S. PACKIARAJ v. INSPECTOR OF POLICE — 1995 DIGILAW 318 (MAD)

Judgment : THANIKKACHALAM, J. ( 1 ) THIS Habeas Corpus Petition is filed by one S. Packiaraj, who is the friend of the detenus, viz. (1) Selvin Karate Selvin, son of Dasan Nadar, (2) Jeyakumar, son of Joseph, (. 3) Vija Vijaya Rangam, (4) Edwin, son of Soloman, (5) Rathi Kathirvel, son of Rajamani Nadar, (6) John, son of Asirvatham, (7) Velusamy, son of Thirumalaivel, (8) Anand Samuel, son of Edwin Selvaraj, (9) Ravi, son of Rajappoo Nadar, (10) Pagalavan, son of Dorairaj Nadar, (11) Dharman, son of Gopalakrishna Nadar and (12) Karuppussamy, son of Alagarswami Nadar for production of the detenus before this Court and to set them at liberty. Among the twelve detenus, John son of Asirvatham was stated to be died on 14-3-1994. ( 2 ) IN the affidavit filed in support of the above Habeas Corpus petition, it is stated as under: Selvin alias Karate Selvin and his eleven associated are confined in Central Prison at Palayamkottai and their detention is illegal for the following reasons. The detenus were arrested on 27-12-1991 for the alleged offences under Sec. 3 (iii), Sec. 4 and Sec. 6 of the TADA Act and also for the alleged offences committed under I. P. C. The charge-sheet was laid on 14-10-1992 and thereafter the remand was extended purportedly under Sec. 309 Crl. P. C. The remand is to be extended only for a period of 15 days and not beyond that. The detenus are to be produced on 6-2-1995. But to the surprise, the detenus were produced on 3-2-1995 and the remand was extended till 16-3-1995. The said procedure is illegal. Therefore the detention is in violation of Sec. 309 of Cr1. P. C. and Art. 21 of the Constitution of India. The detenus were alleged to have attacked one Subbian Pandian and Nallakannu Devar with lethal weapons due to long standing enmity. The said act is purely a law and order problem. Admittedly, the said Subbian Pandian was a good samaritan of all the people of that locality therefore there is no motive to attack him. The respondents maliciously without any ground wantonly invoked the provisions of the TADA Act. The prolonged detention for a period over three years is in violation of Art. 21 of the Constitution. The amended TADA Act required the previous approval of the Director General of Police under Sec. 20a of the Act. The respondents maliciously without any ground wantonly invoked the provisions of the TADA Act. The prolonged detention for a period over three years is in violation of Art. 21 of the Constitution. The amended TADA Act required the previous approval of the Director General of Police under Sec. 20a of the Act. But the said procedure was not followed in this case. Therefore the detention is vitiated. The fundamental fairness requires that the investigation under the TADA Act must be conducted by the Deputy Superintendent of Police. But it was not done. Therefore the respondents have no jurisdiction to investigate the case. On that score the detention is vitiated under the law. There was no material to implicate the detenus under the TADA Act. Therefore, the detention is violative of Art. 21 of the Constitution of India. ( 3 ) THE respondent in its counter-affidavit stated as under: -The Habeas Corpus petition is not maintainable on the basis of the averments made in the affidavit. In the affidavit it is stated that the petitioner is residing at Madras and he is the friend of all the twelve detenus in this case. No relevant material is set out as to how the present petition, which in the nature of public interest litigation is maintainable. All the detenus in the present case are represented by counsel of their choice and as such the above habeas corpus petition which is filed in the nature of public interest litigation is not maintainable. With regard to the allegation contained in paragraph 3 of the affidavit, it was submitted that the designated Judge of the Tirunelveli Court had addressed a letter to the Superintendent, Central Prison, Palayamkottai, informing that he was going on casual leave on 6-2-1995. Therefore the hearing was advanced to 3-2-1995 and the remand of the detenus was extended till 16-3-1995. There is no illegality whatsoever in having adopted this procedure. The detenus are in custody pursuant to the valid order of remand. It is incorrect to state that the provisions of the TADA Act had deliberately been invoked in the present case. The charge sheet in this case was filed as early as on 14-10-1992. Hence the provisions of Act of 1993 has no application to the facts of the present case. For all these reasons it was stated that the Habeas Corpus petition is liable to be dismissed. The charge sheet in this case was filed as early as on 14-10-1992. Hence the provisions of Act of 1993 has no