Amal Chakraborty vs State of West Bengal

Borooah, J.—In this application u/s 491 of the Code of Criminal Procedure, the Petitioner Amal Chakraborty has asked for a writ in the nature of habeas corpus and has challenged the detention of the detenu Ullas Bhattacharyya who has been detained pursuant to an order passed by the District Magistrate, 24-Parganas, on June 5, 1971, in exercise of his powers under Sub-section (1) read with Sub-section (3) of Section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970, hereinafter referred to as the Act). By order No. 305/71 dated June 5, 1971, the detenu was served with the grounds of detention and this detention, was duly confirmed by the State Government in accordance with the provisions of the Act on October 8, 1971.

Mr. J. M. Banerjee, the learned Advocate appearing on behalf of the State, has taken a preliminary point that the Petitioner has not been properly authorised to move this application u/s 491 of the Code of Criminal Procedure. According to Mr. Banerjee, the Petitioner has merely stated in the affidavit to the petition that he is the friend of the detenu in jail and he knows the facts and circumstances of the case. According to Mr. Banerjee, it must be categorically stated in the affidavit that the detenu is not in a position to affirm the affidavit and to file this application. Mr. Banerjee has drawn our attention to Rule 16 of the Rules of this Hon''ble Court relating to applications under Article 226 of the Constitution. This Rule reads as follows:

An application for a writ in the nature of habeas corpus shall be accompanied by an affidavit of the person restrained setting out the nature and circumstances of such restraint and that the application was being made at his instance, provided however that where the person restrained is unable owing to the restraint to make the application, the application for such a writ shall be accompanied by an affidavit setting out the nature and circumstances of the restraint and the reason why the person restrained is unable to file the application himself.

Mr. Banerjee has thus submitted that for non-compliance with this Rule the application should be rejected. Mr. Banerjee has also drawn our attention to a decision of the Travancore-Cochin High Court, namely, Kunjamma Paru. v. The State and Anr. AIR 1951 T.C. 123 in support of his contention that where a prisoner is detained and is in custody and is unable to file an application for a writ of habeas corpus, a friend or relation may do it on his behalf provided there is an averment in the affidavit that the prisoner himself is unable to swear an affidavit and come before the Court. Mr. A. P. Chatterjee, the learned Advocate appearing on behalf of the Petitioner, has drawn our attention to a Full Bench decision of the Lahore High Court, namely, AIR 1948 33 (Lahore) . In para. 23 of the said decision it has been observed as follows:

So far question 3 is concerned, I am of the opinion that u/s 491 of the Cr,P.C. the High Court can entertain a petition at the instance of a complainant. The section says, "the High Court may, whenever it thinks fit, direct (a) that a person within the limit of its Appellate Criminal jurisdiction be brought up before the Court to be dealt with according to law and (b) that a prisoner detained as aforesaid shall within such limits be removed from one custody to another for the purpose of trial. The language of the section places no limit in the class of person or persons who can move a High Court with relation to a person in custody and, if the High Court on hearing the petition thinks fit to do so, may make an order that he be dealt with according to law. Such a petition at the instance of a complainant is therefore competent.

Rule 16 of the Rules of the High Court referred to by Mr. Banerjee relates to applications under Article 226 of the Constitution. The present petition has been filed under the provisions of Section 491 of the Code of Criminal Procedure. Rule 31, pt. II, chap. XI of the Rules of the High Court (Appellate Side) reads as follows:

Applications for orders under Clauses (a), (b), (c), (e) arid (f) of Section 491 of the Code of Criminal Procedure shall be made on petition duly verified by affidavit setting forth the circumstances under which the order is sought.

There is no other rule in this chapter which requires that the detenu himself or some other persons duly authorised by him must move an application under s- 491 of the Code of Criminal Procedure. Further, Section 491 is very clear and begins as follows:

Any High Court may, whenever it thinks fit, direct....

So, according to Section 491 of the Code of Criminal Procedure, the High Court has sufficient discretion to issue directions in the nature of habeas corpus on an application made to it u/s 491 whenever it thinks fit and there is no limit in the said section as to who is to file such application or who is to bring the matter to the notice of the High Court. The liberty of a citizen is supreme and, whenever a High Court is apprised of the fact that a person is alleged to have been illegally detained, the High Court should exercise its powers u/s 491 and consider the question of the legality of the detention and not go into mere technicalities. We also respectfully agree with the observations made in the Full Bench decision of the Lahore High Court (2), cited by Mr. Chatterjee. The preliminary point raised by Mr. Banerjee must, therefore, fail.

Now, we come to the grounds of detention. The particulars of the grounds served on the detenu are as follows:

(1) On 10-2-70, at about 08-30 hrs. you along with your associates being armed with deadly weapons attacked the workers of Khardah Jute Mill at Lakshmighat, P.S. Khardah, assaulted the residents and set fire to some houses. You also attacked Policemen who had been to the place to prevent your activities and caused severe injuries to some Police officers and constables.

(2) On 21-5-70, at about 0300 hrs. you along with your followers were caught red-handed with one pipe gun and nine live cartridges at the crossing of Sardar Ballav Bhai Patel Road, P.S. Khardha, when you were attempting to attack some residents of the locality for opposing your activities. Your action created a panic and scare in the locality and thereby disturbed the public order.

(3) On 30-8-70, at about 19-50 hrs. you along with your supporters kidnapped one Police constable attached to Khardah P.S. at Khardah Station Road, with a view to murder him for opposing your criminal activities and severely assaulted him. You, thereby, created a panic and scare in the locality and disturbed the public order.

(4) On 22-12-70, at about 17-30 hrs. you along with your associates kidnapped one Biplab Das Gupta from ''Tata More'' P.S. Khardah with a view to murder him for opposing your views. Your action created a panic and scare in the locality and thereby disturbed the public order.

5 The grounds of detention have been challenged by Mr. Chatterjee as vague. We have carefully scrutinised the grounds and we are also of the view that the grounds Nos. 1 and 3 are vague. In ground No. 1 the detenu is alleged to have assaulted some residents and set fire to some houses. But, who were the residents who had been assaulted and where the houses were set fire to have not been indicated. Further, it has not been specified in the said grounds as to where the detenu is alleged to have attacked the Policemen. In ground No. 3 the identity of the Police constable who is alleged to have been kidnapped has not been mentioned. Further, in this ground it has not been indicated as to what were the criminal activities of the detenu which were alleged to have been opposed by the Police constable.

The paucity of the particulars in ground Nos. 1 and 3 as indicated above has deprived the detenu of making an effective representation against the order of detention. The law is now well-settled that even if one of the grounds of detention is vague the entire order of detention is illegal.

In the circumstances aforesaid this application must succeed and the order of detention must be held to be illegal.

The Rule is accordingly made absolute.

Let the detenu be set at liberty forthwith.

R. Bhattacharya, J.

I agree.