Uttarakhand High Court
Janki Devi vs Union Of India And Others on 13 November, 2019
Bench: Alok Singh, Ravindra Maithani
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Habeas Corpus Case No. 1 of 2019
Janki Devi. ......Petitioner
Versus
Union of India and others .....Respondents
Present:
Mr. B.M. Pingal, Advocate for the petitioner.
Ms. Monika Pant, Standing Counsel for Union of India/ respondent nos. 1 to 5, 9 and 10.
Mr. V.K. Gemini, Deputy Advocate General for the State of Uttarakhand / respondent nos. 6 to 8..
Coram: Hon'ble Alok Singh, J.
Hon'ble Ravindra Maithani, J.
Ravindra Maithani, J. (Oral)
1. This petition is filed seeking a writ in the nature of Habeas Corpus. Petitioner is the wife of a person whose corpus is required to be brought before this Court.
2. Facts in brief may be stated as hereunder: Husband of the petitioner Rifleman Trilok Singh No. 13774403F, 3rd Battalion Jammu & Kashmir Rifles was on leave from 12.08.2014 to 20.08.2014. He overstayed. Subsequently, on 31.08.2014, he was admitted in the Military Hospital Pithoragarh. The Military Hospital Pithoragarh referred Trilok Singh to Military Hospital Meerut in the custody of two guards namely respondent nos. 9 and 10. Rifleman Trilok Singh was never admitted in Military Hospital Pithoragarh. The petitioner and his family members were informed that Rifleman Trilok Singh disappeared while in journey from Pithoragarh to Meerut. According to the petitioner, various representations were made by her but the whereabouts of Rifleman Trilok Singh are not known, therefore, writ in the nature of Habeas Corpus may be issued to produce the Corpus of Rifleman Trilok Singh.
3. On behalf of the Union of India representation has been made and counter affidavit has been filed by Lt. Col. A.V.N. Surin.
2According to this counter affidavit, Rifleman Trilok Singh was fit for travelling from Pithoragarh to Meerut by road or train. He was advised to travel with two guards by the medical authorities. It was denied that respondent nos. 9 and 10 were caretaker of Rifleman Trilok Singh. According to the counter affidavit, they were escort, whose duty was to accompany the individual and to assist him administratively upto the destination i.e. Military Hospital Meerut. According to it, enroute to Meerut, Rifleman Trilok Singh himself left the train No. 14511 Nauchandi Express at Hapur Railway Station and ran away due to preconceived motive under the pretext of toilet. As the Rifleman Trilok Singh was normal, therefore, he was allowed to use the toilet. When Rifleman Trilok Singh did not return, a search was made and he was found missing. The matter was immediately reported to the army authorities. According to Union of India, the court of inquiry was conducted and Rifleman Trilok Singh was declared Deserter from Army since 11.09.2014. There are allegations of past conduct of Rifleman Trilok Singh and it is stated that he was a habitual offender. In sum and substance, it is deposed that the petition is devoid of merits.
4. Heard learned counsel for the parties.
5. Learned counsel for the petitioner would submit that husband of the petitioner Rifleman Trilok Singh was given in the custody of respondent nos. 9 & 10 on 09.09.2014 by the doctors of Military Hospital Pithoragarh for handing over him to Military Hospital Meerut; Rifleman Trilok Singh was in the custody of respondent nos. 9 & 10, who are also Army Personnel; Rifleman Trilok Singh was sick; he was diagnosed with some psychiatric ailment. The Army authority could not have proceeded under Section 106 of Army Act, 1950 because Rifleman Trilok Singh did not absent himself from duty; he was sick, and he was in the custody of Army for being admitted in a Military hospital Meerut for better and specialized treatment.
6. Learned counsel for the petitioner would argue that Army cannot abdicate their responsibility and liability by merely asserting that 3 he was fit to travel. It is a case; in which, according to learned counsel for the petitioner, a writ of Habeas Corpus should be issued and this Court may pass consequential orders as may deem fit in the circumstances at a later stage.
7. In support of his contention, learned counsel for the petitioner placed reliance on the principles of law laid down in the case of Sebastian M. Hongray Vs. Union of India and others (1984) 1 SCC 339 and Smt. Mita Pal & Another vs. Union of India 2005 SCC Online Cal 702. In the case of Sebastian M. Hongray, two villagers were called by the Army Authorities. They did not return to their home. A petition for Habeas Corpus was filed before the Hon'ble Supreme Court. On behalf of the Army, it was responded that they had left the Army office after questioning. Hon'ble Supreme Court discussed the law on the subject. In para 31, it was, inter alia, observed as hereunder:-
"31............ When a petition for a writ of habeas corpus under Article 32 of the Constitution is moved before the Court, ordinarily the Court would not issue ex-parte a writ of habeas corpus unless the urgency of the situation so demands or issuing of a notice of motion was likely to result in defeat of justice. Further, the court will be reluctant to issue a writ of habeas corpus ex parte where the fact of detention may be controverted and it may become necessary to investigate the facts. The normal practice is that when a petition for a writ of habeas corpus is moved, the Court would direct a notice to be served upon the respondents with a view to affording the respondents to file evidence in reply. If the facts alleged in the petition are controverted bythe respondents appearing in response to the notice by filing its evidence, the Court would proceeded to investigate the facts to determine whether there is substance in the petition for a writ of habeas corpus. (See Halsbury's Laws of England, Fourth Edition, Vol. II, Paragraph 1482.) If on investigation of facts, the Court rejects the contention of the respondent and is satisfied that the respondent was responsible for unauthorized and illegal detention of the persons in respect of whom the writ is sought, the Court would issue a writ of habeas corpus which would make it obligatory for the respondents to file a return........."4
8. In the case of Smt. Mita Pal (supra) an army person after discharge from military hospital did not join the duties. He was declared deserted by the army authorities. When a writ of Habeas Corpus was filed, the Court did not issue the writ of Habeas Corpus, however, various directions were issued by the Court regarding inquiry etc.
9. On the other hand, learned counsel appearing for Union of India would submit that Rifleman Trilok Singh was not in the custody of Army. He disappeared on 11.09.2014 at Hapur station; two guards were with him to assist him. He was not in the custody of the Guards. Rifleman Trilok Singh was a habitual offender, who was warned in the past also. It is argued that instant petition of Habeas Corpus is not maintainable because from the averments of the petition itself, it is clear that it is a case of missing of a person and not a case of any illegal detention. Reference has been made to certain documents, namely report given by father of Rifleman Trilok Singh to the police authority about missing of his son.
10. In support of her contention, learned counsel for Union of India placed reliance on the case of R. Gopal vs. Union of India 2003 Supreme (AP) 1436. In the case of R. Gopal, the facts were entirely different. An army person, who was allegedly in-charge of the recruits, found missing from a running train. He was not in the custody of any guard; he was not sick. In that case, writ of Habeas Corpus was not issued.
11. In the matter falling under Article 226 of Constitution of India, this Court is not supposed to make investigation of the facts in detail. Needless to say, Habeas Corpus is perhaps one of the most cherished writs, in a society, where Rule of Law prevails. The very valuable rights to life and liberty are to be protected or secured by virtue of this writ. It is one of the prerogative writs, which now finds mention under our Constitution.
12. Undoubtedly, Rifleman Trilok Singh was not well. He was admitted in Military Hospital, Pithoragarh on 31.08.2014. It is very 5 interesting to note that Union of India has filed annexure no. 4 a communication from military hospital to the authorities reminding them for forwarding 1 X 3 escort, so that rifleman Trilok Singh may be forwarded to military hospital, Meerut. He was diagnosed with "PSY (INV) adjustment disorder" and "multiple injuries."
