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2014 DIGILAW 4528 (MAD)

K. Raman v. Deputy Superintendent of Police

2014-12-04

S.TAMILVANAN, T.MATHIVANAN

body2014
Judgment S. Tamilvanan, J. 1. This petition has been filed under Article 226 of the Constitution of India, seeking an order in the nature of Habeas Corpus, directing the respondent to produce the petitioner's sons and his family friends, viz., Thiruselvam, son of Raman, aged about 32 years, Kalailingam, son of Raman, aged about 33 years, Thangaraj @ Thamilarasan, son of Mani, aged about 38 years and Kaviyarasan, son of Ganesan, aged about 29 years, who are now confined in the Central Prison, Madurai and set them at liberty. 2. The case of the petitioner is that he is the father of the detenus 1 and 2, viz., Thiruselvam, aged about 32 years, Kalailingam, aged about 33 years and relative of the detenus 3 and 4, viz., Thangaraj @ Thamilarasan, son of Mani, aged about 38 years and Kaviyarasan, son of Ganesan, aged about 29 years. It is further stated by the petitioner that his son/the first detenu herein was arrested by the Q-Branch Police, Melur along with his relatives, Thangaraj @ Thamilarasan and Kaviyarasan in connection with the case in Cr.No.47/2014 registered by the Othakadai Police Station, Madurai and they were remanded to the judicial custody on 11.02.2014 by the learned Judicial Magistrate, Melur. On 13.03.2014, the 2nd detenu/the petitioner's son Kalai @ Kalailingam was arrested by the Q-Branch CID Police in connection with the same case and he was remanded to judicial custody by the learned Judicial Magistrate, Melur on 14.03.2014. All the detenus are now confined in the Central Prison, Madurai. 2[a]. The petitioner's further case is that a case came to be registered by the Odiansalai Police Station, Puducherry in Cr.No.25/2014 u/s.4 of the Explosives Substances Act, 1908, against some unknown persons and the said case was transferred to the National Investigation Agency, Hyderabad/the 1st respondent herein. On 03.04.2014, the 1st respondent herein made a formal arrest of the petitioner's sons and relatives, who are confined in the Central Prison, Madurai, in connection with the case in Cr.No.25/2014 and on 09.04.2014 the detenus were produced under P.T.Warrant before the learned Principal Sessions Judge / Special Court for NIA, Puducherry and were remanded to judicial custody in RC.No.01/2014/NIA/HYD u/s/307 IPC, section 4 of the Explosives Substances Act, 1908 and sections 16 and 18 of the Unlawful Activities [Prevention] Act, 1967. 2[b]. 2[b]. The petitioner states that the detenus are in judicial custody for more than 90 days and the first respondent has not filed any charge sheet before the concerned court at Puducherry and the period of 90 days expired on 07.07.2014. The bail application filed by the detenus in Crl.MP.No.Nil of 2014 u/s.167[2] Cr.P.C., seeking statutory bail, before the Special Court, Puducherry, was returned by the learned Judge concerned on 11.07.2014, even before the numbering of the same. Hence, the petitioner has approached this Court by way of filing of the above petition on the ground of the illegal detention of the detenus beyond the period of 90 days. 3. The learned counsel for the petitioner would submit that the aforesaid detenus were kept under illegal detention even after the expiry of the statutory period, of 90 days and no report seeking extension of time being filed by the learned Public Prosecutor in the case. He would also submit that a report was filed only after the expirty of 90 days and that too, by the Investigating Officer and not by the learned concerned Public Prosecutor, which is not legally sustainable and hence, the detention of the detenus has to be construed only as an illegal detention. 4. Learned counsel for the petitioner would submit that the court concerned can extend the judicial custody of the detenus beyond the period of 90 days, only when the first proviso to section 43D of the Unlawful Activities [Prevention] Act, 1967 is satisfied, viz., [a]only the Public Prosecutor has to file a report before the court concerned indicating the progress of the investigation and the reasons for detaining the detenus beyond the period of 90 days ; and [b]a copy of the said report of the Public prosecutor should be served on the accused/detenus and they should be heard before any order is being passed by the judge concerned. He would submit that the said conditions have not been complied with and hence, the detention is illegal. He also drew the attention of this Court to Article 21 of the Constitution of India and the landmark decisions rendered in A.K.Gopalan's case ; Sunil Batra II's case and the decision reported in AIR 1980 SC 1497, to substantiate his contention that the Habeas Corpus Petition is maintainable and therefore, the petitioner has appropriately filed the above Habeas Corpus Petition before this Court. He would further submit that the said judicial order of the learned Special Judge is in violation of Article 14 and 21 of the Constitution of India and hence, he prayed for setting the detenus at liberty from the illegal detention. 5. Per contra, Mr.G.Rajagopalan, learned Additional Solicitor General argued that there was no illegal detention, since the alleged detenus are in the judicial custody as per the judicial order passed by competent Court and hence, without challenging the said judicial order, the petitioner cannot file the above petition invoking Article 226 of the Constitution of India and that the Habeas Corpus Petition is not legally maintainable. He further argued that if at all, the petitioner is aggrieved by the order passed by the learned Special Judge, Puducherry, dated 11.07.2014, as there is efficacious alternative remedy available, the petitioner, without exhausting the said remedy cannot directly approach this Court. Hence, he prayed for the dismissal of the Habeas Corpus Petition. 6. The learned Additional Solicitor General further contended that the first respondent is not aware of the detenus filing bail application u/s.167[2] Cr.P.C., and that no notice has been served on them. Denying the allegation that no opportunity was given to the detenus on furnishing the report of the Public Prosecutor, the learned Additional Solicitor General submitted that the detenus were given an opportunity of being heard on the report filed and after considering the facts and circumstances of the case, the learned Special Judge has passed the said judicial order on 11.07.2014 and in support of his contentions, learned Additional Solicitor General, pleaded for dismissal of the petition, seeking order in the nature of Habeas Corpus. Learned Additional Solicitor General placed reliance on the decision of the Hon'ble Apex Court in SAURABH KUMAR THROUGH HIS FATHER Vs. JAILOR, KONEILA JAIL AND ANOTHER reported in 2014 [8] SCALE : 2014 [8] SCC 656, and submitted that the Habeas Corpus Petition itself is not maintainable. 