application to the facts of the present case. For all these reasons it was stated that the Habeas Corpus petition is liable to be dismissed. ( 4 ) THE first submission made by the learned counsel appearing for the petitioner was that under Sec. 309 (2) of the Cr1. P. C. no Magistrate shall remand an accused person to custody under this section for a term exceeding 15 days at a time and in the present case, the designated Judge extended the period of remand exceeding 15 days at a time and therefore the extended remand is violative of Sec. 309 (2) of Cr1. P. C. It was further submitted that the presiding officer of the designated court while exercising his remand jurisdiction he would be considered as a Magistrate even though only District Judges are appointed as Judges of the Designated Courts. ( 5 ) ON the other hand, learned Public Prosecutor submitted that the courts constituted under the TADA Act are presided over by District Judges and therefore they cannot be called as Magistrates. It was further submitted that no appeal will lie against the orders passed by the Designated Court to the High Court and the same are appeal-able to the Supreme Court of India. On that score, it was submitted that the present writ petition is not maintainable. In the present case the detenus were arrested on 27-2-1991 for the offences said to have been committed under Sec. 3 (iii), Sec. 4, Sec. 6 of the TADA Act besides the offences punishable under IPC. The charge sheet was laid on 14-10-1992. Thereafter the remand was extended periodically from time to time. Since the Designated Judge of Tirunelveli Designated Court informed the Superintendent of Central Prison, Palayamkottai that he was going on casual leave on 6-2-1995, the hearing was advanced to 3-2-1995, and the remand was extended till 16-3-1995. If the period of remand is calculated from 3-2-1995 to 16-3-1995, it would come to less than 15 days, but the Designated Court is entitled to extend the remand to that period. ( 6 ) SEC. 309 of Cr1. If the period of remand is calculated from 3-2-1995 to 16-3-1995, it would come to less than 15 days, but the Designated Court is entitled to extend the remand to that period. ( 6 ) SEC. 309 of Cr1. P. C. deals with the power of the Court to postpone or adjourn proceedings, Sub-sec (1) provides that, in every inquiry or trail, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance has been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. Sub-sec. (2) provides that, If the court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such term as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody. Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing. Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. Thus under sub-sec. (2) of Sec. 309 Cr1. P. C. if the Court, after taking cognizance of an offence or commencement of trial, finds it necessary or advisable to postpone the commencement of or adjourn any inquiry or trial, it may from time to time for reasons to be recorded postpone or adjourn the same on such terms as it thinks fit for such time as it considers reasonable and may by a warrant remand the accused if in custody. But no Magistrate shall remand an accused person to custody under Sec. 309 Cr1. P. C. for a term exceeding 15 days at a time. But no Magistrate shall remand an accused person to custody under Sec. 309 Cr1. P. C. for a term exceeding 15 days at a time. Therefore the jurisdiction of the Magistrate is specifically restricted in the matter of remanding an accused person to custody only for a maximum period of 15 days at a time and not beyond that. In the present case, the charge sheet was laid on 14-10-1992 and the case was posted for appearance of the witnesses; in the meanwhile, the remand was extended from time to time. Under such circumstances in the absence of any procedure prescribed under the TADA Act in this regard the Designated Judge can extend the period of remand even beyond the period of 15 days if the circumstances so warrant and for the reasons to be recorded under Sec. 309 (2) Cr1. P. C. ( 7 ) UNDER proviso (a) to Sec. 167 Cr1. P. C. a Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding 90 days in case where the investigation relates to an offence punishable with death, life imprisonment or imprisonment for a term not less than ten years and 60 days where the investigation relates to any other offence. Therefore, 5. 167 of Cr1. P. C. is applicable only in cases where the investigation is not completed. In cases where charge sheet has been laid and trial commenced, 5. 