Ratnavel Pandian, J.
1. 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.
2. The first 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. MK 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 others alleging that he has been falsely implicated in a 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 21-9-1981. 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 by some police, presumably the Dharmapuri police, from near the High Court compound to 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.
3. 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 of the Chief Metropolitan Magistrate, Madras on the next day, namely, on 23-9-1081. 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-l (Mambalam) police Station and two others in mufty entered the office room of the counsel, woke the first petitioner up, damaged 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-l 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 petitioners 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 Section 50 of the Criminal P.C. and the principles enshrined in Article 22 (1) of the Constitution of India.
4. 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 (31 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 he 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.
5. 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.
6. 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 under Section 397, I.P.C. in which the first petitioner to the writ petition, nomely. 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 13i 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 Prision of Salem. It is further submitted that Jeevakan is having previous convictions in two hurt cases, registered in Crime No. 710/77 under Section 324, I.P.C. and Crime No. 753/77 under Section 448 and 324, I. P. C of Barur Police Station. The Inspector stages that he does not know about the alleged arrest of petitioners 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.
7. The third respondent (Mr. W. I. Davaram) 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 13i 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.
8. Petitioners 2 to 4 namely. Mahalingam, Chinnaswamy and Rathnam filed three independent affidavits dated 16-10-1981, 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 Maha-Ungam and Rathinam came to High Court on 22-9-1961 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 Prision. Salem.
9. 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.
10. 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 the 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 worken 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 decoity 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 vengence 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.
11. 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 vengence 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 con sequent 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.
12. 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 filed 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 l 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
13. 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 wa,s 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 shot at by the Inspector of Police of Karimangalam, namely, Mr. Rajarathinam and that thereafter he was taken at about 2-30 P. M. to Krishnagiri where he was brought to the Police Station situated near the Sub Jail of Kri shnagiri at about 9-30 P. M. The D.S.P. of Krishnagiri with a posse of constablss 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' Bungalow where 20 constables under the head of the inspector Mr. Vellayan beat him with lathis black and blue and kicked him and beat him an 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 8 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 !ike a beast. Thus, from 23-9-1981 to 28-9-1981 he was illegally detained 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.
14. During the course of the hearing of the case, at the request made on behalf of the petitioner Jeevakan this Court directed Jeevakan to be transferred from the Central Prison, Salam to 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.
15. An enquiry was held during the course of which P. W.s. 1 to 6 were examined and six documents Exs. P-l 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. Vel-layan. Inspector of Police, Kaveripattinam addressed to the Commissioner of Police, Madras requesting him to direct the Inspector of Police of R-l (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 marked. On behalf of the Respondent D. Ws. 1 to 9 were examined and Exs. D-l to D-21 were marked of which Exs. D-18, D-19and D-20, the affidavits filed by petitioners 2, 4 and 3 viz. Mahalingam. Rathinam and Chinnaswamy were marked subject to their admissibility.
(Facts-omitted) * * * *
16. 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 writ proceeding and since enquiry, if any, to be made will be outside the scope of the enquiry of this writ proceeding.
17. 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 over-zealous 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 a citizen guaranteed under the Constitution.
18. According to him. there is a clear violation of Article 22 of the Constitution of India, as the detenu had not been informed of the grounds for 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 routine 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 commuted 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 take action against the Inspector of Police, namely, D. W.-l. for violation of Article 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.
19. 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 its 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 ommitted)
20. 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 Article 22 of the Constitution of India and other established law. Article 22 (1) gives person arrested a twofold 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. Article 22 (2) gives yet another protection stating that every person 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 the place of arrest to the Court of Magistrate and that no such person shall be detained in custody beyond the said period without the authority of a Magistrate. Section 50, Cr. P.C. which is a corollary to Article 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. Section 57. Crl. P.C. which is also in consonance with Article 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 Section 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 Article 22 (1) and (2) of the Constitution and Section 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 Section 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, Section 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.
21. 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 in violation and in 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 130i hours. Even excluding the 24 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 1061/2 hours.
