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Judgment
Ratnavel Pandian, J.—The above petition had been originally filed on behalf of four petitioners, namely (1) Jeevakan, (2) his brother
Mahalingam, (3) Chinnaswamy and (4) Rathnam, seeking a writ of habeas corpus to produce all of them before this Court and set them at liberty
for the reasons Stated in the verified petition.
The firs petitioner, namely Jeevakan, along with some others is involved in a case registered in Crime No. 331 of 1979 of Mathur Police
Station. The second petitioner is said to be the Secretary of the local A.I.A.D.M.K. party and the third and fourth petitioners are the friends of the
first and second petitioners. The first petitioner sent a petition to the Chief Minister with copies to other alleging that he has been falsely implicated
in criminal case and sought for protection. However, the second petitioner contacted his counsel Mr. K. V. Sankaran and engaged him for
surrendering the first petitioner in Madras and in fact a part of the fees also had been paid on 21-9-1961. On 22-9-1981, the second and fourth
petitioners who had come to Madras in connection with the surrender of the first petitioner have been whisked away be some police, presumably
the Dharmapuri police, from near the High Court compound to an an unknown place. Similarly, the third petitioner who was to meet his counsel on
21-9-1981 had been presumably arrested by the Dharmapuri police.
As earlier fixed, the first petitioner came to the office of his counsel on the night of 22-9-1981 situated at No. 72, Usman Road, T. Nagar,
Madras-17 and introduced himself as Jeevakan involved in the above criminal case and informed that he was the person in respect of whom the
arrangement was to be made for surrender before the Court to the Chief Metropolitan Magistrate, Madras on the next day, namely, on 23-9-
1981. The surrender petition was prepared and got ready. As it was too late, the first petitioner was advised to stay in the office of the counsel. At
about 6.30 a.m. on 23-9-1981, on which date the first petitioner was to surrender, a posse of police constables eight in number, all in uniform
belonging to R-1 (Mambalam) police Station and two others in mufty entered the office room of the counsel, woke the first petitioner up, damage
the pillow and mattress and took him away without any warrant. They beat the office attender Ramu, Mr. A. U. Ilango, one of the Juniors of Mr.
K. V. Sankaran, enquired at R-1 police Station at about 8 a.m. on 23-9-1981 but the Assistant Sub-Inspector attached to the station pleaded
ignorance of the incident, and feigned surprise at such happenings. It is stated that the whereabouts of all the petitioner are not known and that the
high-handed action of the police in whisking away the first petitioner from the office of his counsel without disclosing a warrant and without
producing him before Court, is illegal and in violation of S. 50 of the Criminal P.C. and the principles, enshrined in Art. 22(1) of the Constitution of
India.
In the writ petition there were three respondents, namely, (1) Officer-in-Charge of ''Q'' Branch of Tamil Nadu Police, Dharmapuri, (2) Officer-
in-Charge of the Headquarters of ''Q'' Branch, I.G. Office, Mylapore, Madras and (3) Mr. Devaram, D.I.G. of Police, North Arcot and
Dharmapuri Districts Range. In the writ petition as an allegation had been made that the second respondent Mr. Ramaswamy, Deputy
Superintendent of Police in charge of Headquarters, Madras gave an assurance that the would render all possible help for the surrender of the first
petitioner Jeevakan on 23-9-1981 itself, the second respondent filed a counter affidavit dated 30-9-1981 and a supplemental counter affidavit
dated 11-10-1981 submitting that he is not at all aware of the details of any of the allegations mentioned in the petition, that he has been
unnecessarily impleaded as a respondent and that he never met the counsel for the first petitioner nor he gave any assurance that he would make
arrangements for the surrender of the first petitioner.
The first respondent, namely, the Sub-Inspector of Police in charge of ''Q'' branch, Dharmapuri filed a separate counter affidavit dated 30-9-
1981 stating that he is not aware of the allegations made in the petition and that he is an unnecessary party to the proceeding.
