IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.4.2009 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE C.T.SELVAM Habeas Corpus Petition No.529 of 2009 & M.P.No.1/2009 E.Veluchamy … Petitioner Vs. 1.The Special Investigation team, rep.by its Inspector, Central Bureau of Investigation, New Delhi. 2.The State of Tamilnadu, Rep.by its Secretary, Ministry of Home Department, Fort St.George, Chennai-600009. … Respondents * * * Habeas Corpus Petition filed under Article 226 of the Constitution of India, praying to direct the respondents to produce the bodies of (1) Nalini, (2) Santhan, (3) Murugan, (4)Robert Payas, (5) Jeyakumar, (6) Ravi (7) Arivu. * * * For petitioner : Mr.R.Karuppan For R.1 : Mr.N.Chandrasekaran, Spl.P.P. For R.2 : Mr.N.R.Elango, Addl.P.P. * * * O R D E R ELIPE DHARMA RAO, J. Probably, this case would stand as a classic example in the https://hcservices.ecourts.gov.in/hcservices/ judicial history as to how well established facts could be twisted to the convenience of parties and how a provision of law could be misused and how the valuable public time of the Court could be wasted by filing a fictitious and frivolous litigation aiming publicity and to settle political and personal scores, knowing fully well that they are fighting a losing battle. 2. Coming to the factual matrix of the case, the entire Nation - irrespective of caste, creed, race and religion - was shocked and grieved at the stroke of 22.15 hours on 21.5.1991, when the former Prime Minister of India, Sri Rajiv Gandhi was assassinated by a human bomb at Sriperumbudur, Tamil Nadu. Some other persons also lost their lives in that incident. This inhuman, barbaric and shameful act perpetrated by the forces outside India, which was later identified as the LTTE of Sri Lanka, which is a banned outfit now, was condemned by each and every civilized nation in the world and every human being on the earth. A case in Crime No.329/1991 was registered by the Inspector of Police, Sriperumbadur at 01.15 hours on 22.05.1991 for the offences under Sections 302, 307, 328 IPC and Sections 3 and 5 of the Explosive Substances Act and the investigation of the case was taken up by the Crime Branch CID, Tamil Nadu. Thereafter, at the request of the Government of Tamil Nadu, the case was re-registered by the Central Bureau of Investigation as RC.9(S)/91-CBI/SCB/MAS under Sections 120B r/w.Sections 302, 326, 324, 201, 212 and 216 of IPC, Sections 3,4 and 5 of the Explosive Substances Act; Section 25 of the Arms Act; Section 12 of the Passport Act; Section 14 of the Foreigners Act; Section 16(1-A) of Wireless and Telegraph Act and Sections 3,4 and 5 of the Terrorist and Destructive Activities (Prevention) Act, 1987 (in short TADA) on 24.5.1991. After completing the investigation, the Special Investigation Team (SIT) constituted by the Central Bureau of Investigation to investigate the case under the leadership of Mr.D.R.Karthikeyan, filed the charge-sheet on 20.5.1992 before the Designated Court No.1 under TADA, Chennai, which was specially constituted under Section 9(1) of TADA Act, 1987 for trying Sri Rajiv Gandhi assassination case and the same was taken on file in C.C.No.3/1992, against the available 26 accused, including (1) Nalini, (2) Santhan, (3) Murugan, (4) Shankar, (5) Vijeyandran, (6) Ruban and (7) Arivu, seeking whose 'release' this petition has been filed. The case against the absconding accused was split up as C.C.No.11/1992 and the same is still pending. 3. The Designated Court No.1 under TADA, Chennai found all the available 26 accused guilty of the charges and all of them were sentenced to capital punishment of death on various counts. Since as per Section 19 of the TADA Act, an appeal against the conviction and sentence rendered by a Designated Court would lie only before the Honourable Supreme Court of India, all the 26 accused, including the above named seven persons, preferred appeals before the Honourable Supreme Court of India in their individual capacity. A Three Judge Bench of the Honourable Supreme Court of India heard all the appeals https://hcservices.ecourts.gov.in/hcservices/ along with Death Reference Case No.1/1998 and all the appeals were disposed of on 11.5.1999 by the Honourable Supreme Court, vide its judgment reported in (1999) 5 SCC 253, confirming the conviction of all the accused persons except one and modifying the sentence in respect of some of the accused persons. Four accused persons have filed Review Petitions before the Honourable Supreme Court and they were also disposed of on 13.7.1999, by confirming their conviction. Thus, all the above named seven persons, along with other accused persons, are now serving their sentences, having been found guilty of various charges, after following the due process of law. 4. In these circumstances, this petition has been