1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:09.12.2011 CORAM: THE HONOURABLE MR.JUSTICE K.N.BASHA and THE HONOURABLE MR.JUSTICE M.VENUGOPAL Habeas Corpus Petition (MD) No.1065 of 2011 and M.P(MD).No.1 of 2011 A.Murugan :Petitioner -Vs- 1.State of Tamilnadu Represented by its Secretary, Home Department, St.George Fort, Chennai 600 009. 2.The Inspector of Police, Paramakudi Police Station, Paramakudi, Ramanathapuram District. 3.The Deputy Superintendent of Police, Paramakudi, Ramanathapuram District. 4.The Superintendent of Central Prison, Madurai Central Prison, Madurai. :Respondents Prayer:Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Habeas Corpus as: (a)Declaring the arrest of V.Selvakumar S/o.Velu is in violation of Articles 14 and 21 of the Constitution of India and his remand was obtained by the 2nd respondent by misleading the Hon'ble Judicial Magistrate, Paramakudi. (b)Directing the 4th respondent to release V.Selvakumar S/o.Velu forthwith as he is arrested and remanded without any basis in Crime No.363 of 2011 on the file of the Inspector of Police, Paramakudi Police Station, (c)Directing 1st respondent to pay just and fair amount of compensation to V.Selvakumar for the sufferings and the agonies he has undergone due to the detention and confinement in the prison. (d)Issuing any other order or direction as this Court may consider fit and proper in the circumstances of the matter. For Petitioner :M/s.P.Rathinam For Respondents:Mr.K.Chellapandian, Additional Advocate General for Mr.R.Anandaraj, Government Advocate ORDER K.N.BASHA, J. The petitioner has come forward with this petition seeking for the relief of issuing a writ, in particular a Writ of Habeas Corpus, (a)Declaring the arrest of V.Selvakumar S/o.Velu is in violation of Articles 14 and 21 of the Constitution of India and his remand was obtained by the 2nd respondent by misleading the Hon'ble Judicial Magistrate, Paramakudi. (b)Directing the 4th respondent to release V.Selvakumar S/o.Velu forthwith as he is arrested and remanded without any basis in Crime No.363 of 2011 on the file of the Inspector of Police, Paramakudi Police Station, https://hcservices.ecourts.gov.in/hcservices/ 2 (c)Directing 1st respondent to pay just and fair amount of compensation to V.Selvakumar for the sufferings and the agonies he has undergone due to the detention and confinement in the prison. (d)Issuing any other order or direction as this Court may consider fit and proper in the circumstances of the matter. 2.The brief facts which are necessary for the disposal of this petition is stated hereunder: 2.1. The petitioner is a practicing Advocate and he is approaching this Court to place the shocking facts with regard to the arrest of V.Selvakumar S/o.Velu residing at 3/450, Balan Nagar, Paramakudi, Ramanathapuram District by the second respondent on 16.11.2011 at about 05.30 p.m on a false charge, which is not clear and ambiguous. 2.2. The said V.Selvakumar is a married person having his wife and two children. The petitioner is a member of informal team of advocates for rendering legal aid to the needy who belong to the weaker sections of the society. They are taking up the cause of the members of the Dalit Community. Under the said background the petitioner is approaching this Court to get appropriate relief for violation of the human rights of V.Selvakumar who was arrested by the second respondent on flimsy grounds due to the pressure of vested interest. 2.3. It is further stated in his affidavit that the said V.Selvakumar was a member of Thiyagi Immanuvel Peravai, an organisation working for the welfare of the Dalit Community, but he has left the organisation in 2009 itself and now he is not the member of any other organisation. 2.4. The further case of the petitioner is that on 18.10.2011 one Mr.Punniya Moorthy, advocate, practicing at Paramakudi made an application to the Deputy Superintendent of Police, Paramakudi for obtaining permission to conduct a public meeting in five road junction at Paramakudi on 05.11.2011. The D.S.P rejected the application for conducting public meeting and on the other hand given permission to conduct peaceful demonstration with usual conditions. Due to unexpected rain, the demonstration started at about 05.00 p.m and ended at about 08.00 p.m as the organizers of the demonstration could not close it at 06.00 p.m as the people assembled there were wanting to continue upto 08.00 p.m as they have come from surrounding villages. 