- (1.) ONE Anand Samuel, son of Edwin Selvaraj the petitioner in h. C. P. No. 1379 of 1994 as well as one Selvin alias Karate Selvin and 10 others were detained in connection with an offence under Secs. 3 (3), 4, 5 and 6 of the tada Act and Sec. 302, I. P. C. read with 34, I. P. C. in Crime No. 1284 of 1991 of palayamkottai Police Station. These two writ petitions under Art. 226 of the constitution have been filed by the father of Anand Samuel and the brother-in-law of Selvin alias Karate Selvin respectively seeking issuance of writs of habeas corpus directing the respondent to produce the detenus before this Court and set them at liberty.
(2.) THEIR incarceration is challenged by the petitioners on these grounds: (1) The initial remand is illegal and violative of Art. 21 of the Constitution of India. Since the first remand itself is ab initio void, the subsequent remand is illegal. (2) The remand order passed on 19. 8. 1994 pursuant to which the petitioners are now in custody is also illegal. So their present detention in custody is against law. And (3) Selvin alias Karate Selvin was not produced before any Judge at the time of extension of remand. So there is no valid extension of remand in his case. There is no dispute that the detenus in H. C. P. No. 1382 of 1994 were arrested after 26. 12. 1991 and produced before the Designated court the Additional City Civil Court, Madras and were being remanded from time to time. They filed bail applications before the Designated Court, Madras which were dismissed. Thereafter they moved the Supreme Court Court and obtained interim bail. After the dismissal of the S. L. P. they surrendered before the sessions Court, Tirunelveli on 14. 6. 1994 and they were remanded by the said court till 18. 8. 1994. And in the case of Anand Samuel concerned in H. C. P. No. 1379 of 1994, he was picked up by the police at about 3. 00 a. m. on 27. 12. 1991 and produced before Judicial Magistrate, Tirunelveli on 28. 12. 1991. He moved for the bail before the Designated Court and the same was dismissed. Thereafter he moved the Supreme Court in S. L. P. (Crl.)No. 1912 of 1992 and obtained interim bail on 20. 8. 1992. As his Special Leave Petition was dismissed by the supreme Court, he surrendered on 14. 6. 1994 before the Designated Judge, tirunelveli. He was remanded to custody till 18. 8. 1994. Learned counsel for the detenu first submitted that the initial remand made by the Judicial Magistrate Tirunelveli on 28. 12. 1991 in the case of Anand Samuel is illegal since it was not made by the Designated court and hence violative of Art. 21 of the Constitution of India. We find from the records that only on 21. 10. 1992, the then I Additional District and sessions Judge, Tirunelveli was appointed, as Designated Court, Tirunelveli for the purpose of Palayamkottai Police Station Crime No. 1284/91 with which the detenus herein are concerned. So there is nothing improper in the Judicial magistrate, Tirunelveli remanding the detenu on 28. 12. 1991. And admittedly the other detenus were remanded on arrest by the Designated Court, Madras itself. In any event in view of the fact that these detenus were released on bail on 20. 8,1992 subsequent to their initial remand, they cannot now assail the validity of the remand order passed on 26. 12. 1991 and 28. 12. 1991. The charge-sheet in this case has been filed on 14. 10. 1992. It is the contention of the detenus that after the filing of the final report all proceedings appeared to have been transferred to Sessions court, Tirunelveli. They were not made known how this transfer was made and who made this transfer and why and under what provisions of law. But learned Public prosecutor brings to our notice that Sec. 9 (1) of the TADA Act contemplates constitution of Designated Courts for the purpose of that Act. And under sub-sec. (1) of Sec. 11 on the issuance of a notification constituting a designated Court for any case the said Designated Court alone shall have jurisdiction to try the said offence. By G. O. Ms. No. 1729, Home (Courts-Desk officer) Department, dated 21. 10. 1992 in exercise of the powers conferred by sub-sec. (1) of Sec. 9 of the TADA Act 1987 the first Additional District and sessions Court, Tirunelveli has been appointed as Designated Court, Tirunelveli in respect of Palayamkottai Police Station Crime No. 1284 of 1991 which is the one relating to the present case. So the jurisdiction of the said court to try the offence alleged against the detenus cannot be challenged. The next submission of learned counsel for the detenus is that even the remand order made on 14. 6. 1994 is beyond the powers of the court under the first proviso to Sec. 309 (2), Crl. P. C. Sec. 309 (2) reads that if the court, after taking cognizance of an offence finds it necessary to postpone the commencement of, or adjourn, any enquiry or trial, it may, from item to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody. And as per the first proviso to the said section, no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time. In the present instance the remand is stated to be from 14,6. 1994 to 18. 8. 1994. So the extension of order of remand passed on 14. 6. 