filed by the petitioner, who is said to be a ‘socially conscious person’ and was ‘also a member of the Congress and continuing in the same even now’ praying to direct the respondents to produce the bodies of (1) Nalini, (2) Santhan, (3) Murugan, (4) Shankar, (5) Vijeyandran, (6) Ruban and (7) Arivu and release them. Except saying that he is a 'socially conscious person', nothing has been mentioned as to in what way he is ‘interested’ or ‘related’ to the above said seven persons, so as to file and maintain this habeas corpus petition. When we expressed our opinion that this petition is liable to be rejected as not maintainable, since the above said seven persons are serving their sentences as convict prisoners imposed by the Honourable Apex Court, having been found guilty of various charges, which was confirmed till the Supreme Court, the learned counsel appearing for the petitioner has insisted that the case be heard since he want to make his submissions and argued this matter at length, inviting our detailed order in this matter. 5. In his long affidavit, the petitioner has showered his knowledge on many irrelevant aspects to the case, like the issue of Yasar Arafat which is quite unnecessary for the matter. Further, he tried to give a picture that LTTE has not played any role in the assassination of Sri Rajiv Gandhi, when the role of LTTE and its top brass leaders in the assassination of Sri Rajiv Gandhi was proved on an appreciated investigation conducted by SIT of CBI and they are now the absconding accused in the case, against whom the case is split-up and pending trial. The petitioner has also shed venom on his political opponent Mr.Subramaniaswamy, the President of the Janata Party, who was not impleaded as a party to these proceedings so as to have an opportunity for him to rebut the allegations made against him. 6. We extract hereunder the various allegations made by the petitioner in his affidavit against Mr.Subramaniasamy: "2. I submit that I was closely associated with Subramaniasamy the Janata Party leader. However after the assassination of former Prime Minister Rajiv Gandhi I became suspicious about whatever Subramaniasamy said and did. I https://hcservices.ecourts.gov.in/hcservices/ started raising doubts about his involvement in the said murder and had been writing and giving speeches and interview." "5.... The assassination took place at 10.20 p.m at Sriperumbadur near Chennai. However, immediately after assassination even before any investigation the Central Government circulated the news that it was the LTTE which had carried out the assassination. I was the one who heard the news from Delhi from Dr.Subramaniasamy when the rest of the world did not know and the persons who were there at the bomb site did not know." "7.... I submit that the whole country was shocked by the assassination. Every citizen felt he had lost someone dear. The Government of India instantly took steps to appoint the judicial commission under the appropriate act. Finally the Justice Milap Chand Jain had given an interim report followed by the final report comprising of nearly nine volumes. In the final report he directed further CBI probe against several accused and in particular as against Chandrasami a notorious arms dealer and Subramanian Swamy etc. The order was passed on 5th August, 1998. I also appeared before the Commission and deposed. I had also been circulating copies of the letter written by Dr.Subramaniasamy and later purchased back by him in bulk. The following lines are found at the end of the preface to the book written by Swamy titled as 'Raji Bloody Murder (Unanswered Questions and the questions that were not asked)' dated 23 March 2001. "Although the murders have been punished the aides of the murder happen to be his relatives and political heirs, and inheritors of his property and that they are going scot- free." 7. Though such serious allegations are made against the said Subramaniaswamy, he has not been impleaded as a party to these proceedings to give an opportunity for him to explain them. Courts are not meant for settling the personal scores under the garb of invented litigations and this attitude exhibited on the part of the petitioner needs to be deprecated. 8. Reverting back to the question of maintainability, first of all, all the above named seven persons are admittedly the convict prisoners, serving sentence imposed by the Honourable Apex Court, since being the accused in Sri Rajiv Gandhi’s assassination case. The illegal attempt made on the part of the petitioner, to call them as ‘detenus’ and seeking their ‘release’ has to be condemned and viewed seriously. https://hcservices.ecourts.gov.in/hcservices/ 9. When a specific question regarding the locus standi of the petitioner, to file this petition has been raised, the learned counsel for the petitioner would argue that the powers of the Court in matters of detention are very wide and anybody, who has a concern for the detenu, can file a Habeas Corpus Petition. Much has been argued and emphasised on the part of the petitioner that in the matters of Habeas Corpus, strict rules of pleading should not be followed and that such Habeas Corpus petition can be filed by anybody and therefore, this Habeas Corpus Petition filed by the petitioner, a social conscious person, is very well maintainable. 