Judgment:
CRWP-169-2014 (O&M).IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRWP-169-2014 (O&M).Decided on: February 11, 2014.
Puran singh ....Petitioner(s) Versus State of Punjab and others ....Respondent(s) *** CORAM: HON'BLE Mr.JUSTICE M.M.S.BEDI PRESENT Mr.S.P.Soi, Advocate, for the petitioner.
Ms.Reeta Kohli, Addl.A.G., Punjab.
M.M.S.BEDI, J (ORAL).Petitioner through the instant petition under Articles 226 & 227 of the Constitution of India, seeks release of detenu namely Mahesh Kumar Jha @ Ashutosh J.Maharaj, Head of Divya Jyoti Jagriti Sansthan, Nurmahal, from the illegal and unlawful detention of respondent Nos.2 to 6.
The petitioner has averred in the petition that he is ex-driver of the above said detenu.
The detenu has to his credit about Rs.100 crores of cash amount and property worth more than Rs.1000 crores in the dera which was established in 1983.
He claims that respondent Nos.2 to 6, in order to usurp the property of the dera have illegally confined the above said person.
It is further averred that rumours have been spread by the private respondents that the detenu has been sitting in Samadhi and will rise whenever Raj Kumar Arora 1 2014.02.12 17:25 I attest to the accuracy and integrity of this document CRWP-169-2014 (O&M).he wishes and come out of the room.
It is claimed that there are rumours that detenu has clinically expired as disclosed by the members of the dera.
Photocopy of the newspapers published on the basis of the rumours have been appended as Annexures P1 & P2.
On notice having been issued to the Advocate General, Punjab for 5.2.2014, a report in the shape of affidavit of DSP, Nakodar, has been placed on record, in which it has been mentioned that he along with SHO, Nakodar and Duty Magistrate visited the Sansthan and procured medical report of the three doctors who attended the alleged detenu on 29.1.2014 early in the morning.
The report Annexure R1, reveal the following position on clinical examination: - “.
All peripheral pulses were absent.
Blood pressure was not recordable.
No spontaneous respiratory movements.
All superficial and deep reflexes were absent.
Both pupils fixed and dilated.
ECG record showed absence of any electrical activity.
The patient was pronounced clinically dead at 02.15 AM on 29/1/2014 in consultation with all doctors.”
.
One Narinder Singh, authorised person on behalf of Divya Jyoti Jagriti Sansthan, Nurmahal, had certified that he was of the firm opinion that Shri Ashutosh Maharaj J.is in deep Samadhi in Freezer kept in the room.
From the report of the doctORS.it is Raj Kumar Arora 2 2014.02.12 17:25 I attest to the accuracy and integrity of this document CRWP-169-2014 (O&M).apparently clear that alleged detenu at the time of presentation of the petition was clinically dead.
A misc.
application was also filed by the petitioner for seeking another report from a team of Doctors of PGI.
The said application does not deserves to be allowed.
The present habeas corpus petition cannot be used as an instrument for publicity.
So far as the legal position is concerned, in my opinion a petition for habeas corpus is not maintainable after the death of the alleged detenu.
This question had cropped up in case High Court Legal Aid Centre rep.
By its Secretary, P.C.Varadarajan versus State rep.
by Inspector of Police, Kitchipalayam Police Station and otheRs.1994-1-LW(Crl.) 227, wherein a Division Bench of Madras High Court observed as follows: - “9.
The Federal Court had occasion to say in Keshav Talpade versus The King Emperor (1944 MWN Cr.
32).that “if the applicant is no longer in custody, no order can thereafter be made on the habeas corpus application.
“In the case before the Federal Court, it was an appeal against the order of High Court dismissing a writ petition for a writ of habeas corpus.
It was brought to the notice of the Federal Court that the detenu had been released after the order of the High Court, the Federal Court said that the detenu having been released there was no question of entertaining the appeal and issuing a writ of habeas corpus.
Hence, it was dismissed.
It goes without saying that in a case where the person concerned is not alive, no habeas corpus Raj Kumar Arora 3 2014.02.12 17:25 I attest to the accuracy and integrity of this document CRWP-169-2014 (O&M).petition can be entertained.
10.
The Supreme Court considered the matter in Ghulam Sarwar versus Union of India, AIR, 1967 SC1335 The relevant passage in the judgment reads thus: - This leads us to the consideration of the scope of a writ of habeas corpus.
The nature of-the writ of habeas corpus has been neatly summarized in Corpus Juris Secundum, Vol.
39 at p.
424 thus: The writ of habeas corpus is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his caption and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf.
Blackstone in his Commentaries said of this writ thus: It is a writ antecedent to statute, and throwing its roof deep into the genus of our common law...It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement.
It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I.
This writ has been described by John Marshall, C.J., as "a great constitutional privilege".
An eminent judge observed "there is no higher duty than to maintain it unimpaired".
It was described as a magna carta of British liberty.
Heavy penalties are imposed on a Judge who wrongfully refuses to Raj Kumar Arora 4 2014.02.12 17:25 I attest to the accuracy and integrity of this document CRWP-169-2014 (O&M).entertain an application for a writ of habeas corpus.
The history of the writ is the history of the conflict between power and liberty.
The writ provides a prompt and effective remedy against illegal restraints.
It is inextricably intertwined with the fundamental right of personal liberty.
"Habeas Corpus" literally means "have his body".
By this writ the court can direct to have the body of the person detained to be brought before it in order to ascertain whether the detention is legal or illegal.
Such is the predominant position of the writ in the Anglo Saxon jurisprudence.”
.
Following the above said observations, I am of the considered opinion that the High Court can direct to have the body of the person detained to be brought before it, in order to ascertain whether the detention is legal or illegal.
The scope of habeas corpus cannot be extended to issue any directions pertaining to a body which has been declared to be clinically dead.
Dismissed.
(M.M.S.BEDI) February 11, 2014.
JUDGE rka Raj Kumar Arora 5 2014.02.12 17:25 I attest to the accuracy and integrity of this document