Judgment:
Y. Bhaskar Rao, J.
1. These two writ petitions for issue of Habeas Corpus relate to one and the same detenu, W.P. 2225 of 1992 being a taken up case on receipt of a telegram dated 4-2-1992 while the other (W.P. 2216/92) is a regular writ petition filed by the father of the detenu-Srinivasulu.
2. The events that preceded the filing of the writ petition as stated in the affidavit are : The reference to the parties hereunder is made as they are arrayed in W.P. No. 2216/92. On 11-8-1991 the marriage of one Allampati Sudhakara Reddy, a close friend of the present detenu and two others, namely (i) Raja and (ii) Pakam Sudhakar, took place at Jonnawada temple with one Parveen, daughter of the 3rd respondent (Sub-Inspector). While so, hearing that the above three persons attended the marriage, the 3rd respondent along with the 4th respondent and other constables came to the house of the petitioner in the early hours of 30-1-1992 and took away the detenu by using criminal force in a van and from there went to the house of the other two, namely Raja and Pakam Sudhakar, and took them also in the same van, kept all of them in the Central Crime Station, Nellore, and the persuasions of the petitioner with R-3 to R-4 to release his son and the other two having proved futile, the petitioner moved the 2nd Addl. Judicial Ist Class Magistrate's Court, Nellore, on 5-2-1991 under S. 97 of the Criminal Procedure Code, resulting in the appointment of P.W. 2 an Advocate as Commissioner to search and have custody of the three persons for being produced before the Court the following day. By then the three persons were moved to the III-Town Police Station, Nellore. Therefore, P.W. 2 along with the petitioner (P.W. 1) and the Court Clerk (P.W. 4) went to the III-Town Police Station during evening hours of 5-2-1992 and showed the Sub-Inspector (R-2) the search warrant, proceeded to the lock-up room and found all the three in the lock-up and identified them there with the help of P.W. 1. When P.W. 2 asked for handing over custody of the three persons, including the present detenu, the Sub-Inspector (R-2) refused to do so and did not also endorse his refusal on the warrant when demanded by P.W. 2. P.W. 2 on the following day, viz. 6-2-1992, submitted his report (Ex. p-1) to the Court narrating the facts that took place. The Court again at the behest of the petitioner directed P.W. 2 to take aid of police force and have custody of the three persons. Accordingly, when P.W. 2 went to the police station at 8-00 p.m. on 7-2-1992 again, he could not find any one of the above three persons and on inquiry the Station Writer informed P.W. 2 the Advocate-Commissioner in the presence of P.W. 1 that the other two, namely Raja and Pakam Sudhakar, were produced before the Taluk Executive Magistrate in connection with security proceedings under S. 109, Cr.P.C., and were also released on execution of bonds. Accordingly, P.W. 2 filed his report, Ex. P-2, before the Court on 7-2-1992. The petitioner in that background of the facts filed the writ petition for issue of Habeas Corpus on 13-2-92 in this Court.
3. The 2nd respondent, Sub-Inspector of 3-Town Police Station, filed a counter denying allegations made against him. He states that one R. Setyanarayanna, Advocate, Nellore, was arrested by a Constable of his Station House in pursuance of a Non-Bailable Warrant issued by the Court in connection with a crime under S. 32 of the A.P. Police Act and since the 2nd respondent could not oblige P.W. 2, a close friend of the said Satyanarayana, in the matter of releasing him, P.W. 2 hurled threats and bore grudge resulting in the present implication. He, however, admitted that on 5-2-92, P.W. 2, another advocate representing the petitioner in the lower Court and P.W. 4 (Court Clerk) came to his police station, when P.W. 2 verbally informed him of the search warrant for the present detenu. The 2nd respondent, therefore, directed his sentry (R.W. 4) to take them to the lock-up room so that they could verify whether the said detenu (Srinivasulu) was under lock-up. P.W. 2 having failed to locate the detenu (Srinivasulu) came back and inquired as to who were the two persons that were kept in the lock-up. He informed P.W. 2 that the two persons, namely (i) Raja and (ii) Pakam Sudhakar, involved in security proceedings under S. 109, Cr.P.C. He denied the allegation that he did not co-operate with P.W. 2 or that he refused to release or produce the detenu (Srinivasulu) before the Magistrate. He also stated that one B. V. Ramana Reddy, Advocate and local Communist Leader, and the two advocates (P.W. 2 and the above referred Satyananrayana) conspired together, hatched a plan, concocted the story that the son of the writ petitioner was illegally detained in his police station, got the petition filed under S. 97, Cr.P.C., by Mr. Prasad, a Junior to Sri Ramana Reddy, had P.W. 2 appointed as the Commissioner and implicated him as alleged with vengence. He, therefore, prayed for dismissal of the writ petitions.
4. The 3rd respondent, whose daughter (Parveen) was married by Allampati Sudhakara Reddy (a close friend of the detenu since childhood) and whose whereabouts were not known since their marriage, filed his counter-affidavit denying the material allegations in the writ petition and pleading innocence regarding the detention. His case is that he was not connected with law and order or crime duties and that his duty was to receive messages from all over the District and pass on the same to the concerned police officers. He stated that from 8-00 p.m. on 29-1-1992 till 8.00 a.m. on 30-1-1992 he was in the Central Crime Station discharging the said duty. It was next to impossibility for him to leave the Crime Station while on duty and therefore he was not aware of anything connected with the arrest or detention of Srinivasulu, the detenu. He further stated 'the petitioner has very cleverly narrated the happening relating to the marriage of my daughter with a non-Muslim as if it is a link to this alleged episode'. He admitted that the marriage was a big shock to him and his wife, but they felt helpless and in fact never demonstrated their agony, anguish or grievance anywhere outside their family circle. Accordingly, he prayed for dismissal of the writ petitions.
5. The 4th respondent-Inspector of Police filed his counter-affidavit stating that on 29-1-1992 he came to Hyderabad for briefing the Advocate-General in another writ petition for issue of Habeas Corpus, signed the counter-affidavit at about 7-00 p.m. on the same day, thereafter left for Kandukur by R.T.C. Bus, got down at Kandukur at 7-00 a.m. on 30-1-92 to investigate into a crime relating to theft of a revolver, went to Singarayakonda from Kandukur and reached Nellore from there at about 12-15 noon on 30-1-92 and therefore the whole story that himself and R-3 went to the house of the petitioner, forcibly took him into the van during the early hours of 30-1-1992 and kept him in the Central Crime Station and tortured him, is a total concoction. He accordingly prayed for dismissal of the writ petition.
6. It is pertinent to notice here that the detenu Srinivasulu was produced before the 2nd Addl. Judicial First Class Magistrate, Ongale, on 6-3-1992 alleging that he involved in some offences alleged to have taken place during the intervening night of 4/5-3-1992 and seeking for remand, which was ordered. When this fact was brought to the notice of this Court, this Court directed production of Srinivasulu (detenu) and was accordingly produced on 24-3-92, when the detenu complained that he was beaten black and blue and was having injuries. He was, therefore, sent for examination to the Osmania Hospital. The Doctor examined and issued a certificate. Thereafter, inasmuch as the Police did not ask for extension of remand, Srinivasulu was released.
7. This Court by order dated 27-2-1992, after perusing the writ affidavit and the counters, directed the petitioner to produce the Advocate-Commissioner (P.W. 2) so as to inquire into the matter by examining him as well the petitioner.
8. On 4-3-1992, the writ petitioner was examined as P.W. 1. He deposed that on 30-1-1992 at about 3-00 a.m. four police constables came to his house, knocked the door, caught hold of his son, Srinivasulu, by shirt collar and took him away. One thin, tall S.I. of Police (R-3) accompanied the police and the Inspector (R-4) was sitting in the jeep. He inquired for the reason behind taking away his son, and the reply was to come to the police station and speak to the officers there. He, therefore, went to the police station and requested R-3 and R-4 to release his son, but of no avail. His later persuasions in this regard were also of no help and therefore he sent a telegram on 4-2-1992 to the Chief Justice of this High Court, which as already noted is treated as a writ petition. On 5-2-1992 he moved the 2nd Addl. Judicial Ist Class Magistrate, Nellore, under S. 97, Cr.P.C. Pursuantly the Court issued the search warrant appointing P.W. 2 as the Commissioner and then himself, P.W. 2, his advocate in the Court below and the Court Clerk (P.W. 4) went to the III-Town Police Station, Nellore. The S.I. (R-2) took the Court order (Search Warrant) into his hands and said there was none in the police custody. When P.W. 1 called loudly to know whether the detenu Srinivasulu was there, the detenu (examined as P.W. 3) and two others (Raja and Sudkahar), who were in the lock-up came to the front and P.W. 1 saw them. The P.W. 1 informed P.W. 2 that his son (P.W. 3) was there. P.W. 2 and R-2 had some talk for some time, and the people in the lock-up were not handed over to P.W. 2. The next day, when P.W. 1 went to the police station along with P.W. 2 for the second time, neither Srinivasulu nor the other two boys were there. In his cross-examination P.W. 1 stated that he had opportunity to talk to his son (Srinivasulu) in the lock-up in III-Town Police Station. When questioned his son told him that he was being asked to disclose the whereabouts of the married couple, Parveen and Allampati Sudhakara Reddy. He denied the suggestion that R-4 was not in Nellore, when his son was alleged to have been taken away from the house. He also denied the suggestion that R-3 could not stir out of the control room on the intervening night in question. He also stated that his son, Raja and Sudhakar are the three persons that performed the marriage of Sudhakara Reddy with the daughter of the 3rd respondent. It is also in the evidence of P.W. 1 that when P.W. 1, P.W. 2 and P.W. 4 (Court Clerk) went to III-Town Police Station, P.W. 2 showed the warrant to R-2 and that the S.I. (R-2) refused to make the endorsement of his refusal to hand over the detenu to him.