The Inspector of Police of Kaveripattinam, Dharmapuri District (Mr. Vellaya Gounder) has filed a supporting counter affidavit in which he has
made the following submissions. He is the investigating officer in Karimangalam Crime No. 80/81 u/s 397, I.P.C. in which the first petitioner to the
writ petition, namely. Jeevakan is the main accused along with ten others on an accusation that he and others having been armed with deadly
weapons criminally trespassed into the house of one Palanisamy Gounder in Bothanoor Village, assaulted the inmates, caused them hurt and
forcibly removed gold jewels and cash to the tune of Rs. 25,000/- and that Jeevakan is said to have removed a suit case containing valuables from
the said house and also caused hurt to Palanisamy Gounder in the course of the commission of dacoity. It is further stated that he arrested
Jeevakan on the night of 26-9-1981 at about 10 p.m. near Kottavour within the limits of Karimangalam Police Station in connection with Crime
No. 80/81, that Jeevakan made a confession leading to the recovery of gold jewels in all weighing about 13 1/2 sovereigns which were recovered
from the receivers on being pointed out by Jeevakan that after effecting the recoveries Jeevakan had been produced before the Judicial Second
Class Magistrate Palacode who remanded him to judicial custody on 28-9-1981 and that Jeevakan had been detained in the Central Prison of
Salem. It is further submitted that Jeevakan is having previous convictions in two hurt cases, registered in Crime No. 71-/77 u/s 324, I.P.C. and
Crime No. 753/77 u/s 448 and 324, I.P.C. of Barur Police Station. The Inspector state that he does not know about the alleged arrest of
petitioner 2 to 4 and submits that the arrest of Jeevakan by him cannot be said to be illegal or in any manner preventing him from surrendering to a
judicial authority. the further allegations in the petition are denied.
The third respondent (Mr. W. I. Devaram) filed a counter affidavit submitting that he knows that Jeevakan is a top-ranking underground
Naxalite, that he has been wanted in two murder cases in Mathur Police Station Crime No. 331/79 and Barur Police Station Crime No. 103/80
and three dacoity cases and five other rioting cases and that he came to know from a radio message received from the Superintendent of Police,
Dharmapuri on 28-9-1981 that the said Jeevakan was arrested by the Inspector of Police, Kaveripattinam and party on the night of 26-9-1981 in
connection with Crime No. 80/81 of Karimangalam Police Station and on the information given by Jeevakan gold jewels in all weighing 13 1/2
sovereigns valued at Rs. 18,000/- have been recovered. It is further submitted that he has been unnecessarily included as a respondent to the writ
petition.
Petitioners 2 to 4, namely, Mahalingam, Chinnaswamy and Rathnam filed three independent affidavits dated 16-10-1081, all stating that the
second petitioner, namely Mahalingam is the brother of Jeevakan, that they all came to Madras on 20-9-1981 and contacted Mr. K. V. Sankaran,
Advocate and discussed with him about surrendering Jeevakan who was wanted in two murder cases and several other criminal cases in
Dharmapuri District, that Jeevakan who went to the office of advocate Mr. K. V. Sankaran wanted to get back to his native place stating that he
wanted a week''s time for surrender, that on 29-9-1981 all of them inclusive of Jeevakan returned to Pappanoor without intimating advocate Mr.
K. V. Sankaran, that it is not correct to say that Mahalingam and Rathnam came to High Court on 22-9-1981 or that Chinnaswamy was arrested
by the police at Madras on 21-9-1981 and that Jeevakan was arrested by the Inspector of Police, Kaveripattinam on the night of 26-9-1981 near
Karimangalam in connection with the dacoity case and detained at Central Prison, Salem.
When the matter was taken up on 16-10-1981 on a representation made by petitioners 2 to 4 after making an enquiry, the names of petitioners
2 to 4 were ordered to be struck off from the petition and the petition was kept on file only so far as the first petitioner Jeevakan is concerned.
The first petitioner Jeevakan filed an affidavit dated 27-10-1981 sworn to before the Superintendent, Central prison, Salem submitting that he,
his brother Mahalingam and some of his friends came over to Madras to surrender before Chief Metropolitan Magistrate since the respondents
were after him for active participation in the agriculturists'' movement demanding minimum wages for the labourers, that his brother and others lost
contact with him, that he bona fide suspected that they might have been arrested and whisked away by the police, that thereafter he went straight
to the office of Mr. K. V. Sankaran situated in Usman Road, Madras on 22-9-1981 at about 6 p.m. and on coming to know of the disappearance
of his brother and others he requested his counsel to file a writ of habeas corpus for the missing of those persons and that, in fact, he signed a
vakalat on 22-9-1981, he further states that his counsel advised him to come back again on the next day, that since he could not afford to pay for
his accommodation in any hotel he slept in the terrace in the office of his counsel Mr. K. V. sankaran along with the office boy Mr. Ramu working
in the office of the counsel and that by about 6-30 a.m. on the morning of 23-9-1981 he was rudely woken up from sleep by eight policemen in
uniform and two others in mufty, that they tore the pillow which he was using, that they directed him to accompany them, that they further roughed
up the boy Ramu and that he was kept in illegal custody till 28-9-1981 on which date he was produced before the Judicial Second Class
Magistrate, Palacode who remanded him to judicial custody, that the case of dacoity alleged to have been committed by him on 26-9-1981 at 10
p.m. and registered in Crime No. 80/81 is a false case, that he had not given any confession and that the confession has been deliberately extracted
from him with a view to taking vengeance on him by the third respondent purely because of his political affiliations and also of his wanting to
surrender through an advocate. The action of the police is nothing but a malicious one. The procedure adopted by the police with regard to his
being taken away from the lawyer''s office on the morning of 23-9-1981 and his illegal detention till 28-9-1981 and the alleged confession are all
irregular, unjust and violative of all the established procedure of criminal jurisprudence.
