Madras High Court
Vimala vs The State Of Tamil Nadu on 21 April, 2007
Bench: P.K.Misra, R.Sudhakar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.04.2007
CORAM
THE HONOURABLE MR.JUSTICE P.K.MISRA
and
THE HONOURABLE MR.JUSTICE R.SUDHAKAR
Habeas Corpus Petition No.534 of 2007
Vimala .. Petitioner
Vs
1. The State of Tamil Nadu
repd.by the Secretary to Government
Home Department
Fort St.George
Madras 9
2. The Superintendent of Prisons
Central Prison
Vellore.
3. The Superintendent of Prisons
Central Jail
Puzhal
Madras.
4. The Inspector of Police
E1 Police Station
Mylapore
Madras 4 .. Respondents
Petition filed under Article 226 of the Constitution of India, praying for issuance of a writ of Habeas Corpus to direct the respondents to produce the detenu, Mr.Thulasi, son of Dharmalinga, illegally detained by the 3rd respondent (at present) and set him at liberty.
For petitioner : Mr.V.Raghavachari
For respondents : Mr.M.Babu Muthu Meeran, Additional Public Prosecutor
ORDER
(Order of the Court was made by P.K.MISRA,J.) Heard Mr.V.Raghavachari, learned counsel for the petitioner and the learned Additional Public Prosecutor for the State.
2. This Habeas Corpus Petition has been filed by the wife of detenu Thulasi.
3. The allegations in the Habeas Corpus Petition indicate that the detenu was arrested on 23.5.1992 in connection with E 1, Mylapore Police Station Crime No.1183/1992 wherein it was alleged that he had committed an offence under Section 307 read with 34 I.P.C. The said crime was committed by two accused persons including the detenu. It further appears that during the pendency of the case the detenu had not been released on bail and had continued in custody. Ultimately, on 20.5.1997 the judgment in S.C.No.315/1996 was pronounced by the learned II Additional Sessions Judge, Madras. From the judgment copy it appears that the trial Court imposed a sentence of 5 years and the learned Sessions Judge also observed that the period in custody as undergone shall be set-off against the person as contemplated under Section 428 Cr.P.C. Thereafter the detenu had filed Crl.Appeal No.345 of 1998. The co-accused had filed Crl.Appeal No.174 of 1998. Even though the co-accused was apparently released on bail, the detenu had not been released on bail. Be that as it may, ultimately on 18.9.1999 the jail authorities released the detenu from jail apparently because he had undergone the sentence imposed upon him by taking into consideration the period of set off. Subsequently, both the appeals were dismissed by the High Court. Since the other appellant had not served the sentence, obviously he was required to undergo the remaining part of the sentence, whereas the detenu having undergone the sentence was not required to be re-arrested. Without, however, noticing the fact that the detenu had already undergone the sentence, a fresh warrant was issued against him pursuant to which the detenu has been kept in custody.
4. After filing of the present Habeas Corpus Petition, we have called upon the Additional Public Prosecutor to obtain necessary instructions and we have also called for the records in Crl.Appeal No.354 of 1998. On verification of the relevant records we find that there was no justification to issue a fresh warrant so far as the present detenu is concerned as by the time of dismissal of the criminal appeal, he had already undergone the period of imprisonment. It is thus obvious that the further detention of the detenu was on account of an erroneous warrant having been issued by the trial court.
5. In such view of the matter, the continued detention of the detenu in connection with E-1 Mylapore Police Station Crime No.1183 of 1992 corresponding to S.C.No.315 of 1996 (Crl.Appeal No.345/1998) should be considered as illegal.
6. In the result, the habeas corpus petition is allowed. The detenu is directed to be released forthwith in connection with E-1, Mylapore Police Station Cr.No.1183/92 (S.C.No.315/96 on the file of the II Additional Sessions Judge, Chennai) corresponding to (Crl.A.No.345/98 disposed of on 19.12.2005), if his presence is not required in connection with any other case. A token compensation of Rs.5,000/- shall be paid to the detenu by the respondent No.1 within a period of sixty days from the date of receipt of the order.
sal To
1. The Secretary to Government Home Department Fort St.George Madras 9.
2. The Superintendent of Prisons Central Prison Vellore.
3. The Superintendent of Prisons Central Jail Puzhal Madras.
4. The Inspector of Police E1 Police Station Mylapore Madras 4.
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.08.2007 CORAM THE HON'BLE MR.JUSTICE P.D.DINAKARAN AND THE HON'BLE MR.JUSTICE R.REGUPATHI M.P. No.2 of 2007 in H.C.P. No.534 of 2007 ORDER (Order of this Court was made by P.D.DINAKARAN,J.) In the present petition, the State, which is the first respondent in H.C.P.No.534 of 2007, seeks to review the order of this Court dated 21.4.2007 made in the said habeas corpus petition, wherein this Court directed the first respondent to pay a token compensation of Rs.5,000/- to the detenu under the following facts and circumstances of the case.
