{"id":252758,"date":"1970-07-30T00:00:00","date_gmt":"1970-07-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sapmawia-vs-deputy-commissioner-aijal-on-30-july-1970"},"modified":"2015-04-13T12:47:01","modified_gmt":"2015-04-13T07:17:01","slug":"sapmawia-vs-deputy-commissioner-aijal-on-30-july-1970","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sapmawia-vs-deputy-commissioner-aijal-on-30-july-1970","title":{"rendered":"Sapmawia vs Deputy Commissioner, Aijal on 30 July, 1970"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sapmawia vs Deputy Commissioner, Aijal on 30 July, 1970<\/div>\n
Bench: [I. D. Dua, J.]<\/div>\n
           PETITIONER:\nSAPMAWIA\n\n\tVs.\n\nRESPONDENT:\nDEPUTY COMMISSIONER, AIJAL\n\nDATE OF JUDGMENT:\n30\/07\/1970\n\nBENCH:\n[I. D. DUA, J.]\n\n\n\n\nACT:\nConstitution  of India Article\t32-<\/a>Habeas  corpus-Commitment\norder neither stating the number of days of commitment,\t nor\nin  terms  authorising\tthe jail  authorities  to  keep\t the\npetitioner, nor giving reasons-Validity.\n\n\n\nHEADNOTE:\nThe   petitioner,  who\twas  accused  of  certain   criminal\noffenses,  was\tin  jail custody  awaiting  his\t trial.\t  He\napplied\t to the High Court for a writ of habeas corpus.\t  On\nJanuary\t 22, 1970 the High Court held that the petition\t was\nnot  maintainable because the petitioner was an under  trial\nprisoner  awaiting  his trial.\tAccordingly the\t High  Court\ndismissed the plea for a writ of habeas corpus, but directed\ninvestigation against the petitioner to be completed  within\ntwo  months.   The petitioner did not file  'appeal  against\nthis order, but much later filed a habeas corpus petition in\nthe  Supreme Court.  In its return the State  asserted\tthat\nthe  investigation  was\t completed by March  20,  197-0\t and\nsanction  was  obtained on May 12, 1970, but no order  by  a\nMagistrate authorising the petitioner's detention in custody\nwas  produced.. The last order of remand disclosed  to\tthis\nCourt  was  of\tFebruary 2, 1970.  But\tthis  order  neither\ncontained  the\tperiod\tof  remand nor\tdid  it,  in  terms,\nauthorise  the\tDibrugarh  Jail\t authorities  to  keep\t the\npetitioner  in\ttheir custody : reasons for keeping  him  in\njail   custody\t was  also  not\t  stated.    Directing\t the\npetitioner's release, this Court\nHELD The petitioner's custody in jail was not shown to be in\naccordance with the procedure established by law.\n(i)  If, a person has been deprived of his personal  liberty\nin violation. of theprocedure established by law and no\ncogent ground for declining reliefin\t habeas\t     corpus\nproceedings  is\t made  out, then this Court  has  no  option\nexcept\tto  order his release, for personal liberty  of\t the\nindividual is highly cherished in our set up giving priority\nonly  to the interest of the nation and the security of\t the\nState. [695 G]\nDuring the course of investigation, the order of the  remand\nMagistrate  under the Code of Criminal Procedure  could\t not\nextend beyond a term of 15 days.  The State did not show any\nspecial\t law which authorised a remand for longer period  in\nthis  case.  Even the order of the High Court  directed\t the\ninvestigation to be completed within two months.  These\t two\nmonths\texpired a long time ago.  The fact that\t the  charge\nagainst the petitioner pertains to security of the State and\nthe  fact  that stringent measures may be necessary  on\t our\neastern and north-eastern borders does not afford sufficient\njustification for by-passing or violating the provisions  of\nthe  Constitution.  Executive expediency should not  prevail\nover the rule of law as envisaged therein.  For meeting with\nemergencies  the Constitution contains adequate\t provisions.\n[694 F, 696 A-B]\n(ii)  The  writ of habeas corpus is a  prerogative  writ  by\nwhich the causes and validity of a detention of a person are\ninvestigated  by  summary  procedure and  if  the  authority\nhaving his custody does not satisfy the Court-\n691\nthat the deprivation of his personal liberty is according to\nthe  procedure established by law the person is entitled  to\nhis liberty. [695 D]\n(iii) The warrant of commitment should normally remain\twith\nthe  jail authorities directed to keep the person  committed\nto their custody so that they can 'always satisfy the court,\nenquiring  into\t the legality of such custody, that  he\t has\nbeen  deprived\tof  his personal liberty  according  to\t the\nprocedure established by law,\n(iv) The order of release in the case of a person  suspected\nof or charged with the commission of an offence does not per\nse amount to his acquittal or discharge and the\t authorities\nare  not,  by virtue of the release only on  habeas  corpus,\ndeprived  of the power to arrest and keep him in custody  in\naccordance  with  law,\tfor this writ  is  nor\tdesigned  to\ninterrupt the ordinary administration of criminal law.\t[695\nD]\n(v) Rule nisi in habeas corpus proceedings demands immediate\nattention and urgent compliance as it concerns the  question\nof liberty of the custody, that he has been deprived of\t his\npersonal  liberty according to subject. [Delay\tin  securing\npapers for production in this Court disapproved. [696 E]\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION : Writ Petition No. 269 of 1970.