2.5. The speeches made by two of the participants are treated as attracting the Section 153A of I.P.C and as far as the said V.Selvakumar is concerned, he has not committed any offence under Sections 153A, 188 and 34 of I.P.C. and his name is also not mentioned in the F.I.R. The allegation found in the remand report against V.Selvakumar is that he accompanied Mr.Punniya Moorthy while he approached the police officials to get permission to conduct public meeting. Therefore, mere accompanying a person to prefer an application for getting permission would not make out commission of any offence. The arrest of the said V.Selvakumar by the second respondent infringe the Constitutional guarantee under Articles 14, 21 and 19(1)(a). Only to satisfy some vested interest, the second respondent treated V.Selvakumar as an offender and arrested him and got him remanded to judicial custody. 2.6. The petitioner further stated that he understand that the second respondent has not complied with the directions of the Hon'ble Supreme Court incorporated in D.K.Basu v. State of West Bengal reported in 1997 (1) SCC https://hcservices.ecourts.gov.in/hcservices/ 3 416. The said V.Selvakumar was not allowed to contact his lawyer and no grounds of arrest has been stated to him. Neither his family nor his friend was informed of his arrest. 2.7. The learned Judicial Magistrate, Paramakudi also failed to apply his mind while passing the order of remand and the second respondent has not disclosed any material or relevant particulars to show the involvement of V.Selvakumar in the alleged offences. The remand report filed by the second respondent before the learned Judicial Magistrate, Paramakudi does not make out a case against the said V.Selvakumar and it only gives the details of the speeches made by the accused No.1 and 2. Being aggrieved against the said arrest and remand of V.Selvakumar, the petitioner has come forward with this present petition with the above said prayer. 3.Mr.P.Rathinam, learned counsel for the petitioner vehemently contended that the detenue V.Selvakumar's name was not mentioned in the F.I.R as per the report given by Thiru.Natarajan, Sub-Inspector of Police It is contended that the named 8 persons in the F.I.R have not been arrested and on the other hand the said V.Selvakumar, who is not mentioned in the F.I.R has been arrested without any basis. The learned counsel for the petitioner further contended that even in the remand report submitted by the Inspector of Police there is no allegation constituting any offence alleged in the F.I.R made against V.Selvakumar and on the other hand, it is merely stated that while Mr.Punniya Moorthy, who has been arrayed as A8 in the F.I.R, has given an application for seeking permission to conduct meeting, the said V.Selvakumar also accompanied with him. It is pointed out by the learned counsel for the petitioner that by merely producing the F.I.R and remand report, the second respondent sought for remanding the said V.Selvakumar to judicial custody and the learned Magistrate, without application of mind and considering that the said two documents does not make out a prima facie case against the said V.Selvakumar, remanded him for judicial custody on the same day i.e., on 16.11.2011 at 9.30 p.m as the said V.Selvakumar was arrested at 6.30 p.m on the same day. Therefore, it is contended that the remand order is also unsustainable in law. 4.The learned counsel for the petitioner submitted that in respect of 8 named persons in the F.I.R, a writ petition was preferred and this Court passed an order of not to arrest in M.P(MD).No.2/2011 in W.P(MD) No.13134/2011 by the order dated 17.11.2011. It is further submitted that as the arrest and consequential remand to judicial custody is illegal, the confinement or detention of the said V.Selvakumar in the prison is also illegal and in view of the same, the said V.Selvakumar is entitled to seek the relief of compensation for the sufferings and agonies he has undergone due to the detention and confinement in the prison. In order to substantiate his contentions, the learned counsel for the petitioner placed reliance on the following decisions: (1) G.K.Moopanar, M.L.A and Others v. The State of Tamil Nadu represented by Public Prosecutor reported in 1990 MLJ (Cri) 228 (2) B.Chandra v. The State of Tamil Nadu and Others reported in 1996-1 L.W. (Cri) 110 (3) Bhim Singh, MLA v. State of J & K and Others reported in AIR 1986 SC 494 = (1985) 4 SCC 677 https://hcservices.ecourts.gov.in/hcservices/ 4 (4) Krishnamma v. Government of Tamil Nadu reported in 1999 CRI.L.J. 1915 (5) Ms.Arokia Mary Lucia v. The State of Tamil Nadu reported in (2004) M.L.J. (Cri.) 360 (6) Order of this Court dated 17.11.2011 made in M.P(MD).No.2/2011 in W.P (MD).No.13134/2011. 5.Per contra, Mr.K.Chellapandian, learned Additional Advocate General contended that enough materials were placed before the learned Magistrate for remanding the accused V.Selvakumar to judicial custody. It is contended that the said V.Selvakumar was arrested on 16.11.2011 at 06.30 p.m and thereafter he was produced before the learned Judicial Magistrate, Paramakudi on the same night at 09.30 p.m and the relevant records, namely, F.I.R, remand report and the statements recorded under Section 161 of the Criminal Procedure Code were also produced before the learned Magistrate It is submitted that only after going through the said records, the learned Magistrate remanded the said V.Selvakumar to judicial custody. The learned Additional Advocate General further contended that though the name of the said V.Selvakumar was not mentioned in the F.I.R, there is an allegation in the remand report to the effect that the said V.Selvakumar accompanied one Mr.Punniya Moorthy, who has been arrayed as A8 in the F.I.R, while giving application for getting permission to conduct the meeting. 