Mr. Vellaya Gounder, Inspector of Police, Kaveripattinam Circle filed a supplemental counter affidavit dated 12-11-1981 denying the
allegations made in the affidavit filed by Jeevakan. He denies having kept Jeevakan in illegal custody till 28-9-1981 and extracted any confession
with a view to take vengeance upon him. He reiterates the statement made by him in his original affidavit and states that the dacoity case registered
in Crime No. 80/81 of Karimangalam Police Station occurred on 9-9-1981 at about 7 p.m., that Jeevakan was arrested only in respect of that
case on 26-9-1981 at 10 p.m. at Kottavu in Karimangalam Police Station limits in the presence of respectable witnesses and the gold jewels were
recovered consequent upon this confession, that Jeevakan when produced before the Judicial Second Class Magistrate of Palacode on 28-9-
1981 did not make any complaint to the Magistrate about the several allegations now contained in his affidavit that an identification parade was
also held on 30-9-1981 in the Central Jail, Salem by the Judicial Second Class Magistrate, Krishnagiri and that to the best of his knowledge, no
complaint was made by Jeevakan to the magistrate during the course of the said parade he further submitted that the writ petition itself is not
maintainable as Jeevakan was now in Judicial custody since the date of his first remand, namely from 28-9-1981.
When this matter was taken up on 13-10-1981, Mr. K. V. Sankaran, the counsel for the first petitioner Jeevakan represented that in view of
the counter affidavit and supplemental counter affidavit by Mr. Vellaya Gounder, Inspector of Police of Kaveripattinam, he was not pressing the
petition as against respondents 1 and 2. In view of his representation, the names of respondents 1 and 2 were struck off. As a result of this, we
have only Jeevakan as the petitioner and the third respondent as the only respondent on record.
Jeevakan filed a supplemental affidavit on 17-11-1981 sworn before the Superintendent, Central Prison, Salem stating that on 23-9-1981 at
about 6-30 a.m. while he was sleeping on the terrace of the office of the advocate Mr. K. V. Sankaran, eight constables and two other persons in
mufty along with a known police officer, namely Mr. Kuppuswami, Inspector of Police attached to ''Q'' branch woke him up and directed him to
follow them and took him to Mambalam Police Station in an auto-rickshaw and then he was taken to a lodge where he was staying, obviously
before he came to the office of the counsel, and asked the Manager of the lodge whether he knew to which the Manager gave a negative reply,
that thereafter he was taken to the Esplanade Police Station where he was threatened to be short at by the Inspector of Police of Karimangalam,
namely, Mr. Rajarathinam and that thereafter he was taken at about 2-30 p.m. Krishnagiri where he was brought to the Police Station situated
near the Sub Jail of Krishnagiri at about 9-30 p.m. The D.S.P. of Krishnagiri with a posse of constables threatened him at the point of a gun and
asked him to give a confession as tutored by the police, but he refused. On 23-9-1981 night itself he was taken to Marandahalle Travellers''
Bunglow where 20 constables under the head of the Inspector Mr. Vellayan beat him with lathis black and blue and kicked him and beat him all
over his body till he fell swoon. In fact, four or five lathis got broken in the process. On the morning of 24-9-1981 at about 5 a.m. he was taken
from the Travellers'' Bunglow to Karimangalam Police Station by the Police headed by one Mr. Rajamanickam in a van and he was repeatedly
beaten with a lathi even in the van itself on his back and front. On 25-9-1981 he was taken to Kaveripattinam Police Station where some
photographs were taken. His finger prints were taken under compulsion and coercion. He was threatened that if any one of the inmates of his
house took up the matter through a lawyer, the family members also would be beaten up. While he was in a state of semi-consciousness on
account of the torture meted out to him, a false confession statement was recorded from him. On 26-9-1981 also he was tortured, resulting in
constant and severe pain in his back. He was not given any medical aid. On 28-9-1981 at about 9 p.m. he was produced before the Judicial
Second Class Magistrate, Palacode who remanded him for 15 days without asking him anything. On the same night he was taken to the Central
Prison, Salem at about 1 a.m. When he was taken to the Court his hands were hand-cuffed and he was treated like a beast. Thus, from 23-9-
1981 to 28-9-1981 he was illegally detention by the police with a view to see that he is not surrendering before any Court and with a view of
extracting a false confession : and the illegal detention and the torture were made only at the instance of third respondent and the action of the
police is against law and all principles of criminal jurisprudence.