7. Learned Additional Solicitor General placed reliance on the decision of the Hon'ble Apex Court in SAURABH KUMAR THROUGH HIS FATHER Vs. JAILOR, KONEILA JAIL AND ANOTHER reported in 2014 [8] SCALE : 2014 [8] SCC 656, and submitted that the Habeas Corpus Petition itself is not maintainable. 7. Having considered the arguments of Mr.Radhakrishnan, learned counsel appearing for the petitioner ; Mr.G.Rajagopal, learned Additional Solicitor General appearing for the first respondent and Mr.C.Emaliyas, learned Additional Public Prosecutor appearing for the second respondent and also perused the materials available on record including the counter affidavit filed by the first respondent herein, it is clear that the learned Special Judge, Puducherry, dated 11.07.2014 made in RC.No.1/2014/NIA/HYD filed under section 167[2][i] Cr.P.C., that the said order of the learned Special Judge is a hand-written docket order, wherein he has observed as follows: “Returned. As per the Unlawful Activities [Prevention] Act, the detention of the petitioners/accused No.1 to 4, can be made upto 180 days for completing the investigation and since the investigation is not completed, this petition will not lie”. 8. The docket order of Return has been filed only by M/s. Thiruselvan, Thangaraj, Kaviarasan and Kalilingam, accused in the case, as it was only a return, it could have been complied with by them, so as to get any final order. In fact, the petitioners therein, who are arrayed as accused have not challenged that order. However, the petitioner herein, who is a third party to the unnumbered Crl. M.P / 2014 in R.C.No.1/2014/NIA/HYD, referring the said order, has filed this HCP. 9. As per the above order, it is crystal clear that the said order is a Judicial Order and the learned Judge, before returning the bail application filed by the detenus seeking for statutory bail, by his order dated 11.07.2014, has relied upon the provisions of the Unlawful Activities [Prevention] Act and stated that the period of detention can be extended upto 180 days for completing the investigation. Without challenging the said judicial order before the appropriate Forum and without exhausting the available alternative and efficacious remedy, the petitioner has directly approached this Court. For better appreciation, section43-D[2] of Unlawful Activities [Prevention] Act, is extracted here under:- “43-D Modified application of certain provisions of the Code:- ....... Without challenging the said judicial order before the appropriate Forum and without exhausting the available alternative and efficacious remedy, the petitioner has directly approached this Court. For better appreciation, section43-D[2] of Unlawful Activities [Prevention] Act, is extracted here under:- “43-D Modified application of certain provisions of the Code:- ....... [2] Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section [2] – [a] the references to “fifteen days”, “ninety days” and “sixty days” wherever they occur, shall be construed as references to “thirty days”, “ninety days”, and “ninety days” respectively, and [b] after the proviso the following provisos shall be inserted namely – “Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period upto one hundred and eighty days: Provided also that if the police officer making the investigation under this Act, requests, for the purpose of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.” 10. The learned Additional Solicitor General has rightly relied on the decision in SAURABH's case [cited supra], wherein the Hon'ble Apex Court has observed as follows:- “... 5. Two things are evident from the record. Firstly, the accused is involved in a criminal case for which he has been arrested and produced before the Magistrate and remanded to judicial custody. Secondly, the petitioner does not appear to have made any application for grant of bail, even when the remaining accused persons alleged to be absconding and remain to be served. The net result is that the petitioner continues to languish in jail. 6. The only question with which we are concerned within the above backdrop is whether the petitioner can be said to be in the unlawful custody. Our answer to that question is in the negative. The net result is that the petitioner continues to languish in jail. 6. The only question with which we are concerned within the above backdrop is whether the petitioner can be said to be in the unlawful custody. Our answer to that question is in the negative. The record which we have carefully perused shows that the petitioner is an accused facing prosecutor for offences, cognizance whereof has already been taken by the competent Court. He is presently in custody pursuant to the order of remand made the said Court. A writ of Habeas Corpus is in the circumstances, totally mis-placed. Having said that, we are of the view that the petitioner could and indeed ought to have filed an application for grant of bail which prayer could be allowed by the Court before having regard to the nature of the offences allegedly committed by the petitioner and the attendant circumstances. The petitioner has for whatever reasons chosen not to do so. He, instead, has been advised to file the present petition in this Court which is no substitute for his enlargement from custody...” 11. In view of the above decision of the Hon'ble Apex Court and also in view of the provisions contained in the Unlawful Activities [Prevention] Act, 1967, this Court has come to an irresistible conclusion that the Writ Petition filed under Article 226 of the Constitution of India, seeking for a direction in the nature of Habeas Corpus, is not legally maintainable. 12. Accordingly, the Habeas Corpus Petition is dismissed. However, the petitioner is at liberty to challenge the judicial order passed by the learned Special Judge, Puducherry, dated 11.07.2014 before the proper Forum and seek appropriate remedy as per law, if he is so advised.