In the remand order, we notice prima facie that none of the alleged detenus complained to the learned Magistrate about the alleged unauthorized detention. We hasten to add that whether there was unauthorized detention for any period or not is examined by us. But, from the material produced before us, it is difficult for us to conclude the same. According to us, for taking some other measure other than the writ of habeas corpus, viz., the grievance of unauthorized detention or illegal detention can only be examined at the instance of the persons, who were affected personally and not by any other person. Admittedly, the petitioners are not affected personally, for embarking upon enquiry with regard to the alleged unauthorized detention for the period mentioned in the writ petition. Apparently, at the time of production, they did not make any complaint whether they had or still have grievance or not.

THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONBLE SRI  JUSTICE SANJAY KUMAR                

WRIT PETITION No. 36889 of 2014  

20-01-2015

Besal Veeramma Visakhapatnam and others.Petitioners  

The State of A.P.,Rep. by its Secretary,Department of Home, Secretariat,
Hyderabad and others. . Respondents  

Counsel for the Petitioners: Sri S.S. Viswanetra Ravi

Counsel for Respondents: Advocate General (AP)

<Gist :

>Head Note:

? Cases referred:

THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA            
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR        
       
WRIT PETITION No.36889 of 2014  


DATE: 20.01.2015


This Court made the following:

THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA            
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR        

