Bhagavat Singh and etc. vs State of Tamil Nadu and Others

T. Jayarama Chouta, J.—H.C.P. No. 499 of 1997 has been filed by one Bhagavat Singh, a Law graduate who was undergoing

apprenticeship, to issue a writ, order or direction in the nature of a writ of habeas corpus or any other appropriate writ, order of direction:- (a)

directing the production of body and person of Lawrence, S/o Sikkirias, now confined in Central Prison, Cuddalore, S.A.V. District before this

Court and set-him at liberty forthwith; (b) directing the 3rd respondent to take up the investigation of the whole matter in Cr.Nos. 122, 188,189

and 190/97 on the file of the 2nd respondent herein and also proceed against the officers, concerned who are found to have abused their position

in falsely implicating S. Lawrence and other innocents; (c) ordering a just and reasonable amount as compensation to Lawrence for the illegal

detention he has suffered; and (d) pass such further or other orders as this Court may deem fit and proper in the circumstances of the case,

whereas, H.C.P. No. 501 of 1997 is filed by one D. Dayalan, a 1st year Law student to issue a writ, of habeas corups (a) directing the production

of the body and person of (1) Sarathy S/o Sakthi Kannan; (2) Chiruthai Raj S/o Arumugam; (3) Muralitharan S/o Elumalai; (4) Kumaran S/o

Arjunan; (5) Venkatesan S/o Perumal; (6) Dharman S/o Venu; (7) Maruthai S/o Govindasamy; (8) Murugan S/o Chinnapillai (9) Vadivel S/o

Kothandaraman; (10) Arul S/o Mahadevan and (11) Sekar S/o Chinrasu, now confined in Central Prison, Cuddalore, S.A.V. District before this

Court and set them at liberty; (b) directing the third respondent to take up the investigation of the whole matter in Cr. Nos. 188,189 and 190 of

1997 on the file of the 2nd respondent herein and also proceed against the officers concerned who are found to have abused their position in

falsely implicating the 11 persons named in prayer (a), (c) ordering a just and reasonable amount as compensation to the persons named in prayer

(a) for the illegal detention they have suffered and (d) pass such further or other orders as this Court may deem fit and proper in the circumstances

of the case.

This Court, on 27-5-1997 passed the following order:

After hearing arguments at some length, it was represented by the prosecution that the detenu in this case by name Lawrence was arrested for a

specific offences alleged to have been committed by him and produced before the Judicial Magistrate Court, Tindivanam and accordingly, he has

been remanded to judicial custody. Detailing the abovesaid facts, the prosecution wants to file a detailed counter. In this context, we feel the very

maintainability of the Habeas Corpus Petitionfias to be decided. Therefore, for filing-of counter and disposal of the case, post on 3-6-1997.

When the matter caime up before us, learned Additional Public Prosecutor for respondents 1 and 2 and Mr. P. Rajamanickam, learned Special

Public Prosecutor appearing on behalf of the third respondent brought to our notice the above order and submitted that these habeas corpus

petitions are not maintainable. Hence, we heard the arguments on all the sides regarding the maintainability of these petitions.

Mr. P. Ratnam, learned Advocate appearing on behalf of the petitioners in both the habeas corpus petitions submitted that in view of the

decision reported in Bhim Singh, MLA Vs. State of Jammu & Kashmir and Others, wherein the Supreme Court has, apart from ordering the

setting of the detenu at liberty, also ordered compensation, these petitions are maintainable. He further argued that in the case of Chief Judicial

Magistrate, Nadias who was arrested, tortured and foisted false cases, the Supreme Court entertained the said case and disposed of, which is

reported in Delhi Judicial Service Association, Tis Hazari Court, Delhi Vs. State of Gujarat and others, . He also pointed out that in view of the

facts that on the basis of the mischievous and malicious materials, the accused were arrested, this Court could entertain these petitions.

On the other hand, Mr. Syed Fasiuddin, learned Additional Public Prosecutor brought to our notice that the accused Lawrence in H.C.P. No.

