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Judgment
Thangamani, J.—One Anand Samuel, son of Edwin Selvaraj the Petitioner in H.C.P. No. 1379 of 1994 as well as one Selvin alias Karate
Selvin and 10 others were detained in connection with an offence under Sections 3(3) 4, 5 and 6 of the TADA Act and Section 302 I.P.C. read
with 34 I.P.C. in Crime No. 1284 of 1991 of Palayamkottai Police Station. These two writ petitions under Article 226 of the Constitution have
been filed by the father of Anand Samuel and the brother-in-law of Selvin alias Karate Selvin respectively seeking issuance of Writs of Habeas
Corpus directing the Respondent to produce the detenus before this Court and set them at liberty.
Their incarceration is challenged by the Petitioners on these grounds: (1) The initial remand is illegal and violative of Article 21 of the Constitution
of India. Since the first remand itself is ab initio void, the subsequent remand is illegal. (2) The remand order passed on 19.8.1994 pursuant to
which the Petitioners are now in custody is also illegal. So their present detention in custody is against law. And (3) Selvin alias Karate Selvin was
not produced before and Judge at the time of extension of remand. So there is no valid extension of remand in his case.
There is no dispute that the detenus in H.C.P. No. 1382 of 1994 were arrested after 26.12.1991 and produced before the Designated Court
the Additional Civil Court, Madras and were being remanded from time to time. They filed bail applications before the Designated Court, Madras
which were dismissed. Thereafter they moved the Supreme Court and obtained interim bail. After the dismissal of the SLP they surrendered before
the Sessions Court, Tirunelveli on 14.6.1994 and they were remanded by the said Court till 18.8.1994. And in the case of Anand Samuel
concerned in H.C.P. No. 1379 of 1994, he was picked up by the Police at about 3:00 A.M. on 27.12.1991 and produced before Judicial
Magistrate, Tirunelveli on 28.12.1991. He moved for the bail before the Designated Court and the same was dismissed. Thereafter he moved the
Supreme Court in SLP (Crl.) No. 1912 of 1992 and obtained interim bail on 20.8.1992. As his SLP was dismissed by the Supreme Court, he
surrendered on 14.6.1994 before the Designated Judge, Tirunelveli. He was remanded to custody till 18.8.1994.
Learned Counsel for the detenus first submitted that the initial remand made by the Judicial Magistrate, Tirunelveli on 28.12.1991 in the case of
Anand Samuel is illegal since it was not made by the Designated Court and hence violative of Article 21 of the Constitution of India. We find from
the records that only on 21.10.1992, the then I Additional District and Sessions Judge, Tirunelveli was appointed as Designated Court, Tirunelveli
for the purpose of Palayamkottai Police Station Crime No. 1284/91 with which the detenus herein are concerned. So there is nothing improper in
the Judicial Magistrate, Tirunelveli remanding the detenu on 28.12.1991. And admittedly the other detenus were remanded on arrest by the
Designated Court, Madras itself. In any event in view of the fact that these detenus were released on bail on 20.8.1992 subsequent to their initial
remand, they cannot now assail the validity of the remand order passed on 26.12.1991 and 28.12.1991.
The charge sheet in this case has been filed on 14.10.1992. It is the contention of the detenus that after the filing of the final report all
proceedings appeared to have been transferred to Sessions Court, Tirunelveli. They were not made known how this transfer was made and who
made this transfer and why and under what provision of law. But learned Public Prosecutor brings to our notice that Section 9(1) of the TADA
Act contemplates constitution of Designated Courts for the purpose of that Act. And under Sub-section (1) of Section 11 on the issuance of a
Notification constituting a Designated Court for any case the said Designated Court alone shall have jurisdiction to try the said offence. By G.O.
Ms. No. 1729 Home (Courts - Desk Officer) Department dated 21.10.1992 in exercise of the powers conferred by Sub-section (1) of Section 9
of the TADA Act, 1987 the First Additional District and Sessions Court, Tirunelveli has been appointed as Designated Court, Tirunelveli in
respect of Palayamkottai Police Station Crime No. 1284 of 1991 which is the one relating to the present case. So the jurisdiction of the said Court
to try the offence alleged against the detenus cannot be challenged.