WRIT PETITION No.36889 of 2014  

Order: (per the Honble the Chief Justice Sri Kalyan Jyoti Sengupta)
      The respective wives of the four persons, namely, B. Arjun,
B. Bheemdhar, G. Rama Rao and S. Rama Rao filed this application for
issuance of a writ of habeas corpus or any other appropriate writ directing
the respondents to produce the alleged detenus before this Honble Court
and set them free and order to conduct enquiry for their illegal detention
and to pass such other order or orders as this Honble Court deems fit,
just and proper in the facts and circumstances of the case.
      It is the case of all the petitioners that respondent Nos. 3 and 4
arrested their respective husbands without any reason on the following
dates.
      The first petitioners husband, B. Arjun on 18th November, 2014;
the second petitioners husband, B. Bheemdar on 20th November, 2014;
the third petitioners husband, G. Rama Rao on 18th November, 2014 and
the fourth petitioners husband, S. Rama Rao on 21st November, 2014.
      All the petitioners approached the police officials and requested
them to release the alleged detenus forthwith. They approached Sub-
Collector, Paderu on 24th November, 2014 complaining illegal arrest and
detention and to take step for their release.  They also appear to have
approached the Ex.M.L.A, Paderu, Visakhapatnam, who wrote a letter to
the Additional Superintendent of Police informing that the alleged detenus
were arrested illegally and they should be set free.  The incident of setting
ablaze to the houses of petitioners 1 to 3 and arrest of the above persons
was also reported in the newspapers.  Despite making all efforts, the
alleged detenus were neither released by the police authority nor
produced before the Magistrate.  As a last resort, they made this
application ready for filing on 28.11.2014 and finally, filed it on
01.12.2014.
      When this matter came up for hearing before this Court on
02.12.2014, the learned Advocate General for the State of Andhra Pradesh
sought time to obtain instructions.  Accordingly, the matter was posted on
05.12.2014.  On that date, the counter-affidavit is filed.  In the counter-
affidavit, it was informed that all the aforesaid detenus were arrested on
03.12.2014 in connection with a murder case and they could not be
arrested earlier as they were absconding.  It was also informed that all of
them were produced before the appropriate Magistrate with a remand
report mentioning the date of arrest and their production.  The learned
Magistrate remanded all these four persons to judicial custody.
      The affidavit in reply has been filed.
      After noticing the affidavit in reply and the counter affidavit, there
was confusion as to what is the real date of arrest.  Whether it was
03.12.2014 as alleged by the State or the respective dates as alleged by
the petitioners.  In order to find out the correct date of arrest, we asked
the State to file additional affidavit and thus, the additional affidavits were
filed and the documents in support thereof, namely, the order of remand
passed by the learned Magistrate and also the remand report, are
produced before us.
      In the aforesaid factual background, and the sequence of events,
which have taken place during the course of hearing, now the learned
counsel for the petitioners argues that if the statements and averments in
the writ petition as well as the affidavit in reply together with the
documents annexed therewith are examined properly, it would appear
that the date of arrest as alleged by the respondents i.e., 3rd December,
2014 is absolutely false and it is on the respective dates as mentioned in
the writ petition.  According to him, the period between the dates of
arrest mentioned in the petition and 03.12.2014 i.e., the date of
production before the Magistrate was absolutely unauthorized detention.
The State Government has failed to prove that the alleged detenus were
arrested on 03.12.2014. From contemporaneous correspondence and also  
the complaint made by the petitioners, it would appear that they could not
be arrested on 03.12.2014 and they must have been arrested on the
dates as has been stated in the petition. Unfortunately, incorrect and
manipulated information was supplied to the Magistrate.  He says that
although they were remanded to judicial custody, still this Court should
hold an enquiry as to whether this detention from the respective dates of
arrest as mentioned in the petition till 03.12.2014 was lawful or not.
Upon enquiry, if it is found that what the petitioners state, is correct then
appropriate measures shall be taken.
      The learned Advocate General, on the other hand, basing on the
statements in the counter affidavit, says that the alleged detenus were
absconding and every attempt for arrest was frustrated by eluding.  They
were arrested on 03.12.2014 and after complying with the formalities of
arrest, they were produced before the Magistrate 03.12.2014 itself,
without any delay.  He further submits that when they were produced
before the Magistrate, they did not complain to the Magistrate that they
were illegally detained for any period by the police.  In the remand order,
the learned Magistrate specifically recorded that there is no complaint of
ill-treatment in the hands of the police.
      On the aforesaid statement and assertion and counter assertion of
the facts and submissions of the learned counsel for the parties, we have
to examine whether we should order for an enquiry as has been asserted
by the learned counsel for the petitioners to find out whether the alleged
detenus were in unauthorized detention as alleged by the petitioners.
According to us, a writ of habeas corpus can be issued when the Court
finds that there has been unauthorized detention and it is continued so.
But, in the counter-affidavit, it is stated that the alleged detenus were
arrested in connection with a criminal case and they were produced
before the learned Magistrate.  We are unable to accept that they are in
unauthorized detention for the present on 3rd December, 2014 and so
issuance of writ of habeas corpus does not arise.  But, the alleged
unauthorized detention between 18th November, 2014, 20th November,
2014, 21st November, 2014 and 24th November, 2014 respectively and 3rd
December, 2014 as alleged by the petitioners in the writ petition and the
respondents in the counter cannot be examined by this Court at this
stage.  We are of the view that the moment the alleged detenus are
produced before any of the appropriate Courts, action of habeas corpus
comes to an end.  So, this Court cannot pass any order on this application
at the instance of the petitioners, who are the wives of the accused
persons.  We are not commenting anything else, as the remand order of
the learned Magistrate is not challenged before us.
      In the remand order, we notice prima facie that none of the alleged
detenus complained to the learned Magistrate about the alleged
unauthorized detention.  We hasten to add that whether there was
unauthorized detention for any period or not is examined by us.  But,
from the material produced before us, it is difficult for us to conclude the
same.  According to us, for taking some other measure other than the writ
of habeas corpus, viz., the grievance of unauthorized detention or illegal
detention can only be examined at the instance of the persons, who were
affected personally and not by any other person.  Admittedly, the
petitioners are not affected personally, for embarking upon enquiry with
regard to the alleged unauthorized detention for the period mentioned in
the writ petition.  Apparently, at the time of production, they did not make
any complaint whether they had or still have grievance or not.
      In the circumstances, we close the Writ Petition giving liberty to the
alleged detenus to approach the appropriate forum as only they can seek
for an order enquiry with regard to the illegal detention.  We are not
exercising writ jurisdiction for issuance of any writ other than writ of
habeas corpus.

_________________  
K.J. SENGUPTA, CJ  
________________  
SANJAY KUMAR, J  
Date: 20.01.2015 

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.