499 of 1997 is involved in Cr. Nos. 122, 188, 189 and 190 of 1997 and the other accused in H.C.P. No. 501 of 1997 are involved in Cr. Nos.

188 to 190 of 1997 and all the accused were arrested by the police and were produced before the Judicial Magistrate, No. 1, who was in charge

of Judicial Magistrate, No. II, Tindivanam. They were questioned by the Magistrate. Lawrence has stated that he was arrested on 19-4-1997.

Nobody complained about ill treatment and they were remanded. Subsequenlty, all the accused were released on bail and the accused are not in

custody now. He further pointed out that H.C.P. No. 499 of 1997 was filed on 19-5-1997, whereas the other H.C.P. No. 501 of 1997 was filed

on 26-5-1997 and the copies of these petitions were served on the State on 4-7-1997 and on that date, all the accused were on bail. His further

submission was that in all these cases, after complete and thorough investigation, the police have filed charge sheets and the cases are pending trial.

Learned Additional Public Prosecutor has placed reliance on some decisions in support of his contention that these habeas corpus petitions are

not maintainable.

The first decision is Sanjay Dutt Vs. State through C.B.I., Bombay, , wherein the Supreme Court has observed in paragraph 48 at page 1462

(of SCC (Cri) : (Para 50 at p 500 of Cri LJ) as follows :

It is settled by Constitution bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand

or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order.

In Muthusamy v. Union Territory of Pondicherry, (1992) 2 Cri 1660, a Division Bench of this Court has observed at page 1664 as follows:

We entirely agree with the contentions of the learned Public Prosecutor, Pondicherry, that no case has been made out in this writ petition to award

compensation. It also appears clear which justifies the stand of the respondents, that this petition for issue of habeas corpus cannot be maintained,

when the petitioner is no longer in detention much less illegal. The allegation of illegal detention is not without controversy and those questions

cannot be gone into in a writ petition under Article 226 of the Constitution of India and if the petitioner is still aggrieved, his remedy is elsewhere.

Recourse to Article 226 of the Constitution of India, cannot always be an fallible passport for mechanical entry into the Court threshold, for a

habeas corpus"" for compensation alone, irrespective of special and adequate circumstances, especially when the petitioner was not in illegal or

wrongful confinement, at the time of presentation of the writ petition.

In another decision of a Division Bench of this Court in the case of Selvan alias Karate Selvin v. Inspector of Police, Central Crime Branch II,

Tirunelveli, (1995) 1 Mad LW 170, in paragraph 7 at page 174, this is what this Court has observed :

The writ of habeas corupus has been described by John Marshal, C.H. as ""a great constitutional prvivileges"". An eminent Judge observed ""there is

no higher duty than to maintain it unimpaired"" - It was described as a Magna Carta of British Liberty. The history of the writ is the history of the

conflict between power and liberty. We can usefully extract this passage from the judgment of Siibba Rao, C.J. in Ghulam Sarwar Vs. Union of

India (UOI) and Others, , cited by learned counsel for detenus, which explains the scope of a writ of Habeas Corpus:

The nature of the writ of habeas corpus has been neatly summarised in Corpus Juris Secundum Vol. 39 at p. 424 thus:

This writ of habeas corpus is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated

time and place, with the day and cause of this caption and detention, to do, submit to and receive whatsoever the Court or Judge awarding the writ

shall consider in that behalf.

Blackstone in his Commentaries said of this writ thus :

It is a writ antecedent to statute and throwing its proof deep in the genus of our common law It is perhaps the most important writ knonwn to the

constitutional law of England, affording it as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immaterial

antiquity, an instance of its use occurring in the thirty-third years of Edward I.

The writ provides a prompt and effective remedy against illegal restraints. It is inextricably interwined with the fundamental right of personal liberty.

