- (1.) This is a writ petition by the petitioner under Article 32 of the Constitution challenging the legality of his detention in the Central Jail, Vizakhapatnam and praying for a writ of habeas corpus for setting him at liberty forthwith. The petitioner is one of the acknowledged leaders of the Naxalite movement which originated in the area within Naxalbari, Kharabari and Phansidewa police stations in Siliguri Sub-Division of Darjeeling District of West Bengal some ten years ago. The movement represents armed revolt of the peasantry against exploitation by landholders and it seeks to achieve its end by violent means calculated to overthrow the democratic process. The petitioner as one of the top leaders of this movement, was engaged in violent and anti-social activities and was for quite some time underground evading arrest by the police. Eventually of 19th August, 1970, the petitioner was arrested by the police along with some of his associates from a hideout within the jurisdiction of Phansidewa police station. A huge quantity of arms, ammunition and explosives was found with the petitioner and his associates at the time of the arrest. Phansidewa P.S. Case No. 3 was accordingly registered against the petitioner on 19th August, 1970 under Section 5 of the Explosive Substances Act, Section 25 (1)(a) of the Arms Act and Sections 120-B, 121-A, 122, 309 and 402 of the Indian penal Code. There was also another case, namely, Phansidewa P.S. Case No. 28 registered against the petitioner on 29th July, 1967, under Section 412 read with Section 34 of the Indian penal Code. That case was under investigation at the time when the petitioner was arrested. Immediately after his arrest, on the same day, i.e., 19th August, 1970, the petitioner was produced before the Sub-Divisional Magistrate, Siliguri. The learned Sub-Divisional Magistrate passed an order of remand directing that the petitioner be detained in the District Jail, Darjeeling and that he should be produced before the Sub-Divisional Magistrate, Darjeeling. The petitioner was accordingly produced before the Sub-Divisional Magistrate, Darjeeling from time to time and orders of remand were passed by the Sub-Divisional Magistrate, Darjeeling at the interval of every fourteen days since the investigation in P. S. Case No. 28 dated 29th June, 1967 and P. S. Case No. 3, dated 19th August, 1970 was not complete. It appears that on 16th January, 1970 first information report in respect of certain criminal offences alleged to have been committed by the petitioner and a large number of other coconspirators was lodged in Parvathipuram police station and after the completion of the investigation, two charges-sheets were filed against the petitioner and other 139 accused in the Court of the Special Magistrate, Vizakhapatnam 12th October, 1970, charging them with offences under Section 120-B read with Sections 302, 395, 397, 121, 122, 123 and 124-A of the Indian Penal Code. The offences charged under these two charge-sheets were triable exclusively by the Court of Sessions, and therefore, inquiry proceedings under Chapter XVIII of the Code of Criminal Procedure were initiated by the Special magistrate, Vizakhapatnam. Since the petitioner, who was accused No. 138 in these two criminal cases, which were numbered as P.R.C. Nos. 1 and 2 of 1971, was under remand in the District Jail, Darjeeling pending investigation of the two Phansidewa P.S. cases, the Special Magistrate, Vizakhapatnam issued on 30th May, 1972 a warrant for production of the petitioner in his Court under Section 3, sub-section (2) of the Prisoners (Attendance in Courts) Act, 1955. The officer incharge of the District Jail, Darjeeling, is obedience to this warrant for production, sent the petitioner to the Court of the Special Magistrate, Vizakhapatnam on 14th June, 1972 and immediately on arrival, the petitioner was produced in the Court of the Special Judge, Vizakhapatnam on 17th June, 1972. The petitioner was remanded by the Special Judge, Vizakhapatnam from time to time pending the disposal of the committal proceedings and pursuant to the orders of remand, the petitioner was detained in the Central Jail, Vizakhapatnam.
(2.) On 6th January, 1973, whilst under detention in the Central Jail, vizakhapatnam, the petitioner preferred a writ petition under Article 32 of the Constitution in this Court challenging the legality of his detention right from the time of its inception and praying that he may be set free by issue of a writ of habeas corpus. The District Magistrate, Darjeeling, the Sub-Divisional Judicial Magistrates, Silguri, Kursean and Darjeeling the State of West Bengal, the Superintendent, Central Jail, Vizakhapatnam and the Post Master General, West Bengal were made respondents to the writ petition. This Court ordered a rule nisi to be issued on the writ petition but directed that the petitioner need not be produced in person. The District Magistrate, Darjeeling and the State of West Bengal filed their return to the rule nisi on 19th April, 1973 and the Superintendent of Central Jail, Vizakhapatnam filed his return to the rule nisi on 11th May, 1973. When the writ petition reached hearing, counsel appearing on behalf of the petitioner raised a contention that the writ petition could not be heard by the Court unless the petitioner was produced in person and his argument was that once rule nisi was issued, the Court was bound to order production of the petitioner. Since this contention raised an important question of law affecting the practice of the Court while dealing with petitions for a writ of habeas corpus, the Division Bench hearing the writ petition referred this question for decision by the Constitution Bench. The writ petition was thereafter placed before the Constitution Bench and by a judgment delivered by the Constitution Bench on 11th September, 1973, it was held that it was competent to the Court to dispense with the production of the body of the person detained while issuing rule nisi, and the rule nisi could be heard without requiring the body of the person detained to be brought before the Court. On this view being taken by the Constitution Bench, the writ petition again came back to the Division Bench for final disposal. In the meantime the committal proceedings which were being held by the Special Judge, Vizakhapatnam against the petitioner and his other associates concluded and by an order dated 12th July, 1973 the petitioner and 66 other accused were committed to the Court of Sessions to stand their trial for various offences. The trial of this Sessions Case, being Sessions Case No. 46 of 1973, is still pending against the petitioner in the Court of the Second Additional Sessions Judge, Vizakhapatnam and the petitioner is under detention in the Central Jail, Vizakhapatnam pursuant to the orders made by the Second Additional Sessions Judge, Vizakhapatnam pending trial.
