PETITIONER: SAPMAWIA Vs. RESPONDENT: DEPUTY COMMISSIONER, AIJAL DATE OF JUDGMENT: 30/07/1970 BENCH: [I. D. DUA, J.] ACT: Constitution of India Article 32-Habeas corpus-Commitment order neither stating the number of days of commitment, nor in terms authorising the jail authorities to keep the petitioner, nor giving reasons-Validity. HEADNOTE: The petitioner, who was accused of certain criminal offenses, was in jail custody awaiting his trial. He applied to the High Court for a writ of habeas corpus. On January 22, 1970 the High Court held that the petition was not maintainable because the petitioner was an under trial prisoner awaiting his trial. Accordingly the High Court dismissed the plea for a writ of habeas corpus, but directed investigation against the petitioner to be completed within two months. The petitioner did not file 'appeal against this order, but much later filed a habeas corpus petition in the Supreme Court. In its return the State asserted that the investigation was completed by March 20, 197-0 and sanction was obtained on May 12, 1970, but no order by a Magistrate authorising the petitioner's detention in custody was produced.. The last order of remand disclosed to this Court was of February 2, 1970. But this order neither contained the period of remand nor did it, in terms, authorise the Dibrugarh Jail authorities to keep the petitioner in their custody : reasons for keeping him in jail custody was also not stated. Directing the petitioner's release, this Court HELD The petitioner's custody in jail was not shown to be in accordance with the procedure established by law. (i) If, a person has been deprived of his personal liberty in violation. of theprocedure established by law and no cogent ground for declining reliefin habeas corpus proceedings is made out, then this Court has no option except to order his release, for personal liberty of the individual is highly cherished in our set up giving priority only to the interest of the nation and the security of the State. [695 G] During the course of investigation, the order of the remand Magistrate under the Code of Criminal Procedure could not extend beyond a term of 15 days. The State did not show any special law which authorised a remand for longer period in this case. Even the order of the High Court directed the investigation to be completed within two months. These two months expired a long time ago. The fact that the charge against the petitioner pertains to security of the State and the fact that stringent measures may be necessary on our eastern and north-eastern borders does not afford sufficient justification for by-passing or violating the provisions of the Constitution. Executive expediency should not prevail over the rule of law as envisaged therein. For meeting with emergencies the Constitution contains adequate provisions. [694 F, 696 A-B] (ii) The writ of habeas corpus is a prerogative writ by which the causes and validity of a detention of a person are investigated by summary procedure and if the authority having his custody does not satisfy the Court- 691 that the deprivation of his personal liberty is according to the procedure established by law the person is entitled to his liberty. [695 D] (iii) The warrant of commitment should normally remain with the jail authorities directed to keep the person committed to their custody so that they can 'always satisfy the court, enquiring into the legality of such custody, that he has been deprived of his personal liberty according to the procedure established by law, (iv) The order of release in the case of a person suspected of or charged with the commission of an offence does not per se amount to his acquittal or discharge and the authorities are not, by virtue of the release only on habeas corpus, deprived of the power to arrest and keep him in custody in accordance with law, for this writ is nor designed to interrupt the ordinary administration of criminal law. [695 D] (v) Rule nisi in habeas corpus proceedings demands immediate attention and urgent compliance as it concerns the question of liberty of the custody, that he has been deprived of his personal liberty according to subject. [Delay in securing papers for production in this Court disapproved. [696 E] JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 269 of 1970.
Petition under Art. 32 of the Constitution for a writ in the
nature of habeas corpus.
B. R. Agarwala, for the petitioner.
Naunit Lal, for the respondent.
The Judgment of the Court was delivered by
Dua, J.-Sapmawia son of Tivuala, has forwarded from the
Dibrugarh Jail his petition for a writ of habeas corpus.
According to the averments made in this petition he claims
to be a loyal citizen of India hailing from Bairabi
(Bairangal) village, Mizo District. On the 14th August,
1968 he was taken by the Security Forces from his house in
Bairabi, Mizo Dist. to work as a porter for carrying their
luggage to the next village. The petitioner was, however,
not allowed to return home. He was kept under military
guard for about three months without any interrogation. On
November 23, 1968 he was sent to Silchar District Jail where
he was interrogated by a Sub-Inspector of Police. He was
thus kept as an under-trial prisoner since his arrest. On
enquiry from jail authorities be learnt that he was-,
charged with offenses under s. 121, I.P.C. and under rules
41 (5) and 32 (5) of the Defence of India Rules and also
under s. 10, 11 and 13 of the Unlawful Activities
(Prevention) Act. , he petitioner was transferred from
Silchar Jail to Now long Jail and from there to the
District Jail, Dibrugarh. later the charges under s. 121,
I.P.C. and rr. 41(5), and 32(5), Defence of India Rules were
withdrawn leaving only charges under ss. 10, I I and 13 of
the Unlawful Activities (Prevention) Act.. The petitioner on
an L13 Sup. CI/70-16
692
earlier occasion applied to the Assam High Court for a writ
of habeas corpus. That court on January 22, -1970- directed
the State to complete investigation of the cases’ against
him within two months. The petitioner Complians that no
further action has so far been taken in thise connection.