During the course of the hearing of the case, at the request made on behalf of the petitioner Jeevakan, this Court directed jurisdiction to the
transferred from the Central Prison, Madras for confinement until further orders by this Court. After he had been transferred, Jeevakan filed
another supplemental affidavit dated 11-3-1982 sworn before the Additional Superintendent, Central Prison, Madras-3 stating that he was
threatened by the Police on 26-2-1982 while he was being taken to the Court of the Judicial Second Class Magistrate, Palacode in connection
with the hearing of the case in Crime No. 80/81 and that the Magistrate ignoring his request and representation directed him to be kept in the
Central Prison, Salem. But it is to be noted here that subsequently Jeevakan had been brought to Madras Prison and kept here.
An enquiry was held during the course of which P.Ws. 1 to 6 were examined and six documents Exs. P-1 to P-6, namely, (1) Surrender
petition signed by the counsel for the petitioner with an affidavit from Jeevakan for surrendering him before the Chief Metropolitan Magistrate,
madras, (2) One vakalat signed by Jeevakan and identified by Mr. K. V. Sankaran on 22-9-1981. (3) A letter signed by Mr. V. Vellayan,
Inspector of Police, Kaveripattinam addressed to the Commissioner of Police, Madras requesting him to direct the Inspector of Police of R-1
(Mambalam) Police Station and Sub-Inspector of Police, Law and Order, B-2 Police Station to meet his counsel Mr. K. Ramaswamy on 24-6-
1982, (4) Summons issued from the Court on 29-6-1982 and produced by D.W. 5, (5) Fifth Annual report of the Tamil Nadu State Legal Aid
and Advice Board and (6) the Jail Admission Register were market. On behalf of the Respondent P.Ws. 1 to 9 were examined and Exs. D-1 to
D-21 were market of which Exs. D-18, D-19 and D-20 the affidavits filed by petitioners 2, 4 and 3 viz. Mahalingam, Rathinam and Chinnaswamy
were market subject to their admissibility.
(Facts-omitted) * * * *
Mr. K. Ramaswami, the learned counsel for the respondent submits that as there was a legal detention at the time of the return, the question
whether there was any illegal detention on the date of the institution of the proceeding will not arise for consideration and that even if there had
been an anterior illegal detention, it will not invalidate the subsequent legal remand and hence this petition has to be dismissed as devoid of merits.
He would further submit that, as the only main question that arises for consideration in a habeas corpus proceeding is with regard to the legality or
otherwise of the detention at the time of the return. It is unnecessary to embark upon a discussion on the other allegations of grievances of the
petitioner made in the petition, affidavits and the evidence let, in since such grievances have no relevance to the grounds on which the Court is
required to pass an order in this proceeding and since enquiry, if any, to made will be outside the scope of the enquiry of this writ proceeding.
Countering the above arguments, Mr. K. V. Sankaran, the learned counsel for the petitioner contends that as the facts and circumstances of
the case unerringly and unmistakably show that the police by exceeding its limits and authority and in violation of the personal liberty guaranteed
under the Constitution and other established law, have trespassed in the office of a counsel and taken away his client in a very high-handed manner
without informing the reasons for his arrest and kept him under illegal custody without producing him before the nearest Magistrate for judicial
remand within 24 hours after the arrest, this Court has a bounden duty in the interests of justice to go fully into the details of the facts and give a
verdict as to the grievance and complaint of the detenu Jeevakan involved in this proceeding. In case a proceeding of this nature is disposed of on
a technical ground, then unfortunate and poor victim like the detenu in the present case, who have no strength and resources at their hands to fight
against such illegal action taken by some of the highhanded and overzealous police officials through the costly and cumbersome procedure by
instituting other proceedings, would be left unprotected and unsafe from harassment and they have only to mourn in silence. According to him this
is a fit and proper case wherein this Court by exercising its extraordinary jurisdiction has to examine the various circumstances by and under which
the police had acted totally in violation of the rights of citizen guaranteed under the Constitution.
According to him, there is a clear violation of Art. 22 of the Constitution of India, as the Judicial Second Class Magistrate, had not been
informed of the grounds of such arrest and as he had not been produced before the nearest magistrate within the time prescribed under the
Constitution as well as in the provisions of the Cr.P.C. He further states that as admittedly the accused was produced before the Magistrate
beyond a period of 24 hours of such arrest without any justifiable cause and as the Magistrate, at the stage of the remand, had directed the detenu
to be taken in jail custody without applying his mind to all relevant matters, but only in a patently routing manner and acting mechanically, the
detenu is entitled to be released forthwith. He adds that the order of remand made by the Magistrate cannot cure the infirmities committed in
violating the mandatory provisions of the Constitution. Incidentally, Mr. Sankaran would urge that this Court be pleased, first of all to direct the
respondent to pay compensation for his illegal action; secondly, to issue directions to the State to taken action against the Inspector of Police,
namely D.W. 1 for violation of Art. 22; thirdly to direct proceedings to be taken against the respondent for perjury and fourthly to institute action
for contempt of Court against the third respondent for issuing a press note in respect of the alleged arrest of the detenu while the matter was sub-
judice before this Court.