Habeas Corpus"" literally means ""have his body"". By this writ the Court can direct to have the body of the person detained to be brought before it

in order to ascertain whether the detention is legal or illegal. Such is the predominant position of the writ in the Anglo Saxon jurisprudence ....

Under Article 226 of the Constitution we were concerned with the legality of the detention as on today. The scop of the writ as stated above does

not support the claim of learned counsel for the detenus that the infirmity in the order dated 14-5-1994 which has worked itself out on 18-8-1994

would enable this Court to pass an order in their favour.

Learned Additional Public Prosecutor then invited our attention to a decision in Bakthavatchalam v. State of Tamil Nadu 1993 Mad LJ 11, this

Cout held as follows :

The principles referred to as well as the decision of a learned single Judge reported in Mrs. Meera Nireshwalia Vs. State of Tamil Nadu and

others, , would go to show that wherever the life and liberty of a citizen is deprived or meddled with, the jurisdiction of this Court to entertain a

claim under Article 226 of the Constitution of India adjudicate upon the legality and propriety of such action, involving deprivation of life and liberty

or any fundamental right secured to the citizen cannot be denied. But on the other hand, if it is any other illegality complained of or as in this case

aplea of malicious prosecution in that a claim of having maliciously initiated, the machinery of criminal law against a citizen is complained of, certain

essential ingredients to justify the claim for compensation have to be substantiated by oral and documentary evidence. The obligation on the part of

a claimant to substantiate such legal ingredients necessary to succeed in a claim for compensation on account of alleged malicious prosecution

cannot be dispensed with merely because a particular citizen has chosen to move this Court invoking the extraordinary jurisdiction under Article

226 of the Constitution of India availing of the extraordinary remedy. In such cases, it would be necessary for this Court to consider as to whether

there was justification for by-passing the normal remedies available under the ordinary civil law or that the claim made in the proceedings under

Article 226 of the Constitution of Inida could be effectively and appropriately decided. In my view, unless or should be undertaken for

determination in extraordinary situations or for special or competing reasons or cases of admitted defaults or cases of absence of any controversy

or existence of the vital and essential facts required to be established in this regard to this Court would hesitate to entertain an enquiry and embark

upon an adjudication of such a claim exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India.

In Syed Kaleemullah v. The Appraising Officer, Special Investigation Branch, Customs House, Madras 1 1993 Mad LW 317, this Court in

paragraphs 15 and 16 has held as follows:

In Talib Hussain Vs. State of Jammu and Kashmir, it was stated, that in Habeas Corpus proceedings for issue of writ, the Court has to consider

the legality of detention on the date of hearing. If detention on that date was lawful, no writ can be jssued. This principle would equally apply to the

present facts. I hasten to add, that I am not prepared to hold, that extension of remand on 14-5-1993 without an application seeking such

extention was illegal. When the case record was before the learned Magistrate, he was entitled to extend remand, if he felt, that there existed a

case for such extension.

Similar view was expressed by the Supreme Court in Ram Narayan Singh Vs. The State of Delhi and Others, . It was stated as follows:

In habeas corups proeedings, the Court is to have regard to the legality or otherwise of the detention at the time of return and not with reference to

the institution of the proceedings.

In the question of habeas corpus when the lawfulness or otherwise of the custody of the person concerned is in question, the documents containing

order of remand would be of vital importance and should be produced at the time of filing return.

I have perused the order extending remand and I am unable to visualies any infirmity in the said order. In the very same case, the Supreme Court

observed that detention of a person in custody after the expiry of remand order, without any fresh order of remand committing him to further

custody while adjourning the case u/s 344, Criminal Procedure Code (old) was illegal. Such a contingency does not arise on the instant facts.

The next decision on which reliance was placed by the learned Additional Public Prosecutor was in State of W. B. v. Mohammed Khalid

(1994) 4 Cur Cri R821:AIR 1995 SCW 559.In paragraph 19 (of (SCR) : (Para 13 of AIR), the Apex Court held as follows :

In support of this submission, learned counsel relies on State of Maharashtra Vs. Abdul Hamid Haji Mohammed, wherein this Court has held, the

High Court under Article 226 has no jurisdiction to enter into a debatable area whether the direct accusation made in conjunction with the

attendants circumstances, if proved to be true, is likely to n.rult in conviction for an offence under TADA. The moment (here is a ''debatable area,

in the case, it is not amenable to the writ jurisdiction.

