SURENDRA TIWARI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) By means of this writ petition the petitioner has sought the issuance of writ of habeas corpus or writ, order or direction in the nature of writ of habeas corpus directing the immediate release of the petitioner. The petitioner has also prayed for orders being issued for immediate medical aid to the detenu as well as for taking action against Raja Rampal Singh and other police personnel as well as for the orders for proper enquiry and for further orders taking action against Raja Rampal Singh and other police personnel alleged to be responsible for illegally detaining the petitioner and for causing injuries on his person as alleged by the petitioner and for any other such writ, order or direction as is deemed just and proper.

(2.) The petitioner's case, as per allegations contained in the writ petition, is that on 11-4-l992 at 6 p.m. he has been taken away from his residence at Anandnagar, Police Station Alambagh, Lucknow, by Inspector, Police Station Qaiserbagh, Lucknow and Inspector, Police Station Alambagh, Raja Rampal Singh. The Petitioner further alleged that at the time the petitioner was taken away on 11-4-92 at 6 p.m. Shri Shiv Ram Shukla, Advocate was present and that on enquiry both the Inspectors informed Shri Shiv Ram Shukla, Advocate that the petitioner was required for interrogation and would be set free after sometime as alleged in paragraph 23 of the writ petition. The petitioner's case is that on 12-4-92 at 00.43 hours telegram was sent by Shri Shiv Ram Shukia, Advocate, to Director General of Police, U. P. Lucknow, District Magistrate, Lucknow and to Home Secretary to U. P. Government, Lucknow. A copy of which the petitioner has annexed as Annexure-1, to this writ petition. In paragraph 4 of the writ petition it has been alleged that when Surendra Tiwari did not return back home till next morning the deponent in the writ petition Markande Tiwari alias Rajendra Tiwari, the own brother of the petitioner through whom this petition has been filed made enquiries about Surendra Tiwari and he was informed that Surendra Tiwari was being kept under police lock up at Police Station, Hazratganj, Lucknow and on 13-4-1992 at about the noon the police squad led by Inspector Raja Rampal Singh and Inspector Qaiserbagh again came to petitioner's residence at Anandnagar, Police Station, Alambagh and forcibly took away his brother Prem Shanker Tewari. In paragraph 6 it was alleged that the deponent in this petition Shri Markande Tiwari along with Vinay Jeet Lal Verma and Shri Shiv Ram Shukla, Advocate went to Police Station, Hazratganj and they saw in the evening on 12-4-92 that Surendra Tiwari and Prem Shanker Tiwari were under Lock up in the Police Station, Hazratganj and they in the petition had further alleged that the two persons appear to have been given serious beating. In paragraph 9 to the writ petition it was asserted by the deponent that Surendra Tiwari shouted in presence at the above named two Advocates that he was beaten severelly by the police and particularly by Raja Rampal Singh who took him to Police Station, Alambagh and caused him external and internal injuries. The petitioner deponent of the petition in paragraph 12 stated that the deponent sent telegram addressed to the Chief Justice of India, the Chief Minister of Uttar Pradesh and the Senior Judge of the High Court at Lucknow, the Director General of Police, U. P., Lucknow at 01.45 a.m. on 13-4-92.The petitioner's case is that the petitioner is and has been detained by the opposite-parties without any cause and is and has been kept in detention by opposite-parties for more than 24 hours and specifically mentioned in paragraph 15 "40" hours without being produced before the Magistrate and his detention is illegal and violative of the provisions of Art. 22(2) of the Constitution of India. The petitioner's complaint in the writ petition is that he has been beaten continuously by Raja Rampal Singh, S.H.O. Police Station, Alambagh and other police personnel. Annexure-1 is the photostat copy of the telegram addressed to Home Secretary, Director General of Police, District Magistrate, Lucknow purports to have been sent by Shri Shiv Ram Shukla, Advocate. Annexure-2 has been stated to be true copy of the telegram sent by the deponent of the writ petition. This petition has been filed in this