R. Gurusamy vs State

P. Shanmugam, J.—The brother of the detenu is the Petitioner. He has prayed for the issue of a writ of Habeas Corpus to produce the

detenu and set him at liberty.

The brief facts of the case are as follows:

The detenu R.R. Gopal is the Editor and Publisher of ""Nakkheeran"", a bi-monthly magazine. He was arrested on 11.4.2003 at 8.40 p.m. in Crime

No. 414 of 2001 of Sathyamangalam Police Station under Sections 147, 148, 302 and 201, I.P.C. read with 25(1 B) (a) of the Arms Act near his

office at Royapettah, Chennai. It is further alleged that on his being brought to the C.B.C.I.D. Office, a search was conducted on his person and

during the search, a country made pistol with ammunition and a pamphlet were recovered and a case in Crime No. l of 2003 was registered on the

file of the Inspector of Police, C.B.C.I.D. Headquarters u/s 25(1 B)(a) of the Arms Act and 124(A) of I.P.C. at about 00.15 hours on 12.4.2003.

Thereafter, the Prevention of Terrorism Act, 2002 was invoked and the case was transferred to the Special Court under P.O.T.A. His application

for bail was dismissed by the Special Court on the ground that the same is not maintainable, and in the circumstances, he has filed the above

Habeas Corpus Petition.

Mr. R. Shanmugasundaram, learned senior counsel arguing on behalf of the petitioner , submits that though several grounds have been raised

and the matter has earlier been argued before two Division Benches, considering the fact that he had been in custody from 11.4.2003, and on the

question of violation of the provisions of Article 22(1) of the Constitution of India he is likely to succeed, sought permission to argue only the said

point. We permitted the learned senior counsel to confine his arguments to Article 22(1) of the Constitution of India.

In support of his submissions, he referred to a specific ground raised in the affidavit, but not replied or countered by the Respondents and

therefore, submits that this is a clear case of arrest without following the mandatory requirements and hence, the custody is to be declared as illegal.

He also submitted that factually, the Respondents did not inform the detenu, the reasons for the arrest and there are lot of confusion and doubts as

to how and for what offences he had to be arrested, and this has clearly infringed the guaranteed right of the detenu. He relied on a number of

decisions in support of his submissions and prayed that the relief can be restricted to that of granting bail subjecting to undergo the trial, and that if

the court, for any reason, is unable to agree with his submissions he may be permitted to reserve his right to urge other points. As we see

considerable force in the said submission, we requested the learned Advocate General and the learned Public Prosecutor, who appear on behalf of

the Respondents, to make submissions in reference to these points argued.

According to the learned Advocate General, the H.C.P. filed by the brother of the detenu is not maintainable and that, in any event, he would

not be in a position to swear to an affidavit as to whether the detenu was informed of the reasons or grounds of arrest; and that the burden is on the

detenu to prove and establish that factually, he was not informed of the grounds of arrest. Secondly, it is submitted that since the detenu is now

under a valid order of remand, assuming that there is any illegality in the process of the arrest, his custody will not become illegal, and at best, he

can only seek for compensation, or initiate proceedings for contempt of Court. Thirdly, he submits that the detenu having earlier filed bail

application, he ought to have raised points, if any, as to the illegality of the custody and as on date he is on proper remand and therefore, no relief

can be granted to the Petitioner at this stage. The learned Advocate General also referred to a number of decisions in support of these submissions.

The Petitioner, in his affidavit at paragraph 7, has stated that the detenu was forcibly taken without being informed about the grounds of arrest.

He has stated in the affidavit at paragraph 7 as follows:

The policemen numbering 10 in plain clothes came in two call taxies and forcibly took the detenu without informing him the grounds of his arrest.

