NIBARAN BORA Vs. UNION OF INDIA & OTHERS

JUDGEMENT

(1.) This writ petition has been filed by one Shri Nibaran Bora in his own name as petitioner. Shri Nibaran Bora is not an advocate. It appears that he is a public activist and the President of Sangjyukta Loka Parishad, Guwahati. It is stated in the petition that one Shri Rajen Doloi of Dhemaji was arrested by the army authority on 15.12.90 from his house in exercise of the powers under section 4 of the Armed Forces (Special Powers) Act, 1958. After the arrest, the army authority has not made over Rajen Doloi to officer in charge of the nearest police station as provided under section 5 of the Act till filing of this writ application on 24.1.91. In the affidavit of the Union of India it is stated that the army authority arrested Rajen Doloi on 26.1.91 and released him on 27.1.91.

(2.) A question has been raised whether the petitioner Shri Nibaran Bora can file the application for a writ of habeas corpus as well as plead the case. Mr. A.R. Barthakur, learned Advocate General Assam has submitted that, in the name of "Public Interest Litigation", traditional litigation has been suffering and if the High Court does not restrict the free flow of such cases, instead of dispensing justice, it may have serious consequences.

(3.) Habeas corpus is to secure release from any form of unlawful detention. The remedy by habeas corpus is available where there is a deprivation of personal liberty without legal authority or justification. The writ is a "writ of right" and is granted ex debito justiciae (as a matter of right). A five Judge Bench of the Supreme Court has, in Gulam Sawar Vs. Union of India, AIR 1967 SC 1335 held that habeas corpus is an order directing to have the body of the person detained to be brought before the Court in order to ascertain whether the detention is legal or illegal, and set him free if there is no legal justification or authority for the detention. In Mohd Ikram Hussain Vs. State of UP, AIR 1964 SC 1625 , the Supreme Court has held that a direction given by the High Court in a proceeding for a writ of habeas corpus for the production of the body of a person has to be carried out, and evasion of or disobedience to the writ renders the offenders liable to penalties. As regards the procedure on habeas corpus, our High Court has not made rules governing application under Art. 226 of the Constitution for direction or writ of habeas corpus. At this stage, it would be helpful to refer to the decision of the Supreme Court in Mohd. Ikram Hussain's case, AIR 1964 SC 1625 (supra). In that case it has been held that the High Court is not prohibited from ordering an enquiry into a fact in issue. All procedure is always open to a Court which is not expressly prohibited and no rule of the Court has laid down that evidence shall not be received, if the Court requires it. In certain cases, writ nisi for production of a detainee may be preceded by some more enquiry.