- (1.) K. K. Misra, J. By the instant Habeas Corpus petition filed on 10-11-2005 under Article 226 of the Constitution of India, the petitioners prayed for the release of the petitioner No. 2 who was detained in civil prison. Petitioner No. 1 is the wife of the petitioner No. 2. When the petition was taken up on 14-11-2005 for orders, it was informed by the learned Counsel for the petitioners that the petitioner No. 2 had already been released as soon as notice of the petition was given and he sought time for filing an amendment application. He was released in the night of 10-11-2005. Thereafter, an amendment application has been filed for issuing a writ, order or direction in the nature of mandamus directing the respondents, particularly respondents No. 2 and 5 to provide compensation to the petitioner No. 2 in order to mitigate the agony and pain created due to his illegal detention in the civil prison for two days and one night, i. e. , 9th and 10th November, 2005.
(2.) WE have heard Sri Govind Krishna, learned Counsel for the petitioners, Sri Arvind Tripathi, learned A. G. A. and Sri R. D. Khare, Counsel for respondents No. 4 and 5. Learned Counsel for the petitioners urged that the petitioner No. 2 was illegally detained in civil prison for two days, though the operation of the demand notice under Section 3 of the Electrical Dues Recovery Act issued on 6-4-2004 and 12-4-2004 had already been stayed by this Court in writ petition No. 54627 of 2004 and the order staying the operation of the demand notices had been duly served upon respondents No. 4 and 5. He submitted that inspite of the order of this Court staying the operation of the demand notices the petitioner No. 2 was put in civil jail and thus his fundamental right of liberty was violated. Subsequently, as we said, the petitioner No. 2 was released from jail even before the taking of the petition by this Court and he has sought amendment claiming compensation for his illegal detention. In support of his argument claiming compensation, he relied upon the cases of D. K. Basu v. State of West Bengal, 1996 (2) JIC 1541 (SC) : JT 1997 (1) SC 1, T. C. Pathak v. State of U. P. , (1995) 6 SCC 357, Bijay Kumar Mohanty v. Jadu alias Ram Chandra Sahoo, 2004 (3) JIC 427 (SC) : AIR 2003 SC 657 and Sube Singh v. State of Haryana and Ors. , 2006 (2) JIC 321 (SC) : AIR 2006 SC 1117. On the other hand, learned A. G. A. Sri Arvind Tripathi submitted that when the petition was taken up for orders on 14-11-2005, the petitioner No. 2 had already been released from civil prison, hence no cause of action survived and the petition was not maintainable and was liable to be dismissed. He further submitted that when the petition itself was not maintainable, there could be no question of amending the petition. He also emphasized that for claiming compensation for wrongful detention, the petitioner had alternative remedy of filing suit for compensation, paying proper Court fee and writ jurisdiction was not the proper forum for the same. He placed reliance upon the cases of Kanu Sanyal v. District Magistrate, Darjeeling and Ors. , AIR 1974 SC 510 and Col. Dr. B. Ramachandra Rao v. State of Orissa and Ors. , AIR 1971 SC 2197. In the counter-affidavit filed by respondent No. 5, he has denied the averment made in the petition that the petitioner had duly served the order staying the operation of the demand notices on the respondents No. 4 and 5.
(3.) THE question for consideration is whether the petition is maintainable in view of the fact that the petitioner No. 2 had already been released from civil prison when the petition was taken up for orders on 14-11-2005 and whether he is entitled to claim compensation in writ jurisdiction by moving an amendment application when the petition itself was not maintainable as the cause of action no more survived. Now, we come to the first question whether the petition was maintainable when the detenu had already been released from civil prison on 10-11-2005 much prior to the taking of the petition by this Court on 14-11-2005. It is very relevant to quote para 3 of the Kanu Sanyal's case (supra) which reads as under: "it is now well-settled that the earliest date with reference to which the legality of detention challenged in a habeas corpus proceedings may be examined is the date on which the application for habeas corpus is 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 SC 277 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 Dua, 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 taken 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. . . . . . . . . . . . . . . . . . . . . . . . . . ";