Now, before adverting to the main argument as to the maintainability of the writ petition, we think that the peculiar circumstances and facts of
this case do warrant a discussion on the grievances complained of because we feel that it would not be proper for the court to close its eyes like an
ostritch or wink at certain unpleasant and patent facts which are placed before it, as otherwise it would give room for the public to have an indelible
impression that the Court is shirking it obligation to the society by not condemning the obnoxious behaviour of wrong-doers whoever they might
be, and by not punishing them for the unjustifiable actions perpetrated against helpless and helpless victims leaving the said victims to mourn by
themselves and to recoil and lick their wounds throughout the rest of their lives, and is a rather inclined to light-heartedly dispose of the matter on
mere technical grounds.
* * * * (facts omitted)
The next more important question that is left for our consideration is whether there had been an illegal police custody and detention of the
detenu Jeevakan in violation of the fundamental right guaranteed under Art. 22 of the Constitution of India and other established law. Art. 22(1)
gives person arrested a two fold protection, viz. (1) that an arrested person shall not be detained in custody without being told the grounds of such
an arrest and (2) that he shall be entitled to consult and to be defended by a legal practitioner of his choice. Art. 22(2) gives yet another who is
arrested and detained in custody must be produced before the nearest magistrate within 24 hours excluding the time necessary for the journey from
the place of the arrest to the Court of magistrate and that no such person shall be detained in custody beyond the said period without authority of a
Magistrate, S. 50 Cr.P.C. which is a corollary to Art. 22, Clause (1) and (5) of the Constitution of India enacts, that the persons arrested should
be informed of the ground of arrest and of right to bail, S. 57, Cri.P.C. which is also in consonance with Art. 22(2) of the Constitution of India,
provides that no police officer shall detain in custody a person arrested without warrant for a longer period than under all circumstances is
reasonable and such period shall not in the absence of a special order of a Magistrate under S. 167 exceed 24 hours exclusive of the time
necessary for the journey from the place of arrest to the Magistrate''s Court. The precautions laid down in Art. 22(1) and (2) of the Constitution
and S. 56, Cr.P.C. which requires a person arrested without warrant to be taken before a Magistrate or officer in charge of a police station
without unnecessary delay and S. 57, Cr.P.C. seem to be designed to secure persons arrested without warrant to be produced before a
Magistrate without unnecessary delay and in any case with an upper limit of 24 hours without a special order of the Magistrate, of course excluding
the time necessary for the journey to the Court from the place of arrest. S. 167, Cr.P.C. deals with the procedure when investigation cannot be
completed in 24 hours. It is not necessary for the purpose of this case to elaborately go into the history behind the importance and object of the
constitutional provisions as well as the other provisions of the general law.
In the background of the above position of law. Let us approach the facts of this case and examine whether there had been any illegal
detention of Jeevakan to violation and in the utter disregard of the provisions of the Constitution as well as the general law. We have already
arrived at the conclusion that Jeevakan had been taken to police custody on 23-9-1981 at about 6-30 a.m. and kept under such custody till he
was produced before the Magistrate (P.W. 5) on 28-9-1981 at about 5 p.m. (even holding that he was produced before P.W. 5 while he was in
Court) and hence it necessarily follows that the detenu had been in police custody for about 130 1/2 hours time within which the police officer can
keep a person under custody without producing him before a Magistrate. In the present case there was an illegal detention of the detenu under
police custody for nearly 106 1/2 hours.