13. Petitioner has filed annexure no. 1, a certificate of handing over and taking over of patient. This has been signed by NK Ajay Kumar Thapa. It is as hereunder:-
"Handing Taking Patient Document No. 13774403F RFN Trilok Singh Unil 3 JAK RIF DSB No. 336/08/2018 Diagnosis PSY (INY) Adjustment Disorder ADS DOD 08/09/2014 date of transfer to MH. Meerut eantt.
Handed over to Document and PTS to Guard.
Sign NK AJAY KUMAR THAPA No. 137638460h UNIT 3 JAK RIF DATE 08/09/2014"
14. A bare perusal of the above document reveals that Rifleman Trilok Singh was handed over to Guards for his transfer to Military Hospital, Meerut. There is one annexure 2 to the writ petition, which is another communication from Military Hospital, and it is categorically mentioned in it that patient Rifleman Trilok Singh was accompanied by Guards and it is also mentioned in Annexure 2 that patient was handed over to above escort. According to this document, Rifleman Trilok Singh was forwarded for "psychiatric treatment."
15. On behalf of Union of India, Annexure 5 to the counter affidavit has been referred to wherein it has been mentioned that Rifleman Trilok Singh was fit to travel by road or train to Military Hospital, Meerut with 1 X 1 Guard. Names of the Guard i.e. respondent 6 no. 9 Ajay Kumar Thapa and respondent no. 10 Arvind Khatri are written thereon. Based on the averments made on this document which is issued by Military Hospital, it is being claimed that Rifleman Trilok Singh was fit; he was not in the custody of Guards and in paragraph 14 of the counter, Lt. Colonel A.V.N. Surin deposed that the escort duty was to accompany the individual and to assist him administratively in the journey upto destination i.e., Military Hospital, Meerut.
16. This Court wanted to know from Standing Counsel appearing for Union of India as to what administrative assistance was to be provided to Rifleman Trilok Singh in the journey by Guards namely respondent nos. 9 and 10, to which she replied "to assist him to Military Hospital, Meerut". She further stated that "to escort and accompany him upto Military Hospital, Meerut."
17. The stand taken by Union of India seems to be strange. Documents referred to reveal that, in fact Rifleman Trilok Singh was suffering from mental disorder. He had psychiatric problem and was being shifted to Military Hospital, Meerut. He was handed over to respondent nos. 9 and 10 Army personnel for his safe custody and transfer to Military Hospital, Meerut.
18. In paragraph 19 of the counter affidavit filed on behalf of Union of India, it is stated that "in reply to the contents of para 14 of the writ petition, it is submitted that neither Rifleman Trilok Singh was mentally challenged nor Naik Ajay Kumar Thapa and Lance Naik Arvind Khatri were his escort." These statements are apparently in conflict with the documents submitted by petitioner, which were not controverted by the Union of India and also in conflict with the documents submitted by respondent himself. Annexure 4 of the counter affidavit filed by the respondent, which is referred to hereinabove, is a communication made by Military Hospital, Pithoragarh for Guards. It is as hereunder:-
"From 161 MH Date: 06 Sep 14 09-16:58
To, 3 AK RIF
7
ABR HQ 350 INF BDF
ABR DQ 15 INF Div
Stn HQ Pithoragarh
ABR HQ 69 MTN BDE
REMINDER no. 1 () REF Our SIG No. A-8055 dt 03 Sep 2014 () FWD of 01 X 03 escorts comma AFMFS- 10() No 13774403F RFM Trilok Sing of your unit was admitted to this hospital on 31 Aug 2014 at 1600hrs as a case of (1) PSY (INV)? ADUSTMENT DISORDER (ii) multiple Injuries () You are request to forward AFMSF- 10 IN TRIPLICATE ANDS 01X03 ESCORT TO THIS HOSPITAL THE EARLIEST () DISPOSAL OF THE PATIENT IS HELD UP DUE TO THE NON AVAILABILITY IF THE \SAME () AN EARLY ACTION IS REQUESTED () 350 INF BDE (A) REQUEST DIRECT UNIT TO DISOATCH 01X03 ESCORTS ALONG WITH AFMSF- 10 IN TRIPLICATE AT THE EARLIEST AS INDL HAS TO BE REFERRED FOR PSY EVALUATION TO MH MEERUT.
