ition Criminal No 148 of 1983
Under article 32 of the Constitution of India CS Vaidyanathan and Ms Nandita Haksar for the Petitioner
KG Bhagat Addl
Solicitter General PP Singh and Ms A Subhashini for the Respondent
VC Mahajan Balbir Singh Shant SK Mehta and Mrs Urmila Kapur for the State of Manipur
The Judgment of the Court was delivered by DESAI J
Petitioner is a student of Political Science studying in Jawaharlal Nehru University at Delhi
He belongs to Naga community and hils from Manipur
He has moved this petition under article 32 of the Constitution praying for a writ of habeas corpus calling upon the respondents Union of India State of Manipur and Commandant 21st Sikh Regiment to produce before this Court Shri C Daniel a former Naik Subedar attached to Manipur Rifles and at the relevant time Head Master of Junior High School Huining 907 Ukhrul East District Manipur State and Shri C Paul Assistant Pastor attached to the Baptist Church in Huining village who according to the petitioner were whisked away on March 10 1982 from Huining village to Phungrei Camp and detained by the officer incharge of 21st Sikh Regiment and are held incommunicado not released till today nor their whereabouts are made known
Petitioner averred that 21st Sikh Regiment has set up a camp at Phungrei
Some jawans attached to this regiment visited Huining village on March 5 1982 rounded up villagers and detained them in the playground and the women folk and children were confined in the SDA Church Building
Most of villagers were released on March 6 1982 around 1030 am Three students K Nelson HR Aaron and K Paul studying in Petigrew College were arrested and taken away
The jawans resorted to firing which resulted in the death of one Luinam
It was only at about 1100 pm on March 6 1982 when the Major and Captain of the 21st Sikh Regiment were presented with some shawls that the captives were released
On March 7 1982 one Mr Joshi Deputy Commissioner East Ukhrul accompanied by Additional District Magistrate visited Huining village to enquire about the incidents of the previous day
The army jawans who were present in the village produced before the aforementioned officers certificates of villagers exonerating them of allegation of ill treatment and praising the conduct of jawans which according to the petitioner were obtained under duress from the local residents
On March 7 1982 the Sunday service by Sri C Paul Assistant Pastor and C Daniel Head Master in the Church was disturbed by one Subedar and 4 jawans who proceeded to collect some signatures under duress from those who had assembled to participate in the Church service
The certificates were ostensibly obtained to show that the army officers and jawans had not treated the villagers with force or cruelty and nothing untoward had happened on the previous two days
On March 10 1982 C Daniel and C Paul were arrested by the army jawans and were taken away from the village
At the same time some signatures were obtained by the jawans on blank papers from Machihan village headman and from one Shangnam a member of the village authority
On the next day Machihan village headman reported the fact of arrest of C Daniel and C Paul to the Deputy Commissioner East Ukhrul Shri Joshi
As C Daniel and C Paul did not return to the village till March 15 1982 Mrs C Thingkhuila wife of Shri C Daniel and Mrs Vangamla wife of Shri C Paul went to Phungrei camp in search of their respective 908 husband and when they were waiting there they saw C Daniel and C Paul being led away by 4 army jawans towards the west
In the meantime on a complaint made by Machihan Shri Joshi Deputy Commissioner directed Superintendent of Police to make enquiries about the absence of C Daniel and C Paul from March 10 1982
A radiogram message was sent on March 15 1982 to the Superintendent of Police East Ukhrul requesting him to enquire about and ascertain the whereabouts of 1 Roshing 2 C Daniel and 3 C Paul all of Huining village and four others
The direction given to the Superintendent of Police was to find out the whereabouts of the persons named in the radiogram and to submit his report at an early date
Accordingly the Superintendent of Police submitted his report on March 27 1982 stating therein that three persons of Phungcham village mentioned in the radiogram have been released by Assam Rifles on March 19 1982
The report further recites as under As regards persons belonging to Huining village it is learnt that K Roshing is still under interrogation with Army and whereabouts of other persons are not known
They were released one day after arrest by Army as reported
 On March 29 1982 5 residents of Huining village including Machihan village headman submitted a written complaint to the Deputy Commissioner Manipur East District Ukhrul setting out therein the circumstances in which on March 10 1982 C Daniel and C Paul were taken away by the army jawans
They also complained how the village people were forced to put their signatures on blank paper
They further complained that they have not issued any certificate showing that C Daniel and C Paul were released in their presence on March 11 1982
On March 30 1982 the Deputy Commissioner in response to the query from the Chief Secretary Manipur State reported that the village headman and other village authority members of Huining have given a report in writing that it is not correct that C Daniel and C Paul were released in presence of village authority members and that both of them were still missing
It is further stated that the village headman and other members of the village authority have reported that they had not issued any certificate as claimed by the army authority that C Daniel and C Paul were released by the army authority on March 11 1982 in their presence
The report further recites that a complaint has been made that the security forces personnel had 909 obtained signature on blank papers from village people during their combing operation in Huining village on March 10 1982
Petitioner further averred that after C Daniel and C Paul were taken away by army jawans of 21st Sikh Regiment on March 10 1982 around 300 pm from Huining village they have not been released by the officers and jawans incharge of 21st Sikh Regiment and they are illegally and unauthorisedly detained and they are held incommunicado
It is alleged that this continuous detention by the officers and jawans of the army is illegal invalid and contrary to article 21 and that all attempts to secure the knowledge as to how the officers and jawans of 21st Sikh Regiment have dealt with the aforementioned two persons have not met with success and he has no other option but to file this petition for a writ of habeas corpus
Photostat copies of the affidavits of Mrs C Thingkhuila wife of Shri C Daniel Mrs C Vangamla wife of Shri C Paul and C Shangnam originals of which were produced in earlier writ petitions were annexed to the present writ petition