The next submission of learned Counsel for the detenus is that even the remand order made on 14.6.1994 is beyond the powers of the Court
under the first proviso to Section 309(2) Code of Criminal Procedure Section 309(2) reads that if the Court, after taking cognizance of an offence
finds it necessary to postpone the commencement of, or adjourn any enquiry or trial, it may, from time to time, for reasons to be recorded,
postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in
custody. And as per the first proviso to the said section, no Magistrate shall remand an accused person to custody under this section for a term
exceeding fifteen days at a time. In the present instance the remand is stated to be from 14.6.1994 to 18.8.1994. So the extension of order of
remand passed on 14.6.1994 for a period exceeding 15 days is invalid. Learned Counsel for the detenus points out that Section 20 of the TADA
Act contemplates modified application of only Section 167 of the Code of Criminal Procedure and not Section 309. No doubt in Section 20(4) of
the TADA Act the words ''fifteen days'' in Sub-section (2) of Section 167 Code of Criminal Procedure have been substituted by the expression
''sixty days''. With the result, u/s 167(2) Code of Criminal Procedure the Magistrate may authorise the detention of TADA prisoners in custody for
a term not exceeding 60 days on the whole. Whereas learned Public Prosecutor contends that Section 309 Code of Criminal Procedure deals with
powers to postpone or adjourn proceedings after commencement of trial. This Section occurs in Chapter 24 which relates to general provisions as
to enquiries and trials. Even the marginal notes to Section 309, Code of Criminal Procedure reads ""Powers to postpone or adjourn proceedings"".
So the order of remand passed on 14.6.1994 was a valid one u/s 167(2), Code of Criminal Procedure However, considering the scheme of the
Code of Criminal Procedure it is seen that Section 167 Code of Criminal Procedure governs the procedure during investigation only. The proviso
to Section 167(2), Code of Criminal Procedure deals with outer limit for detention during the investigation. Even the caption of Section 167
indicates that it deals with the procedure when investigation cannot be completed in 24 hours. Whereas Section 309(2) relates to postponement of
the commencement of the trial or adjournment of the trial after taking cognizance of the offence. There is no dispute that in this case charge-sheet
had been laid on 14.10.1993. So in the absence of any modification of Section 309, Code of Criminal Procedure as per TADA Act the first
proviso to the said section governs the remand order dated 14.6.1994. And as per this first proviso no Magistrate shall remand an accused person
to custody under that Section for a term exceeding 15 days at a time. So learned Counsel for the detenus is right in his contention that the order of
remand passed on 14.6.1994 extending the period of remand till 18.8.1994 is not a valid one. There is yet another infirmity in this order. The
period from 14.6.1994 to 18.8.1994 works out to 66 days and this extension is not valid even u/s 20 of TADA Act, which is nothing but a
modified version of the statutory provisions as adumbrated u/s 167(2) Code of Criminal Procedure However, we are concerned only with the
question whether the detention as on date is illegal. The detenus are behind the bars at present only by virtue of the order passed by the Designated
Judge on 19.8.1994 and we are of the view that any infirmity in the order passed on 14.6.1994 cannot come to the rescue of the detenus in the
present applications.
The writ of habeas corpus has been described by John Marshall, C.H. as ""a great constitutional privileges"". 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 Subba 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 summarized 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 his 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 known 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 intertwined 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 scope of the writ as stated above
does not support the claim of learned Counsel for the detenus that the infirmity in the order dated 14.6.1994 which has worked itself out on
18.8.1994 would enable this Court to pass an order in their favour.
