SHARMA, J. - (1.) IN this Habeas Corpus Petition the prayer of the petitioner is to declare his detention as illegal and to set him at liberty forthwith.
(2.) AS per the facts stated in the writ petition the petitioner has been taking active interest in politics of State of Rajasthan and he has been prominent labour leader in district Sri Ganganagar. He has also actively associated with the problem of farmers of Sri Ganganagar in particular and whole of Rajasthan in general. He is one of the prominent members of Communist Party of India (Marxists) and has distinction to represent the ASsembly seat of Sangaria. He has been in the forefront of numerous agitations launched by his party during the last four decades. It is further pleaded that in the recent past, petitioner took-up cudgels against the State Government against the State Government in the matter of chaotic water supply to farmers, whose lands lie under Indira Gandhi Nahar Pariyojna, Phase-I, Many representations were made to the Government to case water supply situation. Since petitioner had been acting as the Spokesman of the farmers he became an eyesore for the government of Rajasthan therefore with a calculated design to keep the petitioner away from the peaceful demonstrations made by the farmers, the Government machinery acting with blatant malice, got him arrested under the pretext of apprehending breach of peace. In this context a criminal complaint under Section 107/116 (3)/117 Cr. P. C. was stage managed. The same was submitted in the court of Additional District Magistrate Suratgarh (for short `adm') on October 7, 2006. The learned Magistrate in disregard of mandatory provisions of the law on point issued directions to arrest the petitioner and to produce in Court on October 8, 2006. The petitioner was produced on October 8, 2006 and after empty formality of reading over show cause notice was gone into the petitioner was directed to submit interim bonds to maintain peace till proposed enquiry under Section 116 Cr. P. C. was completed. The petitioner thereafter was locked in jail. Formal orders extending judicial custody remand have been passed on different dates namely October 21, 2006, November 4, 2006, November 18, 2006, December 1, 2006, December 14, 2006, December 28, 2006, January 10, 2007 and January 24, 2007. Significantly on none of these date the petitioner was produced before the ADM. Mandatory requirement of presenting the petitioner in Court before Extending the remand have continuously flouted. Detention of petitioner is per se illegal and wholly without jurisdiction. The respondents in their return prayed to dismiss the petition. It is pleaded that in the year 2005 also the petitioner was taken in custody because of disturbing the law and order situation. Then the petitioner filed Habeas Corpus Petition (5309/2005) at Principal Seat of this Court at Jodhpur which came to be dismissed on September 16, 2005 since he was no more in custody. the petitioner involved himself for last two years in the activities which were politically motivated and resulted in disturbance of law and order situation in the area. The petitioner had not only disturbed the law and order situation but had also caused heavy loss to public properties. Consequently a number of FIRs had to be lodged against the petitioner at Police Station Gharsana and Anoopgarh. The petitioner was also involved in FIR No. 556/2004 of breaking barricades, throwing stones and causing damages to vehicles etc. Likewise the petitioner on many occasions caused disturbance to law and order situation by holding meetings in the name of Kisan Vyapari Mazdoor Sangharsh Samiti and also by making provocative and instigative speeches. We have pondered over the submissions advanced before us and scanned the material on record as well as the case law placed for our perusal. The right of personal liberty means in substance a person's right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification. Every imprisonment is prima facie unlawful and it is for a person directing imprisonment to justify his act. The justification is usually that the person is arrested and detained pending trial in Court on a charge of crime, or after trial by a Court of competent jurisdiction he has been convicted and sentenced to imprisonment or some other kind of detention provided by statute. For wrongful deprivation of liberty the following remedies are available:- (i) Civil Proceedings for damages in respect of false imprisonment. (ii) Criminal prosecution for wrongful confinement. (iii) Application for a writ of Habeas Corpus to obtain release. In origin he writ of Habeas Corpus, found in Edward I's reign, was merely a command by the Court to some one to bring before itself person whose presence was necessary to some judicial proceeding. In other words, it was originally intended not to get people out of prison,but to put them in it, Habeas Corpus was a prerogative writ issued by the Kind against his officers to compel them to exercise their functions properly. In the form of HABEAS CORPUS AD SUBJICIENDUM (the form now commonly used) it came to be available, under certain conditions to private individuals. In the seventeenth century members of the parliamentary opposition imprisoned by Command of the Kind availed themselves of the writ to seek release. (1627) The five Knights case, 3 St. Tr. J. Holdsworth, History of English Law Vol. VI PP. 32-37) and it is from this application that originated its constitution importance as the classic British guarantee of personal liberty.
(3.) THERE is a difference between Habeas Corpus Ad Subjiciendum and any other Habeas Corpus. The former is a writ of right against which no privilege of person of place can avail. But although a writ of right, it is not a writ of cause, but can only be issued on probable cause. A writ of Habeas Corpus cannot be granted when a person committed to Jail custody by a competent Court by an order which prima facie does not appear to be without jurisdiction or wholly illegal (Kanu Sanyal vs. Distt. Magistrate Darjeeling (AIR 1974 SC 510 ). It is therefore to be adjudged as to whether the custody of the petitioner is exfacie illegal? Before adverting to the respective submissions we deem it appropriate to consider the provisions contained in Chapter VIII of the Code of Criminal Procedure, 1973 in regard to the security for keeping peace. Section 107 provides as under:- " 107. Security for keeping the peace in other cases. (1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb tranquility and is of opinion hat there is sufficient ground for proceeding, he may in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond with or without sureties for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit. (2) Proceeding under this section may be taken before any Executive Magistrate when either the place where the breach of the peace of disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful a ct as aforesaid beyond such jurisdiction. " ;