KANU SANYAL Vs. DISTRICT MAGISTRATE DARJEELING

JUDGEMENT

(1.) This is a writ petition by the petitioner under Article 32 of the Constitution challenging the legality of his detention in the Central Jail, Vizakhapatnam and praying for a writ of habeas corpus for setting him at liberty forthwith. The petitioner is one of the acknowledged leaders of the Naxalite movement which originated in the area within Naxalbari, Kharabari and Phansidewa police stations in Siliguri Sub-Division of Darjeeling District of West Bengal some ten years ago. The movement represents armed revolt of the peasantry against exploitation by landholders and it seeks to achieve its end by violent means calculated to overthrow the democratic process. The petitioner as one of the top leaders of this movement, was engaged in violent and anti-social activities and was for quite some time underground evading arrest by the police. Eventually of 19th August, 1970, the petitioner was arrested by the police along with some of his associates from a hideout within the jurisdiction of Phansidewa police station. A huge quantity of arms, ammunition and explosives was found with the petitioner and his associates at the time of the arrest. Phansidewa P.S. Case No. 3 was accordingly registered against the petitioner on 19th August, 1970 under Section 5 of the Explosive Substances Act, Section 25 (1)(a) of the Arms Act and Sections 120-B, 121-A, 122, 309 and 402 of the Indian penal Code. There was also another case, namely, Phansidewa P.S. Case No. 28 registered against the petitioner on 29th July, 1967, under Section 412 read with Section 34 of the Indian penal Code. That case was under investigation at the time when the petitioner was arrested. Immediately after his arrest, on the same day, i.e., 19th August, 1970, the petitioner was produced before the Sub-Divisional Magistrate, Siliguri. The learned Sub-Divisional Magistrate passed an order of remand directing that the petitioner be detained in the District Jail, Darjeeling and that he should be produced before the Sub-Divisional Magistrate, Darjeeling. The petitioner was accordingly produced before the Sub-Divisional Magistrate, Darjeeling from time to time and orders of remand were passed by the Sub-Divisional Magistrate, Darjeeling at the interval of every fourteen days since the investigation in P. S. Case No. 28 dated 29th June, 1967 and P. S. Case No. 3, dated 19th August, 1970 was not complete.

(2.) On 6th January, 1973, whilst under detention in the Central Jail, vizakhapatnam, the petitioner preferred a writ petition under Article 32 of the Constitution in this Court challenging the legality of his detention right from the time of its inception and praying that he may be set free by issue of a writ of habeas corpus. The District Magistrate, Darjeeling, the Sub-Divisional Judicial Magistrates, Silguri, Kursean and Darjeeling the State of West Bengal, the Superintendent, Central Jail, Vizakhapatnam and the Post Master General, West Bengal were made respondents to the writ petition. This Court ordered a rule nisi to be issued on the writ petition but directed that the petitioner need not be produced in person. The District Magistrate, Darjeeling and the State of West Bengal filed their return to the rule nisi on 19th April, 1973 and the Superintendent of Central Jail, Vizakhapatnam filed his return to the rule nisi on 11th May, 1973. When the writ petition reached hearing, counsel appearing on behalf of the petitioner raised a contention that the writ petition could not be heard by the Court unless the petitioner was produced in person and his argument was that once rule nisi was issued, the Court was bound to order production of the petitioner. Since this contention raised an important question of law affecting the practice of the Court while dealing with petitions for a writ of habeas corpus, the Division Bench hearing the writ petition referred this question for decision by the Constitution Bench. The writ petition was thereafter placed before the Constitution Bench and by a judgment delivered by the Constitution Bench on 11th September, 1973, it was held that it was competent to the Court to dispense with the production of the body of the person detained while issuing rule nisi, and the rule nisi could be heard without requiring the body of the person detained to be brought before the Court. On this view being taken by the Constitution Bench, the writ petition again came back to the Division Bench for final disposal. In the meantime the committal proceedings which were being held by the Special Judge, Vizakhapatnam against the petitioner and his other associates concluded and by an order dated 12th July, 1973 the petitioner and 66 other accused were committed to the Court of Sessions to stand their trial for various offences. The trial of this Sessions Case, being Sessions Case No. 46 of 1973, is still pending against the petitioner in the Court of the Second Additional Sessions Judge, Vizakhapatnam and the petitioner is under detention in the Central Jail, Vizakhapatnam pursuant to the orders made by the Second Additional Sessions Judge, Vizakhapatnam pending trial.

(3.) The learned counsel appearing on behalf of the petitioner put forward three grounds challenging the legality of the detention of the petitioner and they may be briefly summarised as follows :