Coming to the committed case of D.W. 1 there was an illegal detention for nearly 20 hours or 19 hours, because, as per his evidence, he
arrested Jeevakan at 9 a.m. on 26-9-1981, but the remand report shows his arrest as at 10 p.m. and as per the evidence of D.W. 5, the detenu
along with others was produced before him for remand at 5 p.m. on 28-9-1981. In this connection it may be noted that as per the evidence of
D.W. 1 he completed the recording of the confessional statement of the detenu and the recoveries of all material object, viz., the gold jewels,
empty suitcase etc. under the cover of various mahazars, even by 1 p.m. on 27-9-1981, but sent him for remand only at 2 p.m. on 28-9-1981. It
is thus clear that the detenu, from the time of his arrest till he was sent from the police station to the Court for remand was kept in police custody
for more than 41 hours, showing thereby that the police station after a delay of 17 or 18 hours over and above the statutory period of 24 hours,
the maximum time-limit prescribed for police custody. There is no explanation, much less acceptable and plausible explanation forthcoming from
D.W. 1 as to why there had been unusual delay in his forwarding the detenu to the Court, notwithstanding the fact that the alleged recording of the
confession and the recovery of the properties in pursuance of the said confession were made even by 1 p.m. on 27-9-1981. Admittedly, the time
taken for the journey from the Police Station to the Magistrate''s Court is only within three hours, obviously for the reason that the distance is about
35 miles. From the above discussion, it is patently clear that there was an illegal and unauthorized detention of Jeevakan in police custody. Indeed,
it is deplorable and heart-rending to note that the police in the present case had adopted quite a coercive method in disregard and flagrant breach
of the provisions of the Constitution as well as the general law and taken the law in their own hands in dealing with the detenu in this case, thus
using their mighty power as a tool of oppression, without the least respect for the individual''s fundamental rights guaranteed under the Constitution.
It might be that D.W. 1 being overzealous in enforcing the law, had overstepped his limits as a police officer. But the fact remains that he had, by
the exercise of his vast power in an arbitrary and capricious manner, seriously infringed the fundamental rights guaranteed to the detenu under the
Constitution. Thus, he had exhibited a total lack of respect for law-enforcement standards. More often than not, complaints are made before
Courts about the indiscriminate and excessive use of force by some of the police officials as in this case, in their over-enthusiasm in securing and
apprehending persons wanted or suspected in crimes and keeping them in their custody without any authority or justification, beyond the
prescribed statutory period, and then ultimately creating records as if such persons were secured within the time prescribed before producing them
in Court for remand. No doubt, the police, as the law-enforcing machinery, has got a tremendous responsibility in safeguarding and protecting the
interests of the society by apprehending criminals and other dangerous elements, even at the risk of their lives in explosive situations, and one
cannot under-estimate their onerous task in this respect. But that does not mean that their power is unrestricted and unbounded. Nor are they
philosophers or psychologists or social reformers while implementing or enforcing the law in the discharge of their official duties. They must always
remember that they are bound by the rules and regulations and that they have to discharge their duties honestly and faithfully within the framework
of the established law, without exposing themselves to any odium. The harmful effects of this kind of misuse of power are sometimes incalculable
and irreparable, and under such situations, the people are likely to feel that the safeguards given under the Constitution and other laws are a myth
rather than a reality.
In the present case, it is deeply disquieting to us to note that the police have exceeded their limits and have kept the detenu Jeevakan under
illegal detention, whatever might be the reasons therefore, Mr. Sankaran has requested this Court to take suo motu action against the respondent
for the illegal detention and suppression of truth before the Court. But we feel that it is for the petitioner to pursue any remedy available to him
under the law, against the respondent, if he so chooses.
As regards the other request made by Mr. K. V. Sankaran to institute proceedings against the third respondent for issuing a press note in
respect of alleged arrest of the detenu when the matter was sub-judice before this Court, the question does not arise at this state, because, the third
respondent has been given up by the petitioner.
In this connection, we have to point out with concern that the learned Magistrate D.W. 5 without making even a peripheral examination about
the delay occasioned in this case in producing the accused before the Court beyond the statutory time for the production of the accused for
remand, has mechanically passed the order of remand. In such a situation, the Court should not lose sight of the fact that the liberty of the subject is
seriously infringed.
Now we come to the crucial question about the legality or otherwise of the detention of the detenu at the time of the return and consequently
the maintainability of this petition for the issue of a writ of habeas corpus.
Mr. K. Ramaswami has submitted that in a proceeding seeking the issue of a writ of habeas corpus, the Court is to have regard only to the
legality or otherwise of the detention at the time of the return not with reference to the institution of the proceedings and that even if there has been
any anterior illegal detention, that does not invalidate the subsequent legal detention and hence in the present case, as there was a legal detention on
the date of the return, this petition is liable to be dismissed. In support of his contention, he relied on a plethora of decisions to which we would
presently refer. Firstly, he cited the decision in AIR 1945 18 (Federal Court) . In that case, it was contended that when a previous order of
detention passed without any valid cause was under challenge any subsequent valid order directing the detention of the person concerned would
not be valid ground enabling the Court to base its decision on the subsequent order for holding that the detenu was entitled to be released merely
on the ground that the prior order was not valid. The Federal Court, repelling such a contention observed as follows :
The analogy of civil proceedings in which the rights of parties have ordinarily to be ascertained as on the date of the institution of the proceedings
cannot be invoked here. It at any time before the Court directs the release of the detenu, valid order directing his detention is produced, the Court
cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. The question is not whether the later
order validates the earlier detention but whether in the face of the later valid order the Court can direct the release of the petitioner."" It is clear from
the above observations of the Federal Court that it has laid down two propositions viz.