10. In support of his arguments, the learned counsel for the petitioner has relied on a Three Judge Bench judgment of the Honourable Apex Court delivered in SUNIL BATRA (II) vs. DELHI ADMINISTRATION [(1980) 3 SCC 488], in which case a letter written to a Supreme Court Judge by a prisoner in Tihar Jail, Delhi complaining ill-treatment meted out to a co-prisoner, was treated as a Habeas Corpus Petition. 11. The other judgment relied on by the learned counsel for the petitioner is another Three Judge Bench judgment of the Honourable Apex Court delivered in BANDHUA MUKTI MORCHA vs. UNION OF INDIA AND OTHERS [(1984) 3 SCC 161], wherein a public interest litigation filed under Article 32 by a public spirited organisation on behalf of persons belonging to socially and economically weaker section complaining violation of their human rights on being forced to serve as bonded labourers was held to be maintainable. 12. Both the above judgments arose under different circumstances. The first case was initiated based on a letter written by a co- prisoner regarding the ill-treatment meted out to a prisoner, which has been treated as a habeas corpus petition. But, in the case on hand, the above named seven persons are serving their sentence, imposed by the Honourable Apex Court, as convict prisoners and further more, the very verdict of the Honourable Apex Court, finding them guilty of the charges framed against them, is sought to be branded as non-est in law by the petitioner, who has no authenticity to file this petition, that too questioning the judgment of the Honourable Apex Court, which is binding on all Courts in India under Article 141 of the Constitution. The law declared by the Supreme Court is the law of the land and the general principle of law laid down by the Supreme Court is applicable to every person including those who were not parties to that order. Therefore, the first judgment cited above has no application to the facts of the case on h and. 13. The second case relied upon by the learned counsel for the petitioner is regarding the release of the bonded labourers at the instance of a private organisation, which is not the case on hand. The petitioner is attempting to create a picture before us as if he https://hcservices.ecourts.gov.in/hcservices/ is a Messiah of Masses and fighting for the cause of others, ignoring the fact that the persons, whose 'release' he is seeking for in this not maintainable petition, are the accused persons, whose guilt has been proved beyond all reasonable doubts upto the level of the Honourable Supreme Court and such a not maintainable petition could not be equated with a public interest litigation. Therefore, the second judgment cited above by the learned counsel for the petitioner also do not apply to the facts of the case on hand, which stands completely on a different footing. 14. But, we are aware that the learned counsel for the petitioner is trying to impress upon us that anybody ‘interested’ can seek the release of a detenu. No doubt, by now it is a well settled proposition of law that any person ‘interested’ or ‘related’ to the ‘detenu’ can file a Habeas Corpus Petition seeking the release of the detenu. But, in the case on hand, as has already been discussed supra, the above named seven persons are not the ‘detenus’, since they are not detained under any preventive detention laws, but are convict prisoners, serving their sentences, as awarded by the Honourable Apex Court, after exhausting all the legal remedies available to them. No provision of law permits a third party to file any petition for any relief on behalf of such accused persons, except the accused himself. Thus, the law has drawn a distinct line between the terms ‘accused’, ‘detenu’ and moreover a ‘convict prisoner’ and the malicious attempt on the part of the petitioner to erase this distinction, cannot be permitted. No provision of law or even a binding precedent has been brought to our notice by the petitioner to show that even the convict prisoners could seek for their ‘release’ by filing a habeas corpus petition, except relying on a U.S.Supreme Court order in RICHARD EARL PILON vs. DONALD E.BORDENKIRCHER, reported in 441 US 1, wherein it has been held that 'State prisoner in federal habeas corpus proceeding challenging sufficiency of evidence for his manslaughter conviction