The petitioner also annexed original affidavit of Shri H L Machihan village headman and Shri C Sangnam village authority member to the petition
The petitioner impleaded four respondents being 1 Union of India through the Secretary Ministry of Defence 2 Union of India through the Secretary Ministry of Home Affairs 3 State of Manipur through the Chief Secretary and 4 Commandant 21st Sikh Regiment Phungrei Camp Ukhrul
On February 9 1983 the Court directed notice to be served upon the respondents
In response to the notice one J C Sachdeva Under Secretary Ministry of Defence Govt
of India New Delhi filed the first return
He claimed his source of knowledge about the facts stated in the affidavit as being personal being conversant with the facts but remained conspicuously silent about his access to any record on the strength of which he filed his affidavit save making a vague statement in the last para of his affidavit that the factual statements made above are based on the reports and information received which I believe to be correct
 In his affidavit he referred to three other writ petitions being WP No 550 of 1982 WPs
9229 30 of 1982 and WP No 5328 of 1980 in which constitutional validity of Assam 910 Disturbed Areas Special Power of Armed Forces Ordinance 1947 and Armed Forces Special Powers Regulations 1958 was questioned
He proceeded to reproduce some of the paragraphs from the counter affidavit filed in earlier petitions
Dealing with the petition for habeas corpus it was admitted that on March 6 1982 jawans of 21st Sikh Regiment carried out the search in Huining village lasting for a period of 3 to 4 hours and admitted that certain certificates were obtained by the army personnel from village authorities Pastors etc
contradicting the allegations made in the writ petition
Copies of those certificates were annexed to the return filed in WP No 550 of 1982
Concerning C Daniel and C Paul it was reiterated that both of them were called for the purpose of identification of certain suspects on March 10 1982 and after spending the night at the army camp they were allowed to go on March 11 1982 and since then the security forces have no knowledge about their whereabouts
Proceeding further it was admitted that a Deputy Commissioner of Ukhrul presumably Mr JP Joshi did visit village Huining on March 7 1982
It was denied that Mrs Thingkhuila and Mrs Vangamla ever visited the army post on March 15 1982
It was admitted that in response to an appeal made to the Chief Minister regarding C Daniel and C Paul not having returned to their village the Security Forces alongwith a police constable presumably Yangya Anei Thangkhul also known as Maluganai Tankhul did visit village Huining on May 8 1982 in order to inform the wives of C Daniel and C Paul that they had left the Army Camp on March 11 1982
It was denied that at the time of this visit signatures from the village headman or members of the village authority or from other inhabitants of the village were obtained on blank papers There was a perfunctory deniel about the affidavits annexed to the present writ petition
A request was made that either the writ petition may be disposed of relying upon the statements made in the affidavit of Shri Sachdeva or that the present writ petition be tagged on with the earlier writ petitions
The petitioner filed a rejoinder affidavit in which inter alia it was stated that the earlier writ petitions were not specifically concerned with the mysterious disappearance of Shri C Daniel and Shri C Paul after they were taken away by the army personnel but they were primarily concerned with the constitutional validity of the aforementioned Armed Forces Special Powers Act 1958
It was further stated that the Court should direct the respondents to produce the 911 report of enquiry made by the Superintendent of Police Ukhrul to the Deputy Commissioner and the connected documents
After hearing both the parties rule nisi was issued
In response to the rule again Shri JC Sachdeva filed a return maintaining an eloquent silence with the regard to the source of knowledge about the various factual statement made by him in the affidavit save and except repeating the same vague statement with slight modification that the statements made above are correct to the best of my knowledge as from the records of the case
 The change in the tune is deliberate as will be presently mentioned
This return is almost a carbon copy of the earlier return omitting the extracted statements from the still earlier affidavit
It was specifically stated that C Daniel and C Paul were respectable persons who were asked to go to the Army Camp on March 10 1982 to identify some suspects names not mentioned and that after the identification they were permitted to leave
It was stated that after they work of identification was over C Daniel and C Paul were permitted to leave the Army Camp but as it was evening time and it was dangerous to travel at night on account of fear of the insurgents both of them preferred to spend the night at the Army Camp which the Camp Commandant permitted and they left in the morning of March 11 1982
It was further stated that since the suspects belonging to the insurgents group are mixed up with the local population it is not easy to identify them or apprehend them unless there is information or identification through loyal and respectable citizens of the country
It was further stated that C Daniel and C Paul were not suspects or accused in any of the cases initiated by the Security Forces and that they were never arrested or apprehended by the Security Forces
With regard to the request for production of the reports of the Superintendent of Police and Deputy Commissioner it was stated that they were produced on an earlier occasion in another Writ Petition in the Court
But a privilege was claimed by the Government of Manipur on the ground that the nature of the contents of the said document did not permit the production of the same being against public interest
The matter was then set down for hearing on May 5 1983
Mr PP Singh appeared for the Union of India
The first enquiry the Court made was about the source of knowledge of Mr Sachdeva with special reference to reports and information received at Delhi and the record of the case
Mr Singh was called upon to disclose 912 the records if any on the basis of which factual averments were made in the affidavit
It was pointed out to him that Mr Sachdeva is a Delhi based officer and either he must explain his source of knowledge or if he has relied on any record the same may be produced before the Court on the pain of both the returns being rejected as utterly unreliable
In response to the query of this Court surprisingly Mr PP Singh learned counsel for the Union of India stated that the Union of India is not in possession of any record which may shed light about how C Daniel and C Paul were dealt with after admittedly they were taken to the Army Camp on March 10 1982 and spent the night between 10th and 11th March 1982 at the Army Camp