\nPetition under Art. 32<\/a> of the Constitution for a writ in the
\nnature of habeas corpus.\n<\/p>\n
B. R. Agarwala, for the petitioner.\n<\/p>\n
Naunit Lal, for the respondent.\n<\/p>\n
The Judgment of the Court was delivered by
\nDua,  J.-Sapmawia  son of Tivuala, has\tforwarded  from\t the
\nDibrugarh  Jail\t his petition for a writ of  habeas  corpus.
\nAccording  to the averments made in this petition he  claims
\nto  be\ta  loyal  citizen  of  India  hailing  from  Bairabi
\n(Bairangal)  village,  Mizo District.  On the  14th  August,
\n1968  he was taken by the Security Forces from his house  in
\nBairabi,  Mizo Dist. to work as a porter for carrying  their
\nluggage\t to the next village.  The petitioner was,  however,
\nnot  allowed  to return home.  He was  kept  under  military
\nguard for about three months without any interrogation.\t  On
\nNovember 23, 1968 he was sent to Silchar District Jail where
\nhe  was interrogated by a Sub-Inspector of Police.   He\t was
\nthus  kept as an under-trial prisoner since his arrest.\t  On
\nenquiry\t from  jail  authorities be  learnt  that  he  was-,
\ncharged\t with offenses under s. 121, I.P.C<\/a>. and under  rules
\n41  (5)\t and 32 (5) of the Defence of India Rules  and\talso
\nunder\ts.  10,\t 11  and  13  of  the  Unlawful\t  Activities
\n(Prevention)  Act<\/a>.  ,  he petitioner  was  transferred\tfrom
\nSilchar\t Jail  to  Now\t long Jail and\tfrom  there  to\t the
\nDistrict  Jail, Dibrugarh. later the charges under  s.\t121<\/a>,
\nI.P.C<\/a>. and rr. 41(5), and 32(5), Defence of India Rules were
\nwithdrawn  leaving only charges under ss. 10<\/a>, I I and 13  of
\nthe Unlawful Activities (Prevention) Act<\/a>.. The petitioner on
\nan L13 Sup.  CI\/70-16
\n692<\/span>
\nearlier occasion applied to the Assam High Court for a\twrit
\nof habeas corpus.  That court on January 22, -1970- directed
\nthe  State to complete investigation of the  cases’  against
\nhim  within  two months.  The petitioner Complians  that  no
\nfurther action has so far been taken in thise connection.
\nOn  July  9, 1970 Shri B. R. Aggarwal, an Advocate  of\tthis
\nCourt appeared as amicus curiae in support of this petition.
\nRule nisi was issued returnable on July,16, 1970.  The State
\nwas  directed  to  produce in court  all  relevant  previous
\nrecords.   An application dated July 14, 1970 was  filed  in
\nthis  Court by the State through Shri Naunit Lal,  Advocate,
\nseeking\t  adjournment  for  two\t weeks\tfor  producing\t the
\npetitioner  and for filing the counter-affidavit.   On\tJuly
\n16,  1970,  however, though the petitioner was\tproduced  in
\nthis  Court  no\t return\t was filed on  the  plea  that’\t the
\nrelevant  papers had not yet been received by  the  Counsel.