9. P.W. 2, the Advocate-Commissioner, deposed that on his appointment as Commissioner by the Court, he along with P.W. 1, P.W. 4 and the advocate for the petitioner (Prasad) in the lower Court, went to the Police Station (III Town) with the search warrant, showed it to R-2, R-2 went through the warrant, then they all went to the lock-up room found three persons therein one of whom was shown by P.W. 1 as his son, that P.W. 2 asked R-2 to hand over the three persons to him so as to produce them the next day in the Court and that R-2 refused to do so. R-2 also refused to make an endorsement of his refusal on the warrant. P.W. 2 left the police station and reported the facts through Ex. P-1 to the Court on 6-2-1992. On 6-2-1992 he was again asked to take protection from the police and seen that three persons (detenus) were produced before the Court. Accordingly on 7-2-1992 at about 8 a.m. he went to the police station and found nobody in the lock up. The Station Writer told him that Raja and Sudhakar were produced before the Executive Magistrate in connection with some security proceedings under S. 109, Cr.P.C. Then P.W. 2 returned the warrant with another report, Ex. P-2. In the cross-examination he denied the suggestion that in the wake of arrest of R. Satyanarayana, Advocate pursuant to a N.B.N., he went to III-Town Police Station and requested R-2 to release him. P.W. 2 stated that on that day (18-1-92 Saturday) he was in the Court premises as Consumer Forum cases were going on and having noticed R. Satyanarayana under arrest, he moved for his bail in the Court when produced and had him released. P.W. 2 stated that the conflict between the police and advocates related to I-Town Police Station and there was also boycott of Courts by Advocates.
10. P.W. 3 is the son of P.W. 1 and he is the detenu in question. He deposed that on 30-1-92 at about 5 a.m., police officials, including R-3 and R-4, came to his house and took him in a jeep to the III-Town Police Station and was detained there. During his detention he was beaten by R-2 and others enquiring him about the whereabouts of the daughter of the 3rd respondents. His father (P.W. 1) and two others came to the police station to get P.W. 3 released, but he was not released. The cause for his detention, according to P.W. 3, and beating by the police was that the daughter of R-3 married P.W. 3's friend, Sudhakara Reddy, against the wishes of her parents. He denied the suggestion that he was not in the III-Town Police Station on 6-2-1992, when P.W. 1 and others came there.
11. P.W. 4 is the Court Clerk that accompanied P.W. 2 and P.W. 1 to the III Town Police Station. He deposed that when they went to the police station, R-2 was present. P.W. 2 showed the search warrant to R-2. Then P.W. 2 went to the cell and found Srinivasulu there. The other two persons were also there. When P.W. 2 asked R-2 to send P.W. 3 along with him, R-2 refused to do so. He also stated that P.W. 1 also went up to the lock-up room and identified his son, P.W. 3, in the lock-up.
12. This, in brief, is the oral and documentary evidence adduced by the writ petitioner. The important aspect to be noticed is that nowhere in the cross-examination of P.W. 3 (the detenu) it is suggested to him that he was not forcibly taken into custody in the early hours of 30-1-92. On the other hand the suggestion was that P.W. 3 involved in three different crimes in the registers of III-Town Police Station and that he was absconding arrest, which the witness denied. The evidence of P.Ws. 1 and 2 is consistent in all material spects as regards the fact that R-3 and R-4 along with some constables came to the house of P.W. 1 during the early hours of 30-1-92 knocked the doors, took away forcibly P.W. 3 and when questioned by P.W. 1, he was told that he could come and speak to the Police Officers in the Police Station. Further though there is suggestion made to P.W. 1 that R-3 was busy in discharging his duty at Police Control Room from 8-00 p.m. on 29-1-1992 to 8-00 a.m. on 30-1-92 and could not stir out of the Control Room and that R-4 was actually in travel during that night from Hyderabad to Kandukur, Kandukur to Singarayakonda and from Singarayakonda to Nellore and could not reach uptill 12-15 noon on 30-1-92, there is no such suggestion made to P.W. 3, the real detenu. True, R-3 and R-4 were examined as R.Ws. 2 and 1 respectively and they spoke to the above facts as stated in their counters. R-3 also filed Ex. B-5 to show that from 8-00 p.m. on 29-1-92 to 8-00 a.m. on 30-1-92 he was on duty in the Police Control Room, Nellore. R-3 as R.W. 2 further deposed that he came to know of R-4 only after filing of the writ petition and therefore going along with R-4 to forcibly taken into custody and detain Srinivasulu (the detenu) is totally out of question. In so far as Ex. B-5 entries in the G.D. are concerned he deposed that he made those entries as in the practice. In his cross-examination he deposed that the four entries covered by Ex. B-5 were made by him only at 8-00 p.m. on 29-1-1992 and that there were three people, viz., one Head Constable and two Constables, along with him on duty.