167 has no role to play. Learned counsel for the petitioner relied upon the order passed by this Court on 1-12-1994 in H. C. P. Nos. 1379 and 1382 of 1994 in the petitions filed by Edwin Selvaraj and Panneersalvan and contended that even this Court while disposing of the above said petitions, observed that, the period from 16-6-1994 to 18-8-1994 works out to 66 days and this extension is not valid even under Sec. 20 of the TAD A Act, which is nothing but a modified version of the provisions contained in Sec. 167 (2) of Cr1. P. C. ". P. C. ". Therefore, according to learned counsel for the petitioner inasmuch as the remand was made in the present case beyond the period of 15 days, in view of the above said observations made by this Court the detention beyond 15 days period is illegal as per Sec. 167 (2) of Cr1. P. C. ( 8 ) CR1. P. C. 1973 (Act 2 of 1974) has been amended to certain extent as provided in Sec. 20 of the TADA Act. Provisions of Secs. 164, 167, 268, 366, 371 and 392 are modified as required for the purpose of the Act. Nowhere under Sec. 20 of the TADA Act it is stated that Sec. 167 (2) applies to a Designated Court after the charge sheet was laid of after the inquiry commenced. Learned counsel appearing for the petitioner submitted that no Magistrate shall authorise detention of an accused person under this section unless the accused person is produced before him. In the present case, according to the learned counsel, the accused were not produced before the Designated Court for the purpose of extending the period of remand. On the other hand, the learned Public Prosecutor submitted that in the present case the detenus were produced for the purpose of extending the period of remand. Alternatively, the learned Public Prosecutor also contended that it is always not necessary to produce the detenus for the purpose of extending the period of their remand. ( 9 ) ACCORDING to learned counsel appearing for the petitioner under Sec. 20a of the TADA Act, the sanction from District Superintendent of Police was not obtained. Therefore the remand is illegal. On the other hand, the learned Public Prosecutor submitted that since the charge-sheet was laid on 14-10-1992 prior to the amendment no sanction as contemplated under Sec. 20a of the TADA Act is necessary. ( 10 ) IN A. Lakshmana Rao v. Judicial Magistrate, I Class, Parvathipuram and others1, it was held, that the personal presence of accused person before a Judicial Magistrate is not a necessary requirement for the purpose of his remand under Sec. 344 of Cr1. ( 10 ) IN A. Lakshmana Rao v. Judicial Magistrate, I Class, Parvathipuram and others1, it was held, that the personal presence of accused person before a Judicial Magistrate is not a necessary requirement for the purpose of his remand under Sec. 344 of Cr1. P. C. at the instance of the police, though as a rule of caution it is highly desirable that the accused should be personally produced before the Magistrate so that he may if he so chooses make a representation against his remand and for his release on bail. Therefore, there is no compulsion under Sec. 344 of Cr1. P. C. to produce the accused for the purpose of extending the period of remand. ( 11 ) IN the case of State of Tamil Nadu v. Krishnaswami Naidu and another, it was held that, besides Sec. 3 of the Code suggests that if the context otherwise requires, the word Magistrate may include Magistrate who are not specified in the section. Read along with the definition of Magistrate in Section 32 of the General Clauses Act, the Special Judge can be held to be a Magistrate for the purposes of Section 167. Thus although the words Special Judge are not mentioned in Sec. 167 that would not exclude the Special Judge from being a Magistrate having jurisdiction to try cases under Section 167t1. Therefore this decision empowers the Special Judge to exercise the power of the Magistrate for the purpose of Sec. 167 of the Cr1. P. C. In the present case, we are not concerned with Sec. 167 of the Cr1. P. C. since the charge sheet has been laid and the inquiry has been commenced. ( 12 ) A Full Bench of the Delhi High Court in the case of Ajit Singh and another v. The State, while considering the provisions of Sec. 344 of Cr1. P. C. held that, "an accused person can, in the absence of a police report under Section 173 be remanded to custody beyond 15 days of his arrest under Section 344. In the absence of any words in the Section or in the context it is not permissible to read ill the Section a limitation on or condition attached to the power of Magistrate to grant remand only in cases a charge-sheet has been put in Court. In the absence of any words in the Section or in the context it is not permissible to read ill the Section a limitation on or condition attached to the power of Magistrate to grant remand only in cases a charge-sheet has been put in Court. Likewise the taking of cognizance of an offence is not a condition precedent to the passing of an order of remand. ( 13 ) ACCORDING