R.Chandra Prakash Gajurel v. The Union of India & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.9.2006CORAM:THE HON'BLE MR.JUSTICE P.D.DINAKARANandTHE HON'BLE MR.JUSTICE M.THANIKACHALAMW.P.No.27620 of 2003 &H.C.P.No.932 of 2006W.P.No.27620 of 2003:R.Chandra Prakash Gajurel... Petitionervs.1.TheUnion of India, Ministry of Home Affairs, rep. By its Secretary to Govt., Home Dept., New Delhi.2.The State of Tamil Nadu, rep. By its Secretary to Govt., Home Department, Chennai-09.3. The Inspector of Police, Airport Police Station, Meenambakkam, Chennai-27... Respondents.H.C.P.No.932 of 2006:Sengodi... Petitionervs.1.TheUnion of India, Ministry of Home Affairs, rep. By its Secretary to Govt., Home Dept., New Delhi.2.The State of Tamil Nadu, rep. By its Secretary to Govt., Home Dept., Fort St. George, Chennai-09.3.The Inspector of Police, Bakthi Nagar Police Station, New Jalpaikuri P.S., West Bengal State.... Respondents https://hcservices.ecourts.gov.in/hcservices/ W.P. Filed under Article 226 of the Constitution of India forthe issue of a writ of Mandamus as stated therein.H.C.P. Filed under Article 226 of the Constitution of Indiafor the issue of a writ of Habeas Corpus as stated therein.W.P.No.27620 of 2003:For petitioner :Mr.A.RaghulFor respondents :Mr.P.Wilson...Assistant Solicitor General...for R1 Mr.N.R.Elango, APP for R2 & R3H.C.P.No.932 of 2006:For petitioner ::Mr.R.SankarasubbuFor respondents:Mr.N.R.Elango, APP for R2.Mr.P.Wilson, Assistant Solicitor General.. for R1No appearance for R3ORDER(Order of the Court was made by P.D.DINAKARAN,J.)W.P.No.27620 of 2003 is preferred for the issue a writ ofMandamus forbearing the respondents from in any manner deportingthe writ petitioner, R.Chandra Prakash Gajurel, without followingthe procedure prescribed under the Extradition Act, 1962 and untilthe case registered against the petitioner in Crime No.145 of 2003on the file of third respondent therein is tried before theJudicial Magistrate-cum-District Munsif, Alandur.2. H.C.P.No.932 of 2006 is filed to issue a writ of HabeasCorpus directing the respondents to produce the detenu, ChandraPrakash Gajurel, son of Nageswar Gajurel before the Court and sethim at liberty.3. Since the writ petitioner in W.P.No.27620 of 2003 and thedetenu in H.C.P.No.932 of 2006 are one and the same, viz.,Mr.R.Chandra Prakash Gajurel and the contentions in the writpetition and the habeas corpus petition are with regard to theright of the writ petitioner/detenu conferred under Article 21 ofthe Constitution of India, both the matters are taken up for jointhearing.4. The admitted facts of the case of the writ petitioner arethat he was detained by the Senior Immigration Officer, ChennaiAirport on the intervening night of 19.8.2003 on the ground that heattempted to travel out of India to London with a forged passport.Thereafter, he was handed over to the third respondent in the writpetition on 21.8.2003, who registered a case against the writpetitioner for the offences punishable under Sections 468 and 471IPC read with Section 12(1)(b)(d) and (e) of the Indian Passport https://hcservices.ecourts.gov.in/hcservices/ Act. The said case was concededly tried in C.C.No.736 of 2004 onthe file of the learned Judicial Magistrate, Alandur and the writpetitioner was convicted by order dated 12.6.2006 for the above-said offences, and sentenced to undergo three years rigorousimprisonment. The writ petitioner was however released on13.6.2006, after giving set off, the period of remand. 5. In the meanwhile, based on a representation made by thewrit petitioner to the Registrar, High Court, Madras through theSuperintendent of Prisons, Central Prison, Chennai, stating that hecame to know that Prisoner on Transit Warrant, claimed as P.T.Warrant, was issued by the Sub Divisional Judicial Magistrate,Jalpaiguri, Darjeeling District, West Bengal and apprehending thatin execution of the said warrant he might be sent to West Bengal,the Division Bench of this Court by order dated 27.8.2004 made inW.P.No.27620 of 2003 held as follows:"..... 