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Kunjamma Paru Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1951CriLJ641
AppellantKunjamma Paru
RespondentState and anr.
Cases Referred & Muhammad Sadiq v. The Crown
Excerpt:
- - in calendar revision bad issued notice because of the illegal sentence passed by the additional sea. for life, that bhaskaran was condemned without being heard, that the judgment was in violation of sections 349 & 350, cr. in this case notice of the state 'appeal as well as the calendar revision was served personally on bhaskaran. the advocate's name appeared there as well as in the cause list......the jail. on 2-3-1131 he engaged an advocate sri k. n. aiyappan pillai to appear for him in the appeal filed by the state & the calendar revision proceedings. his appeal & the appeals filed by his co-accused came up for hearing on 18-3-1124 along with the appeals filed by the state against all these persons. this accused 2 was not present on that day. his advocate filed a memo that he too had written to the party regarding the posting & that for borne reasons not known the party had not appeared. a non-bailable warrant was issued for the arrest & production of this bhaskaran. that could not be executed as his whereabouts were not known. the appeals were not disposed of by the travancore h. ct. till the integrated h. ct. of the travancore & cochin states was established with its seat.....
Judgment:
ORDER

Govinda Pillai, J.

1. One Kandankali Bhaskaran was Accused a in see. case No. 5 of 1123 on the file of the Ses. Ct, Alleppey. He along with others was convicted by the Additional Sea. J. under Section 301, Travanoore P.C. & sentenced to R. I. for six months. He was also convicted under Section 324, Travancore P.C. & sentenced to R. I. for another six months. Both these sentences were directed to run concurrently. He preferred an appeal before the Travancore H, Ct., against the conviction it sentence, in Cr. App. no. 8(5 of 1123. The State preferred an App. No. 125 of 1123 against him questioning the order of acquittal under other sections for which he was tried. The legality of the sentence passed under Section 301, Travancore P.C. had also been questioned. This Ct. in Calendar Revision bad issued notice because of the illegal sentence passed by the Additional Sea. J. Notice of the appeal & Calendar Revision was served on him fixing the date of hearing on 2-3-1124. By this time, he had served the term of imprisonment & was released from the jail. On 2-3-1131 he engaged an advocate Sri K. N. Aiyappan Pillai to appear for him in the appeal filed by the State & the Calendar Revision proceedings. His appeal & the appeals filed by his co-accused came up for hearing on 18-3-1124 along with the appeals filed by the State against all these persons. This accused 2 was not present on that day. His advocate filed a memo that he too had written to the party regarding the posting & that for Borne reasons not known the party had not appeared. A non-bailable warrant was issued for the arrest & production of this Bhaskaran. That could not be executed as his whereabouts were not known. The appeals were not disposed of by the Travancore H. Ct. till the integrated H. Ct. of the Travancore & Cochin States was established with its seat at Ernakulam. All the appeals came up for hearing on 28.3-1950. The 1th accused's advocate alone was present. The appeals were heard & disposed of by a Division Bench, confirming the conviction under Section 301, Travancore P.C. As the sentence for the offence under Section 301, Travancore P.C. was imprisonment for life with or without forfeiture of property, the accused were directed to undergo R. I. for life, Directions were also given in the judgment to take steps for the arrest of the convicted persons if they were not in custody in order that the punishment awarded by the Ct. might be undergone by them. This Bhaska ran was subsequently arrested & sent to Jail where he is undergoing the sentence passed against him.

2. Now one Kunjamma Paroo who is said to be Bhaskaran's mother-in-law has filed this petn. for issuing a writ in the nature of habeas corpus so that he may be brought before this Ct. & released. It is stated in her affidavit that after the establishment of the Travancore-Cochin H. Ct. no notice of the posting of the appeals was given to Bhaskaran, that without any notice of the time & place of hearing the appeals were disposed of enhancing the sentence to R. I. for life, that Bhaskaran was condemned without being heard, that the judgment was in violation of Sections 349 & 350, Cr. P.C. (Tr.) & hence void in law, that the H. C. had no jurisdiction to order the arrest, that the arrest was void ab-initio & illegal & that Bhaskaran was to be released forthwith.

3. Notice of this petn. was given to the State A counter-affidavit has been filed on behalf of the State. It was stated that this Ct. had no jurisdiction to issue the writ prayed for so as to enforce it in regard to a person who is being detained in custody by virtue of a proper & valid judgment of this Ct., that Sri E. N. Aiyappan Pillai who had been engaged by Bhaskaran had not given up his engagement, that as was the practice the name of Sri Aiyappan Pillai was in the Cause List, that Bhaskaran, if he had any complaint, could have moved in this matter in the proper way before the proper authority, that the affidavit filed in support of the petn. was not in accordance with law & that the petn. has to be dismissed with costs.