The credibility and authenticity of documents produced at a later stage have to be adjudged and evaluated in the back drop of the earlier statements in the affidavit of Mr Sachdeva and the statement of Mr PP Singh
At the request of Mr Singh the matter was then again adjourned
Things moved faster thereafter
The stand earlier taken became very inconvenient when presumably the position adopted by the Court forced the respondents to disclose some documents and therefore Sachdeva had to be replaced and another officer was selected to file one more affidavit
On behalf of Union of India Shri HS Pruthi another Under Secretary in the Ministry of Defence filed an affidavit disclosing the source of his knowledge the records of the case and copies of original documents with the Union of India
This is a complete summersault
To this affidavit were annexed telex communications between 59 Mountain Brigade and 21st Sikh Regiment Annexures A1  A2 dated August 25 1982 and August 26 1982 respectively Annexure A3 being a communication from 59th Mountain Brigade to 8 Mountain Division dated August 28 1982 Annexures B1 and B2 being extracts from the registers maintained by the 21st Sikh Regiment at Phungrei Camp Annexure C1 being an affidavit of Shri Lt Col ND Garg Commanding Officer of 21st Battalion Sikh Regiment Annexure C2 being an affidavit of Major Joginder Singh Lamba attached at 21st Battalion of the Sikh Regiment Annexure C3 being an affidavit of Subedar Joginder Singh also attached to the same battalion Annexure C4 being an affidavit of Naik Gurdip Singh Annexure C5 being affidavit of Naik Gurcharan Singh Annexure C6 being an affidavit of Naik Bachan Singh who was on Sunday duty at the entrance gate of the 21st Battalion between 1200 hours to 1800 hours on March 10 1982 Annexure C7 being an affidavit of Subedar Sucha Singh 913 who was Subedar Adjutant of 21st Battalion at the relevant time and Annexure C8 being an affidavit of Havildar Kultar Singh who stated amongst others that on March 11 1982 two persons Shri Machihan Shri Shangham came to the gate where he was on duty and they enquired about C Daniel and C Paul whereupon after obtaining permission from Adjutant he and Shri Subedar Sucha Singh brought C Daniel and C Paul at the gate and they left in company of Shri Machihan and Shri Shangham
At a later date Mr VC Mahajan learned counsel appeared for the State of Manipur and filed a return on behalf of the State of Manipur
One Shri E Kunjeswar Singh Secretary Home Govt
of Manipur swore the affidavit on behalf of the State of Manipur
The affidavit was limited in character being a response to the request made by the learned counsel for the petitioner to produce i Report of the Superintendent of Police ii Report of the Deputy Commissioner and iii Statement of Yangya Anei Tankhul  Malugnai Tangkhul
It was stated that with regard to the events of March 10 1982 the Deputy Commissioner East Ukhrul on receipt of the information not in writing on March 11 1982 sent a wireless message to the Superintendent of Police East Ukhrul on March 15 1982 a copy of which was annexed as R 3A
It was further stated that on receipt of the wireless message the Superintendent of Police conducted an enquiry and sent his report to the Deputy Commissioner on March 27 1982 Annexure R 3B
The Deputy Commissioner in turn sent a report on March 30 1982 to the Government Annexure R 3C
It was further stated that with regard to the incident on March 10 1982 the Deputy Commissioner received a written complaint for the first time on March 29 1982 Annexure R 3D
With regard to the reports dated April 28 1982 and May 31 1982 privilege was claimed under Sec 123 of the Evidence Act on the ground that the production of the report in Court and being made available to the petitioner will be against public interest
It was further stated that in the records with the State Government there is no statement of Police Constable Vangya Anei Tangkhul  Maluganai Tangkhul of a date prior to the filing of the present writ petition and a notice was ordered to be issued
As a clarificatory effort after receipt of notice an attempt was made by the State to ascertain the fact from the concerned constable by recording his statement a copy of which was produced at R 3F 1
An affidavit of the constable Annexure R 3E 2 was also produced
914 In a writ petition under article 32 rarely if ever pleadings are meticulously extracted and reproduced in the judgment
It however become a compelling necessity in this case for the obvious reason that certain inferences were drawn and submitted for the consideration of this Court by both sides after referring to facts admitted andor not controverted
We would therefore be justified in deducing the indisputable fact situation that emerges from the rival affidavits and then proceed to draw necessary permissible inferences that flow from them
It is established that C Daniel and C Paul for whose production before this Court this petition is filed are admittedly respectable citizens the former being the Headmaster of the Junior High School at Huining village and the latter being Assistant Pastor residing at Huining village
It is equally well established that the 21st Sikh Regiment is stationed at Ukhrul Manipur East District and has set up a camp known as Phungrei Camp and that Huining village falls within the operational area of this Regiment
The jawans of this Regiment admittedly visited Huining village on March 6 1982 and carried out extensive combing operation for couple of hours
They arrested at some point of time one R Rashing of Huining village
It is admitted that Mr Joshi Commissioner East Ukhrul visited Huining village on March 7 1982 which would show that something untoward had occurred as complained by the petitioner on March 6 1982 at Huining village
And this inference is reinforced by the fact that certain certificates purporting to vouchsafe good conduct of the personnel of security forces which carried out combing operation were obtained by the army jawans from the village inhabitants which have been produced in the earlier petitions
C Daniel and C Paul were at Phungrei Camp the allegation of the petitioner being that they were arrested and taken away while the contention of the respondents is that they were called at the camp for identification of R Rashing
The fact which indisputably emerges is that C Daniel and C Paul were brought from Huining village by the army jawans and were taken to Phungrei Camp
It is admitted by the respondents that C Daniel and C Paul were at Phungrei Camp at the instance of army officers on March 10 1982 and spent the night at the camp between March 10 and March 11 1982
According to the respondents  Shri Machihan and Shri Shangam arrived at Phungrei Camp on March 11 1982 between 945 am and 1000 am and they left in company with C Daniel and C Paul who were brought to the camp gate by Subedar Sucha Singh
