P.C. Borooah, J. - (1.) In this application under Sec. 491 of the Code of Criminal Procedure, the Petitioner Amal Chakraborty has asked for a writ in the nature of habeas corpus and has challenged the detention of the detenu Ullas Bhattacharyya who has been detained pursuant to an order passed by the District Magistrate, 24 -Parganas, on June 5, 1971, in exercise of his powers under Sub -section (1) read with Sub -section (3) of Sec. 3 of the West Bengal (Prevention of Violent Activities) Act, 1970, hereinafter referred to as the Act). By order No. 305/71 dated June 5, 1971, the detenu was served with the grounds of detention and this detention, was duly confirmed by the State Government in accordance with the provisions of the Act on October 8, 1971.
(2.) Mr. J. M. Banerjee, the learned Advocate appearing on behalf of the State, has taken a preliminary point that the Petitioner has not been properly authorised to move this application under Sec. 491 of the Code of Criminal Procedure. According to Mr. Banerjee, the Petitioner has merely stated in the affidavit to the petition that he is the friend of the detenu in jail and he knows the facts and circumstances of the case. According to Mr. Banerjee, it must be categorically stated in the affidavit that the detenu is not in a position to affirm the affidavit and to file this application. Mr. Banerjee has drawn our attention to Rule 16 of the Rules of this Hon'ble Court relating to applications under Article 226 of the Constitution. This Rule reads as follows: An application for a writ in the nature of habeas corpus shall be accompanied by an affidavit of the person restrained setting out the nature and circumstances of such restraint and that the application was being made at his instance, provided however that where the person restrained is unable owing to the restraint to make the application, the application for such a writ shall be accompanied by an affidavit setting out the nature and circumstances of the restraint and the reason why the person restrained is unable to file the application himself. Mr. Banerjee has thus submitted that for non -compliance with this Rule the application should be rejected. Mr. Banerjee has also drawn our attention to a decision of the Travancore -Cochin High Court, namely, Kunjamma Paru. v/s. The State and Anr., A.I.R. 1951 T.C. 123 in support of his contention that where a prisoner is detained and is in custody and is unable to file an application for a writ of habeas corpus, a friend or relation may do it on his behalf provided there is an averment in the affidavit that the prisoner himself is unable to swear an affidavit and come before the Court. Mr. A. P. Chatterjee, the learned Advocate appearing on behalf of the Petitioner, has drawn our attention to a Full Bench decision of the Lahore High Court, namely, Allam Khan v/s. The Emperor : A.I.R. 1948 Lah. 33. In para. 23 of the said decision it has been observed as follows: So far question 3 is concerned, I am of the opinion that under Sec. 491 of the Cr,P.C. the High Court can entertain a petition at the instance of a complainant. The Sec. says, "the High Court may, whenever it thinks fit, direct (a) that a person within the limit of its Appellate Criminal jurisdiction be brought up before the Court to be dealt with according to law and (b) that a prisoner detained as aforesaid shall within such limits be removed from one custody to another for the purpose of trial. The language of the Sec. places no limit in the class of person or persons who can move a High Court with relation to a person in custody and, if the High Court on hearing the petition thinks fit to do so, may make an order that he be dealt with according to law. Such a petition at the instance of a complainant is therefore competent.
(3.) Rule 16 of the Rules of the High Court referred to by Mr. Banerjee relates to applications under Article 226 of the Constitution. The present petition has been filed under the provisions of Sec. 491 of the Code of Criminal Procedure. Rule 31, pt. II, chap. XI of the Rules of the High Court (Appellate Side) reads as follows: Applications for orders under Clauses (a), (b), (c), (e) arid (f) of Sec. 491 of the Code of Criminal Procedure shall be made on petition duly verified by affidavit setting forth the circumstances under which the order is sought. There is no other rule in this chapter which requires that the detenu himself or some other persons duly authorised by him must move an application under s - 491 of the Code of Criminal Procedure. Further, Sec. 491 is very clear and begins as follows: Any High Court may, whenever it thinks fit, direct.... So, according to Sec. 491 of the Code of Criminal Procedure, the High Court has sufficient discretion to issue directions in the nature of habeas corpus on an application made to it under Sec. 491 whenever it thinks fit and there is no limit in the said Sec. as to who is to file such application or who is to bring the matter to the notice of the High Court. The liberty of a citizen is supreme and, whenever a High Court is apprised of the fact that a person is alleged to have been illegally detained, the High Court should exercise its powers under Sec. 491 and consider the question of the legality of the detention and not go into mere technicalities. We also respectfully agree with the observations made in the Full Bench decision of the Lahore High Court (2), cited by Mr. Chatterjee. The preliminary point raised by Mr. Banerjee must, therefore, fail.;