KUNJAN NADAR Vs. STATE

JUDGEMENT

(1.) This is a petition for the issue of a writ of habeas corpus or such other direction as is necessary in the interests of justice", filed by Sry. Rassammal Kunjan on behalf of her husband Sri. A. Kunjan Nadar, an Advocate of this Court and a member of the Travancore Cochin Legislative Assembly, Sri. Kunjan Nadar, who will here in after be referred to as the prisoner, was arrested by the police at half past one during the night between the 11th August 1954 and 12th August 1954. The arrest was from his residence at Nagercoil. According to the petitioner, the arrest was without any legal justification and like wise was the detention which followed it. The petition was filed in the High Court, Ernakulam on 23rd August 1954 and after a preliminary hearing on 25th August a Division Bench (Koshi, C.J. and Kumara Pillai, J.) issued a writ nisi directing the respondents to the petition to show cause why the petition should not be granted and the prisoner released from custody and also to cause his production before the Trivandrum Bench on 31st August 1954, the date to which the petition was posted for hearing. Along with this were filed twelve like petitions (O.P. Nos. 90 and 94 to 104) on behalf of twelve other persons in police custody and writs nisi in similar terms were issued in respect of those petitions also, posting all of them for hearing at Trivandrum on 31st August 1954. The persons on whose behalf these petitions are filed would seem to be prominent Travancore Tamil Nad Congress leaders.

(2.) The respondents to all the thirteen petitions are the same and they are:- (i) The Inspector General of Police, Travancore Cochin State, (ii) The District Magistrate, Trivandrum, and (iii) the State of Travancore Cochin, represented by the Chief Secretary to Government, Trivandrum. The Division Bench which issued writs nisi directed respondent 2, the District Magistrate of Trivadrum to cause the production in court by 11 A.M. on Monday, the 30th August 1954 the relevant papers connected with the arrest and detention of the thirteen persons on whose behalf the writ applications were filed. This order was duly complied with and through counter affidavits filed by Police Officers who effected the arrest of the prisoners and the Magistrates, pursuant to whose orders they have been detained in custody, the respondents caused it to be certified to the Court what according to them was the true cause of the detention. The petitions came up before us for hearing on the date fixed and the arguments lasted three full days, 31st August and 2nd and 3rd September 1954. At the conclusion of the hearing we reserved orders and posted the thirteen petitions to this date for disposal. Sri. T. N. Subramonia Iyer, represented the petitioners in all the cases and Sri. Mathew Muricken, the Advocate General for the State, represented the respondents. The grounds for release urged before us on behalf of the thirteen prisoners were substantially the same and as this was treated as the main case we propose to deliver the leading order in this petition. A copy of this order will be appended to the order in each case.

(3.) The petitioner's affidavit in support of the petition broadly states that the prisoner was arrested without any warrant, that he had not committed any offence, that otherwise also there was no cause for the arrest, that after the arrest he was not produced before any Magistrate and that the arrest and detention were illegal. Indeed the affidavit is remarkable for its omissions than what it contains. The counter affidavits filed on behalf of the respondents on the other hand show that the arrest was in connection with the prisoner's alleged participation in two occurrences, involving commission of several cognisable and non bailable offences, forming part of a series of acts of lawlessness committed on 11th August 1954, called the "Travancore Tamilnad Deliverance Day", that the two occurrences mentioned were registered as crime Nos. 99 of 1954 and 100 of 1954 of the Vilavancode Police Station, that those 'crimes' have since been registered as P.E. Nos. 9 of 1954 and P.E. No. 10 of 1954 of the Kuzhithura Stationary First Class Magistrate's Court, that the prisoner was the dictator of the Travancore Tamil Nad Congress Committee and that he is accused No. 1 in both the cases. The counter affidavits also show that within twenty four hours of his arrest the prisoner was produced before the Kuzhithura Stationary First Class Magistrate, that he was remanded to police custody first, for ten days, then for five days and that on the expiration of the period of the second remand the police laid their charge sheets in the two cases and that thereafter he has been kept in custody as an under trial prisoner as per the orders of the Magistrate mentioned above, who on the filing of the police charge sheets took cognizance of the two cases. The papers produced bear out these facts. Mr. T. N. Subramonia Iyer took a number of objections to the legality of the arrest and the validity of the detention both before and after the police charge sheets were filed. In the view we take, that the governing consideration to be kept before us in disposing of this petition is the legality or otherwise of the detention at the time when the respondents certified to this Court that the detention was pursuant to the magisterial order remanding the prisoner to custody as an undertrial prisoners, we consider it absolutely irrelevant to consider whether the arrest or the detention up to the point of the said order was valid or not. If the arrest or the detention till the Magistrate remanded the prisoner to custody as an undertrial is irregular or illegal, the petitioner may have his remedies against the persons responsible for those acts. We are concerned here with the validity of the detention at the time of the return.