The Respondent claimed that the detenu was searched only at the C.B.C.I.D. Office and in the F.I.R., it is mentioned that even before the search

two independent witnesses were brought for the purpose of search. I humbly submit that for the reasons best known to the Respondent no search

was conducted at the place where the detenu was arrested. The place where he was arrested is a busy road and there are many shops in that

street. In such circumstances, even in the F.I.R. there is no reason given at all why no search was made at the time of arrest. This gives reasonable

suspicion regarding the version of the police.

The officer who had arrested the detenu, namely, Thiru. C. Kanagaraj, Inspector of Police, C.B.C.I.D., Nilgiris, did not file any counter

affidavit. In the counter affidavit filed by the first Respondent, Deputy Superintendent of Police, C.B.C.I.D., while dealing with paragraph 7. has

simply-denied the allegations made therein and that there is no nexus to the prayer sought for in the petition. Secondly, according to him, the

averments are argumentative. It is further stated that the allegations made in Paragraph 7 and 8 are sub judice before the Hon''ble Supreme Court.

The second Respondent, who has filed a counter affidavit, has also not dealt with this point.

In the course of the arguments, the learned Advocate General referred to the First Information Report and the Alteration Report. The report

dated 12.4.2003 by the Inspector of Police before the Court of the Additional Chief Metropolitan Magistrate, Chennai, prays for a direction to

hand over the custody of the detenu for his production at Sathyamangalam, in which a first Information Report is pending. According to the learned

Advocate General, the particulars of the arrest and the memo of arrests were also filed in the Court and records should be called for to verify the

same. Photocopies of those reports and the memos are furnished to us. The report does not reveal as to whether he had been informed about the

reasons for his arrest. Further a different reason is found from the order of the Special Court in Crl.M.P. No. 52 of 2003 dated 4.8.2003

dismissing the bail application. In that, it is stated that that the Inspector of Police, Sathyamangalam, passed on the information of the

Superintendent of Police, C.B.C.I.D., Chennai at 11.00 a.m. on 11.4.2003, that the detenu was found in possession of unlicensed country made

gun with Ammunitions, etc. The Inspector of Police, C.B.C.I.D., Nilgiris, visited the C.B.C.I.D. Headquarters in the evening of 11.4.2003. The

Deputy Superintendent of Police, Coimbatore, returned to office after finishing his work in the High Court and the Superintendent of Police, in the

evening of 11.4.2003, directed him to arrest the detenu and hence, the arrest was effected in the late evening on the same day. It is seen that the

detenu was arrested in Crime No. 414 of 2001 at 20.40 hours on 11.4.2003 near his office at 105, Jani Jahan khan Road, Royapettah, Chennai,

and he was again arrested on 12.4.2003 at 00.40 hours in another case in Crime No. 1 of 2003 u/s 25(1-B) (a) of the Arms Act, 1959 and

124(A) of I.P.C. at C.B.C.I.D. Office, Chennai. This is evident from the records furnished by the learned Advocate General and is also not

denied.

The submission made by the learned Advocate General is that the detenu, in spite of furnishing a copy of the arrest memo, had refused to

receive and sign the memos and this form part of the record of the Court. The refusal is recorded in the arrest memo dated 11.4.2003. In so far as

the arrest memos are concerned, they do not contain the Court seal (the report contains Court seal) and that in the arrest memo, in reference to

Crime No. 1 of 2003, no date is given by the Inspector of Police, C.B.C.I.D. The photocopies of these arrest memos, three in number, have

different serial numbers and therefore, prima facie, we have our own doubt as to the arrest memos. However, in the arrest memos, it is stated that

the the detenu has been arrested under the Sections referred to therein. Beyond that, no reasons or grounds have been given in them.

