IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 WP(Crl.).No. 161 of 2011(S) --------------------------- PETITIONER(S): --------------- 1. JAYAPRAKASH PRABHU, AGED 62 YEARS, S/O.LATE SRINIVASA PRABHU, MANAGING ADHIKARI, ERNAKULAM TIRUMALA DEVASWOM, T.D.ROAD, ERNAKULAM. 2. PROF.PRABHAKAR PRABHU, AGED 71, S/O.LATE A.NARAYANA PRABHU, SECRETARY, DR.PADIYAR MEMORIAL HOMEOPATHIC MEDICAL COLLEGE, CHOTTANIKKARA. 3. C.P.SADANANDA PRABHU, AGED 66, S/O. LATE PADMANABHA PRABHU, MEMBER, MANAGING COMMITTEE, SRI.KULADEVATHA COMPLEX, AMBALAMUGAL, ERNAKULAM DISTRICT. 4. BHASKAR SHENOY, AGED 48, S/O. R.RETNAKARA SHENOY, PRESIDENT, ANUGRAHA CHARITABLE TRUST (R) CHITTOOR ROAD, ERNAKULAM. 5. R.RETNAKARA SHENOY, AGED 75 YERAS, S/O.LTE RAGHAVA SHENOY, HOLDING THE POST OF PRESIDENT, G.S.B. VIKAS PARISHAT, KALLARIKAL HOUSE, SRINIVAS MALLAN ROAD, ERNAKULAM. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.ARJUN S.RAJ RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REP.BY SECRETARY, DEPARTMENT OF HOME AFFAIRS, SECRTARIAT, TRIVANDRUM. 2. THE DIRECTOR GENERAL OF POLICE, STATE OF KERALA,TRIVANDRUM. 3. THE INSPECTOR GENERAL OF POLICE, CENTRAL RANGE, ERNAKULAM. 4. THE COMMISSIONR OF POLICE, KOCHI CITY, ERNAKULAM. 5. THE CIRCLE INSEPCTOR OF POLICE, KALAMASSERI. 6. VEENA S.PAI,AGED ABOUT 35 YEARS, W/O. SACHITHANANDA PAI, RESIDING AT NO.90 PARRAYIL ROAD, ELAMMAKKARA. 7. SACHITHANANDA PAI, AGED BAOUT 42, S/O.LTE RANGANATHA PAI, RESIDING AT NO.90, PARRAYIL ROAD, ELAMMAKKARA. 8. SADASIVA PRABHU, AGED ABOUT 50, S/O.LATE K.G.PADMANABHA PRABHU, KALAPURAKOVILAKOM HOSUE, PULLOOT, KODUNGALLOOR. 9. NANDAKUMAR PRABHU, AGED ABOUT 55, S/O.LATE K.G.PADMANABHA PRABHU, KALAPURAKOVILAKOM HOUSE, PULLOOT, KODUNGALLOOR. GOVERNMENT PLEADER SRI.P.K.BABU. SRI.RIJI RAJENDRAN THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 12/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- W.P.(Crl) No.161 of 2011 ----------------------------------------------- Dated 12th April, 2011. J U D G M E N T Joseph, J. The prayers in the writ petition are as follows :- (i) Issue writ order or direction in the nature of habeas corpus directing and commanding respondent Nos.6 to 9 and persons under them to bring the body of detenu Shrimad Raghavendra Thirtha, with the Original Poorvashrama name Sivananda Pai ordinarily resident of Dwaraka Kala Mandir, Puthukkalavattom, Elamakkara who was last seen with respondents No.6 to 9 at Puthukkalavattom to be brought before this court and release him from the illegal confinement to submit him to the jurisdiction of 1st Addl.District Court, Ernakulam wherein E.P.No.167/2011 is pending execution. (ii) Issue a writ, order or direction in the nature of mandamus or other appropriate writ directing respondents No.2 to 5 or the concerned among them to forthwith conduct an investigation into the absence/missing of detenue Shrimad Raghavendra Thirtha, with the original Poorvashrama name Sivananda Pai ordinarily resident of Dwaraka Kala Mandir, Puthukkalavattom, Elamakkara who was last seen with respondents No.6 to 9 at Puthukkalavattom as set out in Exts.P4 and P5 and search and produce him in court pursuant to such investigation. Briefly put, the case of the petitioners is as follows : The petitioners belong to Gowda Saraswatha Brahmin community owing allegiance to Shri.Kashimath Samsthan headed by the Madadhipathi, Shrimad Sudheendra Thirtha Swamiji. Sudheendra Thirtha Swamiji gave sanyasa deeksha to W.P.(Crl) 161/2011 2 Sivananda Pai, who later became Raghavendra Thirtha. It is inter alia stated that there arose disputes and O.S.34/2000 was filed by Raghavendra Thirtha before the IVth Additional District Court, Tirupathi and there is a counter claim filed by Sudheendra Thirtha Swamiji. The suit was dismissed and the counter claim was decreed. Appeal Suits were filed before the High Court of Andhra Pradesh at Hyderabad and in the said Appeal Suits, the plaintiff in the suit preferred interim application praying for staying the operation of judgments, which was dismissed by the court, against which the appeal filed by the plaintiff before the Supreme Court was unsuccessful, as evident from Ext.P1. Thereupon, the decree holder filed execution petition and the decree was transferred to the District Court, Ernakulam. Thereafter, there is reference to the execution petition being filed in the District Court, Ernakulam. Injunction was sought for, restraining the plaintiff in the suit from removing the deities and paraphernalia which were ordered to be returned. It is stated that Shri.Raghavendra Thirtha evaded service of notice and an injunction order was W.P.(Crl) 161/2011 3 passed. Ext.P2 is purported to be the copy of report of the process server. Ext.P3 is the injunction order passed by the execution court. Allegation is made against respondents 6 to 9, in essence that they are detaining the unsuccessful plaintiff, who is the judgment debtor, on the strength of decree passed by the trial court. There is reference to other steps also. 2. This court had not issued notice in the writ petition. Instead, it had recorded the statement of the learned Government Pleader that efforts are going on to trace out the alleged detenu. Thereafter, an affidavit dated 2.4.2011 has been filed by the alleged detenu. It is seen attested by an Advocate and Notary. In the affidavit filed by the alleged detenu, it is inter alia stated that he is not under any threat from respondents 6 to 9 or in the custody of anyone else. It is further stated that the alleged detenu is moving from place to place throughout the country as per the Vinanthis of Disciples, since 1994. It is also stated that he is on pilgrimage trip through various Holy places and is temporarily accommodated at Thirupathi. It is further submitted that he intends to move W.P.