It therefore 915 unquestionably transpires that from March 10 1982 somewhere in the noon or afternoon till March 11 1982 around 1000 am C Daniel and C Paul were if not in the custody under the surveillance and at the request and behest of the 4th respondent in the camp and they left Paungrei Camp around 1000 am on March 11 1982 in company of Mr Machihan and Mr Shangnam a fact disputed and seriously controverted by the petitioner
Since March 10 1982 C Daniel and C Paul have not returned to their village and their whereabouts are not known
They were last seen alive in Phungrei Army Camp
Therefore the first question which on preponderance of probabilities this Court must examine is whether C Daniel and C Paul left Phungrei Camp on March 11 1982 around 1000 am or somewhere thereabout because it could not be seriously questioned that since then no one has seen them except as stated by the two ladies that they were seen being led away by army jawans on March 15 1982
Affidavit of Mrs Thingkhulia wife of C Daniel even if it is one of a vitally interested witness would permit us to hold that since the jawans and officers of the 4th respondent took away C Daniel on March 10 1982 he has not been seen by anyone including her except on March 15 1982 again in custody of army jawans
That averment is disputed and for the present it may be kept out of consideration
That would be equally true of C Paul in respect of whom his wife Mrs Vangamla has filed an affidavit
Mr KG Bhagat Additional Solicitor General while reiterating that once these two persons left the army camp on March 11 1982 by about 1000 am the 4th respondent and its subordinate will have no knowledge about their where abouts and they cannot be called upon to explain why they are not traceable and he proceeded to explore various possibilities as to what might have happened
It is not necessary to speculate in that behalf because the real question is whether on the material placed on record is it possible to affirmately arrive at a conclusion that C Daniel and C Paul left the Phungrei Camp latest by 1000 am or thereabout on March 11 1982
Obviously the burden would be on the respondents 1 2 and 4 to substantiate their contention once having admitted that C Daniel and C Paul were in the camp at their request and behest even if not actually arrested from the afternoon of March 10 1982
916 The stand taken in the first affidavit of Shri JC Sachdeva which merely reproduces extracts from the affidavits in earlier writ petitions is that C Daniel and C Paul were called for the purpose identification of certain suspects on March 10 1982 and were allowed to go on March 11 1982 and the security forces have no information about them after they were released
Mark the words called at the army camp and were released 
The word released  would indicate that they were once held captive and were subsequently permitted to go
But the more important lacuna or omission in the first affidavit is about the name of Mr Mr Shangnam as having come to the army camp and C Daniel and C Paul accompanied him and Machihan
Name of Shangnam is conspicuous by its silence
This omission is glaring because at that stage it was not clear whether Shangnam would be disclosing some facts
HL Machihan s name is referred to because he had already made a complaint to the Deputy Commissioner on March 29 1982
The stand now taken is that C Deniel and CPaul were brought to the army camp as army authority wanted them to indentify R Rashing who was arrested as a suspect and that C Daniel and C Paul were not arrested or were not held as suspects
It is not made clear whether C Daniel and C Paul were brought in an army vehicle
It is equally not made clear why soon after identifying R Rashing which would hardly require a couple of minutes they were not sent back in army vehicle
It is asserted on behalf of the 4th respondent that C Daniel and C Paul were reluctant to leave the army camp at night and at their request they were allowed to stay at the army camp
This is far from convincing
If what the petitioner asserts is true that C Daniel and C Paul were arrested and treated in an unbecoming manner they would be least inclined to spend a night if they were free agents to leave the place at the Army camp hardly a cosy place in an insurgently infested area
Assuming that the respondents are right in saying that on account of fear of moving out at night in a jungle area infested with insurgents according to them they left the army camp on March 11 1982 around 1000 am
The respondents assert that H L Machihan a village Headman and C Shangnam village Authority Member came to army camp on March 11 1982 to enquire about C Daniel and C Paul and further to enquire why they had not returned and at that time Subedar Sucha Singh on being informed by Guard Commander Havaldar Kultar Singh that two persons from Huining village had come and wanted to meet someone from the battalion whereupon Subedar Sucha Singh 917 went to the gate and met the two persons
It is further averred that at that time H L Machihan and C Shangnam introduced themselves as such and enquired from Subedar Sucha Singh about C Daniel and C Paul whereupon Subedar Sucha Singh told them that they had spent the night at the army camp
Subedar Sucha Singh thereupon informed Maj
Joginder Singh Lamba Adjutant that two persons have come to enquire about C Daniel and C Paul whereupon Joginder Singh Lamba told Subedar Sucha Singh that C Daniel and C Paul should return to their village with Shri H L Machihan and Shri C Shangnam
The respondents further averred that thereupon Havaldar Kultar Singh and Subedar Sucha Singh accompanied C Daniel and C Paul to the gate and permitted them to accompany H L Machihan and Shangnam
There are affidavits to that effect of Major Joginder Singh Lamba Adjutant Subedar Sucha Singh and Havaldar Kultar Singh
They have also produced extracts from the register maintained at the camp gate showing the entry and exist in and out of the army camp
The relevant extracts were produced at Annexures B1 and B2
The original registers were submitted to the Court in sealed envelope with a request that the other entries except the relevant entries may not be exposed as the same may endanger the safety of some innocent persons
We have glanced through the registers
As copies of the relevant entries from the registers were annexed to the affidavit of Mr Pruthi it was unnecessary to give inspection of the whole of the registers to the petitioner in the facts and circumstances of this petition
The evidence furnished by entries in the registers leaves us cold and unconvinced
It appears to be an attempt at supporting affidavits by some so called contemporaneous documents which apart from being unworthy of credit the circumstances in which they came to light add to our apprehension about its genuineness