The detenu, in his bail application dated 23.6.2003, a copy of which is filed along with this H.C.P., the detenu has stated as follows:

When the Petitioner enquired, the policemen declared that they are arresting him. He made it clear to the policemen that he can be arrested after

giving the details of the case, so that he can inform his advocates and the associate editor of his magazine. The policemen did not bother to give any

details and hurriedly dragged the Petitioner out of the jeep and pulled him by his lappel and collas then pushed him into the Bharathi Call Taxi and

tried to drive away from the spot.... The staff of the Petitioner and the media men enquired the policemen at the gate why and for what crime the

Petitioner was arrested. No policeman opened his mouth. Triplicane Assistant Commissioner Mr. A.C. Shanmugam, who came out of the office

and stood guard at the gate, promised the media men that he would give the details of arrest and went in. He returned after a few minutes and

informed that the CBCID, DTG Mr. Mohammed Ali who has been inside would come out and he personally would give the details of arrest to the

media. But no one came out as promised.... The Advocates made a written representation addressed to Mr. Mohammed Ali, pleading for their

presence with the Petitioner and also for information on arrest and sent it inside through the policemen standing out. It brought no response.

On the basis of the above averments of the detenu, the submission of the learned senior counsel for the Petitioner is that the Petitioner had filed

an affidavit stating that the detenu was forcibly taken without informing him of the grounds of the arrest. We, therefore, do not find any merit in the

opposition for the affidavit filed by the brother of the detenu. Taking into account the facts and circumstances, it is clear that the detenu was taken

to custody in Crime No. 414 of 2001 on 11.4.2003 at 20.40 hours and that he was not informed of the reasons for his arrest. Similarly, when he

was again arrested in Crime No. 1 of 2003 at 00.40 hours on 12.4.2003 at the C.B.C.I.D. Office, he was not informed of the reasons for his

arrest.

On these factual findings the question that arise for our consideration is as to whether the failure to inform the reasons for the arrest would

make the custody illegal and if that be so, what could be the relief that can be granted in this H.C.P.

Article 22(1) of the Constitution of India, in clear and categorical terms, mandates that no person who is arrested shall be detained in custody

without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by a legal

practitioner of his choice.

When a guaranteed right in infringed, what could be the effect of the consequential continued custody? We would refer to the law laid down by

the Supreme Court in Makhan Singh Tarsikka Vs. The State of Punjab, wherein, a Constitutional Bench of the Supreme Court held that before a

person is deprived of his personal liberty, the procedure established by law must be strictly followed and must not be departed from to the

disadvantage of the person affected. Following the said dictum, another Constitutional Bench, in Naranjan Singh Nathawan Vs. The State of

Punjab, held that the Constitution does not make any difference between an arrest under Criminal law and a preventive detention.

In Ram Narayan Singh Vs. The State of Delhi and Others, it was held by another Constitutional Bench that the Supreme Court has often

reiterated that those who feel called upon to deprive other persons of their liberty in the discharge of what they conceive to be their duty must,

strictly and scrupulously, observe the forms and rules of law. Whenever that is not done, the Petitioners are entitled for release. It was also held

that in a Habeas Corpus proceeding, the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with

reference to the institution of the proceedings. In this case also, the affidavit filed by the Petitioner had not been controverted in the counter

affidavit.

In State of Madhya Pradesh Vs. Shobharam and Others, yet another Constitutional Bench of the Supreme Court held that rights given by

Article 22(1) and (2) are absolute in themselves and do not depend on other laws. A warrant of a Court and an order of any authority must show

on their face the reason for arrest. Where there is no such warrant or order, the person making the arrest must inform the person the reason for his

arrest. In other words, Article 22(1) means what it says in its first part. Their Lordships held that a person who is arrested gets three rights which

are guaranteed. The first is that he must be told why he is arrested. This requirement cannot be dispensed with by taking bail for him. The need to

tell him why he is arrested, remains still. The right was not lost because they were released on bail. The right attaching to them on their arrest

continued though they were not under detention at the time of trial.