(Crl) 161/2011 4 from this place to another Holy place soon. 3. The petitioners have filed a petition (I.A.6856/11), wherein it is prayed that appropriate direction may be issued for appearance of the detenu in court or to appoint an Advocate Commissioner to ascertain his status and also to ascertain whether the assets of the detenu, which are scheduled to the decree, are available with him. Petitioners have produced additional Exhibits P6 to P10. 4. We heard Sri.Varghese Kuriakose, learned counsel appearing for the petitioners and Sri.K.P.Dandapani, learned senior counsel appearing for the detenu. We also heard the learned Government Pleader. 5. Learned counsel for the petitioners reiterated the facts and submitted that it is a case where the court should not act upon the affidavit of the alleged detenu. He would submit that actually, respondents 6 to 9 are persons interested in detaining the alleged detenu. Having regard to the stakes involved and the decree passed by the civil court, which is put in execution, he would pray that either Shri.Raghavendra W.P.(Crl) 161/2011 5 Thirtha be called upon to appear in person or an Advocate Commissioner be appointed, to ascertain the veracity of the statements contained in the affidavit. He would further point out that in the affidavit of the alleged detenu, Shri.Raghavendra Thirtha has used the words “we” and it is not in singular, as an affidavit should be prepared. The affidavit is also not attested by a counsel appearing in the matter, it is submitted. It is further contended that the affidavit does not pin-pointedly say as to where exactly the alleged detenu is. 6. On the contrary, learned senior counsel appearing for the alleged detenu would submit that the purport of the first prayer in this writ petition is to secure compliance with the decree. He would point out that in fact, the decree is yet to become final and the appeals are pending. He would further point out that the objection taken to the use of the words “we” in the affidavit is without merit, having regard to the position of the detenu. He would say that a person of his stature does not use the word “I”. It is submitted that it is not the law that a person, who is not appearing in the case cannot W.P.(Crl) 161/2011 6 attest an affidavit. He would submit that the writ petition cannot be countenanced at all and the attempt is clearly to execute the decree through the means of the court, which should not be permitted. 7. A writ of habeas corpus is essentially premised on the plea of a person or persons being in illegal confinement or illegal detention. A writ of habeas corpus can be filed by any person on behalf of the alleged detenu. But, the crucial question is whether the person is in illegal detention. We must not overlook the undisputed facts. A decree obtained against the alleged detenu is put in execution. Going by the averments in the writ petition and the materials produced, it may be a possible conclusion to reach, that the alleged detenu may be evading process of the executing court. But, the question which we are called upon to decide is whether the person is in illegal detention or whether he is a free agent. We have already noticed the purport of the first prayer in the writ petition. We cannot escape the feeling that the real purpose of the writ petition was to secure his presence for the purpose of W.P.(Crl) 161/2011 7 executing the decree, which we think is not permissible with recourse to the habeas corpus jurisdiction. There is an affidavit filed by the alleged detenu. For the mere fact that the detenu has used the word “we”, we need not hold that the affidavit should not be acted upon. The affidavit appears to be attested by an Advocate and Notary in the State of Andhra Pradesh. It is stated in the affidavit that the alleged detenu is in Thirupathi. We cannot hold that the detenu has lost his right to move from one part of India to another part. It may be that he is evading the execution of the decree. The affidavit specifically states that he is at Thirupathi. Therefore, we cannot also discard the affidavit for the reason that he does not specifically state, where he is. In short, as of now, we are not posted with materials, on the basis of which we can conclude that the affidavit of the alleged detenu has to be discarded. In such circumstances, we do not see any merit in the matter. 8. Learned counsel for the petitioners would then point out that before the police, there is a prayer to take action in respect of the offence committed by the detenu, which the W.P.(Crl) 161/2011 8 police is obliged to take action. We leave open the said prayer and it is open to the petitioners to pursue the same in appropriate jurisdiction. Subject to the same, we close the writ petition. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs