Detenu cannot be released due to passing of void order of detention by the Magistrate.

This is a petition for the issue of a writ of habeas corpus. The petitioner Shri A.K. Gopalan is a sitting member of the Parliament and the President of the Indian Kisan Satha. He was arrested by the Circle Inspector of Police, Ernakulam, on the 10th of this month at Tripunithura under section 151, Criminal Procedure Code. The circumstances which led up to the arrest as disclosed in the reply affidavit filed by the Circle Inspector, the remand report and the other records produced before Court are as follows:— The Circle Inspector had information that the petitioner and the ten others who were arrested along with him Were organising a mass of volunteers under the auspices of the Kerala Karshaka Sangh and were instigating and inciting them to form themselves into unlawful assemblies and to cause obstruction to public servants in the discharge of their official duties by forcibly blocking all entrances to Government Offices. On the morning of the 10th the Circle Inspector received definite information that the petitioner and the ten others arrested were proceeding towards Tripunithura intent on committing the above mentioned offences with a view to paralysing the working of Government Offices. The commission of the said offences in the opinion of the Circle Inspector would have entailed a serious breach of peace and public order. It is further stated that the Circle Inspector, on a careful consideration of the information that he had received, was satisfied that the commission of the abovementioned cognizable offences by the petitioner and others could not be prevented otherwise than by having them arrested.

The petitioner and his companions were arrested at about 9-40 A.M. on 10th December, 1961. They were produced before the Additional District Magistrate, Ernakulam by 3 P.M. the same day with a report praying for their remand for a period of fifteen days to enable the officer to complete the investigation and submit a final report. The Court remanded them to custody for a period of ten days, that is, till the 20th. The day after the arrest the Circle Inspector filed a report to the Judicial District Magistrate, Ernakulam (marked Exhibit R-2) that during the investigation conducted by him in the above case it was revealed that the accused had committed an offence under section 31 of the Travancore-Cochin Public Safety Measures Act (V of 1950) and that the report of the above has been submitted to the Additional District Magistrate, Ernakulam with a request to forward the records of the case to the Court of the Judicial District Magistrate. He therefore prayed that the Court may be pleased to obtain the above records for purposes of trial.

This habeas corpus petition was filed on 13th December, 1961 on the ground that the petitioner’s arrest by the police and subsequent detention by the Magistrate Were illegal and without jurisdiction and Were prompted by ulterior motives. After hearing preliminary arguments this Court issued a rule calling upon the respondents to appear on the 19th to show cause why the order prayed for should not be made and at the same time to produce in Court the petitioner. The petitioner was produced and affidavits were filed detailing the facts which led to the arrest and detention. The petition was heard in part on the 19th and on the 20th, when the case was taken up it was represented that as the remand period has expired and the investigation was completed a charge-sheet was filed before the District Magistrate, Ernakulam charging the petitioners under section 31 of the Travancore-Cochin Public Safety Measures Act read with section 2, clause 17 (7) and (o) thereof and section 116 of the Indian Penal Code read with sections 143, 341 and 353. Copy of the charge-sheet and the order passed by the Magistrate thereon were filed along with the affidavit by the Circle Inspector. The respondent was supplied with copies of these records. It is seen that the Magistrate has taken the case on his fi