4. This motion on behalf of Bhaskaran applt. in Cr. App. 86 of 1123 & resp, in Cr. App, 125 of 1123-appears to be an ill-conceived one. In the affidavit in support of the petn. it is admitted that the term of imprisonment was raised to one for life by a judgment passed by a Bench of this Ct. There is ordinarily a presumption in favour of the judgment under which an accused was convicted & of the regularity of the proceedings On habeas corpus the Ct. may only look at the record to see whether a judgment did exist, & if it finds that there is a judgment, the Ct. on such proceeding has no power to determine whether it is right Or wrong, since the judgment is conclusively presumed to be right until brought up for revision in the regular way of appeal, (vide 39 Cor. Jur, 670 quoted at p. 212 of Prem's Law of Habeas Corpus &o.; 1950 Edn.) The present attempt appears to be to attack a judgment of this Ct. by collateral means & for that purpose a petn, of this nature will not lie. The writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention whether in prison or in private custody. The illegal detention of a subject, that is a detention or imprisonment which is incapable of legal justification, is the basis of jurisdiction is habeas corpus. There is no such justification in the present instance & this petn. is, as stated by the learned Govt. Pleader, an abuse of the pro. cess of the Ct.

5. The petnr.'s learned Advocate attempted to justify his position by arguing that the judgment passed in appeal by this Ct. is void ab initio as the imperative provisions enjoined in S3. 849 & 850, Cr. P.C. were not observed. Section 349 lays down that when a convicted person files an appeal, the appellate (Ct. shall cause notice to be given to the applt- or his pleader of the time & place at which such appeal will be heard. Under Section 350, the Ct. is to hear the applt. or his pleader if he appears before passing judgment. It is Section 345, Cr. P.C. that allows the State to prefer appeals against acquittals, but the procedure to be followed can be taken to be that prescribed in Sections 349 & 350, Cr. P.C. In this case notice of the State 'Appeal as well as the Calendar Revision was served personally on Bhaskaran. He had also engaged an Advocate who had not given up his brief even though the party did act appear. The posting of the appeal was published in the Notice Board as is the practice. The advocate's name appeared there as well as in the Cause List. That is sufficient notice although the advocate had not chosen to appear. There is, therefore, no justification for the complaint. Reference was made to In re Somu Naidu A.I.R. (11) 1924 Mad. 640: (26 Cr. L.J. 370) where it has been held that a reasonable opportunity for the accused to be heard is an essential condition precedent to the exercise of jurisdiction under Section 439, Indian Criminal P.C. (corresponding to the Tranvancore Section 362 relating to the H. Ct's Powers of Revision), when the Ct. is considering the question of enhancing the punishment inflicted on him, & that where the conditions laid down by law as precedent & requisite to the hearing of a case are not observed, the Ct. acts without jurisdiction, that its order is void ab-initio & that the case can be reheard. Even if such contingencies as mentioned therein exist, then the proper course is for the convicted per. son to move for a rehearing of the appeal & not to cause a petn. of this nature to be filed to attack the judgment. No decided cases had gone to the extent of holding that to circumvent a judgment of Ct. the party is at liberty to move for release by filing an habeas corpus petn. & so it is not necessary for me to consider in detail Galos Hirad v. The King A.I.R. (31) 1944 P.C. 98; (46 Cr. L.J. 105), Ramesh Pada Mandal y. Kadambini Dasi A.I.R. (14) 1927 Cal. 702: (28 Cr. L.J. 831) & Muhammad Sadiq v. The Crown, A. 1. R. (12) 1925 Lah. 355: (26 Cr L.J. 1169) cited on behalf of the petnr. There is there. fore no substantial ground in this petn.

6. Before concluding this order, I have to observe that an affidavit from the prisoner should have been filed in support of the appln. Generally the person who is alleged to be illegally imprisoned or detained in confinement without any legal justification, is entitled to apply for a writ of habeas corpus but it is not necessary that the apyln. is to proceed from him The detenu or any other person on his behalf could institute such proceedings. A mere stranger or volunteer who has no authority to represent him is not allowed to apply for habeas corpus. The main difficulty in the case of a stranger is that he is not in a position to make a detailed affidavit with regard to the circumstances of the alleged detention of the detenu (See Ex parte Child, (884) 15 C. B. 238: (100 R. R. 337). But in any case where access is denied to a person alleged to be unjustifiably detained, so that there are no instructions from the prisoner, an appln. for the writ of habeas corpus may be made by any relation or friend on an affidavit; setting forth the reasons for its being. At any rate, the Ct. will not grant a habeas corpus to bring up a prisoner for the purpose of being discharged on the ground that he is illegally in custody unless there be an affidavit from himself, or it be shown that he is so coerced ft9 to be unable to make one. Re Parker Canadian Prisoner's Case (1839) 151 R. R. 15: (5 M. & W. 32) & Ex P. O' Brien (1923) 39 T. L. R. 413). In the affidavit filed in this case by the prisoner's mother-in-law, there is absolutely no indication why an affidavit from the prisoner could not be filed. The affidavit itself contains several inaccurate statements. In Ex P. O. Brien's Case (1933-39 T. L R. 413) mentioned above an affidavit from the sister was not accepted by the Ct, The absence of an affidavit from Bhaskaran is a material defect in the case. Even apart from that, there is no ground made out for issuing the writ applied for. The petn. is there, fore dismissed.


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