Firstly, the G.D., is a bunch of papers stitched together and is not a bound register. The pages in the G.D., are not numbered serially and in fact number of sheets appear to have been torn off. Even if this G.D., speaks of the fact that R.W. 2 was on duty from 8-00 p.m. on 29-1-92 to 8-00 a.m. on 30-1-92, still the fact, that there were three people working under him does not rule out the possibility for R-3 to leave the Control Room. Merely because R-3 was in charge of receiving the message and communicating them to the concerned officers, it cannot be said that he was not able to leave the place. This is more so, in view of the evidence of P.Ws. 1 and 3 that R-3 and R-4 came and forcibly took away P.W. 3 (Srinivasulu) in a jeep. P.W. 3 stated that one thin and tall person, whom he identified in the Court as R-3 came along with R-4 during that time. Apart from all these facts, the petition filed under S. 97, Cr.P.C., before the Criminal Court on 5-2-1992 fortifies the evidence of P.Ws. 1 and 3 that R-3 and R-4 came, forcibly took away P.W. 3 in the jeep and detained him in III-Town Police Station, because the petition filed for the search is in the III-Town Police Station. Further, when P.Ws. 1 and 2 along with P.W. 4 (Court Clerk) went to the III-Town Police Station, they saw Srinivasulu (P.W. 3) and two others (Raja and Sudhakar) in the lock-up. When P.W. 2 asked R-2 (R.W. 3) to release the three persons and hand them over to him (P.W. 2), R.W. 3 refused to do so and even did not make an endorsement of his refusal on the warrant when asked by P.W. 2. These facts have also been noted in the report of P.W. 2, Ex. P-1. All this evidence, establishes beyond all reasonable doubt that R-3 and R-4 went to the house of P.W. 1, took away P.W. 3 in the jeep and detained him in the III-Town Police Station.
13. With respect to R-4, Mr. Mirza Manwar Ali Baig, contended that R-4 was actually travelling from Hyderabad to Kandukur during the intervening night of 29/30-1-92 and therefore question of R-4 going along with R-3 does not arise. R-4 having examined himself as R.W. 1 deposed to the facts contained and narrated in his counter. He also filed Exs. B-2 to B-4 warrants to show that he started at Hyderabad on the night on 29-1-92, reached Kandukur at 8-00 a.m. on 30-1-92 and therefore his presence in the early hours of 30-1-92 at Nellore is improbable. He also deposed that on 29-1-92 evening he signed a counter-affidavit in the office of the Advocate-General at Hyderabad and that there are no grounds for R-4, who came to Nellore newly and had no acquaintance with R-3, to arrest the detenu Srinivasulu. It is to be noticed that the warrants, Exs. B-2 to B-4, do not show the place from where the travel was made. Even taking that R-4 was in Hyderabad during the evening of 29-1-92 still the warrants do not have the mention of the same of the person that travelled nor his designation except reciting that they are travel warrants. It is a facts, as spoken to by R.Ws., the bus-conductors on production of the warrants issue tickets. However, no such tickets are produced before the Court. Further though the counter referred to contain the signature of R-4, it does not bear the date. On the other hand the affidavit was attested by an Advocate on 30-1-92. Therefore, it cannot be said that the witness (P.W. 1) signed the counter-affidavit at Hyderabad on 29-1-92 evening. May be, he signed it on 28th or 29th during day time. No other evidence is produced to show that R-4 was in Advocate-General's Office during the evening hours of 29-1-92. Therefore, it cannot be presumed that R-4 was in Hyderabad during the evening hours of 29-1-92. Accordingly, we have no hesitation to conclude that R-3 and R-4 went together along with other constables to the house of P.W. 1 during the early hours of 30-1-92, took the detenu (Srinivasulu) forcibly out put him in the jeep and kept him under illegal detention.