There is no dispute that no extension of remand order was passed on 18.8.1994. Instead only on 19.8.1994 learned Additional Judge of the
Designated Court passed the order of remand. The main argument of learned Counsel for the detenus is that even this extension of remand order
passed by Sri T.S. Sankaranarayanan on 19.8.1994 is invalid for the reason that he was on casual leave on that day and the impugned order was
obtained at Erode where he was available, by taking all the detenus there. It appears from the file produced by Public Prosecutor that on
18.8.1994 the detenus were escorted to the District and Sessions Court, Palayamkottai from the Central Prison there. The Sessions Judge,
Tirunelveli was on leave on that day. So they proceeded to Nagercoil., When they reached Nagercoil at 1:50 P.M. they learned that the Session
Judge, Nagercoil had also availed half-a-day of casual leave. They came back to Tirunelveli and brought their predicament to the notice of P.A. to
Principal Sessions Judge, Tirunelveli, who consulted the Sub Judge, Tirunelveli. The latter contracted the Registrar of High Court. As per the
instructions received they left for Erode at 8:00 p.m. and arrived there on the next morning. On 19.8.1994 at 8:15 A.M. they located Thiru T.S.
Sankaranarayanan, Sessions Judge, Nagercoil there and got the remand extended till 22.9.1994. Thiru K. Natarajan was the Judge of the
Designated Court, Tirunelveli at that time. He was so appointed as per G.O. Ms. No. 737 dated 1.7.1994. Thiru T.S. Sankaranarayanan, District
and Sessions Judge, Kanyakumari was appointed as an Additional Judge of the Designated Court, Tirunelveli to exercise the jurisdiction of the
Judge of the Designated Court, Tirunelveli during his absence. And this is by virtue of G.O. Ms. No. 17, Home (D.O. Courts) Department dated
5.1.1994. u/s 9(1) of the TADA Act, 28 of 1987 the Central Government or a State Government may, by notification in the Official Gazette,
constitute one or more Designated Courts for such area or areas, or for such case or class or group of cases as may be specified in the notification.
And Sub-section (5) of Section 9 enables the Central Government or the State Government to appoint Additional Judges to exercise jurisdiction in
a Designated Court. So the fact that Thiru T.S. Sankaranarayanan had power to pass an extension, of remand order in the present case which was
pending before the Designated Court, Tirunelveli on 18 and 19.8.1994 cannot be questioned. As per the above mentioned Notification he has
every right to function as a Designated Judge in view of the absence of the Designated Judge, Tirunelveli on that day. And we have already seen
that u/s 9(1) of the TADA Act a Designated Court may be constituted for any case or class or group of cases as may be specified in the
Notification. And the First Additional District and Sessions Court, Tirunelveli was constituted as a Designated Court for the present case relating to
Palayamkottai Police Station Crime No. 1284 of 1991 as per the Notification published in the Extra- ordinary Issue of Tamil Nadu Government
Gazette dated 21.10.1992. And as per Section 10 of TADA Act, Designated Court may, on its own motion on an application made by the Public
Prosecutor, and if it considers it expedient or desirable so to do, sit for any of its proceedings at any place other than its ordinary place of sitting
provided that nothing in this section shall be construed to change the place of sitting of a Designated Court constituted by a State Government to
any place outside that State. So, there is no scope for holding that the Designated Court, Tirunelveli had any geographical boundary limitation
regarding Crime No. 1284 of 1991. And Thiru Sankaranarayanan could have exercised the powers of the Designated Court, Tirunelveli at any
place in Tamil Nadu on 19.8.1994 in respect of the case on hand. We find no infirmity in the order passed by Thiru T.S. Sankaranarayanan on
19.8.1994 at Erode extending the remanding of the present detenus.