2.1. The petitioner in the habeas corpus petition is the wife of the detenu by name Thulasi. The detenu was arrested on 23.5.1992 in Crime No.1183 of 1992 on the file of E1-Mylapore Police Station, Greater Chennai, for an alleged offence punishable under Section 307 read with Section 34, IPC. According to the police, the crime was committed by two accused, including the detenu.
2.2. After committal, the case was tried by the learned II Additional Sessions Judge, City Civil Court, Chennai in S.C.No.315 of 1996, whereunder, the detenu and the co-accused were convicted and sentenced with rigorous imprisonment for a period of five years, by judgment dated 28.2.1997. Against the said judgment, the detenu preferred an appeal in Crl.A.No.345 of 1998 and the co-accused preferred an appeal in Crl.A.No.174 of 1998, which were dismissed by this Court, by judgment dated 19.12.2005.
2.3. In the meanwhile, even though the detenu was released on bail for some time and re-arrested after the pronouncement of the judgment on 28.2.1997 in S.C.No.315 of 1996, after the completion of the sentence of rigorous imprisonment of five years, he was released by the Superintendent of Central Prison, Vellore on 18.9.1999.
2.4. While so, after the dismissal of the Criminal Appeal Nos.345 and 174 of 1998 preferred by the detenu and the co-accused respectively, by judgment dated 19.12.2005, the learned II Additional Sessions Judge, City Civil Court, Chennai issued non-bailable warrant to re-arrest the detenu as well as the co-accused, overlooking the fact that the detenu had already undergone the period of five years of rigorous imprisonment and was released by the Superintendent of Central Prison, Vellore on 18.9.1999.
2.5. The grievance of the detenu is that in spite of the fact that he has completed five years of rigorous imprisonment, he was re-arrested and dragged to the Central Prison at Puzhal on 26.12.2006 by executing the non-bailable warrant. It is also stated that, after the re-arrest of the detenu, the jail authorities at Vellore refused to entertain him in the prison, as he had already undergone the period of imprisonment. But, unfortunately, the jail authorities had to comply with the directions of the learned II Additional Sessions Judge, City Civil Court, Chennai to detain the detenu.
2.6. That apart, by proceedings dated 20.2.2007, the Superintendent, Central Prison, Vellore, brought to the notice of the learned II Additional Sessions Judge, City Civil Court, the fact that the detenu had already undergone the sentence of five years rigorous imprisonment, which reads as follows:
VERNACULAR ( TAMIL ) PORTION DELETED 2.7. It is further stated that, even when the detenu was produced before the learned II Additional Sessions Judge, City Civil Court, Chennai, he had informed the learned II Additional Sessions Judge, City Civil Court, Chennai that he had already undergone the period of detention and therefore, he could not be detained again. But, unfortunately, the learned II Additional Sessions Judge, City Civil Court, Chennai was in "no mood to listen" and directed the officials to remove the detenu from the Court and lodge him in the prison immediately, as no enquiry was warranted.
2.8. It is seriously complained that the submissions and the cry of the detenu went unperceived by the learned II Additional Sessions Judge, City Civil Court, Chennai. It is specifically stated in the affidavit that the learned II Additional Sessions Judge, City Civil Court, Chennai instead of undoing the damage done to the legal rights of the detenu, had merely kept quiet by not positively responding even to the letter of the Superintendent, Central Prison, Vellore dated 20.2.2007, referred to above.
2.9. The callous attitude of the learned II Additional Sessions Judge, City Civil Court, Chennai dragged the wife of the detenu to approach this Court to seek a writ of habeas corpus directing the respondents to produce the detenu, illegally detained by the third respondent and set him at liberty.
2.10. After hearing the learned counsel on behalf of the detenu as well as the learned Additional Public Prosecutor, the Division Bench of this Court, by order dated 21.4.2007 in H.C.P.No.534 of 2007, after satisfying that the detention of the detenu, by executing the non-bailable warrant even after the completion of sentence imposed on him on 18.9.1999 is totally illegal, unconstitutional, and amounts to breach of human rights, allowed the habeas corpus petition and the detenu was directed to be released forthwith in connection with E-1, Mylapore Police Station Cr.No.1183/92 (S.C.No.315/96 on the file of the II Additional Sessions Judge, Chennai) corresponding to (Crl.A.No.345/98 disposed of on 19.12.2005), if his presence was not required in connection with any other case, and also awarded a compensation of Rs.5,000/- to be paid to the detenu by the first respondent/first petitioner herein within a period of sixty days from the date of receipt of the said order dated 21.4.2007.