6.It is contended that even as per the admitted version of the petitioner, permission was not granted for conducting meeting and it was granted only to conduct peaceful demonstration from 04.00 p.m to 06.00 p.m, but actually the organizers conducted the public meeting itself and it went upto 08.45 p.m and as such, there is a clear and deliberate violation of the conditions, subject to which permission was granted for holding peaceful demonstration. It is pointed out by the learned Additional Advocate General that in the remand report, it is also stated that as per the request made by Mr.Punniya Moorthy (A8 in the case) and V.Selvakumar, the permission was granted to conduct demonstration from 04.00 p.m to 06.00 p.m, but the same went on upto 08.45 p.m in violation of the conditions. Therefore, that would amount to disobedience of the orders passed by the D.S.P. It is contended that there is no violation of the guidelines stipulated by the Hon'ble Supreme Court in D.K.Basu's case as the said V.Selvakumar's wife was immediately informed about the arrest personally by the Inspector of Police and all the other formalities were also scrupulously complied with. It is further contended that enough materials were produced before the learned Magistrate, enabling the learned Magistrate to pass the order of remand and as such, there is no illegality either in respect of arrest of the said V.Selvakumar or in respect of the remand order passed by the learned Judicial Magistrate, Paramakudi. 7.The yet another contention of the learned Additional Advocate General is that the petition itself is not maintainable as the petitioner is having other alternative effective remedy, namely, if the V.Selvakumar feels that no case is made out against him he can very well file a petition under Section 482 of the Criminal Procedure Code to quash the proceedings and it is also open to him to move a regular bail application before the competent Court. In support of his contentions, learned Additional Advocate General would place reliance on the following decisions: https://hcservices.ecourts.gov.in/hcservices/ 5 (1)Ramesh Kumar Ravi alias Ram Prasad and etc., v. State of Bihar and Others etc., reported in AIR 1988 Patna 199 (2)V.P.Kalairajan & Another v. The Director General of Police & Others reported in CDJ 2006 MHC 2340 (3) A.Murugan v. Secretary, Department of Home, Fort St.George, Chennai-9 and Another reported in (2010) 4 MLJ (Cri) 1 8.We have given our careful and anxious consideration to the rival contentions put forward by either side and thoroughly scrutinized the entire materials available on record, namely, F.I.R, remand report, remand order passed by the learned Magistrate and other materials placed before this Court apart from perusing the contents of the affidavit of the petitioner and the counter affidavit filed by the respondent. 9.Three-fold questions arises for consideration in this matter namely (1) Whether the petition filed under Article 226 of the Constitution of India is maintainable ? (ii) Whether the arrest of the detenue V.Selvakumar is liable to be declared as illegal and violation of Articles 14 and 21 of the Constitution of India ? (iii) Whether the remand order passed by the learned Judicial Magistrate, Paramakudi is sustainable in law ? 10.The learned Additional Advocate General raised the question of maintainability by contending that the petitioner could have exhausted alternate remedy under the Code of Criminal Procedure and also could have filed a bail application and instead invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, is not maintainable A Division Bench of this Court, in a landmark case in Elumalai v. State of Tamil Nadu reported in (1984) 1 MLJ (Cri) 246, entertained a batch of writ petitions for issuing a Writ of Habeas Corpus and among the said writ petitions, two of the writ petitions were filed by practicing advocates of the Madras High Court. The Division Bench of this Court elaborately dealt with the scope of arrest under Sections 41(1) and 41(2) of the Criminal Procedure Code and duty of the learned Magistrate while remanding the accused. The Division Bench held that the order of remand should not be made mechanically, arbitrarily and as a matter of routine. The Division Bench further held that such order of remand or extension of remand is not legally sustainable and as such, the accused cannot be kept in jail custody even for one minute after the expiry of the period of remand already ordered by the Court. 