14. The next point is, whether the detenu (Srinivasulu) was kept in illegal custody in the III-Town Police Station Nellore, and whether R-2 refused to hand over custody of the detenu (Srinivasulu) to P.W. 2 (Advocate-Commissioner) when asked for by P.W. 2 on production of the search warrant. It is to be noted that R-2, who examined himself as R.W. 3, did not dispute the visit of the Commissioner (P.W. 2) along with the Court Clerk (P.W. 4) and Mr. Prasad, the Advocate for the petitioner in the lower Court. He only disputed that P.W. 2 did not show him the warrant but only informed him of the same and that in fact on verification P.W. 2 found that the detenu (Srinivasulu) was not in the lock-up and therefore left the police station. He deposed that when P.W. 2 informed him of the search warrant, he called the sentry (R.W. 4) to take P.W. 2 and others to the lock-up room for verification and that they could only find Raja and Sudhakar in the lock-up, but not the detenu, and therefore they also asked as to who those two in the lock-up were, for which he informed them that they were required in some security proceeding under S. 109, Cr.P.C. Having been satisfied, P.W. 2 and others went away from the Police Station. The case of R.W. 3 is that he was deliberately implicated in the present proceedings out of vegence for he did not oblige P.W. 2, when P.W. 2 asked R.W. 3 to release one R. Satyanarayana, Advocate when he was arrested in pursuance of a N.B.W., saying that it was not possible for R.W. 3 inasmuch as the constable that arrested that Satyanarayana had already made an endorsement on the N.B.W., to that effect. Having been dissatisfied, it is in the evidence of R.W. 3, P.W. 2 threatened R.W. 3 that he would face the repurcussions. This threat, according to R.W. 3, has been carried to the notice of his higher ups and that he in fact made an entry in the Diary (G.D.) dated 18-1-92 endorsing the threat. It is Ex. B-6. He also refers to another threat by another advocate, Ramana Reddy, over telephone that R.W. 3 encouraged rigging in a co-operative election and that he was to count his days at Nellore. R.W. 3 endorsed this threat also in the G.D., marked as Ex. B-7.
15. Mr. Mirza Marwal Ali Baig, the learned counsel contended that the above Ramana Reddy is no other than the senior of Mr. Prasad, the Advocate for the petitioner in the lower Court and that Mr. Prasad, P.W. 2 and Ramana Reddy hatched a plan to take vengence against R. 2, pressed P.W. 1 into service, got Section 97 Cr.P.C., proceedings initiated, P.W. 2 had got himself appointed as Commissioner by the Court and dragged him into the present proceedings. We cannot persuade ourselves to accede to this contention of the learned counsel in the face of the consistent and corroborating evidence on P.W. 1, 2 and 4 Exs. P-1 and P-2. P.W. 4, being a Court Clerk, is an independent witness and there is no reason for him to speak to the effect that on 5-2-92 when he went to the III Town Police Station along with P.Ws. 1 and 2 they found the detenu (Srinivasulu) in the lock-up and that R.W. 3 even refused to endorse on the search warrant, when demanded by P.W. 2, that he would not hand over the said Srinivasulu to P.W. 2 for being produced before the Court. With regard to the incident spoken to R.W. 3 and suggested to him in the cross-examination, P.W. 2 denied of having made any request to R.W. 3 to release the said R. Satyanarayanna, etc. He only deposed that on that Saturday, he was in the Court premises since Consumer Forum was going on and having found R. Satyanarayana, Advocate, being taken under arrest to the Court, he moved the Court for bail and had it. As regards that Prasad, Advocate; P.W. 2 deposed that he was practising independently at the relevant time, though some time back he was working with Ramanan Reddy, Advocate, referred to above. In so far as the entries, Exs. B-6 & B-7 are concerned the incidents noted therein are most usual for the police during the discharge of their duties and therefore they are not so significant to find a mention in the diary. Further the book that contains the entries, Exs. B-6 and B-7, is stitched one containing writing on white paper, the pages neither numbered nor contain any printed titles. Therefore, it cannot be said with certainty that the entries made therein were of the dates they bear since they can be brought in at any time. Further the evidence of P.Ws. 2 and 4 is most disinterested, they being independent. Exs. P-1 and P-2 also corroborate the version of P.Ws. 2 and 4, which further receives corroboration from P.Ws. 1 and 3, to the effect that on 5-2-92 when P.Ws. 1, 2 and 4 visited the III Town Police Station, P.W. 3 (detenu) was in the lock up along with Raja and Sudhakar and that R.W. 3 refused to hand over custody of P.W. 3 to P.W. 2 for being produced before the Court and also did not make an endorsement of his refusal when asked for by P.W. 2. It is also in their evidence that P.W. 2 had shown the warrant to R.W. 3. When P.W. 2 asked about the other two, R.W. 3 informed him that they are required in a crime under security proceedings covered by section 109 Cr.P.C. The stand of R.W. 3 is that on that day as noted in the G.D., Ex. B-8, Srinivasulu was not in the lock-up and that in fact R.W. 4, the sentry who followed P.Ws. 1, 2 and Mr. Prasad to the lock up room is examined to speak to that effect. No doubt, the sentry constable (R.W. 4) deposed to that effect. But the visit of P.Ws. 1, 2 and others was during day time and there were other constables present that could have been asked to lead P.Ws. 1, 2 and 4 and others to the lock-up room. The sentry, R.W. 4, was intended to guard the police station by standing attentive at the threshold of the police station and it does not inspire confidence that he was either asked or he in fact led P.Ws. 1, 2, 4 and others to the lock up room We accordingly find that the evidence of R.Ws. 3 and 4 in the face of the evidence of P.Ws. 1, 2, 3 & 4 and Exs. P-1 and P-2 and also for the reasons assigned with reference to the entries Exs. B-6, B-7 and B-8 is not reliable, and accordingly the contention of Mr. Mirza Manwar Ali Baig in this regard is not tenable. The irresistible conclusion, therefore, that follows is that the 2nd respondent refused to hand over the detenu, Srinivasulu, to P.W. 2 in pursuance of the search warrant, which was shown to him, and also did not make endorsement of his refusal on the search warrant when asked for by P.W. 2, and that Srinivasulu (detenu) was kept in illegal custody in the III Town Police Station, to which the 2nd respondent was in charge being the Sub-Inspector.