to learned counsel for the petitioner as per the direction given by Supreme Court in the case of Rajinder Saini v. State of Punjab, "in order to ensure higher level of scrutiny and applicability of TADA Act. . . there must be a Screening or Review Committee at the State level constituted by the respective States consisting of the Chief Secretary, Home Secretary, Law Secretary, Director General of Police (Law and Order) and other officials as the respective Government may think it fit, to review the action of the enforcing authorities under the Act and screen the cases registered under the provisions of the Act and decide the further course of action in every matter. This direction was originally given by the Supreme Court in the case of Kartar Singh v. State of Punjab. According to the learned counsel for the petitioner if the case is not reviewed the detention is vitiated as per the decision in Balagopal v. State of A. P. Learned Public Prosecutor submitted that the State Government considered and came to the conclusion that this is not a fit case for review or scrutiny. ( 14 ) LEARNED counsel for the petitioner further submitted that if two interpretations of the statute is possible, the beneficial construction should be made and the interpretation should be for the public good and to prevent the misuse of power. Reliance was placed upon the decision of the Supreme Court in Aslam Babalal Desai v. State of Maharashtra. In the present case there is no possibility of two different interpretations with regard to the provisions applicable to the facts of the present case. In view of the aforesaid discussions we hold that the Designated Court under Sec. 309 of Cr1. P. C. has got jurisdiction to extend the period of remand for more than 15 days, but a Magistrate, under first proviso to Sec. 309 Cr1. In view of the aforesaid discussions we hold that the Designated Court under Sec. 309 of Cr1. P. C. has got jurisdiction to extend the period of remand for more than 15 days, but a Magistrate, under first proviso to Sec. 309 Cr1. P. C. , has no power to extend the period of remand beyond 15 days at a time. A Designated Judge cannot be equated to that of a Magistrate while exercising jurisdiction in remanding the detenus after the charge sheet was laid or the inquiry commenced. Since in the instant case the charge sheet was laid on 14-10-1992 sanction-of the Deputy Superintendent of Police as not necessary as contemplated under Sec. 20-A of the TADA Act (Act 43 of 1993) since the said Act came into effect from 22-5-1993. As already stated that the State Government has considered the present case and came to the conclusion that this is not a fit case for review or screening as stated by the Supreme Court in Kartar Singh case (cited supra ). It is always not necessary for extending the period of remand, the accused person should be produced before the Court. Even if harmonious construction is made while considering the provisions of S. 309 and S. 167 Cr1. P. C. as per the decision reported in AIR 1986 SC 2130 (C. Satyanaryana v. State of A. P.) the power of the Designated Court to extend the period of remand more than 15 days after the trial commenced cannot be suppressed. Submission was also made to the effect that the investigation in the present case was not done by the Deputy Superintendent of Police. But this was denied by the learned Public Prosecutor. According to the learned Public Prosecutor, the investigation was done by the officers authorised under the TADA Act. In our view, all these arguments advanced by the learned counsel for the petitioner are fit to be raised before the Designated Court while the case is taken up for disposal on merits. ( 15 ) IT is pertinent to note that one of the detenus, viz. Edwin Selvaraj and another filed RC. P. Nos. In our view, all these arguments advanced by the learned counsel for the petitioner are fit to be raised before the Designated Court while the case is taken up for disposal on merits. ( 15 ) IT is pertinent to note that one of the detenus, viz. Edwin Selvaraj and another filed RC. P. Nos. 1379 and 1382 of 1994 wherein even though this Court held that in these cases the order of remand passed on 14-6-1994, extending the period of remand till 18-8-1994 was not a valid one, this Court did not prefer to hold that the detention is illegal. ( 16 ) FOR all these reasons, we are unable to accept the contentions put forward by the learned counsel for the petitioner that the extension of period of remand beyond 15 days would violate the personal liberty as guaranteed under Art. 21 of the Constitution of India and caused any hindrance for speedy trial. There is no merit in this Habeas Corpus petition. Accordingly, the Habeas Corpus petition is dismissed. H. C. P. dismissed.