(i) where an earlier order of detention is defective merely on formal grounds there is nothing to preclude a proper order of detention being based
on the pre-existing grounds themselves especially in cases in which the sufficiency of the grounds is not capable of being examined by the Courts,
and
(ii) if at any time before the Court directs the release of the detenu, a valid order directing his detention is produced the court cannot direct his
release merely on the ground that at some prior stage there was no valid cause for detention.
The decision of the Federal Court was challenged before the Supreme Court as no longer good law in view of certain observations made in an
unreported decision of the Supreme Court in Petition No. 334 of 1951 - Naranjan Singh v. State of Punjab and also by virtue of the provisions of
Part III of the Constitution. The learned Judges of the Supreme Court posted a Constitution Bench which, in its decisions in Naranjan Singh
Nathawan Vs. The State of Punjab, , examined the propositions laid down by the Federal Court in AIR 1945 18 (Federal Court) and held :
The question is not whether the later order validates the earlier detention but whether in the face of the later valid order the Court can direct the
release of the petitioner. The learned Judges of the Federal Court pointed out that the analogy of civil proceedings in which the rights of the parties
have ordinarily to be ascertained as on the date of the institution of the proceedings has no application to proceedings in the nature of habeas
corpus where the Court is concerned solely with the question whether the applicant is being lawfully detained or not.
Ultimately, the Supreme Court repelling a contention that the first proposition laid down in AIR 1945 18 (Federal Court) is no longer tenable after
the Indian Constitution came into force, held as follows :
Once it is conceded that in habeas corpus proceedings 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 date of the institution of the proceedings, it is difficult to hold, in the absence of proof of band faith that the
detaining authority cannot supersede an earlier order of detention challenged as illegal and make a fresh from defects and duly complies with the
requirements of the law in that behalf.
The Supreme Court in Ram Narayan Singh Vs. The State of Delhi and Others, has held, while examining the crucial date of detention of a person
in determining the legality or otherwise of the said detention, that ""in habeas corpus proceedings the Court is to have regard to the legality or
otherwise of the detention at the time of the return and not to the reference to the institution of the proceedings."" Having held so, the learned Judges
observed that the material date on the facts of a case for determining the validity or otherwise of the order in the date when the affidavit on behalf
of the Government justifying the detention is filed.
In yet another decision in Col. Dr. B. Ramachandra Rao Vs. The State of Orissa and Others, , referring to the two decisions referred to
above, viz. Naranjan Singh Nathawan Vs. The State of Punjab, and Ram Narayan Singh Vs. The State of Delhi and Others, , the Supreme Court
has held that in determining the legality or otherwise of detention, regard has to be had as to whether a detention was legal or not at the time of the
return.
In Kanu Sanyal Vs. District Magistrate, Darjeeling and Others, , the Supreme Court, reaffirming its earlier view taken in Col. Dr. B.
Ramachandra Rao Vs. The State of Orissa and Others, , observed that only the time of the return and not the institution of the proceedings is the
crucial date and that ""while a person is committed to fail custody by a competent Court by an order, which prima facie does not appear to be
without jurisdiction or wholly illegal, a writ of habeas corpus in respect of that person cannot be granted. See also A.K. Gopalan Vs. The
Government of India, .
A Full Bench of the Patna High Court In Babu Nandan Mallah Vs. The State, has taken the view that it is not a condition precedent for a valid
order u/s 344(1-A), Cr.P.C. (1898) (corresponding to Section 309 of the new Code) that the accused must at the time of the passing of the order
of remand be in valid custody. It has been held that the crucial date when the legality of the remand is to be looked into is the date when the
petition comes up for hearing. In Kana Vs. The State, , the Jaipur Bench of the Rajasthan High Court referring to the Full bench decision of the
Patna High Court in Babu Nandan Mallah Vs. The State, held that ""if the detention of the accused is legal, when the bail application is preferred,
his previous illegal detention should not be considered."" : (See also the judgment in Nagalingam v. State rendered by a Bench of this Court
consisting of Gokulakrishnan and Suryamurthy, JJ. in W.P. No. 1638/80 on 21-4-1980, wherein the said Bench dismissed the writ petition on the
ground that on the date of the return there was a legal order of remand).
In yet another case Ramaswamy Goundar v. Inspector of Police, Salem (W. P. No. 427/79 judgment of this Court dated 13-2-1070), the
Bench held that :-
If at the time of the return of the writ, the detention is a legal one, there is no question of the issue of a writ of habeas corpus or any other writ.
Any antecedent illegal detention will not clothe this Court with the jurisdiction to issue a writ of habeas corpus in such a case ....
