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TMI Blog1997 (10) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Section 50(1) of the Code of Criminal Procedure as also under Articles 21 and 22 of the Constitution was illegal particularly as his arrest was not in pursuance of any warrant of arrest. It is further mentioned in the petition that a complaint was filed against the petitioner with the result that Case No. 273 of 1993 Union of India v. Bal Mukund Jaiswal was registered against him under the provisions of the Narcotic Drug.s and Psychotropic Substances Act (here in after referred to as the Act) in the Court of the Sessions Judge, Varanasi which was at the time of filing of the petition, pending before the VI Additional Sessions Judge, Varanasi. It was also mentioned in the petition that no order of remand was passed while sending the petitioner to jail in the above mentioned case nor was there any warrant directing detention of the petitioner in connection with the said case and if at all there was any such warrant or order the VI Addl. Sessions Judge had signed it like a rubber stamp without due application of mind in a mechanical manner. It was specifically pleaded that on 3-3 -1994 while directing detention of the petitioner in jail the Vlth Additional Sessions Judge had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner up to 1-4-1994. The petitioner thereafter filed the Rejoinder Affidavit. Thereafter the matter came up before a bench of Hon. R.B. Mehrotra, J. and Hon. S.K. Phaujdar, J. It was argued before the division bench by learned counsel for the petitioner that when the petitioner was arrested on 12-2-1993 he was not informed the grounds of his arrest and as such the arrest being in contravention of the rights guaranteed to a citizen under Article 22(1) of the Constitution the detention of the petitioner was rendered bad and on this ground alone the petitioner was entitled to be released. It was apparently contended that even if for argument's sake the subsequent,orders of remand directing detention of the petitioner were passed, the petitioner could not be detained in jail in pursuance of those orders of remand as the initial defect of illegal detention on account of Article 22(1) being violated could not be cured. In support of this contention the petitioner relied on the case of Vimal Kishore Mehrotra v. State' of U.P. AIR 1956 All 56 (DB) as also on the case bf Raghvendra Singh v. State 1983 All LJ 611. The petitioner also relied on the case of Ashok Kumar Singh v. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier instances of this Court where while pending decision of a question before the Full Bench some Hon. Judges had granted bail to the petitioner, with the result that the petitioner was enlarged on bail on furnishing his personal bond and two sureties to the satisfaction of the Court below. 5. The division bench before which the writ petition came up observed that the Supreme Court had drawn a distinction recustody on criminal charges and detentions under the preventive 1998 Cri.L. J./210 IX law. They noted that whereas in the case of Kanu Sanyal (AIR 1974 SC 510) (supra) the Supreme Court recorded a finding that irrespective of initial non-observance of the provisions of Article 22(1) of the Constitution a valid remand order could be made, in the case of Abdul Latif (supra) the Court held that in the case of preventive detention procedural safeguards had to be strictly adhered to. Thereafter noting that decisions of the Lucknow Bench of the High Court of Allahabad in the case of Ashok Kumar Singh (1987 Lucknow LJ 273) (supra) having not noted the decision of the Allahabad Full Bench in Surjeet Singh's case (1984 All LJ 375) (supra) the division bench observed that altho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of such an order cannot cure initial illegality. We have to test whether the argument advanced by Sri D.S. Mishra is correct or has met the approval of any Court in any case. In this connection Sri D.S. Mishra placed reliance on a division bench judgment of this Court in the case of Vimal Kishor Mehrotra (AIR 1956 Allahabad 56) (supra) in which both the Judges had held that if petitioner's detention on 26-5-1955 and on subsequent days was illegal, the fact that the necessary information somehow reached the petitioner on 27-6-1955, would not render the detention legal. Therefore, the petitioner had to be released. This view was taken by Oak, J. in paragraph 23 of his judgment and by Desai, J. in paragraph 34 of the said judgment. This case of Vimal Kishor was not dealing with the situation where a particular person's detention at a subsequent stage had been legalised by a valid order of remand. The Court only considered the question whether the grounds of arrest were communicated to the petitioner as soon as may be' and since it was found that the grounds were not communicated forthwith, hence the Bench found that the detention of the petitioner was rendered illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t question in paragraphs 10, 11, 12 the Supreme Court in paragraph 11 quoted with approval judgment of the House of Lords in Christie v. Leachinsky (1947) 1 All ER 567, the following passage :- 1. If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest, He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charges or on suspicion of what crime be is seized. 2.... 3. The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. Lord Simond's gave an illustration of the circumstances where the accused must know why he is being arrested : There is no need to-explain the reason of arrest if the arrested man is caught red handed and the crime is patent to high Heaven. In Paragraph 12 quoting with approval their judgment in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch as would cure the constitutional infirmities. This disposes of the third contention of Madhu Limaye. 11. From this observation of their lordships of the' Supreme Court in the case of Madhu Limaye (AIR 1969 SC 1014) (supra) it is clear that their lordships did not stop after holding in' paragraph 13 that Madhu Limaye and others were ' entitled to be released on the ground of non-compliance of the provisions of Article 22(1) of the Constitution but they further examined the second point formulated in paragraph 7 of the said judgment to examine whether a valid order of remand existed or not. Once their lordships found that the remand order by the magistrate directing detention in jail custody was without application of mind to all relevant matters and were not such as could cure the constitutional infirmities, their lordships observed that the detention in custody being in violation of Article 22(1) of the Constitution Madu Limaye and other were entitled to be released forthwith. This observation negatives the contention of Sri D.S. Mishra that the Courts are not competent to examine in a case similarly placed where despite violation of the provisions of Article 27( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring. According to the State counsel the validity should be judged on the date of hearing. 