3.. On going through the representation of thepetitioner dated 11.8.2004 and in the light of theapprehension expressed therein, there shall be an order ofstay of execution of P.T. Warrant issued by the SubDivisional Judicial Magistrate, Jalpaiguri, DarjeelingDistrict, West Bengal in Cr.No.753 of 2004 (FIR No.62 of2004)."6. The writ petitioner/detenu was also detained under theprovisions of the National Security Act on 19.9.2005 for a periodof one year and he was released on 18.9.2006.7. When the petitioner was released on 18.9.2006 from theCentral Prison, Chennai, he was rearrested based on the arrestwarrant issued by the Chief Judicial Magistrate, Jalpaiguri andthereafter, produced before the Chief Metropolitan Magistrate,Chennai for issue of transit warrant.8. On 18.9.2006, when the writ petitioner/detenu was producedbefore the Chief Metropolitan Magistrate, Chennai, objections weremade not to issue transit warrant on the grounds that:i.arrest warrant has no counter signature of theCommissioner of Police, Chennai and the procedurecontemplated under Sections 78 to 81 of the Code ofCriminal Procedure are violated; and ii.arrest memo has no signatures of arrestee and witnesses;the details of arrest not disclosed to the arrestee; thedetenu not allowed to contact family members and lawyersand therefore, the directions of the Apex Court inD.K.Basu case were not followed.9.1. On the same day, viz., 18.9.2006, a Habeas CorpusPetition in H.C.P.No.932 of 2006 was also moved before this Courtseeking issue of a writ of Habeas Corpus directing the respondentsto produce the detenu, Chandra Prakash Gajurel, son of NageswarGajurel before the Court and set him at liberty. https://hcservices.ecourts.gov.in/hcservices/

9.2. The Division Bench of this Court, by order dated19.9.2006, after narrating the facts relating to both writ petitionand Habeas Corpus petition referred to above, gave liberty to thepetitioner to make appropriate application to the ChiefMetropolitan Magistrate, Madras and permitted the learned PublicProsecutor to raise objections if any before the Chief MetropolitanMagistrate, Chennai. 9.3. Accordingly, the writ petitioner/detenu moved anapplication in Crl.M.P.No.3094 of 2006 under section 437 Cr.P.C.to release the writ petitioner as he is not confined in any crimenumber. But the said application was objected to by the State onthe ground that the petitioner was arrested under a warrant dulyissued by the Chief Judicial Magistrate, Jalpaiguri with referenceto Crime No.182 of 2004 on the file of the Bakthinagar PoliceStation for the offences under Section 121, 121(A), 122, 123 and124(A) IPC, but not on P.T. Warrant. 10.1. As there was a dispute as to the very existence of P.T.Warrant, we sent for the relevant records from the ChiefMetropolitan Magistrate, Chennai. After perusal of the saidrecords, we find that the third respondent in H.C.P., viz., theInspector of Police, Bakthi Nagar Police Station, new JalpaiguriPolice Station, West Bengal State by his representation dated18.9.2006 made before the Chief Metropolitan Magistrate, Chennaihas stated that the Chief Judicial Magistrate, Jalpaiguri issuedwarrant of arrest on 16.9.2006 to arrest the writ petitioner/detenufrom Chennai and on 18.9.2006, the writ petitioner/detenu wasarrested near Central Prison, Chennai and that since Jalpaiguri islocated at north of West Bengal at a distance of about 2300 k.m.,approximately, the third respondent in the H.C.P. prayed for theissue of transit warrant. 10.2. On the said representation, the learned ChiefMetropolitan Magistrate, Chennai by order dated 18.9.2006, takingnote of the pendency of the writ petition, ordered to detain thewrit petitioner/detenu in the Central Prison, Chennai and toproduce him on 19.9.2006. 10.3. On 19.9.2006, the Chief Metropolitan Magistrate, Chennaiin Crl.M.P.No.3080 of 2006 held that the writ petitioner/detenushould not be taken to West Bengal on a transit warrant till afinal decision has been taken in H.C.P. and adjourned the matter to25.9.2006. 10.4. But, in the meantime, as the petitioner moved H.C.P.this Court, by order dated 19.9.2006, gave liberty to thepetitioner to move an application before the learned ChiefMetropolitan Magistrate, Chennai. 