In the same decision, at page 831 (of 1994 (4) CCR 821): (at p 572 of AIR 1995 SCW 559), this is what the Apex Court has observed :

In this case, the High Court fell into grave errorin appreciating the documents and affidavits produced before it by treating them as evidence,

delving into the disputed questions of fact in its jurisdiction under Arts. 226/227 and pronouncing the respondents to be innocent and quashing the

criminal poceedings by converting itself into a trial Court. This was not at all a case where High Court should have interfered in the exercise of its

inherent jurisdiction. The appreciation of evi-. dence is the function of the criminal Courts the Special Judge was seized of the matter. He had heard

the argument on the question of cognizance and had reserved the orders. The High Court did not even permit the Special Judge to pronounce the

orders. The High Court, under the circumstances; could not have assumed jurisdiction and put an end to the process of investigation and trial

provided under the law.

The decision in State of Karnataka v. Vedanayagam, (1994) 4 Cri R 845 (SC) has been pressed into service.

In State of Maharasthra v. Adbul Hamid Haji Mohammed, (1994) 2 Cri R 308 : 1995 Cri LJ 415. the Supreme Court observed as follows

(Atp 419-20 of Cri LJ):

Where it may be debatable whether the direct accusation made in conjunction with the attendant circumstances, if proved to be true, is likel y to

result in conviction for an offence under TADA Act. The moment there is a debatable area in the case, it is not amenable to the writ jurisdiction of

the High Court under Article 226 of the Constitution and the gamut of the procedure prescribed under TADA Act must be followed, namely,

raising the objection before the Designated Court and, if necessary, challenging the order of the Designated Court by appeal in the Supreme Court

as provided in Section 19 of TADA Act. In view of the express provision of appeal to the Supreme Court against any judgment, sentence or

order, not being an interlocutory order of a Designated Court, there is no occasion for the High Court to examine merits of the order made by the

Designated Court that the Act applies. We have no doubt that in the present case wherein the High Court had to perform the laboured exercise of

scrutinising the material containing the accusation made against the respondent and the merits of the findings recorded by the Designated Court

holding that the provisions of TADA Act were attracted, there was sufficient indication that the writ jurisdiction of High Court under Article 226 of

the Constitution was not available. The ratio of the decisions of this Court in R.P. Kapur Vs. The State of Punjab, and Bhajan Lal, 1992 Cri LJ

427 on which reliance is placed by Shri Jethmalani, has no application to the facts of the present case. There was thus no justification forthe High

Court in the present case to exercise its jurisdiction under Article 226 of the Constituti n for examining the merits of the controversy much less for

quashing the prosecution of respondent Abdul Hamid in the Designated Court for offences punishable under TADA Act.

The last decision on which reliance was placed by the learned Additional Public Prosecutor was in the case of Pratap Malik v. State of H.P.,

(1996) 2 Cur R 287, in which, the Division Bench of the Himachal Pradesh High Court, in paragraph 9, has observed thus:

Wherein the Supreme Court has consistently held that the High Court should exercise its power of quashing a criminal proeedings sparingly and

with circumspection and in the rarest of rare cases. The High Court is not justified in going into the disputed question of fact by appreciating the

documents and evidence to hold that the accused person as innocent because it will amount to pre-trial of acriminal trial under Article 226 or 227

of the Constitution or inherent powers of the Court. In other words, the High Court should not embark upon an enquiry whether the allegations in

the complaint are likely to be established by evidence or not.