1994 for a period exceeding 15 days is invalid. Learned counsel for the detenus points out that Sec. 20 of the TADA act contemplates modified application of only Sec. 167 of the Code of Criminal procedure and not Sec. 309. No doubt in Sec. 20 (4) of the TADA Act the words'fifteen days'in Sub-sec. (2) of Sec. 167, Crl. P. C. have been substituted by the expression'sixty days'. With the result under Sec. 167 (2), crl. P. C. the Magistrate may authorise the detention of TADA prisoners in custody for a term not exceeding 60 days on the whole. Whereas learned Public prosecutor contends that Sec. 309, Crl. P. C. deals with powers to postpone or adjourn proceedings after commencement of trial. This section occurs in Chapter 24 which relates to general provisions as to enquiries and trials. Even the marginal notes to Sec. 309, Crl. P. C. reads'powers to postpone or adjourn proceedings'So the order of remand passed on 14. 6. 1994 was a valid one under Sec. 167 (2), Crl. P. C. However considering the scheme of the code of Criminal Procedure it is seen that Sec. 167, Crl. P. C. governs the procedure during investigation only. The proviso to Sec. 167 (2), Crl. P. C. , deals with outer limit for detention during the investigation. Even the caption of Sec. 167 indicates that it deals with the procedure when investigation cannot be completed in 24 hours. Whereas Sec. 309 (2) relates to postponement of the commencement of the trial or adjournment of the trial after taking cognizance of the offence. There is no dispute that in this case charge-sheet had been laid on 14. 10. 1992. So in the absence of any modification of Sec. 309, crl. P. C. as per TADA Act the first proviso to the said section governs the remand order dated 14. 6. 1994. And as per this first proviso no Magistrate shall remand an accused person to custody under that section for a term exceeding 15 days at a time. So learned counsel for the detenus is right in his contention that the order of remand passed on 14. 6. 1994 extending the period of remand till 18. 8. 1994 is not a valid one. There is yet another infirmity in this order. The period from 14. 6. 1994 to 18. 8. 1994 works out to 66 days and this extension is not valid even under Sec. 20 of TADA Act, which is nothing but a modified version of the statutory provisions as adumbrated under Sec. 167 (2), crl. P. C. However, we are concerned only with the question whether the detention as on date is illegal. The detenus are behind the bars at present only by virtue of the order passed by the Designated Judge on 19. 8. 1994 and we are of the view that any infirmity in the order passed on 14. 6. 1994 cannot come to the rescue of the detenus in the present applications.
(3.) THE writ of habeas corpus has been described by Hohn marshall, C. H. as a great constitutional privilege. An eminent Judge observed'there is no higher duty than to maintain it unimpaired. It was described as a magna carta of British liberty. THE history of the writ is the history of the conflict between power and liberty. We can usefully extract this passage from the judgment of Subba Rao, C. J. in Ghulam Sarwar v. Union of India, 1967 crl. L. J. 1204, cited by learned counsel for detenus which explains the scope of a writ of habeas corpus: 'the nature of the writ of habeas corpus has been neatly summarized in Corpus Juris Secundram, Vol. 39 at p. 424 thus: 'this writ of habeas corpus is a writ directed to the person detaining another commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his caption and detention, to do, submit to, and receive whatsoever the Court or Judge awarding the writ shall consider in that behalf.' Blackstone in his Commentaries said of this writ thus: 'it is a writ antecedent to statute and throwing its proof deep into the genus of our common law. . . . . It is perhaps the most important writ known to the constitutional law of England, affording it as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immaterial antiquity, an instance of its use occurring in the thirty-third year of Edward I'- THE writ provides a prompt and effective remedy against illegal restraints. It is inextricably intertwined with the fundamental right of personal liberty.'habeas Corpus' literally means'have his body'. By this writ the court can direct to have the body of the person detained to be brought before it in order to ascertain whether the detention is legal or illegal. Such is the predominant position of the writ in the Anglo-Saxon Jurisprudence. Under Art. 226 of the Constitution we were concerned with the legality of the detention as on today. THE scope of the writ as stated above does not support the claim of learned counsel for the detenus that the infirmity in the order dated 14. 6. 1994 which has worked itself out on 18. 8. 1994 would enable this Court to pass an order in their favour. There is no dispute that no extension of remand order was passed on 18. 8. 1994. Instead only on 19. 8. 1994 learned Additional Judge of the Designated Court passed the order of remand. The main argument of learned counsel for the detenus is that even this extension of remand order passed by Sri T. S. Sankaranarayanan on 19. 8. 1994 is invalid for the reason that he was on casual leave on that day and the impugned order was obtained at Erode where he was available, by taking all the detenus there. It appears from the file produced by Public Prosecutor that on 18. 8. 1994 the detenus were escorted to the District and Sessions Court, Palayamkottai from the Central Prison there. The Sessions Judge, Tirunelveli was on leave on that day. So they proceeded to Nagercoil. When they reached Nagercoil at 1. 50 p. m. they learnt that the Sessions Judge, Nagercoil had also availed half a day of casual leave. They came back to Tirunelveli and brought their predicament to the notice of P. A. to Principal Sessions Judge, Tirunelveli, who consulted the sub Judge, Tirunelveli. The latter contacted the Registrar of High Court. As per the instructions received they left for Erode at 8. 