By reason of the discussion made above, we hold that in determining the legality or otherwise of an order of detention, regard has to be had only to
the question as to whether the said order under challenge was legal or not on the date of the return, which is the crucial date for such determination.
In other words it is the date when the return is made in answer to the challenge made on behalf of the detenu in respect of the detention in question,
and any anterior illegal detention will not stand in the way of the Court examining the legality or otherwise of the detention or remand on the date of
the return and such an terior illegal detention will not invalidate the subsequent and valid detention or remand passed by a competent Court having
Jurisdiction. If it is shown that the order of detention or remand passed by the competent Magistrate is prima facie valid, the contention that
because there had been an anterior illegal detention the subsequent order of detention also even if it is valid should be construed as not a valid
order, cannot be countenanced.
In the Matter of Madhu Limaye and Others, has contended that as the arrest of Jeevakan by the police is tainted with an illegality and as he
had been kept under police custody for (far ?) over the statutory period and as the remand by the Magistrate had also been passed in a patently
routine and mechanical manner without applying his mind to all the relevant matters, the detenu is entitled to be set at liberty. It is to be noted that in
the case of In the Matter of Madhu Limaye and Others, , Madhu Limaye and others were arrested on 6-11-1968 for defying the prohibitory order
promulgated u/s 144, Cr.P.C. which offence is a non-cognizable one Admittedly, no first information report was formally registered on that date
and the case was registered subsequently on 19-11-1968, in which the date of the occurrence was mentioned on 6-11-1968. It was also stated
that the accused had committed offences punishable u/s 143 I.P.C. (which is cognizable and u/s 122 of the Railways Act. Meanwhile the sub-
Divisional Magistrate issued show-cause notices on 11-11-1969 to the arrested persons relating to incidents on 5th and 6th November 1968, why
action should not be taken against them u/s 188, I.P.C. The Supreme Court, having regard to the facts of that case, examined the question whether
there was non-compliance with the provisions of Art. 22(1) of the Constitution. After referring to Ram Narayan Singh Vs. The State of Delhi and
Others, , the Court observed that in Madhu Limaye''s case the return dated 20-11-1968 was filed before the date of the first hearing and after the
rule nisi had been issued and that the said return did not contain any information as to when and by whom Madhu Limaye and other arrested
persons were informed of the grounds of arrest and that it had not been also contended on behalf of the State that the circumstances were such
that the arrested persons must have known the nature of the offences for which they had been arrested. Nor had it been suggested that the show-
cause notices which were issued on 11-11-1968. satisfied the constitutional requirements. Thus, it was on the sole ground of violation of article
22(1) of the Constitution for the reasons stated above, the Court ordered the release of Madhu Limaye and others.
After carefully going through the above decisions, we are of the view that the decision in In the Matter of Madhu Limaye and Others, cannot
be availed of by the detenu Jeevakan since it is not his case that he did not know the nature of the alleged offences for which he was arrested or
that the remand made by the Magistrate on 29-8-1981 was without any jurisdiction or that the facts and circumstances of the case did not warrant
an order of remand by the Magistrate when Jeevakan was remanded to judicial custody on 29-8-1981 or that the remand order was not passed
by a competent Magistrate having jurisdiction. On the other hand a thorough examination of the documents filed in his case inclusive of the remand
report, discloses that Jeevakan was committed to judicial custody by a competent court by an order, which prima facie does not appear to be
without jurisdiction or in any way illegal. It is patently clear in this case that there was a valid and legal remand order on the date of the return.
Mr. K. V. Sankaran, drawing the attention of this Court to the decision rendered by a Bench of this Court in Kaiser Otmar v. State of Tamil
nadu 1981 Mad LW 158 : 1981 Cri LJ NOC 208 contended that the detenu in this case would be entitled to a release as he had been kept under
illegal custody from 23-9-1981 till he was produced by the Magistrate. After carefully going through the said decision, we feel that the contention
of the learned counsel cannot be countenanced, since the Bench in that case set aside the order of detention mainly on the ground that the detaining
authority was not told the full facts about the detention of the detenu in that case and the further fact that the statement on the basis of which the
detaining authority had drawn its subjective satisfaction were an obtained from the detenu while he was under the custody of the customs officials.
However, the well-settled law as enuniciated by the Supreme Court in a catena of decisions is that the Court has to examine the legality or
otherwise of the order of detention or remand only as on the date of the return.
For all the reasons stated above, we hold that Jeevakan is not entitled to a writ of habeas corpus to free him from detention. Hence, we hold
that the prayer seeking a writ of habeas corpus is not maintainable in law, though we have found that Jeevakan had been taken to police custody
even on 23-9-1981 and kept under illegal custody for a considerable length of time till the Magistrate passed prima facie a valid order of remand
on 28-9-1981.
In the result, this writ petition is dismissed.
Petition dismissed.