Murugan v. The Superintendent of Police, Central Prison, Puzhal-I, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 14-07-2009CORAMTHE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE RAJA ELANGOHCP No.730 of 2009 Murugan .. Petitionervs1.The Superintendent of Police, Central Prison, Puzhal-I, Chennai.

The Inspector of Police, Korapet, Orissa State. ... RespondentsHabeas corpus petition filed under Article 226 of the Constitution of India praying to issue a writ of habeas corpusdirecting the respondents to produce the detenu SundaramoorthyS/o.Vedi aged 38 years now confined in Central Prison, Chennaibefore this Court and set him at liberty forthwith. For Petitioner: Mr.R.Sankarasubbu For Respondents: Mr.V.R.Balasubramanian Additional Public Prosecutor, ORDERRAJA ELANGO,J This petition has been filed for production of oneSundaramoorthy, S/o.Vedi, now confined in Central Prison, Chennai, alleging that his detention is illegal and has to be producedbefore the Court and set him at liberty forthwith.2. Brief fact of the case are as follows:-The detenu Sundaramoorthy was taken to custody on 08.07.2007and produced before the POTA Court on 11.07.2007. Ever since thedate of his arrest, the detenu is under the Judicial Custody tilldate and the detenu is involved in the following cases:- https://hcservices.ecourts.gov.in/hcservices/ Sl.NoPolice StationCr.No.Under Section1 Mathikonpalayam49/88147, 148, 324,307 I.P.C. ChiefJudicial Magistrate Court, Dharmapuri in S.C.No.76/2008.2DharmapuriRP.Cr.No.80/92120(B) I.P.C. & 150(2)(a) of IndianRailways Act and Sec.3(2), 4,5 & 6of TADA Act, 1987 and Sec.4 & 5 of Indian Explosive Substances Act1908.3Krishnapuram1370/99147,148,506(ii) I.P.C. and Sec.3 &4 of PPDL Act. Chief JudicialMagistrate Court, Dharmapuri inS.C.No.75/2008.

Mathikonpalayam269/01147,148, 120(B) I.P.C. r/w 25 (1)(a) I.A. Act and Sec.3 of IndianExplosive Substances Act,1908. JM-I, Dharmapuri in C.C.No.82/2009.

Uthangarai and Kallavi1004,1005,1006/02 and Kallavi P.S.Cr.No.434/04148,333,307 r/w. 149 I.P.C. and Sec.120(B), r/w.3(2)(b) of the Prevention of Terrorism Act 2002,Sec.25(1-B) of the Arms Act 1959and Sec.3(3), 3(5), 4(b), 22(1) ofthe Prevention of TerrorismAct,2002. POTA Court, Poonamallee, Chennai in CC.No.5/2003.

Nagarasampatti162/044(b) & 5 of I.E. Act, Committed to Principal District Sessions Judge, Krishnagiri in S.C.No.15 of 2009.

Nagarasampatti413/044 of Explosive Act and Sec.25(1)(b)of Indian Arms Act 1959. Committedto Principal District SessionsJudge, Krishnagiri inS.C.No.16/2009.

Koraput15/04147,148,302,343,396,450,427,120(b),109, 147 I.P.C. r/w.25(1)(a) ofI.A. Act and 7 of PLA Act, SubDivisional Judicial MagistrateCourt, Koraput, Orissa State.

Periyakulam232/07147,148,120(B), 124(A), 216 IPC and Sec.25(1) (B) (a) of I.A. Act and Sec.4,5 of I.E. Act,1908. PRC.No.14/2009 in JM, Periyakulam.3. The main contention raised by the petitioner is that thedetenu was taken from Central Prison, Puzhal, Chennai on 12.01.2008and the whereabouts are not known to the petitioner till he wasproduced before the POTA Court on 23.07.2008. The petitioner furthersubmits that the detenu was not produced before the designated Courton 04.03.2009 and 20.03.2009. https://hcservices.ecourts.gov.in/hcservices/

4. The learned counsel for the petitioner assails the periodof detention of the detenu from 12.01.2008 to 23.07.2008 and tillhis production before the Court and the non production of the detenuon 04.03.2009 and 20.03.2009 being illegal, the present detentionis also considered to be illegal one. 5. The learned Additional Public Prosecutor appearing for therespondents filed a detailed counter affidavit stating that thedetenu is involved in many cases as mentioned above. The learnedAdditional Public Prosecutor further submits that his detention from12.01.2008 to 23.07.2008 is not illegal, in view of the fact thatthe detenu was taken custody from the Central Prison, Puzhal, Chennai on the basis of production of under trial prisoner warrant(commonly known as P.T. warrant)issued by the SDJM, Koraput andproduced before the same Court on 18.01.2008 and from the above saiddate, the detenu was continued to be produced before the concernedCourt till 23.07.2008 and subsequently brought back to CentralPrison, Puzhal, Chennai.