ORIGINATING MASSAGE ID
ORIGINAING MASSAGE DTG 06 SEP 14 09:08:36
SINGED BY ADJT 161 MH" (emphasis supplied)
19. It is categorically stated that Rifleman Trilok Singh was suffering from PSY (INV) - adjustment disorder and multiple injuries. Annexure 5 is the movement order in column 6, it is categorically stated that Rifleman Trilok Singh was handed over to Guards for handing over him to Military Hospital, Meerut. It is reproduced hereinbelow.
"WARNING DO NO TAKE ANY EATABLES/DRINKS FROM ANY UNKNOWN PERSON/UNAUTHORISED SOURCES, IT MAY BE POISON WHICH MAY CAUSE HEAVY LOSS TO YOU.
Movement order
1. The following patient discharged/transferred from this hospital is/are hereby directed in report to their respective unit/hospital for further disposal/treatment/duties please: -
S. No. No. rank, name, Unit, A&D Date of Adm Remarks No. & Diag. Time of Adm • No 13774403F Rfn Trilok 31/08/2014 Tfr to MH Meerut Singh 1600hrs Rly Wt issued Unit: 3 JAK RIF (Exhibit No 2. Refers A & D No. 336/08/2014 to para Q.T of Diag. PSY (INV). statement of witness ADJUSTMENT no. 1 DISORDER? ADS
2. He/They will leave this hosp on 09 Sep 2014 at 0600 hrs.
3. He/They will observe strict Mil discipline and security measures enroute.8
4. In case of any difficulties enroute he/they will approach to MCO/Station Master/Civil Police for necessary assistance by proceeding this movement order as an authority.
5. Pts is fit to travel by road/rail to MH Meerut with 1X1 guards:-
• No 13763846H Nk Ajaay Kumar Thapa Guard Cdr • No 13765790A L/Nk Arvind Khatri Guard
6. Hospitalization docus in r/o transfer patient handed over to the guard crd dor handing over the same to Med Offr, I/C MI Room/DMO hospital or arrival at the unit/hospital concerned.
(Auth: This move order) CF: 1505/2/Stals/2014 (Chetan Jambagi) 161 Military Hospital Maj Pin 903161 OIC Stats C/O 56 APO For Offg. CO Dated 08 Sep 2014"
(emphasis supplied)
20. Annexure no. 2 to the writ petition, which is also a communication of Military Hospital, categorically finds mention that Rifleman Trilok Singh was to be transferred for psychiatric treatment. According to Military record itself, Rifleman Trilok Singh was under
psychiatric treatment (it cannot be said that he was not mentally challenged). He was under custody of two guards respondent nos. 9 and
10. Respondent nos. 9 and 10 were asked to escort him. It was their duty to take safely Rifleman Trilok Singh from Military Hospital, Pithoragarh to Military Hospital, Meerut. Union of India never admitted it, before this Court.
21. There is another aspect of the matter. It is being stated that since family members of Rifleman Trilok Singh informed the police that Rifleman Trilok Singh disappeared enroute to Meerut, hence, this writ of Habeas Corpus cannot be issued. Annexure No. 4 to the writ petition is a communication of the father of Rifleman Trilok Singh. According to it, he was informed by the Army that Rifleman Trilok Singh disappeared from Hapur station. Annexure 3 to the counter affidavit, is a report given by father of Rifleman Trilok Singh that his son disappeared enroute to Military Hospital, Meerut in custody of respondent no. 9 and 10.9
22. It is not a case of fixing responsibility of one individual or respondent no. 1 to 5 or respondent no. 9 or respondent no. 10. It is matter to know the whereabouts of a person who was in Army. He was in custody, when he was allegedly disappeared. Where is he? Last time on 09.09.2014, Rifleman Trilok Singh was handed over to the respondent nos. 9 to 10 for his safe transfer to Military Hospital Meerut.