court on 13-4-92 and was directed to come up on 16-4-92 for orders and in the meantime the Government Advocate was allowed time to seek instructions. On behalf of the opposite-parties three short counter-affidavits were filed, one was on behalf of opposite-party No. 2, the second was on behalf of opposite-party No. 3, and the third was on behalf of opposite-party No.4. Later on detailed counter-affidavits on 18-4-92 after serving a copy thereof on the petitioner's counsel were filed on behalf of opposite-party No. 3 and supplementary counter-affidavit sworn on 17-4-92 after having served a copy on petitioner's counsel on 23-4-92, was filed on behalf of Raja Rampal Singh, S.H.O. Police Station, Alambagh. Rejoinder-affidavit to the counter-affidavit of Raja Rampal Singh was filed after having served the copy thereof on 22-4-92 on the counsel for the State. Since the petitioner in the above writ petition had claimed immediate medical aid being provided to him a Division Bench of this court consisting of Hon'ble S. S. Ahmad, J. and Hon'ble H.N. Tilhari, J. directed that the detenu be produced in court. The bench had directed the opposite-parties to file supplementary counter-affidavit indicating the nature of injuries on the person of the petitioner as recorded in the jail register at the time of petitioner's entry into district jail. The petitioner having been directed to be produced on 17-4-92. On 17-4-92 the petitioner was produced before the Court and the Court directed let the detenu be examined by the Medical Officer posted in the District Jail Lucknow in presence of the Chief Medical Officer, Lucknow, in the District Jail itself and that a report be submitted to the Court within three days through Government Advocate. By order dated 17-4-92 Raja Rampal Singh was directed to file a detailed counter-affidavit indicating, specially, the time at which the detenu was produced before the Magistrate, the name of the Magistrate before whom the petitioner was produced was also required to be specified and the copies of the relevant G. D. entries relating to petitioner being taken into Havalat and of his being taken out of Havalat for being produced before the Magistrate were also required to be filed along with the counter-affidavit. The latest date for filing a detailed counter-affidavit was fixed to be 21-4-92 and for filing rejoinder to that affidavit was provided as 22-4-92 and the petition was directed to be put up on 23-4-92. On 23-4-92 the case was put up for hearing and after being heard on that date it was put up for hearing on 24-4-92. On 24-4-92 a change did take place in the course of arguments i.e. when the arguments were about to close, after lunch hours Kr. Mridul Rakesh and Shri Vijai Vikram, Advocates produced a letter from the District Magistrate, Lucknow, whereby they were authorised and appointed to be Special Counsel to appear in the case on behalf of the State. Kr. Mridul Rakesh sought time to make his submissions apart from all these submissions that had been made on behalf of the opposite-parties by Shri Bireshwar Nath learned Government Advocate and Shri Abdul Mateen, Additional Public Prosecutor. Kr. Mridul Rakesh was allowed two days' time to prepare the brief before making submissions and keeping in view the interest of justice and fairness to both the parties we allowed two days' time to Kr. Mridul Rakesh to prepare the case and argue and directed the case to come up on 27-4-92. On 27-4-92 we heard the argument afresh in the case and asked the counsel for the petitioner Shri Virendra Bhatia to make his submissions afresh so as to enable the newly appointed Special Counsel to appreciate his argument and be able to advance proper reply on behalf of the State. Thereafter on 27-4-92 and on 30-4-92 we heard Shri Virendra Bhatia, counsel for the petitioner and Kr. Mridul Rakesh and Shri Vijai Vikram Advocates who appeared as Special Counsel for and on behalf of the opposite-parties. Before we proceed with the arguments that have been advanced it may be mentioned here that in pursuance of this Court's order dated 17-4-92 the detenu was got medically examined by Medical Officer posted at District Jail in presence of the Chief Medical Officer, Lucknow, in jail. The injury report submitted by the Medical Officer, District Jail, with the certificate contained therein and given by Dr. G. K. Agarwal, Chief Medical Officer, Lucknow, filed in the court indicates and mentions regarding injuries as under :

