S.S. Kang, J.
1. Whether a Warrant Officer appointed by the High Court in a Habeas Corpus Petition can inspect the daily Diary Register of a Police Station, is the meaningful question which falls for decision in this case.
FACTUAL MATRIX FIRST:
2. Shrimati Jito filed Criminal Writ Petition No. 136 of 1980(habeas Corpus) in the High Court alleging that her husband Gokal Ram had been illegally detained by Station House Officer Jaswant Singh in Police Station Bhogpur, District Jullundur, that he had not committed any crime, that he had not been produced before any Magistrate, ad that he had been beaten and tortured. She prayed for the issuance of a writ in the nature of Habeas Corpus, Directing the respondent to produce Gokal Ram Detenu in the high Court. She also made a request that a Warrant Officer be appointed to go to search the premises of the Police Station and the near about quarters. The writ petition came up for motion hearing before Sidhu, J., on October 15, 1980, who passed the following order.
'Rule nisi to respondent No. 2 for 17th October, 1980, S. I. Jaswant Singh, Station House Officer, Police Station, Bhogpur (respondent No. 2) shall produce Gokal Ram the alleged detenu, in this Court on the Said date, Search warrant be also issued for making warrant be also issued for making search for the Gokal Ram within the premises of the said Police Station and the same shall be executed by the Warrant Officer appointed for the purpose. The Warrant Officer shall record the statement of Gokal Ram, if found there, and submit the same along with his report to this Court on or before 17th October, 1980. To come up on 17th October, 1980.'
3. It is clear from the order that Sub Inspector Jaswant Singh, Station House Officer, Police Station, Bhogpur had been directed to produce Gokal Chand in Court on October 17, 1980. Warrants were issued for making a search for Gokal Ram. The Warrant Officer was directed to execute the warrants.
4. Shri Gurdev Singh, an official of this court was appointed Warrant Officer. He reached the police Station Bhogpur at about 0.30 a. m. on October 16, 1980. He knocked at the door of the Police Station, constable Ramjit Singh opened the door. Shri Gurdev Singh disclosed his identify to him and entered the premises of the police Station. Assistant Moharrir constable Sukhwinder Singh came to the main door and told Gurdev Singh not to enter the premises of the Police Station. When the latter disclosed his identity to him the former allowed him to enter the premises. Koharrir Head-constable. Inderjit Singh was lying asleep. Shri Gurdev Singh shouted loudly and Gokal Ram responded to the call Gokal Ram told Shri Gurdev Singh that he was beaten mercilessly by sub Inspector Jaswant Singh without any rhyme or reason Shri Gurdev Singh entered the room of the Maharrir head Constable. He found the Daily Diary (rozenamcha) lying on the table. He took that into possession. Shri Sukhwinder Singh forcibly snatched the rozenamcha and told Shri Gurdev Singh that he could not see the rozenamcha unless the Station house officer came to the Police Station. Thereafter Sukhwinder Singh went outside the Police Station and took the rozenamcha along with him. Shri Gurdev Singh continued sitting at the Police Station. At about 2.01 a. m. Sukhwinder Singh returned to the Police Station followed by Sub-Inspector Jaswant Singh. Shri Gurdev Singh asked for the rozenamcha from the Station House Officer. He directed Sukhwinder Singh to produce the rozenamcha which was lying in the adjoining room. Sukhwinder Singh brought the same. The Station House Officer told Shri Gurdev Singh that Gokal Chand was taken into custody by Assistant Sub-Inspector Harbans Singh on October 15, 1980 at 8.55 p. m. in a case under Section 107 and 151 Cr.P.C. A. report to that effect was made at serial number 25 under date October 15, 1980 in the Daily Diary. This entry was shown to Shri Gurdev Singh. Shri Gurdev Singh recorded the statement of Gokal Ram. Thereafter Shri Gurdev Singh handed over the Notice and production Warrant issued by this Court to sub-Inspector Jaswant Singh and left the police Station at about 10 a. m. Shri Gurdev Singh submitted a report containing the above mentioned facts.