Placing reliance on these decisions, learned Additional Public Prosecutor submitted that these petitions filed by the petitioners for habeas

corpus are not maintainable. Mr. P. Ramanickam, learned Special Public Prosecutor appearing on behalf of the third respondent, supported the

contentions of the learned Additional Public Prosecutor and submitted that the habeas corpus petitions filed by the petitioners are not maintainable

and they are liable to be dismissed in limine.

The High Court Advocate''s Association represented by its Secretary Mr. P.K. Rajagopal has filed H.C.M.P. No. 47 of 1997 to implead the

Association as a party respondent in H.C.P. No. 49 of 1997. We also heard Mr. P.K. Rajagopal and he tried to support the submissions made by

the learned Advocate for the petitioners.

There is no dispute that all the accused are on bail and they are not in custody. Even when copies of the petitions were served on the

respondents, they were on bail. now, the police have filed charge sheet against them in all the cases.

In Halsbury''s Laws of England it is stated

The writ of Habeas Corpus ad subjicendum, which is commonly konwn as the writ of habeas corpus, is a prerogative process for securing the

liberty of the subject by affording an effective / means of immediate release from unlawful or unjustifiable detention whether in prison or in rivate

custody. It is a prerogative writ by which the Queen has a right to inquire into the causes for which any of her subjects are deprived of their liberty.

By it the High Court and the judges of that Court, at the instance of a subject aggrieved, command the production of that subject and inquite into

the case of his imprisonment. If there is no legal justification for the detention, the party is ordered to be realeased. Release on habeas corpus is

not, however, an acquittal, nor may the writ be used as means of appeal.

The Latin term habeas corpus means ""you must the body"". By this writ, the Court directs the person or authority who has arrested or detained

an other person to bring the body of the prisoner before the Court so as to enable the Court to decide the validity or otherwise of such arrest or

detention.

Blackstone rightly states;

It is a writ antecedent to statute and throwing its root deep into the genus of our common law. It is perhaps the most important writ known to the

constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraine or confinement. It is of immemo-rial

antiquity, an instance of its use occurring in the thirty-third year of Edwards.

Hence, the object of the writ of habeas corpus is a prerogative writ by which causes and validity of detention of a person are investigated by

summary procedure and if the authority having his custody does not satisfy the Court that the deprivation of his personal liberty is according to the

procedure established by law, the person is entitled to liberty. It is an extraordinary remedy, which is issued upon cause shown in cases where the

ordinary legal remedies are inapplicable or inadequte. It is a writ of right and is granted ex-debitio justitiae. It is, however, not a writ of course and

may be granted only upon reasonable ground or probable cause for its issue being shown. Not being a writ of course, it may be refused where

there is an alternative remedy available by which the validity of the detention may be examined.

The writ of habeas corpus is available as a remedy in all cases of wrongful deprivation of personal liberty. The legal justification of a subject

that is detention or imprisonment which is incapable of legal justification, is the basis of jurisdiction in habeas corpus. It is process for securing the

liberty of the subjects by affording an pffeciive means of immediate release from unlawful or unjustifiable detention, whether in prison or in private

custody.

Since the accused/detenus are already released, the first prayer of the petitioners for production of the bodies from the prison, does not

Survive. Similarly, the prayer for directing the third respondent to take up the investigation of the yvhole matter in Cr.Nos. 122,188,189 and 190

of 1997 on the file of the second respondent will not Survive, in view of the fact that in all the cases, the police, after investigation, have filed charge

sheets find the matters are pending trial. As far as the third prayer of ordering a just and reasonable amount as compensation to the accused is

concerned, that cannot be granted at this stage, in view of the fact of filing charge sheets against all the accused in all the cases. Further, if the

petitioners are aggrieved that they have been falsely involved, their remedy is elsewhere. They cannot invoke habeas corpus for compensation

alone especially when the accused were not in illegal or wrongful confinement at the time of hearing the habeas corpus petition.

Hence, we are of the view that these habeas corpus petitions are not maintainable and accordingly they are rejected. In view of the rejection of

these hebeas corpus petitions, the miscellaneous petitions do not survive.