KAPILDEO Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is a habeas corpus petition under Section 491 (1) (b) of the Code of Criminal Procedure and Article 226 of the Constitution. The petitioner is one Kapildeo, who describes himself to be a whole-time worker of the Sanjukta Socialist Party, actively employed in its office in its headquarters at Nayatola, and to be a friend of the detenu, Sri Ramnand Tewary. It appears that Sri Ramanand Tewary was arrested on the 26th September, 1964, at Arrah by the local police on various charges under the Indian Penal Code including charges under Sections 307 and 148 thereof. He was taken to Buxar Jail and was remanded to jail custody. It appears from the counter-affidavit filed on behalf of the State that after his arrest Sri Ramanand Tewary was immediately produced before a Magistrate, who granted him bail, but he failed to furnish bail and as such he was remanded to jail custody as an under-trial prisoner in respect of a case under Sections 147, 332, 336, 337 and 448 of the Indian Penal Code. While he was in jail custody as an under-trial prisoner, an order of detention under Rule 30 (1) (b) of the Defence of India Rules, 1962, was issued on the 7th of October 1964, and the same was served on him on the 13th of October 1964. The petitioner has filed this habeas corpus application for quashing the said order of detention, which is Annexure 'A' to the application, and for directing the release of Sri Ramanand Tewary from the jail custody. The State has filed a counter-affidavit justifying the order of detention on merits. The contention put forward on behalf of the petitioner, however, is that the service of the order of detention on the detenu, while he was still in jail custody, was illegal, and, howsoever the order of detention may be good on merits, the service of the order cannot stand due to the illegality of its having been served on a person while he is not a free man and is already in the jail custody.

(2.) Before, however, going into the merits of the question raised on behalf of the petitioner about the illegality of the service of notice on the detenu, Sri Ramanand Tewary, a point which has been raised on behalf of the State that the application of the petitioner is not maintainable as it is not a bona fide application may have to be considered. A question was raised as to the competency of a stranger moving a habeas corpus application on behalf of a detenu, under Section 491, Clause (2), of the Code of Criminal Procedure, the High Court has been authorised to frame rules to regulate the procedure in cases under Section 491 of the Code. From the Rules of this High Court, some rules appear to have been framed under Section 491 (2) of the Code of Criminal Procedure, as laid down in Chapter XXI-B, but there is nothing in those rules with respect to the question of the competency or otherwise of a stranger to file a habeas corpus application. Ordinarily it appears to me, as was observed in In re Hardial Singh: AIR 1949 EP 130, that there is a great danger in allowing any and every person to move a petition for babeas corpus on behalf and For the benefit of any detenu and to allow irresponsible people to move petitions of this nature on behalf of persons about whose affairs they have really no knowledge, merely on account of the existence between them of any political or other affinity, seems to be prejudicial to the proper and efficient administration of justice and otherwise undesirable. It is just proper that rules should have been framed by the High Court in this regard under Section 491 (2) of the Code of Criminal Procedure. The position, however, remains that a stranger has been permitted to move a petition for habeas corpus on behalf of a detenu and so far as the present case is concerned, it cannot be said that a stranger could not make the application. It is, however, open to the Court to examine such a petition to find out whether sufficient materials have been put in, as clearly as possible, in the petition to enable the High Court to come to a decision with respect to the matter in question in that petition and whether such a petition is a bona fide one.

(3.) In the present case the affidavit made in support of the statements in the petition is not in accordance with law and the statements are vague and inaccurate. In paragraph 4 it has been stated that "Sri Ramanand Tewary was served with an order inside the jail by the jail authorities on the 10th October, 1964, purporting to have been issued by the Governor of Bihar on the 7th of October, 1964". In paragraph 5 of the petition it has been stated that "the notice was actually served upon him (Sri Ramanand Tewary) inside the Buxar jail where he was held up in interim custody pending trial of his case under the specific charges under the various sections of the Indian Penal Code", In paragraph 7 it has been stated that 'a copy of the notice as forwarded to the petitioner's counsel is enclosed herewith marked 'A' for identification and forms part of this petition". In paragraph 8 it has been said that "the petitioner's (Kapildeo's) senior counsel, Sri B. C. Ghose, immediately on receipt of the information and copy of the order communicated to the said Sri Ramanand Tewary sent a letter to him seeking information and vakalatnama form for execution by the said Sri Ramanand Tewary; but neither has any information been received from him nor has the vakalatnama form duly executed been received by the said learned Advocate". Then in paragraph 9 it is stated that "in view of the above, the petitioner as a friend of the said Sri Ramanand Tewary, the above-mentioned detenu is moving this application"