5. The case camp up for hearing before Sidhu, J. on October 17, 1980. Sub Inspector Jaswant Singh that Gokal Ram was arrested on October 15, 1980 at 8. 55 p. m. by Assistant Sub-Inspector Harbans Singh under Section 107 and 151 Cr.P.C. / he had been produced before a Magistrate and had been remanded to custody till October 18, 1980. Since at the time of filing the return to the writ petition by the respondent, Gokal Ram was in legal custody, the writ petition because infructuous and was dismissed. However, the learned singly Judge came to the conclusion that from the facts a prima facie case of commission of contempt of this Court was made out against Assistant Moharrir Constable Sukhwinder Singh Moharrir Head Constable Inderjit Singh and Sub-Inspector Jaswant Singh. Consequently, notices were issued against them all the contemners appeared before a Division Bench, consisting of my brother Bains, J. and myself. The respondent-contemners put in their returns.
6. The facts alleged by Shri Gurdev Singh were broadly admitted by the respondents. Sukhwinder Singh in particular has stated that the Warrants Officer had asked him to show the rozenamcha, but he took the rozenamcha and placed the same in the adjoining room as he had been instructed by the high officers not show the rozenamcha to anybody without prior permission of the Station house Officer. When the Station House Officer came and asked him to show the rozenamcha to the Warrant Officer, he immediately placed the same before the Warrant Officer.
7. Shri Karampal Singh Sandhu Advocate, appearing for the contemners, argued that the conduct of the respondents did not in any way, amount to 'Contempt of Court'. He contended that Gurdev Singh has not alleged anything against Inderjit Singh and sub-Inspector Jaswant Singh. So far as Sukhwinder Singh is concerned, he argued that he was perfectly justified in not showing the daily diary to the Warrant Officer. According to him the Warrant Officer had no authority whatsoever to see the rozenamcha. he had been authorised only to search the premises and serve the notice on the Station House Officer, the respondent in the Writ Petition. He judgment of this court in court on its own motion v. Gurdev Singh, A. S. I., Criminal Original (Contempt) No. 30 of 1979 decided on October 18, 1979 where in it has been held:
'When the Warrant Officer on entering the premises of the Police Station finds the detenus there, he has to serve notice on the Station House officer of that police station to produce the detenus in the Court as is the direction of the Court, with the recovery of the detenus and the service of the notice, unless the orders direct some other thing to be done, the function of a Warrant Officer appointed by this Court under the Writ Jurisdiction (Punjab and Haryana) Rules, 1976 come to an end. He does not, under the garb of that order of the Court acquire a right to investigate the legality or propriety of the detention of the alleged detenus from the record of the Police Station including the Daily Diary.'
It was further observed:--
'In the absence of any specific, requisition for this purpose, in out view the officer on whom notices have been issued did not in any way either interfere or obstruct the Warrant officer in execution of his duties as such and did not commit any contempt of this Court.
The Warrant Officer is appointed only wit a specific purpose of the recovery of detenus and the rest is the functions of this court to enquire in the allegation about the custody. These functions cannot be delegated to a Warrant Officer not the writ Jurisdiction (Punjab And Haryana) Rules, 1976 permit any such delegation. There is nothing in R. 10 sub-rr. (2) and (3) of these rules, under which the writ is issued and Warrant Officer is appointed justifying such suggested by Mr. Parashar. The Court does not abdicate the function in favour of the Warrant Officer to conduct an enquiry of this nature at the spot.'
Despit highest esteem with which we hold the views of our learned brothers, constituting the Division Bench, we were not able to persuade ourselves to concur in the reasoning and conclusion given by the learned judges. Apart from that, since the matter was, in out opinion of considerable importance which was likely to arise in many cases, we were of the view that it requires determination by a larger Bench. It is under these circumstances, that the case has been placed for decision by a Full Bench.
