Case: Sebastian M. Hongray Vs. Union of India and Others

exchanged between the parties, a petition was moved in the Queens 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. 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. v. Barnardo Tyes(1) 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 H.L. Machihan and C. Shangnam. The petitioner and those filing affidavits in support including H.L. 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 10.00 A.M., the necessary corollary being that they were last seen alive under the surveillance, control and 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 1, 2 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 April 28, 1982 by the Superintendent of Police and another dated May 31, 1982 by the Deputy Commissioner.Accordingly

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 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.