10.5. Accordingly, the petitioner moved the Chief MetropolitanMagistrate, Chennai in Crl.M.P.3094 of 2006 who, by order dated21.9.2006, dismissed the said application. The relevant portionof the order dated 21.9.2006 reads as follows: https://hcservices.ecourts.gov.in/hcservices/ “The petitioner is permitted to make properapplication, if the same is permissible. Now, atpresent, this petition is filed not to extend theconfinement and to release the petitioner on bail. Asfar as the bail is concerned, in the counter filed inH.C.P.No.932/2006, it is stated that a criminal case ispending against the petitioner u/s.141, 121(A), 122, 123,124(A) IPC in Bakthinagar Police Station inCr.No.182/2004 and charge sheet has been filed on19.8.2004 showing the petitioner name and others asabsconding with a prayer to issue warrant of arrest.Inasmuch as the Inspector of Police placed warrant ofarrest duly issued by the Chief Judicial Magistrate,Jalpaiguri, and since Jalpaiguri is approximately 2300Kms. away from Chennai, he needed Transit Warrant fromthis Court. The offences mentioned in the above CrimeNo. are very serious and grave in nature and theseoffences, i.e. U/s.121, 121(A), 122, 123, 124(A) IPC areexclusively triable by Sessions Court and this Court hasno jurisdiction to release the petitioner on bail. ThisCourt do not see any other ground, other than the groundsmentioned in HCP.No.932/2006, which is pending before theHon'ble High Court, to release the petitioner on bail ordischarge the petitioner from detention.”10.6. On 25.9.2006, the Chief Metropolitan Magistrate, Chennaidirected the Central Prison, Chennai to produce the writpetitioner/detenu on 4.10.2006. 11. The core contention of Mr.R.Sankarasubbu is that thedetention of the writ petitioner/detenu in the Central Prison isviolative of Article 21 of the Constitution of India and he cannotbe extradited without following the procedure prescribed under theExtradition Act, 1962. Incidentally it is also contended that thedirections of the Apex Court in D.K.Basu's case were not dulycomplied with at the time of arrest by the third respondent Policeon 18.9.2006. In any event, the third respondent in H.C.P.No.932of 2006 ought not to have arrested the writ petitioner/detenu on18.9.2006 when the order of stay dated 27.4.2003 was in force. 12.1. Mr.Wilson, learned Assistant Solicitor General submittedthat there is no request for extradition and therefore, thequestion of extraditing the petitioner to Nepal does not arise. 12.2. Mr.N.R.Elango, Additional Public Prosecutor submittedthat the petitioner was convicted and sentenced in C.C.No.736 of2004 and petitioner also underwent the sentence imposed on him. 13. We have given our careful considerations to thesubmissions of all sides. 14. In view of the specific stand taken by the Union of Indiathat there is no request for extradition under section 4 of theExtradition Act, 1962 and the criminal case in C.C.No.736 of 2004 https://hcservices.ecourts.gov.in/hcservices/ has also ended in conviction and the sentence imposed thereunderwas also undergone, we do not see any merit to issue a writ ofMandamus as prayed for and therefore, the writ petition isdismissed as devoid of merits and for want of legal contentions,but with an observation that if and when any request is made forextradition, it goes without saying that the first respondent shalladhere to the procedure under the Extradition Act, 1962 and passappropriate orders.15. With regard to HCP, it is settled law that when a warrantis pending against a person, it may not be proper for this Court toentertain a writ of habeas corpus. In the instant case, the writpetitioner/detenu was arrested pursuant to a warrant issued by acompetent Court, namely, the Chief Judicial Magistrate, Jalpaiguriand therefore it is not open for the writ petitioner/detenu tochallenge such detention under Article 226 of the Constitution ofIndia.16. The question of granting habeas corpus would arise only inthe case of illegal detention or confinement where a detenu isentitled to set at free for want of legal jurisdiction for suchdetention or in confinement, or the detention appears to be inviolation of procedure established by law, of course, suchillegality includes the illegality relating to arrest also. 