2.11. Challenging the imposition of Rs.5,000/- as token compensation to be paid by the first petitioner herein/first respondent in the habeas corpus petition, viz., the Secretary, Home Department, the State preferred the present petition to review the order dated 21.4.2007 contending that the State is not at all responsible for the said illegal and unconstitutional detention of the detenu.
3. We heard Mr.N.R.Elango, learned Additional Public Prosecutor for the petitioners and Mr.V.Raghavachari, learned counsel for the respondent.
4. Before proceeding further, it is apt to refer the woeful tale of the detenu, as stated in the affidavit filed in the petition filed against the said illegal detention of her husband, which reads as under:
"6. The least the II Additional Sessions judge is expected to do as a responsible Judicial officer is to verify the records before issuance of the warrant. By his reckless and irresponsible act and persistent abstinence to the fervent plea of my husband, the II Additional Sessions judge had rendered himself to offer an explanation to this Hon'ble Court. The legal and constitutional rights of the individual had been flouted with impunity. There had been a total disregard to the rule of law and unfortunately, the offender in the case is a responsible officer of Court. As the illegal detention is at his instance, I am constrained to make him a party to the proceeding.
7. I state that the most unfortunate event that had taken place in the annals of Judicial history, or at least as far as this court is concerned, is the fact that learned judge offered a deaf ear even to the representation made by the Public Prosecutor. It was represented by the Public Prosecutor attached to the court that my husband had undergone imprisonment and he need not be detained again. The II Additional Sessions judge brushed aside the objection and directed detention. This fact is mentioned only to enable this Hon'ble court to appreciate the pitiable plight in which my husband was placed and the casual manner in which the rights of the citizen in free India had been dealt with by no less an officer of court.
8. As the detention of my husband is illegal and as the family had been crippled beyond repair, I pray that this Hon'ble court be pleased to direct the persons responsible for this despair to compensate the victim. I state that I am unable to do any business in the absence of my husband. I am spending sleepless night seeking for the release of my husband. We would be earning together a sum of Rs.400/- a day. For over 3 months I have been running from pillar to post seeking freedom for my husband. I have miserably failed in my endeavour before the II Additional Sessions judge. The respondent 2, 3 and 5 have pleaded helplessness. Be that as it may, when the rights of the citizen is jeopardised by order of the II Additional Sessions judge it is the duty of the State to have moved the appropriate forum to seek for the release. It had also failed and hence it is duty bound to compensate the petitioner's husband for the irreparable damage suffered by him and consequent to his detention, his family."
5. From the facts aforementioned, we are convinced that the State is not at fault. We, therefore, find force in the submission made by Mr.N.R.Elango, learned Additional Public Prosecutor, on behalf of the State, that the direction issued to the petitioner herein to pay a sum of Rs.5,000/- as token compensation within a period of sixty days is not warranted. Accordingly, the said direction is recalled by this Court, by reviewing the order dated 21.4.2007 made in the above habeas corpus petition.
6. However, the matter does not come to an end by re-calling of the direction issued to the first petitioner herein, viz., to pay a sum of Rs.5,000/- as token compensation within a period of sixty days. We are of the considered opinion that, after pronouncement of the judgment dated 19.12.2005 in Criminal Appeal No.345 of 1998 by this Court and before issuing a non-bailable warrant seeking re-arrest of the detenu, the learned II Additional Sessions Judge, City Civil Court, Chennai ought to have verified, whether the detenu already underwent the sentence of five years of rigorous imprisonment imposed on him by the trial Court or not, by issuing appropriate notice to the respondents.
7. It is stated in the affidavit filed on behalf of the detenu that the learned Public Prosecutor attached to the II Additional Sessions Judge, City Civil Court, Chennai had also represented that the detenu had undergone imprisonment and he need not be detained again, but the learned II Additional Sessions Judge, City Civil Court, Chennai brushed aside the said submission and ordered detention.
8. During the course of argument, Mr.N.R.Elango, learned Additional Public Prosecutor invited our attention to the letter dated 20.2.2007 of the Superintendent, Central Prison, Vellore, wherein it is stated that he had brought to the notice of the learned II Additional Sessions Judge, City Civil Court, Chennai the fact that the detenu had already undergone the sentence of five years rigorous imprisonment, and submitted that without lending ears to these vital facts, the learned II Additional Sessions Judge, City Civil Court, Chennai had detained the detenu by issuing a non-bailable warrant, for nearly 4 months after his re-arrest.