16. The next question is, whether the detenu (Srinivasulu) was beaten while in custody. When the detenu was produced before this Court, he was sent for Medical Examination to the Osmania Hospital. The Doctor that examined him found the following injuries :
'1. A 6 x 3 cms. horizontally placed shallow injury present 8 cms. above the medial malleoulus. Surface irregularly raised, modules with unhealthy granulation tissue with a small raw area at one end. Medial part is pink & healed, lateral aspect scab present. This is adherent to the deeper structures present over left leg. (Age-above 3 weeks.)
2. A scar horizontally placed irregular surface over post 1/3rd of right leg 4 x 1 cms. adherent to the deeper structures brown in colour soft and another of 3 x 2 cms, horizontally placed 3 cms. below the above injury brown in colour, soft adherent to the deeper structures. (Age-About 8 weeks).
3. A scar of 1 x 0.5 cms. lateral to injury No. 2 circular in shape, brown in colour, soft adherent to deeper structures (About 8 weeks).
4. A blood clot under the right thumb nail of 1 x 0.5 cms. purplish black in colour situated 4.2 mm from the lower most end of the nail and 4.5 mm below the tip of the nail. (Lower 4.2 mm is the new nail growth. Age about 5 weeks.
5. An oblique 1 x 0.5 cms. healed pale scar over Antero-lateral aspect of right wrist not adherent to deeper structures. Age about two weeks.
6. A healed scar over Antero-lateral aspect of lower 1/3rd of right Arm with a Central deep dark brown colour, soft 3 x 0.2 cms. which is adherent to the deeper structures. Age about 8 weeks.
7. A healed scar 5 x 1 cms. horizontally placed over Antero-lateral aspect of left Arm upper 1/3rd of which is brown in colour, soft in the periphery central part of which is 2 x 0.5 cms. dark brown in colour adherent to deeper structures. Age 8 weeks.
8. A healed pale scar of 6 x 1 cms. situated 9 cms. below the inferior angle of Scapula Rt. horizontally placed, not adherent to the deeper structures. Age above 2 weeks.
9. A brown soft healed scar of 8 x 1.5 cms. obliquely placed over lower anterior 1/3rd of right thigh which is adherent to the deeper structures. Age about 8 weeks.
10. A circular brown soft coloured scar of 0.5 cms. diametre on the Antero-lateral aspect of right upper 1/3rd adherent to deeper structures, over left arm. About 8 weeks.
11. An oblique pale scar of 8 x 1 cms. over the Anterolateral aspect of upper 1/3rd of right leg 0.5 cms. lateral to the Injury No. 10 not adherent to the deeper structures. Age above 2 weeks.
12. A healed pale scar on the Palmar aspect of terminal phalynx middle finger of left hand, not adherent to the deeper structures. Age above 2 weeks.'
P.W. 3 (detenu) was examined by one Dr. V. P. Patnaik, M.D., Professor of Forensic Medicine, Osmania Medical College, on 2nd May, 1992. In his evidence P.W. 3 stated that he was taken by R. 3 and R-4 during the early hours of 30-1-1992 to the Central Crime Station, Nellore. Thereafter he was shifted to III-Town Police Station, where R-2 was in charge. On the date when P.W. 2 and his father (P.W. 1) came, he was in the police station. Thereafter he was taken to the Police Station, Kandaleru. While he was in the III Town Police Station, he was tortured and beaten by R-2 and another Sivaprasade Rao. While he was in Kandaleru Police Station, he was taken to the Government Hospital there as there was swelling of his legs and bleeding on account of beatings. The Doctor advised the police to shift the detenu (P.W. 3) to Nellore. Again he was taken to the Central Crime Station, Nellore, and was shown to Dr. Sridhar Rao. There he was treated for two days. Thereafter he was shown to Chenchuramiah. From there, police took the detenu to Kavali and showed him to one Prabhakar Naidu. There he was treated for one week. He was advised X-ray. From there he was taken to Allur Govt. Hospital, where he was treated for four days. While he was in the police station, once S.I., by name Saibabu, came during the night on 4-3-92 at 2 a.m. and took him in a jeep to Ongole along with another person. On the way, the D.S.P., Murali met the witness-detenu and they were taken to Ongole. On the way they picked up some constables at Tagatore. He was detained in the I-Town Police Station at Ongole on 5-3-92 and during that night he was taken to the house of the Magistrate, Ongole. The Magistrate directed the police to produce him (P.W. 3) on the next day. The S.I., warned P.W. 3 (detenu) that he should not say anything before the Magistrate. On the next day the Magistrate remanded him. In his evidence also, P.W. 3 deposed that he was having injuries inflicted by the police on the left leg, right ankle, right fore-arm, left forearm and on the thighs. This evidence of P.W. 3 receives corroboration from the medical evidence, the report of which also indicates the ages of the injuries. It has, therefore, to be held that the detenu (P.W. 3) was beaten black and blue by the 2nd respondent and another when he was in the illegal custody in the III-Town Police Station, Nellore.
