Sapmawia v. Dy. Commr. (Dua, J.)

•'90 SAPMAWIA #### _v._ DEPUTY COMMISSIONER. AIJAL _July_ 30, 1970 [f. D. DUA, J.] _Constitution_ _of_ _India Article_ _32-Habeas._ _corp11s-Co1tu11it111<!nt_ _order_ _neither stating the number_ _of days_ _of co1nnzitnient,_ _nq_r_ _in_ _tern1s_ _authorising_ _the jail authoritie.f to keep the petitioner, nor givinR reasons-Validity._ The petitioner, who was accused of certain criminal offences, was in jail custody awaiting his trial. He applied to the High Court for a writ o.f _·habeas corpus._ On January 22, 1970 the High Court held that th< petition \Vas not maintainable because the petitioner was an undertrial prisoner nwaiting his trial. Accordingly the High Court dismissed th~ 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. 1970 and sanction wa•. obtained on . May 12, 1970, but no order by a Mll'gistrate authorising th<> 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, autho(ise 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. thi~ :Court : HELD _:_ The petitioner's custody in jail was not sho\\'11 to b~ in accordance with the procedure established by law. (i) If, a person has been deprived of his personal liberty in violat1011 ·Of -the .. procetlure .established by law and no cogent ground for declining relief-in-- _habeas- -corpus_ proceec:.ings 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 Gl 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 Ht~h 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~castcrn horders··does not afford sufficient justification for by-passing or violating th~ provisions of the Constitution. Executive ex_pediency ~hould not prevail over the rule of law as envis~ged therein, For meeting with emergencies the Constitution contains adequate provisions. [694 F. 696 A-Bl (ii) The writ of _habeas corpus_ is a orerogative writ by which the cau_,es and validity of a detention of a person are investigated by summary procedure and if tbe authoritv having 'his custody does not satisfy the Tourt A B ### c D E F G H SAPMAWIA _v._ DY. COMMR. _(Dua,_ _J.)_ 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 _df_ 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** **no1,** **by** **virtue** **of** **'the** **release only on** _**habeas corpus,**_ **deprived** **of** **the power to arrest** **and** **keep** **him -in** **custody** **in** **accordance** **with** **Jaw,** **for** **this** **writ** **is** **nor** **clesigncd** **to** **interrupt** **the** **ordinary** **administration** **of** **criminal** **law.** **f695** **DJ** ( **v) Rule** _**nisi**_ _**in**_ _**hab.:as**_ _**corpus**_ **proceedings demands in1mediate atten-** **tion** **and** **urgent compliance** **as** **it** **concerns the question** **of** **liberty** **of** **the** custody, !hat he has be...1 deprived of his pen;onal liberty according to subject. [Delay in securing papers for production in this Court disapproved.] [696 EJ ORIGINAL JuR1so1ctION : 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._ Accord· ing 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 th.~ 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 ')ilchar District fail where he was interrogated by a Sub-In:;ie;tor of Police. He was thus kept as an under-trial prisoner sinr-e his arrest. On enquiry from jail authorities he learnt that he was charged with offences under s. 121, I.P.C. and under rules 41 (5) and 32(5) of the Defence of India Rules and alsc under ss. I 0, 11 and 13 of the Unlawful Activities (Preventio.1) Act. The petitioner was transferred from Silchar Jail to Nowgong Jail and from there to the District Jail, Dbrugarh. 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, 11 and 13 of the Unlawful Activities (Prevention) AcL The petitioner on an L13 Sup. Cl/70-16 # I A **B** ## c **D** E F **G** **H** 692 SUPREME COURT REPORTS (1971] 1 S.C.R. 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 Advcrcate of this Court appeared as _amicu.s 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 wa" accordingly adjourned to the following day as prayed by the State counsel. ln the return dated July 15, 1970 it is stated that the petitioner was produced at the Kobsib 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 evidenc.~ for prosecution under ss. 10 and 13 of the said Act as well as under s. 11 of the Assam Maintenance of Public Order (Autonomous Districts) Act was also forthcoming. The exact words of the· return. of this aspect are ; A B ## c D E "During investigation sufficient evidence for prosecution under s. 10/ 13 of the Unlawfo'. .\ctivities (Prevention) Act as well as under sectio;i. 11 of the Assam Maintenance of Public Order (APtonomous Districts) Act w.~re found against the accused. The accused-petitioner has been chargesheeted on 20-3-70 under s. 11 of the Assam Maintenance of Public Order (Autonomous Districts) Act and the Commissioner for Cachar & Mizo District was requested to accord sanction for prosecution of the accused petitioner under ss. l 0 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 hai< been issued by the Additional District Magistrate Aijal for appearance of the accused before the Aiial Court on 5-8-70 for trial. On the _habeas_ _COFfJllS_ petition filed by the accused petitioner, the Hon'ble High Court, Gauhati allowed G D SAPMAWIA _V._ DY. COMMR. _(Dua,_ J.) 693 A ll ### c D E F G H two months' tithe 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 petitoner has been charge-sheeted under s. 11 of the Assam Maintenance of Public Order (Autono mous 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 w~1s •Jut 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 peti:ioncr to the custody of the .iail 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 petiti-Jner 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 SUPREME COURT REPORTS [1971] 1 S.C.R. Now, in this Court the only right the petitioner can,enforce in these proceedings is a fundamental right guaranteed ny 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 ihis 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 Jaw. 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 withi.n two months. The petitioner's custody was thus governed by the ordinary law. The last order of remand as disclosed to this Court cS 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 p1:titioner in their custody. Reasons. for keeping him in jail custJdy are also not stated. I am, however, prepared to assume 1:hat the remand was to be in the custody of the Superintendent, Dibrugarh Ja!l. 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 <1dmitted 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 J.5 days. There was no suggestion on behalf of the State counsel that any special law authoriEed 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 sancti_on is also stated to have been obtained on May 12, 1970 no,rder 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 A B ### c D E F G H A R ### c D E F G H SAPMAWIA _V,_ DY. C'OMMR. _(Dua,_ _J.)_ 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 r.emand said the counsel, cannot render unlawful the petitioner's custody, in jail justifying his release. Any grievance on that score. according to the submission, appropriately 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 pr.erogative writ by which. the causes and validity of detention of a person are investigated by summary procedure and if the authority having hi' custody does not satisfy the court that the deprivation of his perso11al liberty is according to the procedure established by l&.v, 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 th.e 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 procedudre 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 givin~ priority onlv 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, ·are cons tantly seducin~ political adventurists and gullible inhabitants of that area and aiding and encouraging their unlawful activities 696 SUPREME COURT REPORTS [1971] 1 S.C.R. 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 meet~ng it. It i; also correct that the charge against the petitioner pertains to >ecurity of the State. But these considerations do not 'afford ~ufficient justification for by-passing or violating the provisions of thei Constitution. Executive expediency should not prevail ever the rule of law as envisaged therein. For meeting with emergencies the Constitution, it may be pointed out, contairts adequate provisions. Holding as I do that the petitioner's custody in Dibrugarh Jail has not been shown to be in accord~nce with the procedure established by law I am constrai11~d to ·direct his relea;e. 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 w)!ich 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 i1n 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 legal ity of such custody, that he has been deprived of his personal liberty according to the procedure established by law. Y.P. A B ### c D E F