(3.) The learned counsel appearing on behalf of the petitioner put forward three grounds challenging the legality of the detention of the petitioner and they may be briefly summarised as follows : A. The initial detention of the petitioner in the District Jail, Darjeeling was illegal because he was detained without being informed of the grounds of his arrest as required by clause (i) of Article 22 of the Constitution. B. The Sub-Divisional Magistrate, Darjeeling had no jurisdiction to try the two Phansidewa P.S. cases against the petitioner and he could not, therefore, authorise the detention of the petitioner under Section 167 of the Code of Criminal Procedure for a term exceeding fifteen days in the whole. It was only the Sub-Divisional Magistrate, Siliguri who had jurisdiction to try the two Phansidewa P.S. cases and he alone could remand the petitioner to custody after the expiration of the initial period to custody after the expiration of the initial period to custody after the expiration of the initial period to custody after the expiration of the initial period of fifteen days under Section 344 of the Code of Criminal Procedure. The orders of remand under which the petitioner was detained in the District Jail. Darjeeling were, however, made by the Sub-Divisional Magistrate, Darjeeling and the detention of the petitioner in the District Court, Darjeeling was, therefore, illegal. C. The officer in charge of the District Jail, Darjeeling was bound to abstain from complying with the warrant for production issued by the Special Judge, Vizakhapatnam by reason of Section 6 of the Prisoners (Attendance in Courts) Act, 1955 and the production of the petitioner before the Special Judge, Vizakhapatnam pursuant to such warrant for production and his detention in the Central Jail, Vizakhapatnam were consequently without the authority of law Re: Grounds A and B. These two grounds relate exclusively to the legality of the initial detention of the petitioner in the District Jail, Darjeeling. We think is unnecessary to decide them. It is now well settled that the earliest date with reference to which the legality of detention challenged in a habeas corpus proceeding may be examined is the date on which the application for habeas corpus in made to the Court. This Court speaking through Wanchoo, J., (as he then was) said in A. K. Gopalan v. Government of India; (1966) 2 SCR 427 = (AIR 1966 SC 816). "It is well settled that in dealing with the petition for habeas corpus the Court is to see whether the detention on the date on which the application is made to the Court is legal, if nothing more has intervened between the date of the application and the date of the hearing" In two early decisions of this Court, however, namely Naranjan Singh v. State of Punjab, 1952 SCR 395 = (AIR 1952 SC 106) and Ram Narain Singh v. State of Delhi, 1953 SCR 652 = (AIR 1953 SC277) a slightly different view was expressed and that view was reiterated by this Court in B. R. Rao v. State of Orissa AIR 1971 SC 2197 where it was said; "In habeas corpus 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 institution of the proceedings." And yet in another decision of this Court in Talib Husain v. State of Jammu and Kashmir AIR 1971 SC 62 Mr. Justice Dau, sitting as a Single Judge, presumably in the vacation, observed that "in habeas corpus proceedings the Court has to consider the legality of the detention on the date of the hearing." Of these three views that by the Court at different times, the second appears to be more in consonance with the law and practice in England and may be taken as having received the largest measure of approval in India, though the third view also cannot be discarded as incorrect, because an inquiry whether the detention is legal or not at the date of hearing of the application for habeas corpus would be quite relevant, for the simple reason that if on that date the detention is legal, the Court cannot order release of the person detained by issuing a writ of habeas corpus. But, for the purpose of the present case, it is immaterial which of these three views is accepted as correct, for it is clear that, whichever be the correct view, the earliest date with reference to which the legality of detention may be examined is the date of filing of the application for habeas corpus and the Court is not, to quote the words of Mr. Justice Dua in AIR 1971 SC 2197 "concerned with a date prior to the initiation of the proceedings for a writ of habeas corpus". Now the writ petition in the present case was filed on 6th January, 1973 and on that date the petitioner was in detention in the Central Jail, Vizakhapatnam. The initial detention of the petitioner in the District Jail, Darjeeling had come to an end long before the date of the filing of the writ petition. It is, therefore, unnecessary to examine the legality or otherwise of the detention of the petitioner in the District Jail, Darjeeling. The only question that calls for consideration is whether the detention of the petitioner in the Central Jail, Vizakhapatnam is legal or not. Even if we assume that grounds A and B are well founded and there was infirmity in the detention of the petitioner in the District Jail, Darjeeling, that cannot invalidate the subsequent detention of the petitioner in the Central Jail, Vizakhapatnam. See para 7 of the judgment of this Court in AIR 1971 SC 2197. The legality of the detention of petitioner in the Central Jail, Vizakhapatnam would have to be judged on its own merits. We, therefore, consider it necessary to embark on a discussion of grounds A and B and decline to decide them. Re: Ground 'C';