17. The learned counsel, Sri Mirza Manwar Ali Baig next contended that the detenu (P.W. 3) is a habitual offender and involved in a number of crimes, viz. Crl. Nos. 163 x 360/91 under sections 457 and 380 I.P.C., 161 x 359/91 under sections 457 and 380 I.P.C., and 10 x 17/20-1-92. F.I.Rs., relating to all these three crimes were produced by the learned counsel for the petitioner and in none of them we find the name of the detenu (P.W. 3). As a matter of fact, the culprit is mentioned therein as 'not known'. The respondents have, however, not filed any further evidence to show that during the course of investigation the detenu (P.W. 3) is found to have involved in any of the crime therein. The contention of the learned counsel in this regard, therefore, is not tenable.
18. It is next contended that the detenu snatched away a gold chain from one Advocate on the intervening night 4/5-3-92 along with another, when he along with the other was caught hold red-handed by the public, handed over to the police, who in turn produced him before the Magistrate and obtained remand orders. In regard to this, the Magistrate (II Addl. Munsif Magistrate, Ongole) has sent a report dated 24-3-1992, stating that a perusal of the record in Cr. No. 24/92 of Tangutur Police Station discloses that the detenu and another Raja committed robbery at 10.00 p.m. on 4-3-92 wherein the detenu snatched away a gold chain while Raja, a H.M.T. Watch from one Ramesh Babu and another K. V. Krishna Rao, and both the culprits were produced before the Magistrate on 5-3-1992. However, the crucial point to be noticed is, the arrest cards disclose that the detenu was arrested by the police on 4-3-92 at 10.00 p.m., while the other (Raja) was arrested on 5-3-92 at 10.00 p.m. whereas the report given to the police shows that both of them were caught red-handed by the police after commission of the robbery and produced before the police, Tangatur. The arrest cards in respect of these two reveal a gap of 24 hours between their respective times of arrest. Even, still, taking that P.W. 3 was arrested as noted in the arrest card, it is long after taking him into illegal custody by R-3 and R-4 during the early hours of 30-1-1992 and also after filing of the present writ petitions. The case of the detenu (P.W. 3), on the other hand as deposed to by him, is that after taking him into illegal custody on 30-1-1992 he was shifted from one police station to another and ultimately was produced before the Magistrate at Ongole that too with a warning to the effect that he should not say anything before the Magistrate. We cannot, therefore, agree with the learned counsel that merely because the learned counsel that merely because the detenu (P.W. 3) happened to be involved in one crime, he cannot be characterised as a habitual offender.
19. In view of the above facts and circumstances, we have to hold that (i) it is proved that R-3 and R-4 along with some constables took away the detenu (P.W. 3) forcibly from his house in Nellore during the early hours of 30-1-1992 and confined him in illegal custody, (ii) the detenu was kept in illegal custody in the III-Town Police-Station, Nellore, and R-2 (the Sub-Inspector attached to the said Police Station during the relevant time and refused to hand over custody of the detenu (P.W. 3) to the Advocate-Commissioner (P.W. 2) inspite of the fact that the warrant issued by the Court was shown to R-2, and thus interfered with the due course of judicial process, and (iii) that the detenu was beaten by R-2 and another while he was in the illegal custody in the said police station resulting in number of injuries being statuted by P.W. 3 as certified by the Doctor referred to supra.
20. The learned counsel for the petitioner sought for adequate compensation or exemplary costs for the illegal detention of P.W. 3 by R-2 to R-4 infringing his fundamental rights guaranteed by Art. 21 and 22 of the Constitution. The contention of Mr. Manwar Ali Baig is that the respondents 2 to 4 did not take P.W. 3 into illegal custody and therefore they are not liable to pay him any compensation. In so far as the State (R-1) is concerned, though the Advocate General appeared and argued the matter no counter, as such, was filed. Article 21 guarantees the life and personal liberty of the citizens and the same cannot be deprived of except by the procedure laid down under law. Art. 22 provides for protection against arrest and detention in certain cases. Under Art. 22 no person can be kept by the police under arrest for more than 24 hours without producing the arrested person before the Magistrate. In provides for production of the arrested person within '24' hours before the nearest Magistrate, excluding the travel time. In other matters of detention, the Article mandates that the arrested person should be informed of the grounds of arrest. In the instant case the very fact that PW 3 was taken away forcibly is illegal inasmuch as it is not the case of the respondents that by 30th January, 92 the detenu was involved in any crime. On the other hand the respondents denied the very forcible taking awaye of the detenu during the early hours of 30-1-1992.