00 p. m. and arrived there on the next morning. On 19. 8. 1994 at 8. 15 a. m. they located Thiru T. S. Sankaranarayanan, Sessions Judge, Nagercoil there and got the remand extended till 22. 9. 1994. Thiru K. Natarajan was the Judge of the Designated Court tirunelveli at that time. He was so appointed as per G. O. Ms. No. 737, dated 1. 7. 1994. Thiru T. S. Sankaranarayanan, District and Sessions Judge, Kanyakumari was appointed as an Additional Judge of the Designated Court, Tirunelveli to exercise the jurisdiction of the Judge of the Designated Court, Tirunelveli during his absence. And this is by virtue of G. O. Ms. No. 17, Home (D. O. Courts)Department, dated 5. 1. 1994. Under Sec. 9 (1) of the TADA Act 28 of 1987 the central Government or a State Government may, by notification in the Official gazette, constitute one or more Designated Courts for such area or areas, or for such case or class or group of cases as may be specified in the notification. And Sub-sec. (5) of Sec. 9 enables the Central Government or the state Government to appoint Additional Judges to exercise jurisdiction in a designated Court. So the fact that Thiru T. S. Sankaranarayanan had power to pass an extension of remand order in the present case which was pending before the Designated Court, Tirunelveli on 18 and 19. 8. 1994 cannot be questioned. As per the above mentioned notification he has every right to function as a designated Judge in view of the absence of the Designated Judge, Tirunelveli on that day. And we have already seen that under Sec. 9 (1) of the TADA Act a designated Court may be constituted for any case or class or group of cases as may be specified in the notification. And the First Additional District and sessions Court, Tirunelveli was constituted as a Designated Court for the present case relating to Palayamkottai Police Station Crime No. 1284 of 1991 as per the notification published in the extra-ordinary Issue of Tamil Nadu government Gazette dated 21. 10. 1992. And as per Sec. 10 of TADA Act, Designated court may, on its own motion on an application made by the Public Prosecutor and if it considers it expedient or desirable so to do, sit for any of its proceedings at any place other than its ordinary place of sitting provided that nothing in this section shall be construed to change the place of sitting of a designated Court constituted by a State Government to any place outside that state. So, there is no scope for holding that the Designated Court, Tirunelveli had any geographical boundary limitation regarding Crime No. 1284 of 1991. And thiru Sankaranarayanan could have exercised the powers of the Designated Court, tirunelveli at any place in Tamil Nadu on 19. 8. 1994 in respect of the case on hand. We find no infirmity in the order passed by Thiru. T. S. Sankaranarayanan on 19. 8. 1994 at Erode extending the remanding of the present detenus. Yet another argument of learned counsel for the detenus is that Selvin alias Karate Selvin the detenu in H. C. P. No. 1382 of 1994 was on hunger fast between 14. 8. 1994 and 25. 8. 1994 and he has not produced before any Judge on 19. 8. 1994 and hence his detention as on date is not on a proper order of remand. In support of his contention be cited Dharman v. State of Andhra Pradesh, (1991)1 An. L. T. 315. There a Division Bench of the Andhra pradesh High Court has held: 'proviso (b) of Sub-sec. (2) of Sec. 167 of the new Code of Criminal Procedure lays down that detention in any custody under sec. 167 of the new Code shall not be authorised by the Magistrate unless the accused is produced before him. Under Proviso (b) read with Explanation II, the production of the accused before the Magistrate, both at the time of initial remand of the accused under Sec. 167 (2) and at the time of extension of remand of accused from time to time under Proviso (a), is an indispensable pre-requisite. The object behind the salutary rule enacted in Sec. l67 (2), proviso (b> of the Code of Criminal Procedure is to afford to the accused person produced before the Magistrate an opportunity of being heard before an order of remand or extension of remand is passed. The finding that adequate grounds exist for extension of remand of the accused person cannot be reached by the Magistrate unless the accused is given an opportunity to show cause against the same. It is also part of fairness in procedure enshrined in Art. 21 of the Constitution that no person can be deprived of his life and personal liberty except according to the procedure established by law. Even under Sec. 309 (2) of the Code of Criminal Procedure for remanding an accused person to judicial custody the requirement of natural justice particularly that of audi alteram partem should be complied with. Production of the accused person is an indispensable requirement of natural justice and fair procedure, as the order of remand seeks to deprive him of his personal liberty.' However, in that case without production of detenus before him the Special Judge mechanically remanded them to judicial custody on three successive occasions. No plea of impossibility of compliance with the mandatory provision before the Special Judge either by the prosecuting agency or by the Jail Authority was pleaded. Courts have no inherent power of remand and necessarily Secs. 167 and 309 of the Code of Criminal Procedure apply to both citizens and non-citizens. Extension of remand of an accused person beyond 15 days is not a matter of course or a routine exercise, and it is only where the Magistrate is satisfied that adequate grounds exist extension of remand is warranted and not otherwise. ;