In In Re, Madhu Limaye (AIR 1969 SC 1014), Their Lordships held that the two requirements of Clause (1) of Article 22 are meant to afford

the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in the minds of the arresting authority

and, also to know exactly what the accusation against him is so that he can exercise the second right. Their Lordships followed the Ram Narayan

Singh Vs. The State of Delhi and Others, that whenever the officers fail to perform their duty, the Petitioners would be entitled to a right of Habeas

Corpus directing his release. It was further held in that judgment that once it is shown that the arrests made by the police officers were illegal,

because of the violation of Article 22( 1) of the Constitution, they are entitled to be released forthwith. Their Lordships observed that the orders of

remand are not such as would cure the constitutional infirmities.

In Sk. Abdul Karim and Others Vs. State of West Bengal, Their Lordships held that all the procedural requirements of Article 22 are in our

opinion, mandatory in character and even if one of the procedural requirements is not complied with, the order of detention would be rendered

illegal.

A Full Bench of the Madras High Court in Selvanathan alias Raghavan v. State By Inspector Of Police (1988 L.W. (Cri.) 503), has taken a

view that the cherished legal right vested in the accused under Article 22(1) of the Constitution and Section 50(1) of the Code to obtain full

particulars of the offence or the grounds for his arrest, is based on well settled principles of law, as enunciated in a number of judicial

pronouncements. Their Lordships held that this requirement is mandatory and it requires the arresting person to communicate to the arrestee the full

particulars of the offence for which he is arrested and not the mere provisions of the Sections of the offences for which he is arrested or a gist of

the offences. The requirement is to furnish the full particulars of the offences for which he is arrested.

The above-referred decisions rendered in reference to Article 22(1) have mandated the furnishing of full particulars of the reasons and grounds

of arrest. The failure to do so would make the order illegal and vitiate the action taken and give rise to the consequential right of the detenu to get

released by filing a writ petition for Habeas Corpus.

A Full Bench of the Allahabad High Court, in Vikram Vs. The State, held that as soon as it is indicated by the arrestee or on his behalf that the

provisions under Article 22(1) of the Constitution and Section 50(1) of the Code of Criminal Procedure have not been complied with, the entire

responsibility falls upon the prosecution to establish that the said provisions of law have been lawfully complied with. In case the prosecution fails to

prove and establish that necessary information as required under law has been conveyed, the mere allegation of the accused or the arrestee will

have to be accepted. Their Lordships also held that it is not understandable why a person in custody should be required to file an affidavit,

complaining about the non-compliance with the provisions of the Constitution and the Code of Criminal Procedure.

Reliance was placed by the learned Advocate General on the following Judgments.

In Mohan v. State by Inspector of Police, CBCID, Madras (1993 L.W. (Cri.) 392), a Division Bench of this Court has held that if there is a

defect in the initial order of remand or it was obtained illegally the mistake committed by the Court should not cause injury to the prosecution and

the absence of a valid initial remand order cannot be a ground for issue of a writ of Habeas Corpus. The Division Bench relied on the judgment of

the Supreme Court in Kalanithi V. Government Of Tamil Nadu, (Order dated 16.9.1991) wherein, it was held that the error/mistake, if at all, is

not on the part of the prosecution, but it was on the part of the Court, and it is well settled that the mistake of Court should not cause injury to one

of the suitors.

The learned Advocate General also relied on the judgment of the Supreme Court in A.R. Antulay Vs. R.S. Nayak and Another, ), wherein, it

was held that an act of the Court shall prejudice no man. Therefore, this judgment will not be of any assistance to the Respondents.

In Bal Mukund Jaiswal Vs. Superintendent, District Jail and Another, , it was held that where the accused is in jail or custody on the basis of a

valid remand order by any competent Court, such accused person cannot be set at liberty by issuing a writ of Habeas Corpus solely on the ground

that his initial detention was violative of the constitutional guarantee enshrined under Article 21 and 22 of the Constitution of India. That was a case

in reference to a remand order.

In Sanjay Dutt Vs. State through C.B.I., Bombay, the Supreme Court held that a petition seeking the issue of a writ of Habeas Corpus on the

ground of absence of a valid remand order is to be dismissed, if on the date of the return of the rule, the custody or detention is on the basis of a

valid order of remand.