6. Now he is facing the trial in the above said cases. In allcases, he was produced before the concerned Court and the remandperiod is also extended by the concerned Court. As far as the nonproduction of the detenu on 04.03.2009 and 20.03.2009, is concerned, it is due to the fact that the Advocates were on boycott and theofficials could not produce the detenu before the Court. But, thedetenu was subsequently produced before the Court and also heavailed Parole on 09.04.2009 before the POTA Court and he wasallowed to see his ailing mother at his native place. 7. In support of his contentions, the learned counsel appearingfor the petitioner relied on a decision of the Supreme Courtreported in A.I.R.1953 Supreme Court 277 (Ram Narayan Singh Vs.The State of Delhi and others) and another judgment of the SupremeCourt reported in 1986 Supreme Court Cases(Cri) 47 (Bhim Singh, MLAVs. State of J & K and others).

As far as these two judgments areconcerned, they deal with the subsequent remand of an accused afterthe illegal custody. The present facts of the case are that thepetitioner is facing number of cases in various places and eversince the date of his arrest, he continued to be under judicialcustody by proper remand orders passed by the concerned Courts. 8. The questions now to be decided are as to whether,i) The detention during the period from 12.01.2008 to23.07.2008 is illegal? ii) The non production of detenu before the Court on 04.03.2009and 20.03.2009 is illegal? and iii) His subsequent remand is illegal; in view of the above saidtwo facts? 9. Admittedly, the Habeas Corpus Petition is filed by thepetitioner on 11.05.2009, nearly after two months from 20.03.2009.In the Habeas Corpus Petitions, the date of filing of the petitions, https://hcservices.ecourts.gov.in/hcservices/ the date of return and the date of hearing of the petitions are morerelevant to decide as to whether the detention of the detenu islegal or illegal.

We are of the opinion that for deciding theissue, the date of filing of the petition, the date of return andthe date of hearing of the petition would be relevant and our viewis fortified by the judgment of the Supreme Court reported in AIR1974 Supreme Court 510, decided by his Lordships, Hon'ble Mr.Justice.P.N.BHAGWATI and Hon'ble Mr. Justice P.K.GOSWAMI (KanuSanyal Vs. District Magistrate, Darjeeling and others) and therelevant portion of the judgment reads as follows:- 3... It is now well settled that theearliest date with reference to which thelegality of detention challenged in a habeascorpus proceedings may be examined is the date onwhich the application for habeas corpus is madeto the Court. This Court speaking throughWanchoo, J.,(as he then was) said in A.K.Gopalanv. Government of India; (1966) 2 SCR 427=(AIR 1966SC 816). "It is well settled that in dealing withthe petition for habeas Corpus the Court is tosee whether the detention on the date on whichthe application is made to the Court is legal, ifnothing more has intervened between the date ofthe application and the date of the hearing" Intwo early decisions of this Court, however, namely Naranjan Singh V. State of Punjab, 1952SCR 395= (AIR 1952 SC 106) and Ram Narain SinghV. State of Delhi, 1953 SCR 652=(AIR 1953 SC 277)a slightly different view was expressed and thatview was reiterated by this Court in B.R.Rao V.State of Orissa AIR 1971 SC 2197 where it wassaid.

" In habeas Corpus the Court is to haveregard to the legality or otherwise of thedetention at the time of the return and not withreference to the institution of the proceedings. And yet in another decision of this Court in Talib Husain V. State of Jammu and Kashmir AIR1971 SC 62 Mr. Justice Dua, sitting as a SingleJudge, presumably in the vacation, observed that"in habeas Corpus proceeding the Court has toconsider the legality of the detention on thedate of the hearing. Of these three views takenby the Court at difference times, the secondappears to be more in consonance with the law andpractice in England and may betaken as havingreceived the largest measure of approval in India, though the third view also cannot bediscarded as incorrect, because an inquirywhether the detention is legal or not at thedate of hearing of the application for habeascorpus would be quite relevant, for the simplereason that if on that date the detnetion islegal, the Court cannot order release of the https://hcservices.ecourts.gov.in/hcservices/ person detained by issuing a writ of hebeascorpus.

In the present case:- i) On the date of filing of the petition, the detenu was inlegal remand; ii) On the date of return also he continued to be in judicialcustody by a valid remand order; iii) On the date of hearing also the detenu is in judicialcustody, as per the remand orders passed by the various Courts.

For the foregoing reasons, we hold that since the detentionof the detenu is legal and he is in the prison by valid remand orderas on the date of filing the petition and on the date of hearing, the question of invoking the Habeas Corpus jurisdiction does notarise.