K C JAIN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) A telegram purporting to be from one Omprakash Gupta, Convenor, Railway Strikers Association, Jaipur was received by Hon'ble the Chief Justice at Mt Abu. It was alleged therein that 7 named persons and 38 other Railway employees were illegally detained at Jaipur under the Defence of India Rules. Their immediate release was, therefore, sought for. The contents of the telegram were conveyed by the Secretary to Hon'ble the Chief Justice on phone to the Deputy Registrar who has, in turn, placed the matter before us for orders.

(2.) THE question that calls our attention of the outset it whether we should take action on such a telegram. It is true, an application for habeas corpus or for a writ in the nature of habeas corpus could be moved by a person other than the detenue, but we are afraid there is no provision for the making of an application by a telegram. Sec. 491 of the Code of Criminal Procedure (Old), inter alia, laid down that the High Court may from time to time frame rules to regulate the procedure in cases under sec. 491 Cr. P. C. THE rules regulating the procedure under sec. 491 Cr P. C. are contained in Part IV of the Rajasthan High Court Rules, 1952. Rule 363 occurring therein lay down that an application under sub-sec. (1) of sec. 491 of the Code of Criminal Procedure or for a writ in the nature of habeas corpus, if not sent by post, shall be presented to the Registrar who shall direct that the application be laid before a Division Bench for orders. Rules 364 provide that the application if received by post shall be put up as soon as possible after the receipt thereof before a Division Bench for orders. Rule 365 lays down the contents of the application and the affidavit by which it has to be supported and we may read this rule in full: "r. 365. Contents of Application and affidavit - THE application shall be accompanied by an affidavit of the person restrained stating that it is made at his instance and setting out the nature and the circumstances of such restraint. It shall also state if any previous application had been filed or not on his behalf and in case such application had been filed, its result; Provided that where the person restrained is unable owing to the restraint to make the affidavit the application shall be accompanied by an affidavit to the like effect made by some other person and such affidavit shall also state the reason why the person restrained is unable to make the affidavit himself. "