T. Mohan vs Stale by Inspector of Police, C.B.C.I.D., Madras 600 004

Venkataswami, J.—This petition, under Article 226 of the Constitution of India, is for the issue of a writ of habeas corpus, directing the

Respondent to produce the Petitioner before this Court.

Brief facts leading to the filing of this petition are as follows:

The Respondent has filed a case against the Petitioner and nine others, for offences under Ss. 302 (6 counts), 120-B, 201 and 147 read with 34 of

the Indian Penal Code, of which, after trial, three accused were awarded death sentence and five accused were given life imprisonment. This Court

confirmed the death sentence, and also confirmed the sentence of life imprisonment in respect of three accused and acquitted two accused. The

case against the Petitioner and another person by name Selvaraj was split up from others and a new sessions case number, namely, S.C. No. 187

of 1990, was given, and the same is pending on the file of the District and Sessions Judge, Chengalpattu. In addition to that, a case against the

Petitioner for escape from Central Prison, Madras, is pending before the XI Vth Metropolitan Magistrate, Egmore, Madras. The Petitioner

appeared before the learned District and Sessions Judge on 24.12.1992 and the case was further adjourned to 25.1.1993. It is stated in the

affidavit that the Petitioner was taken for trial before the learned District and Sessions Judge on 25.1.1993. But the Presiding Officer was not

available and the remand was extended till 25.2.1993 by the learned Judicial Magistrate No. l, Chengalpattu. According to the Petitioner, this

extension of remand by the learned Judicial Magistrate No. l, Chengalpattu, is illegal, and consequently, the custody from 26.1.1993 was illegal

and, therefore, the petition for Habeas Corpus was filed.

The Respondent has filed a counter affidavit, wherein, in paragraphs 4 and 5, it is stated as follows:

Regarding the averments contained in para 4 of the affidavit, I respectfully submit that the Petitioner herein appeared before the learned District and

Sessions Judge, Chengalpattu on 24.12.92 and the case was adjourned to 25.1.93. On 25.1.93, the Petitioner appeared before the judicial

Magistrate No. l, Chengalpattu, who extended the period of remand till 25.2.93 by virtue of the proceedings of the District and Sessions Judge,

Chengalpattu dated 25.1.93. In the said proceedings, the learned Sessions Judge has delegated the powers in favour of the Chief Judicial

Magistrate, Chengalpattu to hear and dispose of urgent criminal applications inclusive of suspension of sentence and extension of remand of

prisoners u/s 10(3) of the Code of Criminal Procedure The learned Chief Judicial Magistrate in turn has delegated the power conferred on him in

favour of the Judicial Magistrate No. 1, Chengalpattu in his proceedings Dis. No. 406/A/93, dated 27.1.93 although the order itself had been

passed on 25.1.93. Pursuant to this delegation of powers conferred upon him, the learned Judicial Magistrate No. 1, had passed the order of

remand in relation to the Petitioner herein extending the same till 25.2.93.

I respectfully submit that on 13.2.93 a requisition was filed by the Respondent herein before the learned District and Sessions Judge, Chengalpattu

pointing out that the order passed by the learned Judicial Magistrate No. 1, Chengalpattu extending the remand of the Petitioner till 25.2.93 may

not be in conformity with the law. I most respectfully submit that the learned Sessions Judge thereupon was pleased to direct the prison authorities

to cause production of the Petitioner before him and for passing suitable orders. Accordingly, the Petitioner was produced before the learned

Sessions Judge, Chengalpattu on 14.2.93 when the Petitioner was remanded to Judicial custody till 25.2.93.

Learned Counsel for the Petitioner, Mr. K. Vijaya Radha Mohan, contended that even as per the counter affidavit, the remand extended by the

Judicial Magistrate No. 1, Chengalpattu cannot be sustained. The subsequent valid order passed by the learned Sessions Judge will not cure the

earlier defect and, therefore, the Petitioner is entitled for release. He also submitted that in any event the lighthearted manner in which a serious

case of this nature has been dealt with by the concerned, deserves condemnation. In support of his contention that the illegal custody cannot be

cured by a subsequent valid order, he placed heavy reliance on a Division Bench judgment of the Andra Pradesh High Court, in Dharman v. State

of Andhra Pradesh (1991) M.L.J. (Cri) 190. He also drew our attention to three judgments of the Supreme Court, namely, Naranjan Singh

Nathawan Vs. The State of Punjab, , Ram Narayan Singh Vs. The State of Delhi and Others, and Kanu Sanyal Vs. District Magistrate, Darjeeling

and Others, .