14. Sri D.S. Mishra on the other hand contended that the legality or validity of the detention order in cases where there has been a constitutional violation of any of fundamental rights has to be judged neither on the date when the petition is presented nor on the date of return. Sri Mishra strongly contended that since the detention of such a person becomes illegal right from the beginning and since detention of person rendered illegal on account of constitutional violation cannot be cured, hence the question of examining the legality or validity on the date of filing of the petition or on the date of filing of the return or on the date of hearing does not arise in such cases. His contention was that observation of the Supreme Court in this regard in some cases would not apply to the question for opinion before this Court where violation of a funda mental right has been alleged. We have to, therefore, examine if in a habeas corpus petition the continued detention of a person is sought to be set aside on the ground of a fundamental right being violated at the stage of initial arrest whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izakhapatnam and the Post Master General, West Bengal were made the respondents in the writ petition. Meanwhile the committal proceed- ings were heard by Special Judge, Vizakhapatnam against the petitioner and sixty six other accused who were all committed to the Court of Sessions to stand their trial for various offences in Sessions Case No. 46 of 1973 which was pending when the matter was heard by the Supreme Court. Their lordships of the Supreme Court notice in their judgment that the petitioner was under detention in Central Jail, Vizakhapatnam pursuant to the orders made by Ilnd Addl. Sessions Judge, Vizakhapatnam pending trial. 18. Three contentions were made before the Supreme Court at the time of arguments of the said habeas corpus petition :- A) The initial detention of the petitioner in the District Jail, Darjeeling was illegal because he was detained without being informed of the grounds for his arrest as required by Clause (i) of Article 22 of the Constitution. B) The Sub-Divisional Magistrate, Darjeeling had no jurisdiction to try the two Phansidewa P.S. cases against the petitioner and he could not, therefore, authorise the detention of the petitioner under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of otherwise of the detention at the time of the return and not with reference to the institution of the proceedings. And yet in Talit Hussain v. State of Jammu Kashmir AIR 1971 SC 62 Mr. Justice Dua, sitting as a Single Judge, presumably in the vacation, observed that In habeas corpus proceedings the Court has to consider the legality of the detention on the date of the hearing. On these three views taken by the Court at different times, the second appears to be more in consonance with the law practice in England and may be taken as having received the largest measure of approval in India, though the third view also cannot be discarded as incorrect, because an inquiry whether the detention is legal or not at the date of hearing of the application for habeas corpus would be quite relevant, for the simple reason that if on that date the detention is legal, the Court cannot order release of the person detained by issuing a writ of habeas corpus. But, for the purpose of the present case, it is immaterial which of these three views is accepted as correct, for it is clear that, whichever be the correct view, the earliest date with reference to which the legality of detention may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel for the petitioner that if at all initial detention of the petitioner is rendered invalid for violation of some constitutional provision then in no circumstance can the detention of such person be validated even at a subsequent stage cannot be accepted. 21. Sri Mishra vehemently argued that judgment in the case of Kanu Sanyal (AIR 1974 SC 510) was delivered by a bench of two Hon. Judges of the Supreme Court whereas the judgment in the case of Madhu Limaye (AIR 1969 SC 1014) (supra) was by a bench of three Hon. judges of the Supreme Court and since the view taken in Kanu Sanyal's case was contrary to the view taken by the Supreme Court in Madhu Limaye's case, hence the judgment in Kanu Sanyal's case cannot be preferred over the judgment in Madhu Limaye's case. The contention of Sri D.S. Misra was that in Madhu Limaye's case the Supreme Court after finding that arrest of Madhu Limaye and others was in violation of the provision of Article 22(1) of the Constitu tion, held that Madhu Limaye and others were entitled to be released on this ground alone which makes it clear that the question to examine the legality of detention in pursuance of any subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the rights of parties have ordinarily to be ascertained as on the date of the institution of the proceedings cannot be invoked here. If at any time before the Court directs the release of the detenue, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. The question is not whether the later order validates the earlier detention but whether in the face of the later valid order the Court can direct the release of the petitioner. The appeal fails and is dismissed. 24. The same view has been expressed by the Supreme Court in the case of Talib Husain (AIR 1971 SC 62) (supra). 25. Learned Addl. Govt. Advocate also relied on a division bench judgment of this Court in the Case Vimal Kumar Sharma v. State of U.P. 1995 All WC 424 : (1995 All LJ 797) in which the division bench has held that illegality at the time of arrest cannot render subsequent remand orders passed by the competent Courts invalidated. We have gone through this judgment and we find ourselves in argeement with the view expressed therein. 26. We have not been able to agree with the view take ..... X X X X Extracts X X X X X X X X Extracts X X X X
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