(3.) After perusal of the report the petitioner did not press his submission regarding relief A, B, C and D contained in the relief clause of the writ petition. The writ petition was addressed primarily for the grant of relief No. 1 i.e. writ of habeas corpus directing the opposite-parties to release the petitioner immediately and for any other relief which this Court deems fit. On behalf of the petitioner the main thrust of the petitioner has been that the petitioner had been taken away on 11-4-92 at 6 p.m. and uptil the date of presentation of the petition he was continued to be detained without being produced before the Magistrate for more than 36 hours and that he ought to have been produced before the Magistrate within 24 hours of arrest. The petitioner having been detained for more than 24 hours in breach of the requirements of the provisions of Art. 22(2) of the Constitution of India, and, as such, his detention is illegal and is in breach of the provisions of law and particularly Constitution of India, if the petitioner's submission primarily has been that the petitioner's detention is in breach of Arts. 21 and 22 of the Constitution of India. His contention is that his personal liberty is being deprived illegally and without following any provisions of law. In alternative keeping in view the allegations in short counteraffidavit filed on behalf of the opposite-parties the learned counsel for the petitioner submitted that even according to the opposite parties case vide paragraph 3 of the counteraffidavit, the petitioner was, according to the version of the opposite-parties, arrested on 13-4-92 at 12.30 a.m. by Raja Rampal Singh the deponent of the short counter-affidavit filed on behalf of opposite-party No. 3. Learned counsel submitted without conceding even if for the sake of argument it be accepted for a moment that on 13-4-92 the petitioner was arrested at 12.30 a.m. as mentioned in this affidavit as well as in the short counter-affidavit filed by on behalf of opposite-parties 2 and 3 and that the petitioner was produced on 14-4-92 before the Magistrate even then the detention had become illegal because of non-production of the petitioner-detenu before the Magistrate on 14-4-92 (wrongly mentioned on 14-2-92 in the affidavit). Since the detention became illegal and void being in breach of the provisions of the constitution, the petitioner is and has been entitled to be released and set free by issuance of writ of habeas corpus or writ in the nature of habeas corpus. On this basis the petitioner has sought the grant of relief and issuance of writ of habeas corpus in his favour. On behalf of the opposite-parties it has been contended that the petitioner had not been arrested on 11-4-92 at 6 p.m. The opposite-parties have denied the petitioner's case regarding his arrest on 11-4-92. It has been contended on behalf of the opposite-parties that the relevant time and date to determine the validity or illegality of arrest or detention is the time when the return is filed on behalf of the State in the writ petition or at the time of hearing and if at a stage subsequent to the filing of the writ petition the arrest has been legalised by having obtained a remand order from Magistrate then in that case the petitioner is not entitled to get the relief claimed simply on the ground that on the date of the filing of the writ petition or earlier to that date the detention of the petitioner had been illegal. It may be mentioned that earlier during the course of arguments another important change that had taken place apart (sic) of the counsel is that firstly in paragraphs 3, 6 and 13 of the short counter-affidavit sworn by Raja Rampal Singh, Station House Officer, Alambagh, the stand taken was that the petitioner had not been arrested on 11-4-92 but he was arrested from his house at Rajendra Hotel, Charbagh on 13-4-92 at 12.30 a.m., in Crime No. 437 of 92, arising out of first information report lodged at Police Station, Hazratganj, Lucknow. It was asserted that within 24 hours of arrest the detenu was produced before the Magistrate on 14-4-92. Similar allagations about arrest were also made in paragraph 3 of the affidavit sworn by Shri Gopal Krishna Gupta, Sub-Inspector, Hazratganj, Lucknow, material portion of which reads as under :-