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Andhra Pradesh High Court
Judges : D.S.R.VERMA, MOTILAL B.NAIK
Capt.K.M.Saxena - Appellant
Versus
Union of India - Respondent
Decided On : 11-10-99
Constitution of India - Article 21 - Article 226 - Army Act , 1950 - Section 106 - Section 30 – Petitioner has stated in affidavit filed in support of writ petition that since there is no person at present in family of to take up cause of his unlawful arrest effected by respondents, he has chosen to file writ petition seeking above relief as he is acquainted with detenu and knows facts of case - Army Act, he has been defending Counsel on behalf of Sub According to him, General Court Martial was assembled and continued - In said General Court Martial, Lt - Col - detenu, had been performing duties of Senior Member - According to petitioner, made certain observations during proceedings in open Court expressing his unhappiness as to manner in which proceedings are recorded - This was not to liking of respondents, who according to petitioner, brought pressure to desist from interfering with recording of proceedings - Being a senior member, refused to be a party to proceedings unless proceedings are recorded according to rules – Held , There is no doubt in our mind to say that when there is substantial material on which basis Court comes to a conclusion that arrest of a person by any authority for that matter, is not in accordance with law and is illegal, such an order of arrest could be declared illegal and detenu could be set at liberty forthwith - In this case, merely because detenu is a Defence personnel and that respondents allege that detenu acquired certain disqualification on which basis his arrest is ordered, his detention cannot be held to be legal - In light of additional counter- affidavit filed on behalf of respondents indicating that apprehension role issued on which basis impugned order of arrest is passed has been withdrawn, we have no hesitation to say that detention is not in accordance with any law and has to be declared as illegal - It may be true that Constitutional Courts exercising powers may not go into manner and procedure contemplated by respondents for completing enquiry - But, however, we are not on question of competency of respondents to initiate proceedings - What is seen by us is that respondents have alleged that detenu has abstained from duty without proper leave and on that basis, detenu was declared as deserter acquiring disqualification for initiation of proceedings - When very foundation i - e - , apprehension role leading to arrest of detenu disappears as a result of withdrawal of such proceedings as is evident from additional counter-affidavit filed on behalf of respondents sworn in by major R - K - Singh, we are inclined to hold that arrest and detention of detenu - it is illegal and a Writ of habeas Corpus lies to this Court - Law as far as Writ of Habeas Corpus is concerned, is very clear that if detaining authority is not able to, prirna facie, satisfy Court that, in circumstances, order of arrest is justifiable - Constitutional courts can certainly declare such an order of arrest and detention as illegal - When there is no material in this case justifying impugned order of arrest, Court arc of view, this Court is entitled to exercise its extraordinary jurisdiction for issuing a writ of Habeas Corpus without regard to fact whether detenu is a civilian or belongs to Armed forces is one such Article, which provides that no person shall be deprived of his life or personal liberty except according to procedure established by law - This Article has been tested in Judicial Forums and consistent view taken by Courts is that if procedure as required is not followed; none shall be deprived of his personal liberty - Writ Petition is allowed
( 1 ) THE party-in-person Capt. K. M. Saxena, who is aged about 54 years, also an advocate, presented this writ petition against the respondents invoking the extraordinary jurisdiction of this Court under article 226 of the Constitution of India seeking a Writ of Habeas Corpus to set aside the impugned order of arrest dated 26-10-1999 passed on the detenu- Lt. Col. S. S. Shekhar and for producing the detenu before this Court and to set him at liberty forthwith.
( 2 ) PETITIONER has stated in para 2 of the affidavit filed in support of the writ petition that since there is no person at present in the family of the detenu Lt. Col. S. S. Shekhar to take up the cause of his unlawful arrest effected by the respondents, he has chosen to file the writ petition seeking the above relief as he is acquainted with the detenu and knows the facts of the case.
( 3 ) IT is alleged by the party-in-person in the writ petition that in the General Court martial convened by the fourth respondent for the trial of one Subedar? Army Act, he has been the defending Counsel on behalf of the Sub. B. R. Mouli. According to him, the General Court Martial was assembled on 20-3-1999 and continued till 27-10-1999. In the said General Court Martial, Lt. Col. S. S. Shekhar - detenu, had been performing the duties of Senior Member. According to the petitioner, said Lt. Col. S. S. Shekhar made certain observations during the proceedings in the open Court expressing his unhappiness as to the manner in which the proceedings are recorded. This was not to the liking of the respondents, who according to the petitioner, brought pressure on Lt. Col. S. S. Shekhar to desist from interfering with the recording of the proceedings. Being a senior member, lt. Col. S. S. Shekhar refused to be a party to the proceedings unless the proceedings are recorded according to rules.
( 4 ) PETITIONER submitted that on 27-10-1999 pursuant to the impugned order no. 3111/gcm/sub/skt B. R. Mouli/a, dated 26-10-1999 issued by the 5th respondent directing the Senior Member of the General Court Martial Lt. Col. S. S. Shekhar to be taken into military custody. The detenu was taken into military custody. It is urged in the writ petition that the detenu who was taken into custody under the impugned order enjoyed total immunity from arrest under Section 30 of the Army act, which provided immunity even from arrest under any Civil Law.
( 5 ) ACCORDING to the petitioner, the respondents have taken the detenu Lt. Col. S. S. Shekhar into military custody on 27-10-1999 when he had been performing his duties as Senior Member of the General court Martial and his family members have not been informed about such arrest. It is also alleged that the arrest order passed by the respondents suffer from lack of jurisdiction as a Senior Member of the general Court Martial cannot be taken into custody under any law, either civil or military. According to the petitioner, the impugned order of arrest is based on the alleged absence of the detenu without leave from 12-7-1999 to 27-8-1999. According to him, during the period under question, the detenu had been the member of the General court Martial and during the period of adjournment of the General Court Martial, he had been undergoing treatment at nizams Institute of Medical Sciences, hyderabad, Andhra Pradesh. Being concerned with the progress of the case as a defence Counsel, petitioner claimed that he has been keeping track of the events including the whereabouts of the Senior member of the GCM during this period.
( 6 ) IT is alleged by the party-in-person that since the detenu - Lt. Col. S. S. Shekhar has refused to fall in line with the other members of the GCM, on a false ground that said Lt. Col. S. S. Shekhar was absent from 12-7-1999 to 27-8-1999, the respondents have arrested him though he attended the GCM proceedings on 26-8-1999. It is in this background, petitioner complained that the action of the respondents in ordering arrest of
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