11.Yet another Division Bench of this Court has placed reliance on the earlier decision rendered by the Division Bench in Elumalai's case and also dealt with the question of maintainability of filing petitions for Writ of Habeas Corpus. In G.K.Moopanar, M.L.A and Others v. The State of Tamil Nadu represented by Public Prosecutor reported in 1990 MLJ (Cri.) 228, a Division Bench of this Court has held hereunder: “It has been repeatedly held by the Supreme Court and this Court that normally the remedy under Art.226 being a discretionary remedy, the High Court may refuse to grant relief whenever there is an alternate remedy available which is equally efficacious and adequate. Whether the alternate remedy is equally effective or adequate is a question of fact to be decided in each case. As far https://hcservices.ecourts.gov.in/hcservices/ 6 as the cause of action against the Government is concerned, a distinction is always made between sovereign functions of the Government and contracts made by the Government. A person who is individually and prejudicially affected by exercise of a sovereign power by the Government is entitled to file a petition under Art.226 under certain circumstances. Art.226 is not intended to circumvent statutory procedures but it is intended to give effective and immediate relief to the aggrieved persons. While considering this question, the basic principle should be borne in mind, viz., that the existence of an alternate remedy is not an absolute bar to the relief under Art.226...... The existence of an alternative remedy does not take away the jurisdiction of the Court to grant relief under Art.226. Whenever this Court finds that resort to such alternate remedy in a given case is dilatory or difficult to give quick relief, this Court can always exercise jurisdiction under Art.226. It is well-established by now that if an impugned order goes to the root of jurisdiction of the authority exercising power under any provision of law, this Court can exercise its jurisdiction under Art.226 and grant necessary relief. However this Court will be slow in admitting writ petitions where there are alternate remedies and only in extraordinary cases, an aggrieved person can approach this Court under Art.226. It is a judicial discretion which has to be exercised with care and caution bearing in mind that the ultimate object is to render justice to an aggrieved person. ..... A writ of habeas corpus is a very important jurisdiction in which the High Courts are called upon to protect the individual liberties of citizens and prevent illegal detention by the authority of the State or otherwise. This jurisdiction is exercised to call upon the person who has detained another to produce the person detained before the Court in order to let the court know on what ground he has been confined and if the Court finds that there is no legal basis for imprisonment, the Court will set him at liberty. If the detention is proved to be in violation of the procedure established by law, the Court has necessarily to order his release. It is the paramount duty of the courts to issue this kind of writ to safeguard the freedom of the citizens against arbitrary and illegal detention.” 12.The learned Additional Advocate General placed strong reliance on a Division Bench decision of this Court in V.P.Kalairajan & Another v. The Director General of Police & Others reported in CDJ 2006 MLJ 2340. It is to be stated that the said Division Bench fully agreed with the view expressed by the earlier Division Bench of this Court in Elumalai's case and in G.K.Moopanar's case cited supra. The Division Bench of this Court, in that case, incorporated the observations and directions issued by the earlier Division Bench in G.K.Moopanar's case as hereunder: “14.... Whatever it is, it is well established by now that if an impugned order goes to the root of jurisdiction of the authority exercising power under any provision of law, this Court can exercise its jurisdiction under Art.226 and grant necessary relief. However this Court will be slow in admitting writ petitions where https://hcservices.ecourts.gov.in/hcservices/ 7 there are alternate remedies and only in extraordinary cases, an aggrieved person can approach this Court under Art.226. It is a judicial discretion which has to be exercised with care and caution bearing in mind that the ultimate object is to render justice to an aggrieved person. .....” On going through the factual details and after finding that the questions cannot be effectively decided by the Magistrates concerned, the Division Bench arrived at a conclusion that the Writ Petition under Article 226 is maintainable. In paragraph No.15, it was observed as follows: “15... Therefore, in a case like this where the petitioners alleged that they have been detained against the