Reliance was also placed on the judgment of the Supreme Court in Col. Dr. B. Ramachandra Rao Vs. The State of Orissa and Others,

wherein, it was held that in Habeas Corpus Proceeding the Court is to have regard to legality or otherwise of the detention at the time of the return

and not with reference to the date of institution of the proceedings. In that case, the detenu was found undergoing a sentence of imprisonment

imposed on him by a competent Court.

In Kanu Sanyal Vs. District Magistrate, Darjeeling and Others, the Supreme Court held that any defect in the legality of the detention of the

Petitioner prior to the date of filing the petition cannot affect the detention of it is legal on the date of the petition.

The Judgments referred by the learned Advocate General do not directly deal with the infringement of Article 22(1) and invalid arrest and

custody.

In D.K. Basu v. State Of West Bengal (1997 SCC (Cri.) 92), the Supreme Court issued the requirements to be followed in all cases of arrest.

Under Clause (2) of the directions, it is stated that the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the

time of arrest. Their Lordships have observed that these requirements are in addition to the constitutional and statutory safeguards and do not

detract from various other directions given by the Courts from time to time in connection with the safeguarding of the rights and dignity of the

arrestee.

In the light of these principles laid down by the Constitutional Benches of the Supreme Court and the Full Bench of the Madras High Court, we

find that the detenu''s guaranteed right under Article 22(1) of the Constitution of India, has been clearly infringed in this case. It is no answer to say

that as against the illegal arrest, compensation is the only remedy and that the subsequent remand would cure the defect. That would be ignoring

the constitutional mandate and deprivation of the guaranteed fundamental rights. The consequence of illegal arrest makes the order or arrest and

custody illegal. Four Constitutional Benches of the Hon''ble Supreme Court namely in Makhan Singh Tarsikka Vs. The State of Punjab, , Naranjan

Singh Nathawan Vs. The State of Punjab, , Ram Narayan Singh Vs. The State of Delhi and Others, and State of Madhya Pradesh Vs. Shobharam

and Others, dealing with Article 22(1) of the Constitution, have held so.

The Court has got a duty to see that persons deprived of their fundamental right is restored to the extent possible. The initial illegality has to be

looked into in the light of the offences charged in I.P.C. as well as in P.O.T.A. which contains stringent provisions for investigation, trial and

punishment. Provisions of P.O.T.A. in its operation, is not-only punitive but also preventive. The judgments referred and relied on by the learned

Advocate General were in reference to the statutory rights and custody held of the persons under orders of remand. The Supreme Court in Madhu

Limaye''s Case (AIR 1969 SC 1014), held:

If their detention in custody could not continue after the arrest because of the violation of Article 22(1) of the Constitution, they were entitled to be

released forthwith. The orders of remand are not such as would cure the constitutional infirmities.

The Supreme Court also held that:

We would like to make it clear that we have ordered the release of Madhu Limaye and other arrested...on the sole ground of violation of the

provisions of Article 22(1) of the Constitution."" In this case also, since the provisions of Article 22(1) has been violated, the detenu is entitled to be

released from detention.

But at the same time, the prayer of the Petitioner for unconditional release cannot be granted. The relief can always be moulded depending on

the circumstances of the case. Taking into account all the facts and circumstances, we direct the release of the detenu on bail on his furnishing a

bond for a sum of Rs. 10,000/- (Rupees Ten Thousand Only) with two sureties each for a like sum to the satisfaction of the Presiding Officer,

Special Court for P.O.T.A. Cases, Chennai. and on a further condition that he should report before the Special Court on the First working day of

every week, besides appearing on the days of hearing. He shall not leave the jurisdiction of the Special Court without the permission of the Court.

The H.C.P. is allowed on the above terms. Consequently, H.C.M.P. No. 131 of 2003 is also ordered.