8. Article 21 of the Constitution of India guarantees that no person shall be deprived of his life or personal liberty, except according to the procedure established by law. Only a free citizen can exercise his fundamental rights like rights of freedom of speech, expression to assemble peacefully form association, to move throughout the territory of India, to reside and settle in any part of the country and to practice any profession or to carry on any occupation trade or business as guaranteed by Article 19. A person in custody cannot exercise these rights. To enforce and translate this freedom of the individual the High Courts have been invested with the powers of issuing writs in the nature of Habeas Corpus. The importance of personal liberty cannot be over emphasised in a democratic society governed by rule of law. So that these sacred rights may not remain pious ideals, a machinery has been devised to enforce these rights. It is not only the prerogative of this Court to issue the writ of Habeas Corpus whenever any complaint regarding transgression of any right of personal liberty without the authority of law is brought to its notice, it is the sacred duty to see that no person is detained without the authority of law. In order to effectuate this purpose, the High Court usually issues writ in the nature of Habeas Corpus so that the detaining authority may be directed to produce the detenu and to prove to the satisfaction of the Court that the detention or custody of the person is in accordance with and under the authority of some law. If it is not so, then the Court is to order the release of the detenue forthwith. This court has framed the Writ Jurisdiction (Punjab And Haryana) Rules, 1976 in exercise of powers conferred on it by virtue of Article 225 of the Constitution of India for the determination and decision of the writs of Habeas Corpus.
9. In order to effectively exercise this jurisdiction, the Court has the power to appoint any person as Warrant Officer to effect service of the notice on the respondent the detaining authority, requiring him to produce the detenu in this Court, to search the premises of any institution to find out if the person alleged to be detained is in fact, being kept in custody in those premises and to do any other thing which may be necessary to do to achieve that objective and to do justice in the case. In the case of allegation of detention of a person of allegation of detention of a person by the Police Officer in a police Station, the Warrant Officer can be appointed to serve the notice of the writ petition on the detaining officer-officers and to search the premises of the police Station or other building to find out if the detenu is being kept there. In other to serve the writ of this court on the detaining authority, the Warrant Officer is to find out the whereabouts of that person, Whenever, a person is brought in custody to a police station an entry regarding that is made in the Daily Daiary Register, Similarly entry is made regarding the arrival and departure of the Police Officer in and from the police Station in the Daily Diary. The Warrant Officer ca from the Daily Diary Register know as to who are the person being detained in the Police Station. This can facilitate him in the search for the detenu. Similarly from the Daily Diary he can know as to whether the Police Officer on whom he wants to effect service is present in the police station If he had left the Police Station. He can know from this register his destination. Thus the examination of the Daily Diary is very essential for the purpose of effecting the purposeful search of the premises of a Police Station and for serving the notice on the respondent-Police Officers, Daily Diary is maintained in accordance with Rule 22.48(1) of the Punjab Police Rules, 1934(Vol. III) The relevant extract thereof is reproduced below:--
'The Daily Diary shall be maintained in accordance with Section 44 of the Police Act. It shall be in form R. 22.48(1) and shall be maintained by means of carbon copying process. There shall be two copies. One will remain in he police station register and the other shall be despatched to a Gazetted officer to be designated by the Superintendent of Police or to the every day at the hour fixed in this behalf.
Shortly before the close of each quarter, books containing the proper number of pages for the ensuing three months shall be issued to police station by the Superintendent. The Superintendent shall fix the hours at which station diaries shall be daily closed with reference to the hour of despatch of the post or messenger.'
The matters that have to be recorded in the Daily Diary have been enumerated in Rule 22. The relevant provisions thereof are quoted below.-
'The following matters shall, amongst others be entered:--
(a) and (b) xxx xxx xx
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officer of whatever rank. Whether posted at the police station or elsewhere, with a statement of the nature of their duty. The entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
(d) Every police officer of or above the rank of head constable, when returing from duty constable when returning from duty other than an investigation in which case diaries are submitted, shall have an entry made in the daily diary by station clerk or his assistant showing the places he has visited and the duties performed by him during his absence from the police station.
xxx xxx xxx (h) All arrival at and despatches from the police station of persons in custody, and all admission to and removal from the police station lock-ups, whether temporary or otherwise, the exact hour being given in every case.
xxx xxx xxx (n) A reference to every information relating to the commission of a cognizable offence and action taken under Section 157 Code of criminal procedure the number and date of the first information report submitted.
xxx xxx xxx It is implicit in the very appointment of a Warrant Officer that he can search the premises and he has to serve the writ of the Court on the detaining authority. To know whether the detenu is confined within the precincts sought to be searched I an integral part of the search. In the very nature of things, a Warrant officer cannot be familiar with the topography of a police station or other premises to be searched. The premises to be searched. The premises to be searched may be so vast ad of a type where the search by a single person may be very difficult but the record of the Police Station can be of great help to know whether a person is present or not similarly, the Police Officer present, in a given case may choose not to co-operative with the Warrant Officer. They may not like to divulge the true facts regarding the where about of the detaining authority on whom service has to be effected. If the Warrant Officer is not even permitted to have a look at the rozenamcha in many cases the whole object of the issuance of a search warrant and even the filing of the writ petition may be frustrated by the conduct of certain unscrupulous Police Officials or Officers. This cannot be the approach of this Court to its sacred duty for preserving individual liberty from the excesses of errant police Officials.