We may recall here the wavering position about existence or otherwise of any record taken in the affidavit of Mr Sachdeva and the statement made by Mr P P Singh before the Court denying the existence of any record as late as May 5 1983
And the affidavits of various members of security forces personnel bear the date between May 24 1983 and first week of June 1983 that is subsequent to the order dated May 5 1983
To begin with both H D Machihan and C Shangam in their affidavits filed long time back stated that they had not gone to Phungrei Camp on March 11 1982 either in the morning or at any 918 time of the day
H L Machihan denied that C Daniel and C Paul were released in his presence on March 11 1982
There is an affidavit to the same effect of Shri Shangnam
These are two persons in whose company according to respondents C Daniel and C Paul left army camp on March 11 1983
Turning to the affidavits filed on behalf of the respondents to substantiate the stand of the respondents Havaldar Kultar Singh says in his affidavit that at about 945 AM on March 11 1982 two persons from Huining village arrived at the gate of the army camp and introduced themselves as Shri Machihan and Shri Shangnam
He further says that they told him that they had come to enquire about C Daniel and C Paul as they had not returned to the village on the previous day
He does not say that HD Machihan and Shri C Shangnam individually or collectively was or were permitted to enter the camp
In fact his affidavit read with the affidavit of Subedar Sucha Singh clearly shows that Havaldar Kultar Singh went to Subedar Sucha Singh and informed him about the arrival of Machihan and Shangnam and inquired about C Daniel and C Paul whereupon Subedar Sucha Singh came to the gate talked to HL Machihan and Shri Shangnam and then returned inside the camp and came out with C Daniel and C Paul and they were brought to the gate and they both left in company of HL Machihan and Shangnam
This would unmistakably show that HL Machihan and Shangnam never entered the army camp and surprisingly yet in the two extracts Annexures B1 and B2 Machihan and Shangnam are shown to have entered the army camp one after the other between 945 AM and 1000 AM and left at 1005 AM
If Machihan and Shangnam came upto army gate never entered the same and according to the respondents C Daniel and C Paul were brought to the gate of the army camp there was absolutely no justification for making an entry in the register evidencing that they had both entered the army camp
There is a further infirmity in that the entry in the name of Shri C Daniel appearing in the Register on March 10 1982 appears to be overwritten over another entry which was already there
Therefore in view of the direct evidence furnished by the affidavits of HL Machihan and C Shangnam coupled with the suspicious circumstances herein discussed and effort made to bolster up the stand by entries of dubious character as also the eloquent silence in the earlier stage of the proceedings about existence of any record 919 leave us with no alternative but to hold that the respondents have failed to prove that C Daniel and C Paul left the army camp on March 11 1982 around 1000 AM
This inference is further buttressed by the fact that all these documents along with the affidavits were placed on record after this Court made an order on May 5 1983 clearly pointing out that the affidavit of Shri Sachdeva lacks credibility as the source of information is not traced therein and after Mr PP Singh learned counsel for the Union of India stated that the first respondent is not in possession of any record in respect of C Daniel and C Paul
There is one curious feature of the whole case which cannot be overlooked
Petitioner averred and it is supported by the affidavits of HL Machihan and C Shangnam that the army jawans ransacked the houses and tortured the inhabitants in the course of the search on March 6 1982
They further averred that in order to save their skin army jawans obtained false certificates as also signatures on blank papers
Now if the army authorities had acted within the bounds of legitimate combing operation to trace insurgents it was not necessary for them to obtain certificates from the inhabitants of village Huining
In the first affidavit of Mr Sachdeva it is stated that in the counter affidavit in Writ Petition No 550 of 1982 certificates from village authorities and Pastor were obtained by the army authorities contradicting the allegations made in the statements and averments set out in the petition
There is further evidence that after the authorities of the Manipur State such as Deputy Commissioner and Superintendent of Police started making enquiries the army jawans again went to Huining village on May 8 1982 and obtained some more certificates as well as signatures on blank papers
One Yangya Anei Tanghul  Maluganai Tangkhul a Police Constable attached to Manipur Police Department was asked to accompany the army jawans when they visited Huining village on May 8 1982
It is admitted that this Police Constable accompanied the army jawans on May 8 1982
In his affidavit the Police Constable states that security forces personnel obtained the signatures from the Village Authority Members as proof of their having furnished the information to the village people regarding release of C Daniel and C Paul and even he was asked to put his signature as a witness which he duly complied
Why were army jawans so keen to obtain certificates from village people both on March 6 1982 and on May 8 1982 and certificates appear to have been obtained with a view to either 920 white washing their activities or exonerating the army jawans from their improper actions which were questioned by the village people
We may here briefly refer to the various certificates Appendix O  annexures to the counter affidavit by Mr JC Sachdeva in Writ Petition No 550 of 1982 to show that the very language used in the certificates obtained by the personnel of the security forces would be a give away showing how the army people were trying to cover their illegitimate actions
These certificates provide tell tale evidence of how a very spurious attempt was made to white wash some of the actions of the jawans of the army
We may specifically refer to certificates produced at Appendix L  in which it is stated that the Deputy Commissioner of Ukhrul Mr JP Joshi visited village Huining on March 7 1982 from 7 AM to 11 AM and instigated the villagers against the security forces
The village residents of Huining were so co operative with the security forces that they refused to be instigated by him and on other hand they praised the security forces for the good treatment meted out to the villagers by the security forces
The attempt to blemish the good name of Mr Joshi when the village headman and others had approached to ventilate their grievance against the army personnel we refrain from using strong term is crude if not counter productive