\nThe  case was accordingly adjourned to the following day  as
\nprayed by the State counsel.\n<\/p>\n
In  the\t return dated July 15, 1970 it is  stated  that\t the
\npetitioner  was\t produced at the Kolasib police\t station  on
\nNovember 23, 1968 and a case under ss. 10<\/a>, 11<\/a> and 13<\/a> of\t the
\nUnlawful Activities (Prevention) Act was registered  against
\nhim.   During  the investigation  evidence  for\t prosecution
\nunder ss. 10<\/a> and 13<\/a> of the said Act as well as under s. 1  1
\nof  the\t Assam\tMaintenance  of\t Public\t Order\t (Autonomous
\nDistricts) Act was also forthcoming.  The exact words of the
\nreturn of this aspect are :\n<\/p>\n
\t      “During investigation sufficient evidence\t for
\n\t      prosecution  under s. 10<\/a>\/ 13<\/a> of  the  Unlawful
\n\t      Activities  (Prevention) Act as well as  under
\n\t      section 11 of the Assam Maintenance of  Public
\n\t      Order  (Autonomous Districts) Act were,  found
\n\t      against  the accused.  The  accused-petitioner
\n\t      has been charge sheeted on 20-3-70 under s.  1
\n\t      1\t of  the Assam Maintenance of  Public  Order
\n\t      (Autonomous  Districts)  Act and\tthe  Commis-
\n\t      sioner   for  Cachar  &  Mizo   District\t was
\n\t      requested\t to accord sanction for\t prosecution
\n\t      of the accused petitioner under ss. 10<\/a> and  13<\/a>
\n\t      of  the Unlawful Activities (Prevention)\tAct.
\n\t      Sanction\tof the Commissioner was received  on
\n\t      12-5-70  and the relevant sections  have\tbeen
\n\t      added to the chargesheet.\t Production  warrant
\n\t      has  been\t issued by the\tAdditional  District
\n\t      Magistrate Aijal for appearance of the accused
\n\t      before the Aijal Court on 5-8-70 for trial.
\n\t      On  the  habeas corpus petition filed  by\t the
\n\t      accused  petitioner, the Hon’ble\tHigh  Court,
\n\t      Gauhati allowed
\n693<\/span>
\n\t      two  months’  time to  complete  investigation
\n\t      vide order dated 22-1-1970. Investigation\t was
\n\t      completed\t within\t the  time  allowed  by\t the
\n\t      Hon’ble High Court and the accused  petitioner
\n\t      has  been\t charge-sheeted under s. 11  of\t the
\n\t      Assam Maintenance of Public Order. (Autonomous
\n\t      Districts) Act on 20-3-70 and u\/s 10\/13 of the
\n\t      Unlawful Activities (Prevention) Act<\/a>.”\n<\/p><\/blockquote>\n
In the supplementary affidavit dated July 17, 1970 sworn  at
\nDelhi  by Shri Bhupendra Sharma, Assistant in the  Political
\nDepartment,  Assam  Government,\t it is\texplained  that\t the
\noriginal case papers, charge sheet and order %of remand\t are
\nat  Aijal,  Mizo District in the court of the  A.D.M.  Aijal
\nwhere  the next date fixed is August 5, 1970.\tThe  reasons
\nfor non-production of these documents are stated thus
\n\t      “That  the  political  department\t have\tbeen
\n\t      trying  to contact on phone Aijal for  further
\n\t      facts, but the telephone line between Shillong
\n\t      and Aijal was out of order for three days, and
\n\t      till  my\tdeparture,  from  Shillong  on\t15th
\n\t      A.D.M. Aijal had not been contacted.\n<\/p>\n
The warrant for intermediate custody produced in this  Court
\nshows that the last order of remand entered therein is dated
\nFebruary 2, 1970.  No other warrant or order committing\t the
\npetitioner  to\tthe  custody  of  the  jail  authorities  at
\nDibrugarh  has been forwarded to this Court -along with\t the
\npetitioner.   The supplementary affidavit of Shri  Bhupendra
\nSharma\tundoubtedly states that the papers relating  to\t the
\npetitioner’s  remand  are at Aijal, but it is  not  easy  to
\nunderstand  how\t the  Dibrugarh jail  authorities  kept\t the
\npetitioner in their custody without being in possession of a
\nvalid warrant of commitment authorising them to keep him  in
\njail custody.\n<\/p>\n
The  position  as it emerges from the material\tproduced  in
\nthis  Court is that the petitioner is accused of a  criminal
\noffence\t and  is  at present in jail  custody  awaiting\t his
\ntrial.\tHe had applied to the Assam High Court for a writ of
\nhabeas\tcorpus.\t On January 22, 1970 a Bench of\t that  Court
\nheld  that  petition  not to  be  maintainable\tbecause\t the\n<\/p>\n
-petitioner was an under trial prisoner awaiting hise  trial
\nin  more cases than one.  The habeas corpus was\t accordingly
\ndismissed.   That  Court,  however,  directed  investigation
\nagainst\t the petitioner to be completed within\ttwo  months.