22. 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 detenu was despatched from 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 plausiable explanation, forthcoming from D. W. 1 as to why there had been unusal 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 shad, 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 iustification, 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 criminal's 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 safeguard's given under the Constitution and other laws are a myth rather than a reality.
23. In the present case, it is deeply disquieting to us to note that the police nave exceeded their limits and have kept the detenu Jeevakhan under illegal detention, whatever might be the reasons therefor. 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.
24. 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 stage, because the third respondent has been given up by the petitioner.
25. 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.
26. 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.
27. 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 he 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 Basanta Chandra v. Emperor . 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 a valid ground enabling the Court to base its decision on the subsequent order for holding that the detenu was not 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. If 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 1ater 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.
28. 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 Naranian 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 pasted the case of Naranjan Singh before a Constitution Bench which, in its decisions in Naranjan Singh v. State of Punjab : 1952CriLJ656 , examined the propositions laid down by the Federal Court in Basanta Chandra v. Emperor and held (Para 8):
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 Basanta Chandra v. Emperor 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 bad faith, that the detaining authority cannot supersede an earlier order of detention challenged as illegal and make a fresh order whenever possible which is free from defects and duly complies with the requirements of the law in that behalf.
The Supreme Court in Ram Narayan Singh v. State of Delhi : 1953CriLJ113 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 is the date when the affidavit on behalf of the Government justifying the detention is filed.
29. In yet another decision in B. R. Rao v. State of Orissa : AIR1971SC2197 , referring to the two decisions referred to above, viz. Naranjan Singh v. State of Punjab : 1952CriLJ656 and Ram Narayan Singh v. State of Delhi : 1953CriLJ113 the Supreme Court has held that in determining the legality or otherwise of a detention, regard has to be had as to whether a detention was legal or not at the time of the return.
30. In Kami Sanyal v Dist. Magistrate, Darjeeling : 1974CriLJ465 the Supreme Court, reaffirming its earlier view taken in B. R. Rao v. State of Orissa : AIR1971SC2197 , 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 jail 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 v. Govt. of India : 1966CriLJ602
31. A Full Bench of the Patna High Court in Babunandan Mallah v. State has taken the view that it is not a condition precedent for a valid order under Section 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 v. State of Rajasthan the Jaipur Bench of the Rajasthan High Court, referring to the Full Bench decision of the Patna High Court, in Babunandan Mallah v. 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.)
32. In yet another case Ramaswamy Goundar v. Inspector of Police, Salem (W. P. No. 427/79 judgment of this Court dated 13-2-1979), 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 anterior 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,
33. Mr. K.V. Sankaran, relying on the decision in In Re Madhu Limaye AIR 1969 SC 1014 : 1969 Cri LJ l440 has contended that as the arrest of Jeevakhan 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 re: Madhu Limaye : 1969CriLJ1440 . Madhu Limaye and others were arrested on 6-11-1968 for defying the prohibitory order promulgated under Section 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 under Section 143, I. P. C (which is cognizable) and under Section 122 of the Railways Act. Meanwhile, the sub-Divisional Magistrate issued show-cause notices on 11-11-1968 to the arrested persons relating to incidents on 5th and 6th Nov. 1968. why action should not be taken against them under Section 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 Article 22 (1) of the Constitution. After referring to Ram Narayan Singh v. State of Delhi : 1953CriLJ113 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.
34. After carefully going through the above decisions, we are of the view that the decision in In re Madhu Limaye : 1969CriLJ1440 cannot be availed of by the detenu Jeevakhan, 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 Jeevakhan was remanded to judicial custody on 29-8-1981 or that the remand order was not passed by a competent Magistral having jurisdiction. On the other hand a thorough examination of the documents filed in this case inclusive of the remand report, discloses that Jeevakhan 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.
35. 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 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 statements cm the basis of which the detaining authority had drawn its subjective satisfaction were a) obtained from the detenu while he was under the custody of the customs officials. However, the well-settled law as enunciated 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.
36. For all the reasons stated above, we hold that Jeevakhan is not entitled to a writ of habeas corpus to free him from detention, Hence, we hold that the prayer seeking a writ of hebeas corpus is not maintainable in law, though we have found that Jeevakhan 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.