On July 9, 1970 Shri B. R. Aggarwal, an Advocate of this
Court appeared as amicus curiae in support of this petition.
Rule nisi was issued returnable on July,16, 1970. The State
was directed to produce in court all relevant previous
records. An application dated July 14, 1970 was filed in
this Court by the State through Shri Naunit Lal, Advocate,
seeking adjournment for two weeks for producing the
petitioner and for filing the counter-affidavit. On July
16, 1970, however, though the petitioner was produced in
this Court no return was filed on the plea that’ the
relevant papers had not yet been received by the Counsel.
The case was accordingly adjourned to the following day as
prayed by the State counsel.
In the return dated July 15, 1970 it is stated that the
petitioner was produced at the Kolasib police station on
November 23, 1968 and a case under ss. 10, 11 and 13 of the
Unlawful Activities (Prevention) Act was registered against
him. During the investigation evidence for prosecution
under ss. 10 and 13 of the said Act as well as under s. 1 1
of the Assam Maintenance of Public Order (Autonomous
Districts) Act was also forthcoming. The exact words of the
return of this aspect are :
“During investigation sufficient evidence for
prosecution under s. 10/ 13 of the Unlawful
Activities (Prevention) Act as well as under
section 11 of the Assam Maintenance of Public
Order (Autonomous Districts) Act were, found
against the accused. The accused-petitioner
has been charge sheeted on 20-3-70 under s. 1
1 of the Assam Maintenance of Public Order
(Autonomous Districts) Act and the Commis-
sioner for Cachar & Mizo District was
requested to accord sanction for prosecution
of the accused petitioner under ss. 10 and 13
of the Unlawful Activities (Prevention) Act.
Sanction of the Commissioner was received on
12-5-70 and the relevant sections have been
added to the chargesheet. Production warrant
has been issued by the Additional District
Magistrate Aijal for appearance of the accused
before the Aijal Court on 5-8-70 for trial.
On the habeas corpus petition filed by the
accused petitioner, the Hon’ble High Court,
Gauhati allowed
693
two months’ time to complete investigation
vide order dated 22-1-1970. Investigation was
completed within the time allowed by the
Hon’ble High Court and the accused petitioner
has been charge-sheeted under s. 11 of the
Assam Maintenance of Public Order. (Autonomous
Districts) Act on 20-3-70 and u/s 10/13 of the
Unlawful Activities (Prevention) Act.”
In the supplementary affidavit dated July 17, 1970 sworn at
Delhi by Shri Bhupendra Sharma, Assistant in the Political
Department, Assam Government, it is explained that the
original case papers, charge sheet and order %of remand are
at Aijal, Mizo District in the court of the A.D.M. Aijal
where the next date fixed is August 5, 1970. The reasons
for non-production of these documents are stated thus
“That the political department have been
trying to contact on phone Aijal for further
facts, but the telephone line between Shillong
and Aijal was out of order for three days, and
till my departure, from Shillong on 15th
A.D.M. Aijal had not been contacted.
The warrant for intermediate custody produced in this Court
shows that the last order of remand entered therein is dated
February 2, 1970. No other warrant or order committing the
petitioner to the custody of the jail authorities at
Dibrugarh has been forwarded to this Court -along with the
petitioner. The supplementary affidavit of Shri Bhupendra
Sharma undoubtedly states that the papers relating to the
petitioner’s remand are at Aijal, but it is not easy to
understand how the Dibrugarh jail authorities kept the
petitioner in their custody without being in possession of a
valid warrant of commitment authorising them to keep him in
jail custody.
The position as it emerges from the material produced in
this Court is that the petitioner is accused of a criminal
offence and is at present in jail custody awaiting his
trial. He had applied to the Assam High Court for a writ of
habeas corpus. On January 22, 1970 a Bench of that Court
held that petition not to be maintainable because the
-petitioner was an under trial prisoner awaiting hise trial
in more cases than one. The habeas corpus was accordingly
dismissed. That Court, however, directed investigation
against the petitioner to be completed within two months.
No appeal was prefarred by the petitioner against the order
of the High Court. The legality of that order having not
been questioned, the petitioner’s detention upto the date,
of that order has to be assumed to be lawful,
694
Now, in this Court the only right the petitioner can enforce
in these proceedings is a fundamental right guaranteed by
Part III of our Constitution. In view of the order of the
Assam, High Court there can be no question of any violation
of Art. 22(1) of the Constitution and indeed no such
violation has been canvassed in this Court. The solitary
question which requires consideration would thus be if the
petitioner had been deprived ,of his personal liberty
contrary of procedure established by law.
As observed earlier, upto the date of the order of the High
Court, the petitioner’s custody was not considered by that
Court to be unlawful. The order of the High Court, did not
itself authorise further custody : it merely ruled out the
maintainability of the habeas corpus petition -and added a
further direction that the investigation against him should
be completed within two months. The petitioner’s custody
was thus governed by the ordinary law.
