SIVASUBRAMANIAM, J. - (1.) This writ petition has been filed for issue of a writ of Habeas Corpus or any other appropriate writ to set at liberty an alleged 20,000 (Congress-I) party members.
(2.) This writ petition is filed by seven petitioners the first, sixth and the seventh petitioners being M.L.As. and the other petitioners being M.Ps., as a public interest litigation, on their own behalf and on behalf of 20,000 Congress (I) party members who have been arrested during the recent agitation to name a Railwat Station after the late Sri Kamraj, former Chief Minister of Tamil Nadu. The petition signed by the said seven petitioners was treated as a writ of Habeas Corpus in view of the fact that all of them were under custody and the matter relates to thousands of persons who are under custody. The writ petition was admitted as a public interest litigation taking into consideration of the fact that the question involved in this writ petition is a matter of public importance and the question raised in this writ petition cannot be agitated by each individual person who is kept under detention in various jails.
(3.) In the petition submitted by the petitioners, the following contentions have been raised :- The seven named persons in the writ petition represent over 20,000 members of the Congress (I) party who intended to participate or have participated in a peaceful political Satyagraha on 10-3-1990. The Congress (I) party had earlier announced a peaceful protest at various Railway Stations throughout Tamil Nadu in support of their demand that a Railway Station should be named after the late Sri Kamraj, former Chief Minister of Tamil Nadu. More than 20,000/- persons have been arrested either as a preventive measure or for allegedly attempting to violate certain laws which are bailable offences or for alleged actual violation of certain laws which are also bailable offences. Following a practice which has unfortunately gained ground in Tamil Nadu during the past two decades, in all these cases, the Executive Government sought remand of the arrested persons and judicial custody for a period of 15 days. Many Magistrates have passed orders in a routine and mechanical manner remanding the arrested persons for 15 days. In some cases, after hearing arguments, some Magistrates have passed orders of remand for periods ranging from 2 days to 7 days. This practice is repressive, oppresive and has no sanction in law. It is in violation of the arrested persons' fundamental rights under Arts.19(1)(a) and (b) and 21 of the Constitution as well as the. provisions of the Criminal Procedure Code. Further, this procedure is directly contrary to the principles laid down by a Division Bench of this Court in Elumalai v. State of Tamil Nadu, 1983 Mad LW (Cri) 121. The following fundamental questions of law arise in the cases involving the arrest of 20,000 persons : 1. Can remand to custody, especially judicial custody, be made by a Magistrate in a routine and mechanical manner mainly because the Executive Government seeks an order of remand ? 2. What is the true scope of Ss.57 and 167 of the Criminal Procedure Code and what is the duty cast upon the Magistrate who is required to pass an order of remand ? 3. Is there not a duty cast upon the Public Prosecutor, as an Officer of the Court, to satisfy himself that there is justification to seek such an order of remand to judicial custody ? 4. What are the circumstances in which the Executive Government may seek an order of remand to judicial custody ? 5. Before passing an order of remand to judicial custody, should not the Magistrate be satisfied ? (i) that there is something to be investigated and that the investigation cannot be completed within the normal period of 24 hours; and (ii) that unless the arrested persons are remanded to judicial custody, they would hamper the investigation ? 6. Should not the Magistrate pass a speaking order ? In a civilised society, wedded to the principles of democracy and which cherishes human rights, the practice and procedure followed by the Courts in Tamil Nadu is wholly unconstitutional and illegal. The petitioners prayed that the said petition may be treated as a writ of Habeas Corpus.;