procedure established by law and in violation of their fundamental rights to equal justice, certainly a Writ of Habeas Corpus would lie. We must make it clear that normally a Writ of habeas corpus cannot be granted when a person is committed to jail custody by a competent Court by an order which prima facie does not appear to be without jurisdiction, as observed by some of the decisions of the Supreme Court. But in a deserving case, a Writ of Habeas Corpus can be granted for the reasons stated above....” The Division Bench also heavily relied on the earlier decision rendered in Elumalai v. State of Tamil Nadu and Others (cited supra). In respect of passing orders of remand by the Magistrates, the Division Bench has observed. “16. Therefore, it follows that a remand by a Magistrate is not an automatic one and sufficient grounds must exist for the Magistrates to exercise their powers of remand. That is the reason why it is required that a copy of the entries in the diary should be forwarded to the Magistrates along with the arrested persons...” In the said decision, the Division Bench also referred earlier Division Bench decision in Elumalai v. State of Tamil Nadu and another (cited supra) as hereunder: “11.Learned counsel appearing for the petitioner also brought to our notice the direction given in Elumalai v. State of Tamil Nadu and another, particularly in para No.43(1), which reads as under:- “43. In view of all the above discussions, we make the following propositions: (1) S.167(2) of the Code would apply to arrests made under S.41(1) and in exceptional circumstances, to arrests made under S.151(1). But the Judicial Magistrates, while remanding or passing extensions or remands, should be very watchful to see that the liberty of a citizen is not violated by the police arbitrarily and unreasonably.” Ultimately, the said Division Bench has held as hereunder: 13. The conclusion arrived by the earlier Benches in G.K.Moopanar's case as well as Elumalai's case makes it clear that, irrespective of the alternative remedy being available, the affected persons can approach this Court by way of Petition under Article 226 of the Constitution of India. We are in entire agreement with the said view. There is no dispute about the said proposition.” Therefore, it is crystal clear that the latter Division Bench also agreed https://hcservices.ecourts.gov.in/hcservices/ 8 the view taken by the earlier Division Benches in Elumalai's case and G.K.Moopanar's case. However, the Division Bench having found that the petitioners already moved bail applications and pending before the learned Magistrate, directed them to approach the learned Magistrate to advance the hearing of the bail application. In respect of the remand order, it is observed by the Division Bench that the remand order was not at all produced before them and observed as hereunder: “14....Though learned counsel for the petitioner vehemently contended that the learned Magistrate has not applied her mind before passing the order of remand, admittedly, no such order is available before us. The learned counsel has placed only a draft order said to have been passed by the learned Magistrate. It is not in dispute that, as per the provisions of the Code of Criminal Procedure and as explained by the earlier Division Benches, the Magistrate concerned is duty bound to satisfy himself/herself before accepting the request of the Investigating Officer for ordering remand. In the absence of required particulars, we are of the view that the said question cannot be gone into by this Court at this stage.” Therefore, the Division Bench in the above said case declined to invoke the writ jurisdiction for the reasons stated above and the same cannot be equated with the present case on hand, wherein the detenue has not preferred any bail application till date and on the other hand, the petitioner herein raised two important questions namely legality of arrest and validity and sustainability of the remand order as per law. 13.The yet another decision relied by the learned Additional Advocate General is A.Murugan v. Secretary, Department of Home reported in (2010) 4 MLJ (Crl) 1, that is a case wherein a writ petition was filed at the flag end of the trial, seeking the release of detenue on bail and as such, the Division Bench declined to maintain such petition under Article 226 of the Constitution of India. 14.The third decision relied by the learned Additional Advocate General is a Full Bench decision of the Patna High Court in Ramesh Kumar Ravi alias Ram Prasad and etc., v. State of Bihar and Others etc., reported in AIR 1988 PATNA 199. In that case, the Full Bench of Patna High Court taken a view that the accused person being confined in custody under a valid order of remand and as such, held that the Writ of Habeas Corpus cannot be entertained. But in the instant case, the petitioner has questioned the very legality and validity