is entitled to determination, on remand, of whether evidence supported finding of guilt beyond reasonable doubt.' The above said judgment of the Supreme Court of United States has got only a persuasive value and do not have any binding effect on us. The law, system and procedures being followed by the United States in such matters appears to be totally different from our law. As has been repeatedly observed by us throughout this order, the above said seven persons are not the detenus but the convict prisoners, whose guilt has been proved beyond all reasonable doubts after a full fledged trial and they have also exhausted all the legal remedies available to them, which cannot be called as a 'no evidence case', as has been mischievously tried to be called on the part of the petitioner. Even otherwise, the above judgment of the U.S. Supreme Court was rendered at the instance of the accused himself, but in the case on hand, the petitioner, who has no locus standi to file this case, has initiated this vexatious litigation. Therefore, viewing from any angle, the above judgment of the U.S. Supreme Court will not help the case of the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 15. At this juncture, it is apt to mention that when a practising Advocate, who is not a friend or relative of the detenu, has filed H.C.P., as a third party, seeking the release of her 'client' on the argument that she is also a socially conscious person, by the judgment in S.SENGKODI vs. STATE OF TAMIL NADU AND OTHERS [2009-2- L.W. 598 = 2009 CIJ 376 Madras], one of us (Elipe Dharma Rao, J.), speaking for the Bench, has held the said H.C.P. as not maintainable. The same analogy applies to the case on hand also, since admittedly, the petitioner is neither a friend nor a relative of the above said seven convict prisoners, but has filed this not maintainable petition with malicious intention of settling his personal scores with his political opponents. Therefore, we have no hesitation to hold that the petitioner has no locus standi to file this petition. 16. On a thorough analysis of the entire materials placed on record, we have no hesitation to hold that the petitioner has filed this fictitious litigation, without having any locus standi, aiming at short lived publicity, to settle his political and personal scores, when Parliament elections are fast approaching (The Parliament elections are scheduled to be held in Tamil Nadu on 13.5.2009) and not for any legal or valuable purpose. In these circumstances, the judgment of the Honourable Apex Court in DEEPAK BAJAJ vs. STATE OF MAHARASHTRA & ANOTHER (W.P.(Crl.) No.77 of 2008, dated 12.12.2008) wherein it has been held that non-supply of relevant documents to the detenu would vitiate the order of detention. This judgment has been cited on the part of the petitioner while arguing that the Jain Commission Report was not supplied to the above said seven persons. But, this judgment has no application to the facts of the case, since the above said seven persons are only ‘convict prisoners’, serving the sentence imposed on them by the Honourable Apex Court and not ‘detenus’, as has been illegally sought to be branded on the part of the petitioner. 17. On behalf of the petitioner, two judgments of the Supreme Court have been relied on, the first one in SHRI LALLUBHAI JOGIBHAI PATEL vs. UNION OF INDIA AND OTHERS [(1981) 2 SCC 427] and the second one in MOIDEEN KOYA vs. GOVERNMENT OF KERALA [(2004) 8 SCC 106] to emphasise the point that the bar of res judicata or principles analogous thereto would not apply to a writ of habeas corpus where the petitioner prays for setting him at liberty. There cannot be any doubt that the principles of res judicata have no application in the criminal jurisprudence and a fresh habeas corpus petition would lie on fresh grounds. But, this principle has no application to the facts of the case on hand, since the above said seven persons are not the ‘detenus’, so as to maintain the Habeas Corpus Petition. As has been observed by us in the opening paragraph of this judgment, the entire facts of the case have been twisted to his convenience by the petitioner, as if the above said seven persons are detenus and are in illegal custody and filed this vexatious litigation, wasting the public time of this Court. https://hcservices.ecourts.gov.in/hcservices/ 18. In para No.15 of his affidavit, the petitioner has submitted the following grounds: a)The detenus are liable to be released for the very arrest since 1991 is grossly illegal and untenable. b) The detenus are not guilty of the alleged offence of assassination and prosecution story of SIT is found to be conflicting with that of the report of Jain Commission. c) The detenus be held in jail results in perpetuation of the false belief that the LTTE was behind the Assassination. d)The detenus despite innocence have faced an illegal prosecution and an illegal punishment and an illegal detention of 18 years which cannot be allowed to happen even for a moment under the present circumstances. 