\nNo appeal was prefarred by the petitioner against the  order
\nof  the High Court.  The legality of that order\t having\t not
\nbeen  questioned, the petitioner’s detention upto the  date,
\nof that order has to be assumed to be lawful,
\n694<\/span>
\nNow, in this Court the only right the petitioner can enforce
\nin  these proceedings is a fundamental right  guaranteed  by
\nPart  III of our Constitution.\tIn view of the order of\t the
\nAssam, High Court there can be no question of any  violation
\nof  Art.  22(1)<\/a>\t of  the Constitution  and  indeed  no\tsuch
\nviolation  has been canvassed in this Court.   The  solitary
\nquestion  which requires consideration would thus be if\t the
\npetitioner  had\t been  deprived\t ,of  his  personal  liberty
\ncontrary of procedure established by law.
\nAs observed earlier, upto the date of the order of the\tHigh
\nCourt,\tthe petitioner’s custody was not considered by\tthat
\nCourt to be unlawful.  The order of the High Court, did\t not
\nitself\tauthorise further custody : it merely ruled out\t the
\nmaintainability\t of the habeas corpus petition -and added  a
\nfurther direction that the investigation against him  should
\nbe  completed within two months.  The  petitioner’s  custody
\nwas thus governed by the ordinary law.\n<\/p>\n
The last order of remand as disclosed to this Court is dated
\nFebruary  2,  1970 -but that order is silent as to  for\t how
\nmany  days the petitioner was remanded and it also does\t not
\nin terms authorise the authorities of Dibrugarh Jail to keep
\nthe petitioner in their custody.  Reasons for keeping him in
\njail  custody are also not stated.  I am, however,  prepared
\nto  Assume that the remand was to be in the custody  of\t the
\nSuperintendent,,  Dibrugarh  Jail.  The\t question,  however,
\narises\tunder which process of law was the order  of  remand
\nmade  ? The State Counsel was unable to throw any  light  in
\nthis.  connection  and\the admitted that he  was  not  in  a
\nposition to make ‘any positive statement.  Further  assuming
\nthat  the  order of remand was by a  Magistrate\t during\t the
\ncourse of the investigation it could not, under ‘the Code of
\nCriminal Procedure, extend beyond a term of 15 days.   There
\nwas  no suggestion on behalf of the State counsel  that\t any
\nspecial law authorised a remand for a longer period in\tthis
\ncase.\tEven  the  order  of the  High\tCourt  directed\t the
\ninvestigation to be completed within two months.  These\t two
\nmonths expired a long time ago.\t In the return, though it is
\nasserted  that the investigation was complete by  March\t 20,
\n1970  and sanction is also stated to have been\tobtained  on
\nMay  12,  1970\t,Po order by a\tMagistrate  authorising\t the
\npetitioner’s  detention\t in custody has been  produced.\t  In
\nthese  circumstances  I\t am constrained\t to  hold  that\t the
\npetitioner’s present custody in Dibrugarh Jail has not\tbeen
\nshown to be in accordance with the procedure established  by
\nlaw.\n<\/p>\n
It  was contended that the petitioner is an  accused  person
\nand that he was duly committed to Dibrugarh Jail by the
\n695<\/span>
\nAdditional  District Magistrate, Aijal and that\t the  papers
\nrelating to the remand are in that court.  It was added that
\nthe  said  Magistrate being seized of the case\tagainst\t the
\npetitioner  who\t is going to be produced in  that  court  on
\nAugust\t5,  1970,  that court must be deemed  to  have\tfull
\njurisdiction  to remand the petitioner to whichever  custody
\nthat court deems proper and this Court should not  interfere
\nin  these  proceedings.\t Mere irregularity in the  order  of
\nremand\t said  the  counsel,  cannot  render  unlawful\t the
\npetitioner’s  custody, in jail justifying his release.\t Any
\ngrievance  on that score, according to the  submission,\t ap-
\npropriately be made to the court of the Magistrate or to the
\nAssam High Court which exercises a power of  superintendence
\nover the court of the Magistrate.\n<\/p>\n
The writ of habeas corpus is a prerogative writ by which the
\ncauses\tand validity of detention of a person  are  investi-
\n_gated by summary procedure and if the authority having\t his
\ncustody\t does not satisfy the court that the deprivation  of
\nhis   personal\tliberty\t is  according\tto   the   procedure
\nestablished  by law, the person is entitled to his  liberty.
