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1964 DIGILAW 173 (PAT)

Kapildeo v. State Of Bihar

1964-12-02

R.J.BAHADUR, R.K.CHOUDHARY

body1964
Judgment Choudhary, J. 1. This is a habeas corpus petition under Sec. 491 (1) (b) of the Code of Criminal Procedure and Article 226 of the Constitution. The petitioner is one Kapildeo, who describes himself to be a whole-time worker of the Sanjukta Socialist Party, actively employed in its office in its headquarters at Nayatola, and to be a friend of the detenu, Sri Ramnand Tewary. It appears that Sri Ramanand Tewary was arrested on the 26th September, 1964, at Arrah by the local police on various charges under the Indian Penal Code including charges under Sections 307 and 148 thereof. He was taken to Buxar Jail and was remanded to jail custody. It appears from the counter-affidavit filed on behalf of the State that after his arrest Sri Ramanand Tewary was immediately produced before a Magistrate, who granted him bail, but he failed to furnish bail and as such he was remanded to jail custody as an under-trial prisoner in respect of a case under Sections 147, 332, 336, 337 and 448 of the Indian Penal Code. While he was in jail custody as an under-trial prisoner, an order of detention under Rule 30 (1) (b) of the Defence of India Rules, 1962, was issued on the 7th of October 1964, and the same was served on him on the 13th of October 1964. The petitioner has filed this habeas corpus application for quashing the said order of detention, which is Annexure A to the application, and for directing the release of Sri Ramanand Tewary from the jail custody. The State has filed a counter-affidavit justifying the order of detention on merits. The contention put forward on behalf of the petitioner, however, is that the service of the order of detention on the detenu, while he was still in jail custody, was illegal, and, howsoever the order of detention may be good on merits, the service of the order cannot stand due to the illegality of its having been served on a person while he is not a free man and is already in the jail custody. 2. 2. Before, however, going into the merits of the question raised on behalf of the petitioner about the illegality of the service of notice on the detenu, Sri Ramanand Tewary, a point which has been raised on behalf of the State that the application of the petitioner is not maintainable as it is not a bona fide application may have to be considered. A question was raised as to the competency of a stranger moving a habeas corpus application on behalf of a detenu, under Sec. 491, Clause (2), of the Code of Criminal Procedure, the High Court has been authorised to frame rules to regulate the procedure in cases under Sec. 491 of the Code. From the Rules of this High Court, some rules appear to have been framed under Sec. 491 (2) of the Code of Criminal Procedure, as laid down in Chapter XXI-B, but there is nothing in those rules with respect to the question of the competency or otherwise of a stranger to file a habeas corpus application. Ordinarily it appears to me, as was observed in In re Hardial Singh: AIR 1949 EP 130, that there is a great danger in allowing any and every person to move a petition for babeas corpus on behalf and For the benefit of any detenu and to allow irresponsible people to move petitions of this nature on behalf of persons about whose affairs they have really no knowledge, merely on account of the existence between them of any political or other affinity, seems to be prejudicial to the proper and efficient administration of justice and otherwise undesirable. It is just proper that rules should have been framed by the High Court in this regard under Sec. 491 (2) of the Code of Criminal Procedure. The position, however, remains that a stranger has been permitted to move a petition for habeas corpus on behalf of a detenu and so far as the present case is concerned, it cannot be said that a stranger could not make the application. It is, however, open to the Court to examine such a petition to find out whether sufficient materials have been put in, as clearly as possible, in the petition to enable the High Court to come to a decision with respect to the matter in question in that petition and whether such a petition is a bona fide one. 3. It is, however, open to the Court to examine such a petition to find out whether sufficient materials have been put in, as clearly as possible, in the petition to enable the High Court to come to a decision with respect to the matter in question in that petition and whether such a petition is a bona fide one. 3. In the present case the affidavit made in support of the statements in the petition is not in accordance with law and the statements are vague and inaccurate. In paragraph 4 it has been stated that "Sri Ramanand Tewary was served with an order inside the jail by the jail authorities on the 10th October, 1964, purporting to have been issued by the Governor of Bihar on the 7th of October, 1964". In paragraph 5 of the petition it has been stated that "the notice was actually served upon him (Sri Ramanand Tewary) inside the Buxar jail where he was held up in interim custody pending trial of his case under the specific charges under the various sections of the Indian Penal Code", In paragraph 7 it has been stated that a copy of the notice as forwarded to the petitioners counsel is enclosed herewith marked A for identification and forms part of this petition". In paragraph 8 it has been said that "the petitioners (Kapildeos) senior counsel, Sri B. C. Ghose, immediately on receipt of the information and copy of the order communicated to the said Sri Ramanand Tewary sent a letter to him seeking information and vakalatnama form for execution by the said Sri Ramanand Tewary; but neither has any information been received from him nor has the vakalatnama form duly executed been received by the said learned Advocate". Then in paragraph 9 it is stated that "in view of the above, the petitioner as a friend of the said Sri Ramanand Tewary, the above-mentioned detenu is moving this application". 