19. In support of his contentions that the investigation conducted by the SIT was full of flaws from the very beginning, the petitioner has relied on an article titled ‘India & the struggle for Tamil Eelam, who really killed Rajiv Gandhi’, by Dr.Norman Baker published in the Illustrated Weekly of India, dated 22.8.1992. We are at a loss to understand as to in what way the opinions of individuals, alleging that the investigation conducted by the SIT was full of flaws from the very beginning, would help the case of the petitioner, when, upon conducting a full fledged trial with due opportunity for them, all these persons were found guilty of the charges framed against them and even the capital punishment of death imposed on some of the accused persons by the trial Court was modified to one of life imprisonment by the Honourable Apex Court. At this juncture, we would like to place on record the observations of the Honourable Apex Court in para No.639 of its judgment reported in (1999) 5 SCC 253, which read as follows: “We would also like to record our appreciation for the Special Investigation Team (SIT) constituted by the Central Bureau of Investigation to investigate the case. Under the stewardship of Mr.D.R.Karthikeyan, SIT did assiduous work and was able to solve the crime within a short time. Investigation was meticulous, loose ends tied to bring out a clear picture of conspiracy and the part played by each of the conspirators. Members of SIT performed the job with dedication and determination. They succeeded in their mission but their only regret perhaps was that they could not capture Sivarasan alive….” 20. When such is the firm conclusion arrived at by the Honourable https://hcservices.ecourts.gov.in/hcservices/ Apex Court, regarding the appreciable way in which the investigation was conducted by SIT and the culprits have been booked and brought before the Court, recording its patting for the Special Investigation Team constituted by the Central Bureau of Investigation, the attempt made on the part of the petitioner to brand the investigation conducted by the Special Investigation Team otherwise, seeking support from individual opinions published in various journals, which are not having any evidentiary value, cannot be appreciated. 21. Though, even as per the averments of the petition, some Enquiry Commissions are appointed by the Government, it seems they are to find out the other aspects of the case and not regarding the concluded aspect of the role played by these convict prisoners. As could be seen from the materials available on record, Justice Verma Commission of Inquiry was appointed with respect to the following matters: “2. a) Whether the assassination of Shri Rajiv Gandhi could have been averted and whether there were lapses or dereliction of duty in this regard on the part of any of the individuals responsible for his security; b) the deficiencies, if any, in the security system and arrangements as prescribed or operated in practice which might have contributed to the assassination. 3. The Commission may also recommend corrective remedies and measures that need to be taken for the future with respect to the matters specified in clause (b) of paragraph 2 above.” 22. The Justice Verma Commission of Inquiry submitted its report on 15.6.1992 which was placed along with the Action Taken Report before the Parliament on 23.12.1992. 23. Since the terms of reference of Justice Verma Commission of Inquiry did not include conspiracy aspect of the assassination of Shri Rajiv Gandhi, the Government of India appointed a second one-man judicial commission headed by the Honourable Mr.Justice M.C.Jain, Chief Justice of Delhi High Court (Retd.) on 23.8.1991 and the terms of reference of Justice Jain Commission of Inquiry are as follows: “a) the sequence of events leading to, and all the facts and circumstances, elating to the assassination of Shri Rajiv Gandhi at Sriperumpudur (other than the matters covered by the Terms of reference for the Commission of Inquiry headed by Shri Justice J.S.Verma). b) Whether any person or persons or agencies were https://hcservices.ecourts.gov.in/hcservices/ responsible for conceiving, preparing and planning the assassination and wherever there was any conspiracy in this behalf and if so, all its ramifications.” 24. The said commission submitted its interim report on 28.8.1997 and Final report on 7.3.1998. The Honourable Supreme Court delivered its judgment on 11.5.1999 i.e. well after the final report submitted by Jain Commission. In this backdrop, now an argument has been advanced on the part of the petitioner that the present