On the contrary it would be legitimate to infer that there was something very despicable in the conduct of the army jawans and therefore to forestall any action they procured certificates which inevitably must be under threat duress or coercion
Therefore these certificates leave us cold
In the meantime certain events occurred of which notice should be taken
The first search was carried out by the army jawans on March 6 1982
Soon after presumably upon a complaint of the local inhabitants Mr Joshi Deputy Commissioner visited Huining village on March 7 1982
This is admitted by Mr Sachdeva in his first affidavit
Obviously the village people must have complained to the Deputy Commissioner about the misbehavior of the members of the security forces
Presumably acting upon the complaint Deputy Commissioner Mr Joshi directed Superintendent of Police East Ukhrul to enquire about various persons detained by the army officers and missing since then
Amongst the names of 7 persons the Deputy Commissioner has set out the names of C Daniel and C Paul
The Superintendent of Police was called upon to furnish the report about the whereabouts of the persons whose names were set out in the direction given to him
In response 921 to this enquiry by the Deputy Commissioner the Superintendent of Police submitted his report on March 27 1982 part of which may be extracted Following persons were released by Assam Rifles on 19382 1 Rr
Nganaopam  2 Pr
Pheireisang  All of Phungcham village 3 Hr
Wungnaokan  As regards persons belonging to Huining village it is learnt that K Rashing is still under interrogation with Army  whereabouts of other persons are not known
They were released one day after arrest by army as reported
 It appears from this report that with regard to C Daniel and C Paul the Superintendent of Police could not ascertain their whereabouts but he noted the fact that according to the army authority they were released one day after the arrest by army authorities
It again appears that the assertion by Respondents 1 2 and 4 that C Daniel and C Paul were invited to identify R Rashing is not borne out by this report because the Superintendent of Police states that they were released after their arrest
Pursuant to this report the Deputy Commissioner submitted a report to the Chief Secretary Manipur State that C Daniel and C Paul are missing and that the certificates are not correct and that the village headman had stated that they were made to sign blank papers
Before this report was submitted the Deputy Commissioner had received an application signed by five persons including village headmen Machihan setting out the details about the events that occurred on March 10 1982 and the fact that their signatures were obtained by the army authorities on blank papers and that they had not signed the certificates and it was not true that C Daniel and C Paul were released in their presence on March 11 1982
From the evidence herein collated it unquestionably follows that not only C Daniel and C Paul after admittedly they were taken presumably under arrest to Phungrei Camp on March 10 1982 in the afternoon they never left the Phungrei Camp on March 11 1982 as claimed on the respondents in company of HL Machihan and 922 Shangnam but a very crude attempt was made to concoct evidence in the from of certificates with a view to disowning the responsibility to explain what happened to C Daniel and C Paul after they were taken to army camp on March 10 1982
The affidavit of gateman Kultar Singh and Adjutant Subedar Sucha Singh and the Registers do not carry conviction more so in the light of the fact that if what is claimed is genuine this subsequent attempt to doctor facts would not have been undertaken
We are therefore constrained to reject the contention that C Daniel and C Paul left the army camp on March 11 1982 either on their own or in company of Machihan and Shangnam
In reaching the conclusion that the respondents have failed to discharge the burden heavily lying on them to affirmatively establish once having admitted taking them to army camp on March 10 1983 that C Daniel and C Paul left Phungrei Camp on March 11 1982 around 1000 AM we have completely overlooked and not take into consideration the affidavits of Mrs Thingkhuila wife of Shri C Daniel and Mrs Vangamala wife of Shri C Paul that they had seen C Daniel and C Paul being led away by army personnel on March 15 1982 as contended by Mr Bhagat
Once we unerringly reach the conclusion that C Daniel and C Paul were taken to Pungrei Camp by officers and jawans of 21st Sikh Regiment on March 10 1982 and they never left the army camp as canvassed on behalf of the respondents on March 11 1982 it is obligatory upon the respondents to produce C Daniel and C Paul and to explain their whereabouts more so because respondents claim the power to arrest and question anyone under the provisions of Armed Forces Special Powers Act 1958
We may now examine some technical contentions raised on behalf of the respondents
Mr Bhagat for the respondents contended that once the respondents have adopted a position that C Daniel and C Paul had come to the army camp at the request of the army authority but they left that place on their own in company of their friends a writ of habeas corpus cannot be issued and the respondents cannot be called upon to file a return to the writ
When a petition for a writ 923 of habeas corpus under article 32 of the Constitution is moved before the Court ordinarily the Court would not issue ex parte a writ of habeas corpus unless the urgency of tee situation so demands or issuing of a notice motion was likely to result in defeat of justice
Further the Court will be reluctant to issue a writ of habeas corpus ex parte where the fact of detention may be controverted and it may become necessary to investigate the facts
The normal practice is that when a petition for a writ of habeas corpus is moved the Court would direct a notice to be served upon the respondents with a view to affording the respondents to file evidence in reply
If the facts alleged in the petition are controverted by the respondents appearing in response to the notice by filing its evidence the Court would proceed to investigate the facts to determine whether there is substance in the petition for a writ of habeas corpus
See Holsbury s Laws of England Fourth Edition Vol
11 paragraph 1482
If on investigation of facts the Court rejects the contention of the respondent and is satisfied that the respondent was responsible for unauthorised and illegal detention of the person or persons in respect of whom the writ is sought the Court would issue a writ of hebeas corpus which would make it obligatory for the respondents to file a return