4. In the first place, the information that the petitioner or his senior counsel received that the order was served on the detenu on the 10th October, 1964, is wrong as it was actually served on him on the 13th October, 1964, as stated in the counter-affidavit of the State which has not been controverted by the petitioner in his reply to the counter-affidavit. This shows that he had no information of the fact from the detenu. This shows that he had no information of the fact from the detenu. Secondly, with respect to the statements made in paragraphs 5, 7 and 8, as quoted above, the affidavit sworn by the petitioner states that the statements made in those paragraphs are true to his information derived from the various sources mentioned therein which he believes to be true. It has been admitted by Mr. Ghose appearing for the petitioner that no such sources have been mentioned in the application and, therefore, in my opinion, it must be untrue. The statement in paragraph 7 as regards a copy of the notice said to have been forwarded to the petitioners counsel, does not show as to who forwarded the copy to him and in this respect the statement is absolutely vaguea . Again with respect to the statement in paragraph 8 that the petitioners senior counsel, Sri C. Ghose, immediately on receipt of the information and copy of the order communicated to the said Sri Ramanand Tewary", there is nothing to show as to who gave him the information. His further statement in that paragraph that he (Sri B. C. Ghose) sent a letter to Sri Ramanand Tewary seeking information and vakalatnama form for execution by him makes it perfectly clear that Sri Ramanand Tewary never sent any information or copy of the order to Mr. Ghose. One has to remain in dark on the statements in the habeas corpus petition as to under whose instructions the petition was going to be filed in this Court. The further statement in that paragraph relating to getting no information from Sri Ramanand Tewary and not sending of vakalatnama duly executed by him makes it further clear that the detenu was not inclined to move any habeas corpus petition and as such he did not send any information or vakalatnama to Mr. Ghose, the senior counsel of the petitioner Mr. Ghose has conceded that the detenu could have himself made such a petition from Jail. There is nothing in the present application to show as to why he did not make any such application. We do not find any statement in the present application with regard to an attempt by the petitioner to have an interview with the detenu and to get instructions from him or showing that on seeking such an interview, the jail authorities refused the same. We do not find any statement in the present application with regard to an attempt by the petitioner to have an interview with the detenu and to get instructions from him or showing that on seeking such an interview, the jail authorities refused the same. In other words, the application does not show that the detenu was so coerced that he could not make the application. We know from the counter-affidavit filed on behalf of the State, which has not been controverted, that in the criminal case pending against him the Sub-Divisional Officer had granted him bail but he was not prepared to offer any bail and preferred to remain in jail. All these facts taken together go clearly to establish that the present application has not been filed on information from or with the consent of the detenu. 5. I have already observed that the affidavit, filed on behalf of the petitioner in support of the application is inadequate and not in accordance with law. Under the High Court Rules framed under Sec. 491 (2) of the Code of Criminal Procedure "an application for a direction under Sec. 491 of the Code of Criminal Procedure shall be made to the Division Bench taking the criminal business of the appellate jurisdiction of the High Court, duly verified by affidavit, setting forth the circumstances under which the order is sought". Rule 12 of Chapter III, Part II of the High Court Rules lays down that: When in an affidavit on an interlocutory application the declarant makes a statement of his belief he shall, if the facts are ascertained- (i) from another person, give such details of such person as are required by Rule 8, (ii) from a document or copy of a document, state the source from which it was procured, and shall state his belief as to the truth of such facts" Rule 8 of that Chapter requires that- "Every person referred to in a petition or affidavit shall be described therein in such manner as will identify him clearly, that is to say, by the statement of his correct name and address and such further description as may be necessary for his identification The affidavit in the present case does not state as to how the petitioner got the information with respect to the statements made in paragraphs 4, 5, 7 and 8, referred to above, except from the various sources mentioned in the application which, as already held, are untrue. Taking all these things into consideration, there appears to be no doubt in my mind that the present application is not a bona fide one and at least has not been filed with the instruction or according to the desire of the detenu. In my opinion, therefore, this application it not maintainable. 6. In view of my finding about the non-maintainability of the application, it is not necessary in the present case to examine the legal position of the service of the detention order on the detenu while he was in jail. That question is, therefore, left open. 7. The result, therefore, is that the application is dismissed as being not maintainable. Bahadur, J. 8 I agree.