Yet another argument of learned Counsel for the detenus is that Selvin alias Karate Selvin the detenu in H.C.P. No. 1382 of 1994 was on
hunger fast between 14.8.1994 and 25.8.1994 and he has not produced before any Judge on 19.8.1994 and hence his detention as on date is not
on a proper order of remand. In support of his contention be cited M.A. Dharman Vs. State of Andhra Pradesh by Secretary to Government,
General Administration Department and Others, . There a Division Bench of the Andhra Pradesh High Court has held:
Proviso (b) to Sub-section (2) of Section 167 of the new Code of Criminal Procedure lays down that detention in any custody u/s 167 of the new
Code shall not be authorised by the Magistrate unless the accused is produced before him. Under proviso (b) read with Explanation II, the
production of the accused before the Magistrate, both at the time of initial remand of the accused u/s 167(2) and at the time of extension of remand
of accused from time to time under Proviso (a), is an indispensable prerequisite. The object behind the salutary rule enacted in Section 167(2)
proviso (b) of the Code of Criminal Procedure is to afford to the accused person produced before the Magistrate an opportunity of being beard
before an order of remand or extension of remand is passed. The finding that adequate grounds exist for extension of remand of the accused
person cannot be reached by the Magistrate unless the accused is given an opportunity to show cause against the same. It is also part of fairness in
procedure enshrined in Article 21 of the Constitution that no person can be deprived of his life and personal liberty except according to the
procedure established by law. Even u/s 309(2) of the Code of Criminal Procedure for remanding an accused person to judicial custody the
requirement of natural justice particularly that of audi alteram partem should be complied with. Production of the accused person is an
indispensable requirement of natural justice and fair procedure, as the order of remand seeks to deprive him of his personal liberty.
However, in that case without production of detenus before him the Special Judge mechanically remanded them to judicial custody on three
successive occasions no plea of impossibility of compliance with the mandatory provision before the Special Judge either by the prosecuting
agency or by the Jail Authority was pleaded. Courts have no inherent power of remand and necessarily Sections 167 and 309 of the Code of
Criminal Procedure apply to both citizens and non-citizens. Extension of remand of an accused person beyond 15 days is not a matter of course or
a routine exercise, and it is only where the Magistrate is satisfied that adequate grounds exist extension of remand is warranted and not otherwise.
However, in the present instance, on 19.8.1994 while purporting to exercise his power as Designated Judge under TADA Act in the absence
of Designated Judge, Tirunelveli, as per G.O. Ms. No. 17, Home (D.O. Courts) Department, dated 5.1.1994 as a Designated Judge under
TADA Act camping at Erode on private affairs the Judge has stated that he has received a message from Superintendent of Central Prison,
Madras expressing his inability to produce Selvin alias Karate Selvin on the ground that he was admitted in Madras Government General Hospital
on 15.8.1994 for treatment as an in-patient and since he is at Madras which is far away from the place of the Designated Court, it is not possible
for the Judge to visit the Central Prison, Madras for the purpose of extending the remand. And on a prior occasion also the remand was extended
when he was admitted in General Hospital, Madras. Learned Judge also relied on Ramprasad v. State of Bihar, AIR 1988 Pat 199 wherein it has
been held that though physical production of the accused before the Magistrate is desirable, yet the failure to do so would not per se vitiate the
order of remand if the circumstances for non-production are beyond the control of the prosecution or police. Even M.A. Dharman Vs. State of
Andhra Pradesh by Secretary to Government, General Administration Department and Others, relied on by learned Counsel for the detenus herein
also states at page 317 as under:
Though physical production of the accused before the Magistrate at the time of seeking his initial remand can never be dispensed with, absence of
his physical production would not incurably vitiate a subsequent order of extension of his remand, if it is physically impossible to produce him in
person. The law does not compel or insist upon impossibility of performance of the requirement enacted u/s 167(2)(b) of the Code of Criminal
Procedure. In other words, it is always open to either the prosecuting agency or the jail authority to put forward a plea of impossibility of
production of an accused person before the learned Magistrate and if the learned Magistrate is satisfied that the plea is well-founded, he may, for
special reasons to be recorded in writing, extend the remand of the accused person even without his production. Non-availability of escorts for
non-production of the accused person hardly constitutes a ground for infraction of the mandatory requirement of Section 167(2)(b) of the Code of
Criminal Procedure.
So it cannot be said that order of extending remand period passed on 19.8.1994 is improper. In the circumstances, we find no merit in the
contentions of the detenus and hence both the petitions are dismissed.
Immediately after the pronouncement of the order, learned Counsel representing the Petitioners made an oral application pleading leave to be
granted for filing an appeal before the Supreme Court. The leave as prayed for is refused inasmuch as the case either does not involve a substantial
question of law as to the interpretation of the constitution or a substantial question of law of general importance.