Court on its own Motion vs M.S. Kaushik and Others

S.S. Grewal, J.—In brief facts relevant for the disposal of this matter are that Dilavar Singh, Ex-Police employee and some other Ex-Police Employees were detained under National Security Act under the orders of District Magistrate. Criminal Writ Petition No. 1192 of 1992 was filed challenging their detention. Same was allowed by this Court on 20-8-1992 whereby the detention of the said detenus was held to be illegal and they were ordered to be set at liberty if not required in any other case. Copy of the order was sent by this Court to the State Government as well as the District Magistrates and Superintendents District Jails, concerned for compliance. From 21-8-1992 to 23-8-1992 all the Haryana Offices were closed being gazetted holidays. The detenus were not released forthwith and in order to secure their release Crl. Writ Petition No. 539 of 1992 was filed on 25-8-1992 to the effect that continued detention of detenu after the order passed by this Court on 20-8-1992 amounts to illegal detention and prayer was made for appointment of a Warrant Officer to secure the release of the said detenus. Vide order dated 25-8-1992 passed by H. S. Brar, J in Crl. Writ Petition No. 539 of 1992 a Warrant Officer was directed to be appointed who was directed to proceed to Central Jail, Ambala, Central Jail Hisar, District Jail, Jind and to other places for the release of detenus forthwith unless required for commission of any non-bailable offence. Shri S. S. Aulakh, Warrant Officer went to the following Jails:-

i) Central Jail, Ambala.

ii) Central Jail, Hisar.

iii) District Jail, Karnal.

iv) District Jail, Jind.

The release of the detenus could not be procured on the ground that the jail authorities concerned insisted that they had not received any separate release orders concerning individual detenu either from the District Magistrates (Detaining Authority) or from the Chief Judicial Magistrates concerned. The Warrant Officer, however, made a detailed report on 26-8-1992 to this Court.

However, on the evening of 26-8-1992 when this matter came up before H. S. Brar, J. Dilavar Singh, Mahinder Singh, Sish Pal, Vijay Pal, Dalbir Singh and Krishan Kumar detenus had already been released by the concerned authorities whereas the rest of the detenus could not be released because some other criminal cases registered against them under non-bailable offences were pending.

On the basis of the report of the Warrant Officer show cause notices were ordered to be issued to the Superintendent Central Jail, Ambala, Superintendent Central Jail. Hisar and Superintendent District Jail, Karnal as to why Contempt proceedings be not intitiated against them for violation of the aforesaid orders of this Court. After considering the affidavits filed by the said contemnors, the case was referred to Division Bench and this is how this matter has come up before us.

3-A. On behalf of the State Mr. Tarlochan Singh, who remained posted as Home Secretary, Haryana State till 24-8-1992 as well Shri A. N. Mathur, Commissioner and Secretary to Government of Haryana, Home Department, have filed detailed affidavits, after the show cause notice as to why contempt proceedings be not initiated against them was issued by Division Bench on 11-1-1994.

In their reply Shri A. N. Mathur, Commissioner and Secretary to Government of Haryana deposed that he took over charge on 24-8-1992 (A.M.) and the file regarding release of Dilavar Singh and others detained under National Security Act was put up before him on 25-8-1992. Immediately after seeking the opinion of the Law Department sent wireless messeges to the concerned District Magistrates on 25-8-1992 and no delay intentional or otherwise was caused in complying with the orders passed in the matter. Sh. Tarlochan Singh in his affidavit deposed that Crl. W. P. Nos. 1192 to 1199 of 1991,1201 to 1203 of 1991 and 76 of 1992 were disposed of by this Court on 20-8-1992 holding that the detention of the detenus was illegal and invalid and the detenus were ordered to be set at liberty forthwith if not required in connection with any other case; that actual judgment was received at his residence on 21-8-1992 and on the same day he marked that judgment to Under Secretary Home and that 21st, 22nd and 23rd of August, 1992 were Gazetted holidays. The judgment of this Court reached the Under Secretary on 24-8-1992 who then marked the same to the Superintendent Home Rule I Branch and latter marked the same to concerned dealing Assistant on the Same day for being put up with the relevant file. It was, however, mentioned that the SLP was filed in the Supreme Court on 22-8-1992 and later on it came for hearing on 26-8-1992 and that the detenus were ordered to be released on 25-8-1992 without waiting for the outcome of the result of the SLP At the end both these deponents have tendered unconditional apology.

4-A. The learned counsel for the parties were heard and we have carefully perused the record.

At the outset the learned counsel for the parties stated at the bar that no specific rule or regulation has been framed by the State of Haryana for issuance of release warrants in respect of the detenues whose detention under the National Security Act was quashed.

The High Court Rules and Orders Vol. III Chapter 20-E relate to execution of orders of Criminal appellate Court and Courts of revision. At present normally the Chief Judicial Magistrate or the Sessions Court or any other appellate Court in cases in which its order on appeal requires the immediate release of a prisoner issue a warrant of release directly to the Superintendent of the Jail in which the prisoner is confined. The Superintendent Jail after executing such warrant, forwards it with the original warrant of commitment duly filled up, to the Magistrate of the district in which the trial was held.

Till proper rules and regulations are framed for release of the detenus under the National Security Act, District Magistrate concerned under whose orders the detention was initially ordered should issue release warrants of the detenu whose detention is quashed or set aside by the High Court or the Supreme Court.

In the instant case, the delay is sought to be explained on behalf of the respondents because of Gazetted holidays from 21 -8-1992 to 23-8-1992 and the fact that new Home Secretary to Government of Haryana took over charge on 24-8-1992 AfterNoon. The actual judgment was received by the Home Secretary on 21-8-1992 and the same was marked to. Under Secretary Home on the same day and allegedly reached the Under Secretary Home on 24-8-1992. It seems that no immediate action was taken for release of the said detenus. The detenus were actually released on 26-8-1992 after the Warrant Officer visited various Jail on the night intervening 25/26-8-1992 and on the morning of 26-8- 1992 and submitted his report. However, the fact remains that in the instant case the District Magistrates who initially had passed the detention orders against various detenus and were also responsible to release the detenus were not impleaded as respondents. Because of this lacuna all the material facts concerning lapse on the part of various authorities including the District Magistrates either in not taking appropriate action for release of the detenus, or, delay in issuance of the release warrants, have been brought on the record.

Both Shri A. N. Mathur, Commissioner and Secretary to Government of Haryana, Home Department as well as previous incumbent Shri Tarlochan Singh have tendered unconditional apology which is accepted and further proceedings against contemners are ordered to be dropped and the rule already issued in this case is hereby discharged.

The State of Haryana, however, is directed to ensure that proper rules and regulations concerning release of detenus whose detention has been quashed by the competent Courts are framed and in future the orders concerning the release of such detenus are complied forthwith without any undue delay.