Gope, a resident of the district of Patna, was convicted under Section 323 and Section 324 read with Section 511 of the Indian Penal Code and sentenced on 29-11-1957, to six months' rigorous imprisonment by the High Court on appeal against acquittal under Section 417 of the Code of Criminal Procedure but he was not taken into custody till 6-1-1958 and even then he was kept under armed guard in the Patna Medical College Hospital in one of the paying wards, on the ground that he was seriously ill. On an application by the respondent and on the recommendation of the appropriate medical authority Bipat Gope was released by the District Magistrate on 11-3-1958 under the rules of the Jail Manual when his unexpired period of imprisonment was four months and three days. The contention of the appellant State is that he was released under Rule 549 which is the Rule providing for conditional release of prisoners but the respondent challenges the factum of release under this Rule. The sureties for Bipat Gope were called upon to produce him but as they had failed to do so notices were issued to them by an order dated 27-4-1958, to show cause why their surety bonds should not be forfeited. By the same order non-bailable warrant for arrest was ordered to be issued.
3. On 29-4-1958, Bipat Gope moved a petition under Article 226 against the order of the District Magistrate and the High Court directed on 1-5-1958, that Bipat Gope should appear on Monday following which was 5-5-1958, when the petition was to be taken up for preliminary hearing.
4. On 1-5-1958, Bipat Gope appeared in the Court of the District Magistrate, Patna and made an application stating that he had filed the above mentioned petition in the High Court and that he had to appear there on Monday and he prayed that he be allowed an opportunity to present his case to the High Court and to avoid his maltreatment at the hands of the police of which he was apprehensive. There is no order on the record showing what the District Magistrate did but from the respondent's petition in the High Court it appears that the application before the District Magistrate was taken up by the Senior Deputy Collector, Patna, who ordered Bipat Gope to be taken into custody and sent him to jail. The earlier petition of Bipat Gope filed in the High Court was withdrawn on 2-5-1958.
5. The High Court heard the petition filed by the respondent on 5-5-1958, and after some amendments were made the petition was allowed and Bipat Gope was ordered to be released from custody. The High Court held that the order of release by the District Magistrate of Patna above referred to was an order for his unconditional release and therefore he could not be rearrested. It is against that order that the State has come to this Court by special leave, its application under Article 134(1)(c) having been dismissed by the High Court.
6. On the petition under Article 226 filed by the respondent, the High Court issued a rule calling upon the appellant State to show cause why a writ of habeas corpus should not issue. It is unfortunate that no return was filed by the State and it is not clear from the record as to how exactly or under what authority Bipat Gope was taken into custody and under what authority the jailor was detaining him in jail. The order of the District Magistrate shows that a non-bailable warrant was ordered to be issued. The petition of the respondent shows that Bipat Gope was arrested under the order of the Senior Deputy Collector; what authority the Senior Deputy Collector had of ordering Bipat Gope's rearrest is not clear from this record. The High Court has stated that Bipat Gope surrendered on 1-5-1958, to whom he surrendered is not clear. It is also stated in the petition that non-bailable warrant of arrest was ordered to be withdrawn and the record was sent to the District Magistrate for confirmation who withdrew the non-bailable warrant ordered to be issued. When the record was sent to the District Magistrate for confirmation and what was done by the District Magistrate thereafter is also not shown. In the absence of a properly drawn up return accompanied by proper documents it is not possible to find out what exactly happened in regard to the rearrest of Bipat Gope and it is for that reason that the filing of a proper return is necessary and is insisted upon in most jurisdictions.
7. It was argued on behalf of the appellant that the release of Bipat Gope was under Rule 549 of the Jail Manual Rules which are issued under the Prisons Act and that releases thereunder are conditional. The appellant was anxious to get the opinion of this Court as to the true meaning and extent of Rule 549 under which, according to the appellant, Bipat Gope was released. On this record it is not clear as to the rule under which he was released. It appears from the petition of the respondent under Article 226 that the respondent made an application for the release of Bipat Gope on the ground that he was seriously ill. There are on the record certificates by Dr V.N Sinha, F.R.C.S, Professor of Clinical Surgery at the Patna Medical College, stating the disease Bipat Gope was suffering from and that he was not improving under the treatment he was being given. It was also stated therein that he would improve if he was released. This was on 21-2-1958. The Civil Surgeon of Patna on 1-3-1958, again enquired from Dr V.N Sinha if the prisoner (Bipat Gope) was in danger of death from illness. Upon this on 3-3-1958, Dr V.N Sinha said:
“The complications of the disease i.e of ventral hernia, peotic ulcer and stress and strain syndrome sometime prove fatal”,
and on 5-3-1958, it was stated that he was in danger of death but was likely to improve if released. The Superintendent of District Jail, Patna, sent a letter to the District Magistrate giving all these various particulars. Upon that a note was made by Judicial Peshkar in which he stated:
“In this connection Jail Manual Rule 548(1) and (2) and (3) and Rule 549 may be seen. The District Magistrate has power to pass order for the release of the prisoner, if the petitioner's sentence does not exceed six months under the above Rules. From the sentence sheet of release from the Jail authority it appears that the prisoner has only 4 (four) months and 3 (three) days unexpired period of sentence. These rules may kindly be seen and necessary orders passed.”
The order of the District Magistrate was “Allowed release in the circumstances”. It is not clear from this as to the Rule under which Bipat Gope was released. It was contended on behalf of the appellant that the release must have been under Rule 549 and not under any other Rule and in support reliance is placed on the release order of Bipat Gope which is in Form 105. That Form mentions Rules 548, 549 and 552 and the Rule which was not appropriate had to be scored out but none of these Rules was scored out. But at the bottom of the form there is a declaration of two persons who stated that they are willing to take charge of Bipat Gope and bound themselves to surrender him at any time before the date of his expiry i.e 9-7-1958 if required to do so. Here it may be stated that the purport of the relevant Rules is set out in Form 105 as follows:
“(i) 548. There is no hope of his recovery either in or out of Jail; I consider it desirable that he be allowed the comfort of dying at home.
(ii) 549. The prisoner is in danger of death from illness and there is probability of his recovery if he is released.”
8. On the basis of the order of the District Magistrate which is referred to above dated 7-3-1958 and from Form 105 it was submitted that the release must have been under Rule 549. The orders on the record do not make that clear. Neither the order of the District Magistrate nor the Form 105 shows that Bipat Gope was released under Rule 549 and not under any other Rule. The State has not cared to make it clear in any return made on an affidavit filed as to the Rule under which Bipat Gope was released and then it is not shown as to what lawful authority there was for his rearrest. In this connection the observations of Lord Atkin in Eshugbayi Eleko v. Officer Administering the Government of Nigeria (1931) AC 662 are appropriate and applicable:
“In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice. And it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the executive.”
9. It is the same jurisprudence which has been adopted in this country on the basis of which the courts of this country exercise jurisdiction. It has not been shown in this case that there was any lawful authority under which Bipat Gope was rearrested and in the absence of such lawful authority Bipat Gope's detention cannot be supported and is illegal. In the circumstances the remedy under Article 226 is rightly applicable to the facts of this case. We therefore dismiss this appeal.