He was a psychiatric patient.
23. On behalf of the State, Deputy Advocate General would submit that no case was lodged by the concerned police station in the matter.
24. What action was in fact taken by Union of India if, in fact, Rifleman Trilok Singh disappeared from Hapur Railway Station. It is argued that Rifleman Trilok Singh was declared as deserter with effect from 11.09.2014 under Section 106 of the Army Act, 1950. This Court is not assessing the legality of order but the question still looms large that it was not a case of absent without leave. Section 106 of the Army Act, 1950 reads as under:
"106. Inquiry into absence without leave.
1. When any person subject to this Act has been absent from his duty without due authority for a period of thirty days, a court of inquiry shall, as soon as practicable, be assembled, and such court shall, on oath or affirmation administered in the prescribed manner, inquire respecting the absence of the person, and the deficiency, if any, in the property of the Government entrusted to his care, or in any arms, ammunition, equipment, instruments, clothing or necessaries; and if satisfied of the fact of such absence without due authority or other sufficient cause, the court shall declare such absence and the period thereof, and the said deficiency, if any, and the commanding officer of the corps or department to which the person belongs shall enter in the court- martial book of the corps or department a record of the declaration.
2. If the person declared absent does not afterwards surrender or is not apprehended, he. shall, for the purposes of this Act, be deemed to be a deserter."
25. A bare perusal of Section 106 would reveal that the provisions would be invoked only when a person subject to Army Act, 10 1950 remains absent from his duty without due authority for a period of 30 days. Even it was not the case of Union of India, as submitted before this Court. What is being argued before this Court is that Rifleman Trilok Singh was fit; he was never escorted by any Guard; he went missing on his own; proceedings under Section 106 of the Army Act, 1950 were resorted to; he was declared deserter.
26. A few facts emerged in this case namely (i) Rifleman Trilok Singh was not well; (ii) he was under psychiatric treatment in Military Hospital, Pithoragarh; (iii) Military Hospital, Pithoragarh was not able to administer him proper treatment, therefore, they advised that Rifleman Trilok Singh be shifted to Military Hospital, Meerut in custody of escort.
(iv) Initial requisition of 1 X 3 escort was sent but what was provided was 1 X 1 escort, in the shape of respondent nos. 9 and 10. (v) Rifleman Trilok Singh was handed over to respondent nos. 9 and 10 on 09.09.2014 for handing over him to Military Hospital, Meerut. It was not done. Rifleman Trilok Singh was with army authorities on 09.09.2014. The question is where is he?
27. The version of Union of India appears to be not true. It appears that Union of India is hiding much and revealing less. Therefore, this Court has no hesitation in issuing a writ of Habeas Corpus.
28. Accordingly, this petition is allowed. Writ of Habeas Corpus be issued directing respondent nos. 1 to 5, 9 and 10 to produce, 13774403F Rifleman Trilok Singh, IIIrd Battalion, Jammu and Kashmir Rifles, who was taken into custody on 09.09.2014 by respondent no. 9 and 10 from Military Hospital, Pithoragarh for admitting and handing over him to Military Hospital, Meerut before this Court on 04.12.2019 and file the return.
29. List on 04.12.2019.
30. Let a notice be also issued to Lieutenant Colonel A.V. N. Surin, to explain as to why action be not taken against him for making statements in the counter affidavit, which are apparently not true 11 (especially para 19, as quoted in para 18 of this judgment). The explanation may be submitted before 04.12.2019.
(Ravindra Maithani, J.) (Alok Singh, J.)
13.11.2019 13.11.2019
SKS