Learned Public Prosecutor, contending contra, submitted that while the learned Counsel was right in his submission that the order extending the

remand by Judicial Magistrate No. l, Chengalpattu, in this case, is illegal, learned Counsel for the Petitioner is not right in his further submission that

the subsequent valid order of remand will not cure the earlier illegality. Learned Public Prosecutor submitted that the Division Bench judgment of

Andhra Pradesh has been subsequently overruled by the same High Court by a Full Bench. He also drew our attention to a Full Bench judgment of

the Patna High Court in Ramprasad v. State of Bihar, AIR 1988 Pat 199 , and also a Division Bench judgment of this Court in Writ Petition No.

7727 of 1991 (Kalanithi v. Government of Tamil Nadu order dated 16.9.91). Learned Public Prosecutor also submitted that on the facts of the

case on hand, it could be seen 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 any one of the suitors. In support of that, be placed reliance on a Seven Judges

Constitution Bench judgment of the Supreme Court, in A.R. Antulay Vs. R.S. Nayak and Another, .

We have considered the rival submissions.

On facts, there is no doubt that the order extending the remand by the Judicial Magistrate, Chengalpattu, from 25.1.1993 to 25.2.1993 is totally

illegal and unsustainable. But that does not automatically enable or help the Petitioner to get the relief as prayed for in this petition, notwithstanding

the valid and legal remand order passed by the learned District and Sessions Judge, Chengalpattu, on 14.2.1993. The contention of the learned

Counsel for the Petitioner that on the date when the Petitioner filed this H.C.P., there was no valid order of remand and, therefore, the subsequent

order, even if valid, will not cure the earlier defect, cannot be accepted, as the relevant date for the purpose of considering whether the custody is

legal or illegal is the date of hearing of the habeas corpus petition, and not the date of filing of the said petition, nor any earlier date. No doubt,

previously,.. there was some doubt whether an illegal custody, for any reason whatsoever, can be cured by a subsequent valid order or remand,

and whether the date of hearing of the Habeas Corpus petition is the relevant date for considering the legality of the custody. That doubt has

subsequently been put at rest by the judgment of the Supreme Court in Kanu Sanyal Vs. District Magistrate, Darjeeling and Others, . The

Supreme Court, in the said Judgment, after noticing the earlier three types of view, observed thus:"".......

It is now well settled that the earliest date with reference to which the legality of detention challenged in a Habeas Corpus proceeding may be

examined is the date on which the application for Habeas Corpus is made to the Court. This Court speaking through Wanchoo, J. (as the then

was) said in A.K. Gopalan Vs. The Government of India, :

It is well settled that in dealing with the petition for Habeas Corpus the Court is to see whether the detention on the date on which the application is

made to the Court is legal, if nothing more has intervened between the date of the application and the date of hearing.

In two early decisions of this Court, however, namely, Naranjan Singh Nathawan Vs. The State of Punjab, and Ram Narayan Singh Vs. The State

of Delhi and Others, a slightly different view was expressed and that view was reiterated by this Court in Col. Dr. B. Ramachandra Rao Vs. The

State of Orissa and Others, where it was said:

In Habeas Corpus 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.

And yet in another decision of this Court in Talib Hussain Vs. State of Jammu and Kashmir, . Mr. Justice Dua, sitting as a single Judge, presumably

in the vacation, observed that:

In habeas corpus proceedings the court has to consider the legality of the detention on the date of the hearing.

Of these three views taken by the court at different times, the second appears to be more in consonance with the law and practice in England and

may be taken as having received the largest measure of approval in India, though the third view also cannot be discarded as incorrect, because an

inquiry whether the detention is legal or not at the date of hearing of the application for habeas corpus would be quite relevant, for the simple

reason that if on that date the detention is legal, the court cannot order release of the person detained by issuing a writ of Habeas Corpus. But, for

the purpose of the present case, it is immaterial which of these three views is accepted as correct, for, it is clear that, whichever be the correct

view, the earliest date with reference to which the legality of detention may be examined is the date of filing of the application for Habeas Corpus

and the court is not, to quote the words of Mr. Justice Dua in Col. Dr. B. Ramachandra Rao Vs. The State of Orissa and Others, .

concerned with a date prior to the initiation of the proceedings for a writ of habeas corpus.........