10. The functions of the warrant officer do not come to an end with the detection or recovery of a detenu in the Police Station or even with the service of a notice on the detaining authority. The public records have to reflect the custody of a citizen brought to the police station. The object of the issue of a writ of habeas corpus is to see that no person is deprived of his liberty except in compliance with the authority of law and if the custody is not in accordance with law, then to release him. The Warrant Officer is therefore entitled to examine the contemporaneous record of the Police Station which the police officer are enjoined by the Punjab Police Rules to prepare when a person is kept in custody at the police station. That information is imperative station. That information is imperative for the just decision of the writ petition. Thus the search for the detenu does not only mean to find out the physical presence of the material regarding the justification for the custody. It is true that it is not for the Warrant Officer, to decide about the legality or otherwise of the custody. However, the visit of the Warrant Officer can discover the presence of absence of the information regarding the custody of the detenu in the public record, as the police Officer are obliged by law to make these entries in the Daily Diary. If this function is not considered to be integral part of the search, it, surely, will be incidental and consequential of the search and the process of service of the writ or notice on the detaining authority.
11. The Warrant Officers examines the rozenamcha only to find out if there is any report regarding the custody of the detenu. He does not investigate any matter and he does not go into the question as to whether the detenu is being detained illegally, validly and under the authority of law. He does not do such thing. He can at best report to the Court that the detenu was present in the premises, but there was no report regarding his custody in the Daily Diary. It is for the court to draw any conclusion from that. But, while appointing the Warrant Officer to search the premises for the presence of the detenu and to serve a notice on the detaining authority, this Court does not abdicate its powers. This warrant officer performs only the ministerial function in connection with proceedings pending in this Court. In fact Shri Karampal Singh Sandhu, learned counsel did not argue that this Court should not authorise the Warrant Officer to go and examine and take into possession the daily diary. He only argued that by his very appointment as Warrant Officer, the Warrant officer does not get the authority to inspect the daily diary.
12. In the light of the aforesaid discussion we are inclined to hold that the view taken by the Division Bench in Court on Its own Motion v. Gurmit Singh Cr. O. (C) 30 Crl, of 1979 decided on October 18, 1979, is not in consonance with the provisions of the law. An analysis of the judgment therein would disclose that the matter was not adequately agitated before the Bench on principle as also in the light of the relevant statutory provision. In the larger perspective, it appears that the view taken by the bench would not tend to advance the ends of justice and would rather render the process of the writ of habeas corpus ineffective and sterile. With the greatest respect, therefore, we hold that Gurmit Singh's case (supra) does not lay down the law correctly and is consequently overruled.
13. To conclude, it is held that the Warrant Officer had the power and was rather under a duty to examine and inspect the daily diary of the Police station.
14. Coming to the facts of the present case there are no allegation that sub-inspector Jaswant Singh or Inderjit Singh in any manner interfered with the performance of the duties of the Warrant Officer. They did not do any overt act. They have, therefore, not committed any contempt of this Court.
15. So far as Sukhwinder Singh is concerned, Shri K. P. S. Sandhu has argued that at the relevant time the interpretation of the law as given by the Division bench in Gurmit Singh's case (supra), was that the Warrant Officer cannot inspect the rozenamcha. That being the position Sukhwinder Singh, on the presumption that he knew the law as laid, might well be justified to follows the order of his superiors not to show the rozenamcha to anybody including he Warrant Officer without the permission of the Station House Office. There was thus no guilty intent on his part to flout the order of this court or to obstruct the rightful purpose of his duties by the Warrant Office. Consequently, he also cannot be held guilty of any contempt of this Court.
16. We, therefore, hold that the three respondents are not guilty of the offence of the contempt of Court and the rule against them is discharged.
S.S. Sandhawalia, C.J.
17. I agree.
A.S. Bains, J.
18. I agree
19. Rule discharged.