9. Personal liberty protected under Article 21 of the Constitution of India is sacrosanct and high in the scale of constitutional values. When such personal liberty, which is the foundation of the human dignity is itself in jeopardy, apart from a morally bounded duty, a statutory as well as a Constitutional duty lies on the shoulders of the Judiciary to come to the rescue of the person, whose personal liberty is infringed.
10. Personal liberty is the most valuable right among all the fundamental rights conferred under the Constitution of India and the Judiciary is supposed to be the guard of the personal liberty which shall not be let down at any cost, because, but for the personal liberty, the corner stone of the human rights and the sweetmeat of human dignity, all the fundamental rights will remain dead letters.
11. The very object behind Article 22(5) of the Constitution of India requiring the production of the person arrested and detained before the Magistrate as well as the procedure prescribed under the Code of Criminal Procedure that has to be followed by the Magistrate while remanding the accused to judicial custody after the arrest or re-arrest is to put the person arrested and detained in the safer hands of the Judiciary, coupled with the duty cast on the Judiciary to examine whether such detention is, if at all, required in law.
12. The trial judge is the kingpin in the hierarchical system of administration of justice. He directly comes in contact with the litigant during the day-to-day proceedings in the Court. On him lies the responsibility to build a solemn atmosphere in the dispensation of justice, the personality, knowledge, judicial restraint, capacity to maintain dignity, character, conduct, official as well as personal, and integrity are the additional aspects which make the functioning of the Court successful and acceptable. [vide High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil, AIR 1997 SC 2631]
13. The Apex Court in number of pronouncements highlighted the unique quality of judicial service and showed how the judicial service is distinctly different from other services under the State. Judicial service is not merely an employment nor the Judges merely employees. They exercise sovereign judicial power. The Judges, regardless of their ranks are holders of public office of great trust and responsibility [vide High Court of Judicature at Bombay v. Shasikant S.Patil, AIR 2000 SC 22].
14. In the instant case, the detenu had served his term of imprisonment before the pronouncement of the judgment dated 19.12.2005 made in Crl.A.No.345 of 1998 and in view of the callous attitude of the II Additional Sessions Judge, City Civil Court, Chennai, he was re-arrested to undergo the imprisonment.
15. If the personal liberty is curtailed or hampered by the Executive, the Judiciary should come to rescue; but, if the Judiciary by itself turns hostile, where else the personal liberty will be safeguarded?; and who else will safeguard the personal liberty?
16. Can the Judiciary, therefore, disown its responsibility to discharge its duty with due care and caution in the matters relating to the violation of personal liberty? When there are materials to show that there are lapses apparent on the face of the record, can this Court be a silent spectator to such a violation to the personal liberty, human rights and human dignity?
17. The Judicial Officer, who is exercising judicial power, particularly, when it attracts the right to personal liberty conferred under Article 21 of the Constitution of India, while issuing non-bailable warrants arresting or detaining the accused, as the case may be, are expected to discharge the judicial duty more carefully, cautiously and with due diligence. In the instant case, as per the statement made on behalf of the detenu, we are satisfied that the learned II Additional Sessions Judge, City Civil Court, Chennai acted in total violation, not only of the right of personal liberty conferred under Article 21 of the Constitution of India, but also all the basic human rights.
18. It is trite that when an officer in exercise of judicial or quasi judicial powers acts negligently or recklessly or in order to confer undue favour on a person he is not acting as a Judge. There is a great reason and justice for holding in such cases that the disciplinary action could be taken [vide Union of India v. K.K.Dhawan, (1993) 2 SCC 56].
19. We feel that the lethargic attitude of the II Additional Sessions Judge, City Civil Court, Chennai in ignoring the cry of the detenu, the submissions of the Public Prosecutor attached to his office and the letter of the Superintendent of Prisons, amounts to exercise of his judicial power negligently and recklessly and we feel, it is a fit case to initiate disciplinary action against the erred Officer, viz., the II Additional Sessions Judge, City Civil Court, Chennai, who was holding the office during the relevant period. The Registry is directed to place the papers before the Hon'ble Chief Justice for necessary further direction in the matter, as indicated above.
20. That apart, since the petitioner in the habeas corpus petition also sought for compensation to the tune of Rs.5 Lakhs, in our considered opinion, it is appropriate to give liberty to the petitioner to move this Court by way of appropriate application in the present habeas corpus petition itself, without resorting for a separate legal action, of course, after impleading the Officer concerned. It is made clear that such compensation to be awarded, if any, shall be subject to the result in the enquiry directed to be initiated against the II Additional Sessions Judge, City Civil Court, Chennai, during the relevant point of time.
This petition to review the order in H.C.P.No.534 of 2007 is allowed with the above direction.
kpl/sasi