The above ruling of the Supreme Court was applied by a Division Bench of this Court in its judgment rendered in Writ Petition No. 7727 of 1991

(supra), and the learned Judges sustained the contention by observing as follows:

Even if the initial detention of Mr. Ruban and 14 others in the Refugee camp is illegal, subsequently orders were passed against them u/s 3 of the

Foreigners Act and served on them on 9.4.1991. On the date of filing of the writ petition on 13.5.1991, as well as on the date of return and also

on the date of hearing of this W.P., Mr. Ruban and others were detained in the Refugee camp on the basis of the order passed u/s 3 of the Act

and by following the procedure established by law. In these circumstances, applying the ratio of the decision of the Supreme Court reported in

1974 Criminal Law Journal 465, it has to be held that the Refugee Camp on the date of the filing of the Writ petition as well as on the date of

return is legal and the initial illegality, even if any, in the detention of Mr. Ruban, and others in the Refugee camp, will not render the subsequent

orders validly made by the Respondent on 9.4.1991 u/s 3 of the Act invalid.

The Full Bench of the Patna High Court, in Ramprasad v. State of Bihar, AIR 1988 Pat 199 in the identical question, after referring to the earlier

Supreme Court Judgments, observed as follows:

To sum up on question No. (iii), the answer there to is rendered in the negative. It is held that the true test for the legality or otherwise of the

detention is on the date of the hearing itself. A defect in an earlier order of remand of an accused person is not incurable and he cannot claim a writ

of habeas corpus on that score alone if on the date of hearing he is in custody under a valid order of remand.

No doubt, the Division Bench judgment of the Andhra Pradesh High Court on 1991 M.LJ. 190 (Criminal) (supra) supports the contention of

the learned Counsel for the Petitioner. It is stated that judgment of the Division Bench has since been overruled by the very same Court by a Full

Bench Judgment. Even otherwise, in the light of the judgment of the Supreme Court (referred to above), we do not think that we can accept the

view taken by the learned Judges of the Division Bench in that Judgment.

The question can be viewed from another angle, namely, in the light of the principle ''actus curiae Neminem gravabit''. The Supreme Court, on

this aspect, has observed in the decision reported in A.R. Antulay Vs. R.S. Nayak and Another, as follows:....

It has been said long ago that ""Actus Curiae Neminem Gravabit"" an act of the Court shall prejudice no man. This maxim is founded upon justice

and good sense and affords a safe and certain guide for the administration of the law.

Lord Cairns in Alexander Rodger v. The Comptoir D''e scompte de paris (1869-71) LR. 3 P.C.465 at page 475 observed thus:

Now, their Lordships are of opinion, that one of the first and highest duties of all courts is to take care that the act of the Court does no injury to

any of the Suitors, and when the expression ''the act of the Court'' is used, it does not mean merely the Primary Court, or of any intermediate Court

of appeal, but the act of Court as a whole, from the lowest Court which entertains jurisdiction over the matter upto the highest Court which finally

disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the

course of the whole of the proceedings does an injury to the suitors in the Court.

On the facts of this Case narrated above, we have seen that the prosecution has promptly produced the Petitioner before the proper court, but

unfortunately in the absence of the proper presiding officer, the Judicial Magistrate No. 1, Chengalpattu, who had no power to extend the remand,

has granted extension of remand. Therefore, the mistake committed by the Court should not cause injury to the prosecution. Viewed from that

angle coupled with the fact that subsequently there is a valid remand order, the relief of habeas corpus cannot be granted.

Before parting with the case, we have to observe that the manner in which the remand was extended in a grave case of this nature without

applying mind regarding Jurisdiction, cannot be appreciated, to say the least. Learned Counsel for the Petitioner is right when he criticises the

manner in which the remand was extended by the Judicial Magistrate No. l, Chengalpattu. We fail to understand why the prosecution has taken so

much of time to realise about the illegality of the extension of remand. It is only after the H.C.P. was filed, and after going through the averments in

the affidavit, the prosecution seems to have realised the illegality in the extension of remand on 25.1.1993. The prosecution is also to be blamed for

not taking immediate action to set right the illegality.

For the reasons stated above, we are of the view that the relief of Habeas Corpus as prayed for, on the facts of this case, and in the light of the

valid remand order passed subsequently pending disposal of the H.C.P., cannot be granted, and accordingly, this petition is dismissed.