The last order of remand as disclosed to this Court is dated
February 2, 1970 -but that order is silent as to for how
many days the petitioner was remanded and it also does not
in terms authorise the authorities of Dibrugarh Jail to keep
the petitioner in their custody. Reasons for keeping him in
jail custody are also not stated. I am, however, prepared
to Assume that the remand was to be in the custody of the
Superintendent,, Dibrugarh Jail. The question, however,
arises under which process of law was the order of remand
made ? The State Counsel was unable to throw any light in
this. connection and he admitted that he was not in a
position to make ‘any positive statement. Further assuming
that the order of remand was by a Magistrate during the
course of the investigation it could not, under ‘the Code of
Criminal Procedure, extend beyond a term of 15 days. There
was no suggestion on behalf of the State counsel that any
special law authorised a remand for a longer period in this
case. Even the order of the High Court directed the
investigation to be completed within two months. These two
months expired a long time ago. In the return, though it is
asserted that the investigation was complete by March 20,
1970 and sanction is also stated to have been obtained on
May 12, 1970 ,Po order by a Magistrate authorising the
petitioner’s detention in custody has been produced. In
these circumstances I am constrained to hold that the
petitioner’s present custody in Dibrugarh Jail has not been
shown to be in accordance with the procedure established by
law.
It was contended that the petitioner is an accused person
and that he was duly committed to Dibrugarh Jail by the
695
Additional District Magistrate, Aijal and that the papers
relating to the remand are in that court. It was added that
the said Magistrate being seized of the case against the
petitioner who is going to be produced in that court on
August 5, 1970, that court must be deemed to have full
jurisdiction to remand the petitioner to whichever custody
that court deems proper and this Court should not interfere
in these proceedings. Mere irregularity in the order of
remand said the counsel, cannot render unlawful the
petitioner’s custody, in jail justifying his release. Any
grievance on that score, according to the submission, ap-
propriately be made to the court of the Magistrate or to the
Assam High Court which exercises a power of superintendence
over the court of the Magistrate.
The writ of habeas corpus is a prerogative writ by which the
causes and validity of detention of a person are investi-
_gated 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 his liberty.
The order of release in the case of a person suspected of or
charged with the commission of an offence does not per se
amount to his acquittal or discharge and the authorities are
not, by virtue of the release only on habeas corpus,
-deprived of the power to arrest and keep him in custody in
accordance with law for this writ is not designed to
interrupt the ordinary administration of criminal law. This
Court has been entrusted by the Constitution with a duty and
an obligation to enforce the fundamental rights -of the
parties approaching it for such relief. Our Constitution is
the supreme law framed by the selected representatives of
the entire nation after years of deep thought and
deliberation. The fundamental principles embodied therein
were designed to inspire our governmental set up. It is
from this source that all authorities including the.
Parliament, the President and this Court derive their
respective powers. Such powers are circumscribed by the
language of the Constitution itself. It is impermissible to
go against the constitutional mandate or to over-ride it.
If, therefore, a person has been deprived of his personal
liberty in violation of the procedure established by law and
no cogent ground for declining relief in habeas corpus
proceedings is made out, then this Court has no option
except to order his release, for personal liberty of the
individual is highly cherished in our set-up giving
‘priority only to the interest of the nation and the
security of the State. It is undoubtedly true that on our
eastern and north-eastern borders there are some unfriendly
foreign powers which, with evil -and hostile designs, I are
constantly seducing political adventurists and gullible
inhabitants of that area and aiding and encouraging their
unlawful activities
696
prejudicial to our democratic set up. Such a situation,
posing as it does a serious threat to orderly life and
security of the State demands drastic measures for meeting
it. It is also correct that the charge against the
petitioner pertains to security of the State. But these
considerations do not afford sufficient justification for
by-passing or violating the provisions of the Constitution.
Executive expediency should not prevail over the rule of law
as envisaged therein. For meeting with emergencies the
Constitution, it may be pointed out, contains adequate pro-
visions.
Holding as I do that the petitioner’s custody in Dibrugarh
Jail has not been shown to be in accordance with the
procedure established by law I am constrained to direct his
release. But this does not mean that the case against him
is not to proceed. It also does not debar the authorities
_concerned from arresting the petitioner and keeping him in
custody in accordance with law.
Before closing I must record my disapproval of the laxity
with which the papers relating to the petitioner’s custody
in Dibrugarh Jail were sought to be secured by the
authorities from Aijal for production in this Court. The
explanation that the telephone connection remained out of
order for three days is hardly convincing. A special
messenger could have been sent to Aijal, or a telegram could
have been sent requiring the relevant papers to be made
available to the authorities for production in this Court.
Rule nisi in habeas corpus proceedings demands immediate
attention and urgent compliance as it concerns the question
of liberty of a subject. I am also point out that the
warrant of commitment should normally remain with the jail
authorities directed to keep the person committed to their
custody so that they can always satisfy the court enquiring
into the legality of such custody, that he has been deprived
of his personal liberty according to the procedure
established by law.
Y.P.
697