17. Under the factual scenario, it is clear that thepetitioner was arrested on 18.9.2006 by the 3rd respondent in H.C.Punder a valid warrant issued by the competent jurisdictional Court,viz., Chief Judicial Magistrate, Jalpaiguri and produced before theChief Metropolitan Magistrate, Chennai who had detained him by avalid judicial order. Under such circumstances, if the petitionerhas got any grievance as to the correctness of the arrest for non-compliance of the directions of the Apex Court in D.K.Basu's case,he is at liberty to move the competent jurisdictional Court againstthe 3rd respondent in H.C.P. to seek necessary relief, if he is soadvised. 18. Again, on the request made by Mr.R.Sankarasubbu, learnedcounsel for the petitioner seeking four weeks time to approach thecompetent jurisdictional court for the recall of the warrant, wecan only observe that the petitioner is at liberty to move thecompetent jurisdictional court to seek appropriate relief in thatregard. 19. However, as a serious apprehension was projected before usas to the danger to the life and person of the detenu till he isproduced before the Chief Judicial Magistrate, Jalpaiguri, in theinterest of justice and in order to uphold the personal libertyenshrined under Article 21 of the Constitution of India, we directthe Tamil Nadu Government to depute a Police Officer, not below therank of Deputy Superintendent of Police to accompany the detenutill he is produced before the Chief Judicial Magistrae,Jalpaiguri, if the request of the third respondent in H.C.P. for https://hcservices.ecourts.gov.in/hcservices/ the issue of Transit Warrant is granted, as this Court cannot be asilent spectator on such reasonable apprehension. We are inclinedto issue the above direction to the State of Tamil Nadu as thethird respondent in H.C.P. had not chosen to appear before us.20. Since we are convinced that it may not be proper for useither to issue a writ as prayed for in H.C.P. or to recall thewarrant issued by the competent Court by the exercise of powerunder Article 226 of the Constitution of India, which could be doneonly by a competent jurisdictional Court, without expressing anyopinion in the matter, we give liberty to petitioner to make suchrequest before the Court concerned, which has got jurisdiction overthe third respondent in the H.C.P., who arrested the writpetitioner/detenu on 18.9.2006 and seeks a Transit Warrant, as thethird respondent in the H.C.P. had not chosen to appear before us.21. Before concluding, with respect to the left outcontention, namely, the third respondent in H.C.P. ought not tohave arrested the writ petitioner/detenu on 18.9.2006 when an orderof stay granted by the Division Bench of this Court on 27.8.2004staying the P.T.warrrant was in force, as it is brought to ournotice by the leaned Additional Public Prosecutor that the detenuwas arrested not pursuant to the P.T. Warrant, but was arrestedbased on the warrant issued by the competent jurisdictional Courtin some other case, the same stands rejected. In the result, (i)the writ petition is dismissed as devoid of merits with theabove observations.(ii)The habeas corpus petition is closed with the aboveobservations.(iii)There is no order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.Sasi/naTo1. The Chief Metropolitan Magistrate,Egmore, Chennai.2. The Chief Judicial Magistrate, JalpaiguriWest Bengal.3. The Sub Divisional Judicial Magistrate,Jalpaiguri, Darjeeling District, West Bengal. https://hcservices.ecourts.gov.in/hcservices/

4. The Judicial Magistrate,Alandur.5. Do Thro The Chief Judicial Magistrate,Chengalpattu.6. The Superintendent,Central Prison,Chennai.7. The Secretary to Government, The Union of India, Ministry of Home Affairs, Home Dept., New Delhi.8.The Secretary to Government, State of Tamil Nadu, Home Department, Chennai-09.9. The Inspector of Police, Airport Police Station, Meenambakkam, Chennai-27.10.The Inspector of Police, Bakthi Nagar Police Station, New Jalpaikuri P.S., West Bengal State.11. The Public Prosecutor,High Court, Madras.2 ccs to Mr.P.Wilson, Assistant Solicitor General of India, SR. 45951, 45954W.P.No.27620 of 2003 &H.C.P.No.932 of 2006JRG (CO)kk 28/9