\nThe order of release in the case of a person suspected of or
\ncharged\t with the commission of an offence does not  per  se
\namount to his acquittal or discharge and the authorities are
\nnot,  by  virtue  of  the release  only\t on  habeas  corpus,\n<\/p>\n
-deprived of the power to arrest and keep him in custody  in
\naccordance  with  law  for  this writ  is  not\tdesigned  to
\ninterrupt the ordinary administration of criminal law.\tThis
\nCourt has been entrusted by the Constitution with a duty and
\nan  obligation\tto enforce the fundamental  rights  -of\t the
\nparties approaching it for such relief.\t Our Constitution is
\nthe  supreme law framed by the selected\t representatives  of
\nthe   entire  nation  after  years  of\tdeep   thought\t and
\ndeliberation.\tThe fundamental principles embodied  therein
\nwere  designed\tto inspire our governmental set up.   It  is
\nfrom  this  source  that  all  authorities  including\tthe.
\nParliament,  the  President  and  this\tCourt  derive  their
\nrespective  powers.   Such powers are circumscribed  by\t the
\nlanguage of the Constitution itself.  It is impermissible to
\ngo  against the constitutional mandate or to  over-ride\t it.
\nIf,  therefore, a person has been deprived of  his  personal
\nliberty in violation of the procedure established by law and
\nno  cogent  ground  for declining relief  in  habeas  corpus
\nproceedings  is\t made  out, then this Court  has  no  option
\nexcept\tto  order his release, for personal liberty  of\t the
\nindividual   is\t highly\t cherished  in\tour  set-up   giving
\n‘priority  only\t to  the  interest of  the  nation  and\t the
\nsecurity  of the State.\t It is undoubtedly true that on\t our
\neastern and north-eastern borders there are some  unfriendly
\nforeign powers which, with evil -and hostile designs, I\t are
\nconstantly  seducing  political\t adventurists  and  gullible
\ninhabitants  of that area and aiding and  encouraging  their
\nunlawful activities
\n696<\/span>
\nprejudicial  to\t our democratic set up.\t Such  a  situation,
\nposing\tas  it\tdoes a serious threat to  orderly  life\t and
\nsecurity  of the State demands drastic measures for  meeting
\nit.  It\t is  also  correct  that  the  charge  against\t the
\npetitioner pertains to security of the State. But  these
\nconsiderations\tdo not afford sufficient  justification\t for
\nby-passing or violating the provisions of the  Constitution.
\nExecutive expediency should not prevail over the rule of law
\nas  envisaged  therein.\t For meeting  with  emergencies\t the
\nConstitution, it may be pointed out, contains adequate\tpro-
\nvisions.\n<\/p>\n
Holding\t as I do that the petitioner’s custody in  Dibrugarh
\nJail  has  not\tbeen  shown to be  in  accordance  with\t the
\nprocedure established by law I am constrained to direct\t his
\nrelease.   But this does not mean that the case against\t him
\nis  not to proceed.  It also does not debar the\t authorities
\n_concerned from arresting the petitioner and keeping him  in
\ncustody in accordance with law.\n<\/p>\n
Before\tclosing I must record my disapproval of\t the  laxity
\nwith  which the papers relating to the petitioner’s  custody
\nin  Dibrugarh  Jail  were  sought  to  be  secured  by\t the
\nauthorities  from Aijal for production in this\tCourt.\t The
\nexplanation  that the telephone connection remained  out  of
\norder  for  three  days is  hardly  convincing.\t  A  special
\nmessenger could have been sent to Aijal, or a telegram could
\nhave  been  sent requiring the relevant papers\tto  be\tmade
\navailable  to the authorities for production in this  Court.
\nRule  nisi  in habeas corpus proceedings  demands  immediate
\nattention and urgent compliance as it concerns the  question
\nof  liberty  of\t a subject.  I am also point  out  that\t the
\nwarrant\t of commitment should normally remain with the\tjail
\nauthorities  directed to keep the person committed to  their
\ncustody so that they can always satisfy the court  enquiring
\ninto the legality of such custody, that he has been deprived
\nof   his  personal  liberty  according\tto   the   procedure
\nestablished by law.\n<\/p>\n
Y.P.\n<\/p>\n
697<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sapmawia vs Deputy Commissioner, Aijal on 30 July, 1970 Bench: [I. D. Dua, J.] 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-252758","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSapmawia vs Deputy Commissioner, Aijal on 30 July, 1970 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sapmawia-vs-deputy-commissioner-aijal-on-30-july-1970\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sapmawia vs Deputy Commissioner, Aijal on 30 July, 1970 - 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