It is in this sense that in Thomas John Barnardo vs Mary Ford1 the House of Lords held that even if upon a notice of motion it is contended by the person against whom the writ is sought that the person alleged to be in the custody of the respondents has long since left the custody a writ can be issued and return insisted upon
A few facts of that case will render some assistance in ascertaining the ratio of the case
One Harry Gossage was put at the instance of a clergyman in an institute comprising homes for destitute children and of which appellant Thomas John Barnardo was the founder and director
Mother of Harry Gossage desired that her son Harry Gossage be transferred to St Vincent s Home Harrow Road a Catholic home and a request to that effect was made to the appellant
After some correspondence was exchanged between the parties a petition was moved in the Queen s Bench Division whereupon a summons was served upon the appellant to attend the Court to show cause why a writ of habeas corpus commanding him to produce the body of the said Harry Gossage should not be issued
The appellant filed several affidavits inter alia contending that the boy Harry Gossage was adopted by one Mr 924 Norton of Canada on November 16 1888 long before the respondent mother coveyed a desire to transfer the boy to the Catholic home
It was further contended on behalf of the appellant that Harry Gossage was not with him since November 16 1888 when he transferred him into the care of Mr Norton and at the time of the service of the summons he was not in his custody or power
In a proceeding before Methew J after cross examination of the appellant the learned Judge refused to order the writ to be issued
In the meantime the case in Reg
vs Barnardo Tye s1 case was decided by the Court of Appeal in which it was laid down that it was not an excuse for non compliance with a writ that the defendant had parted with the custody of the child to another person if he had done so wrongfully and accordingly a fresh application was made for a writ of habeas corpus
After hearing the arguments the Judges of the Queens Bench Division made absolute the order for the issue of the writ
The appellant approached the House of Lords
It is in this context that the Court held that the respondent was entitled to a return of the writ
To some extent the position before us is identical if not wholly similar
When the petition in the present case was moved before this Court rule nisi was issued calling upon the respondents to submit their version about the detention of C Daniel and C Paul
The respondents 1 2 and 4 in their various affidavits adopted a positive stand that C Daniel and C Paul were taken by the army jawans on March 10 1982 though not under arrest to the army camp for the purpose of identifying Rashing and that they spent the night at the army camp and that they left the army camp on March 11 1982 in company of HL Machihan and C Shangnam
The petitioner and those filing affidavits in support including HL Machihan C Shangnam and Smt
Thingkhuila wife of C Daniel and Smt
Vangamla wife of Shri C Paul denied that C Daniel and C Paul left army camp on March 11 1982 and returned to the village therefore an issue squarely arose to ascertain whether the positive stand of the respondents was borne out by the facts alleged and proof offered
The burden obviously was on the respondents to make good the defence
Now that the facts are clearly established which led to the rejection of the contention of the respondents that C Daniel and C Paul ever left the army camp on March 11 1982 around 1000 AM the necessary corollary being that they were last seen alive under the surveillance control and 925 command of the army authority at Phugrei Camp it would be necessary not only to issue a writ of habeas corpus thereby calling upon the respondents 12 and 4 to file the return
In this context it may be pointed out that the petitioner has prayed for issuing of a writ of habeas corpus directing the respondents to produce C Daniel retired Naib Subedar of Manipur Riffles and Headmaster of the Junior High School of Huining village and C Paul Assistant Pastor of Huining Baptist Church the writ must be issued and the petition must succeed to that extent
It may be mentioned that the Manipur State Authorities Respondent 3 had received numerous complaints about the behaviour of the army personnel
The search in village Huining was taken by the jawans of 21st Sikh Regiment on March 6 1982
On March 7 1982 Mr Joshi had to visit the village when he received complaints of torture and ill treatment of village inhabitants at the hands of the personnel of the security forces
Thereafter certain enquiries were made by the Chief Secretary Manipur State which we have already deal with
In the course of hearing a request was made by Mr Vaidyanathan learned counsel for the petitioner and at a later date by Miss Haskar that the Manipur State Government be called upon to produce 1 Report of the Superintendent of Police ii Report of the Deputy Commissioner and iii Statement of Yangya Anei Tangkhul alias Malugnai Tangkhul
A copy of the third document is already produced
As far as reports mentioned at i and ii privilege was claimed on behalf of the E Kunjeshwar Singh Secretary Home Manipur
In the affidavit claiming privilege it is stated that the aforementioned two reports dated April 28 1982 and 31st may 1982 were with regard to the incident that occurred on March 10 1982
Before adjudicating upon the claim of privilege we called upon Mr V C Mahajan learned counsel for the State of Manipur to produce the reports for our perusal
We read the reports
We are not inclined to examine the question of privilege for the obvious reason that these reports are hardly helpful in any manner in the disposal of this petition and further the three relevant documents namely the telex message sent by the Deputy Commissioner to Superintendent of Police the report made by the Superintendent of Police to the Deputy Commissioner and the short report submitted by the Deputy Commissioner to the Chief Secretary Manipur State have been disclosed in the proceedings
Therefore we do not propose merely to add to the length of the judgment by examining the question of the privilege claimed in respect of the two reports first dated 926 April 28 1982 by the Superintendent of Police and another dated May 31 1982 by the Deputy Commissioner
Accordingly this petition is allowed and we direct that a writ of habeas corpus be issued to the respondents 1 2 and 4 commanding them to produce C Daniel retired Naik Subedar of Manipur Riffles and Headmaster of the Junior High School of Huining Village and C Paul Assistant Paster of Huining Baptist Church who were taken to Phungrei Camp by the jawans of 21st Sikh Regiment on March 10 1982 before this Court on Dec 12 1983 and file the return
H section K Petition allowed


Summary:
The petitioner asked for a writ of habeas corpus under article 32 of the Constitution to be issued to the respondents to produce the two persons C Daniel and C Paul in the Court who according to the petitioner were whisked away by the army jawans from Huining village to Phungrei Camp and unauthorisedly detained by the Officer incharge of 21st Sikh Regiment and were held incommunicado and whose whereabouts were not made known
The petitioner averred that some jawans attached to 21st Sikh Regiment visited village Huining on March 5 1982 and rounded up some villagers
These villagers were released on March 6 1982
On March 7 the Deputy Commissioner accompanied by the Additional District Magistrate of that area visited Huining village to enquire about the incidents of the previous day
Some of the army jawans who had obtained under duress certificates from some villagers exonerating them of the allegation of ill treatment and praising the conduct of the jawans showed these certificates to these officers
On March 10 1982 C Daniel C Paul were arrested by the army jawans and were taken away from Huining village
At the same time some jawans had obtained signatures on blank papers from Machihan village headman and from one Shangnam a member of the village authority
On the next day Machihan reported this fact to the Deputy Commissioner
As C Daniel and C Paul did not return their wives went to the Phungrei Camp in search of their respective husband and while waiting there they saw C Daniel and C Paul being led away by four army jawans towards the West
The village headman and others made a written complaint to the Deputy Commissioner
They also complained that they had not issued any certificate showing that C Daniel and C Paul were released in their presence on March 11 1982
The Deputy Commissioner had an enquiry made into the complaint by the Superintendent of Police and reported to the Chief Secretary of the State that the village headman and other members of the village authority had given in writing that it was not correct that C Daniel and C Paul were released in their presence and that both of them were still missing
In response to the notice the respondents stated that both C Daniel and C Paul were called to the army camp for the purpose of identification of certain suspects on March 10 1982 and after spending the night at the army camp they were allowed to go on March 11 1982 in 905 the company of Machihan and Shangnam their friends and since then the security force had no knowledge about their whereabouts
The respondents denied that the respective wives of C Daniel and C Paul ever visited the army camp on March 15 1982
They further denied having obtained signatures on blank papers from the village headman and others
In response to the rule the respondents reiterated their earlier stand
The respondents contended that once they had adopted the position the C Daniel and C Paul had come to the army camp at the request of the army authority and they left that place on their request in company of their friends a writ of habeas corpus cannot be issued and the respondents cannot be called upon to file a return to the writ
Allowing the petition  HELD A writ of habeas corpus be issued to the respondents 1 2 and 4 commanding them to produce C Daniel and C Paul before this court and file the return
626 B When a petition for a writ of habeas corpus under article 32 of the Constitution is moved before the court ordinarily the court would not issue ex parte a writ of habeas corpus unless the urgency of the situation so demands or issuing of a notice of motion was likely to result in defeat of justice
Further the court will be reluctant to issue a writ of habeas corpus ex parte where the facts of detention may be controverted and it may become necessary to investigate the facts
The normal practice is that when a petition for a writ of habeas corpus is moved the court would direct a notice to be served upon the respondents with a view to affording the respondents to file evidence in reply
If the facts alleged in the petition are controverted by the respondents appearing in response to the notice by filing its evidence the court would proceed to investigate the facts to determine whether there is substance in the petition for a writ of habeas corpus
If on investigation of facts the court rejects the contention of the respondents and is satisfied that the respondent was responsible for unauthorised and illegal detention of the person or persons in respect of whom the writ is sought the Court would issue a writ of habeas corpus which would make it obligatory for the respondents to file a return
923 A D Halsbury s Laws of England 4th Edn Vol 11 para
1482 referred to
Even if upon a notice of motion it is contended by the person against whom the writ is sought that the person alleged to be in the custody of the respondents has long since left the custody a writ can be issued and return insisted upon
923 E Thomas John Barnardo vs Mary Ford and Reg
vs Barnardo Tye referred to
In the instant case when the petition was moved before this Court rule nisi was issued calling upon the respondents to submit their version about the detention of C Daniel and C Paul
The respondents 1 2 and 4 in their various affidavits adopted a positive stand that C Daniel and C Paul were taken by the army jawans on March 10 1982 though not under arrest to the army 906 camp for the purpose of identifying Rashing and that they spent the night at the army camp and that they left the army camp on March 11 1982 in company of HL Machihan and C Shangnam The petitioner and those filing affidavits in support including HL Machihan C Shangnam and Smt
Thingkhuil wife of C Daniel and Smt
Vangamla wife of C Paul denied that C Daniel and C Paul left army camp on March 11 1982 and returned to the village therefore an issue squarely arose to ascertain whether the positive stand of respondents was borne out by the facts alleged and proof offered
The burden obviously was on the respondents to make good the defence
In view of the direct evidence furnished by the affidavit of HL Machihan and C Shangnam coupled with the suspicious circumstances discussed in the judgment and effort made to bolster up the stand by entries of dubious character in the register kept at the gate of Phungrei Camp as also the eloquent silence maintained by the respondents in the earlier stage of the proceedings about existence of any record leave the Court with no alternative but to hold that the respondents have failed to prove that C Daniel and C Paul left the army camp on March 11 1982 around 1000 AM
Now that the facts are clearly established which led to the rejection of the contention of the respondents that C Daniel and C Paul ever left the army camp on March 11 1982 around 1000 AM the necessary corollary being that they were last seen alive under the surveillance control and command of the army authority at Phungrei Camp it would be necessary not only to issue a writ of habeas corpus thereby calling upon the respondents 1 2 and 4 but to file the return
924 D H 918 H 919 A 925 A