In the circumstances the forcible taking away and illegal detention of the detenu (P.W. 3) is in gross violation of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution.
21. At this juncture, it is pertinent to notice a few decisions of the Supreme Court and other Courts dealing with cases where a victim can be compensated for wrongful arrest and illegal detention. In Rudul Sah v. State of Bihar, : 1983CriLJ1644 the petitioner was detained illegally in the prison for over fourteen years after his acquittal in a full dressed trial. It is only after moving the Supreme Court by way of a petition for habeas corpus, he was released. In that background, that Supreme Court observed that an order for payment of money in the nature of compensation can be passed consequential upon the deprivation of a fundamental right to life and liberty of a petitioner. The Supreme Court further observed at page 1989 of AIR :
'Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the powers of the Supreme Court were limited to passing orders of released from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Art. 21 secured, is to mulct its violaters in the payment of monetary compensation. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. Respect for the rights of the individuals is the true bastion of democracy. Therefore, the State must repair the damage, done by its officers to the petitioner's rights. It may have recourse against those officers.'
So observing, the Supreme Court in that case ordered the State to pay to the petitioner a further sum of Rs. 30,000/- as an interim measure keeping it open to the petitioner to recover appropriate damages from the State and erring officials through institution of a suit.
22. The decision in Bhim Singh v. State of J&K;, : 1986CriLJ192 is one where Bhim Singh, a member of the Legislative Assembly of Jammu and Kashmir was arrested while en route to seat of Assembly and in consequence the Member was deprived of his constitutional rights to attend the Assembly Session and responsibility for arrest laid with higher echelons of the Government. In those facts and circumstances, the Supreme Court observed that 'When a person comes to the Supreme Court with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases the Court has the jurisdiction to compensate the victim by awarding suitable monetary compensation.' So observing the Supreme Court has awarded a sum of Rs. 50,000/- as a measure of compensation to the petitioner therein.
23. Lord Birkenhead in Secretary of State for Home Affairs v. O'brien, (1923) Appeal Cases 603 at 609 observed that the remedy of habeas corpus is the most important right known to the Constitutional law and is a check upon the illegal usurpation of power by the executive at the cost of the liege. The significance of this remedy is stated by Dicey thus :
'The Habeas Corpus Act declares no principle and defines no rights by or for practical purposes worth a hundred constitutional Articles guaranteeing individual liberty.'
24. Section 1 of the Constitution of Trinided and Tobago, 1962 is in effect the same as Article 21 of the Constitution of India, declaring that no person shall be deprived of his liberty otherwise than by due process of law. In Maharaj v. Attorney General of Trinidad and Tobago, (1978) 2 All ER page 670, Barrister was punished for contempt of Court by a Judge of the High Court. The punishment was found to be bad, on appeal, since it was imposed in violation of the principles of natural justice, thus, resulting in infringement of the right guaranteed by Section 1. Consequently, the Privy Council held that the Barrister-appellant was entitled to 'redress' as contemplated by Section 6(1) of the Act. The word 'redress' occurring in the said section was construed by the Privy Council to be meaning and including 'reparation or compensation' for the wrong sustained. The Privy Council, in those circumstances, having awarded damages observed :
'the claim for redress under section 6(1) for what has been done by a Judge is a claim against the State for what has been done in the exercise of the judicial power of the State.'
The Privy Council, however, pointed out that by awarding damages against the State it was in no way violating the principle that a Judge cannot be made personally liable for what he has done when acting or purporting to act in a judicial capacity. It held that inasmuch as judiciary was part of the State, the State is liable for the acts of the judiciary as well. The same principle was reiterated by the Privy Council in a later case in Chokolingo v. Attorney General of Trindidad and Tobago, (1981) 1 All ER page 244.
25. In view of these decisions, we hold that the Ist respondent-State is liable to pay compensation to the detenu for the forcible taking away and illegal detention of P.W. 3 and for the injuries sustained by him as a result of the beating by R-2 and another while P.W. 3 was in III-Town Police Station, Nellore, as certified by the Doctor, the illegal detention being malacious in the pursuit to know the whereabouts of the daughters of the 3rd respondent, who wedded a non-muslim boy of whom the detenu (P.W. 3) was a close friend. We accordingly direct the State (1st respondent) to deposit a sum of Rs. 10,000/- (rupees ten thousand only) towards compensation for the illegal detention of the detenu, with the Registrar (Judicial), High Court of A.P., within one month from to-day. The amount, on being so deposited, shall be paid to the detenu (Srinivasulu).
26. The learned Advocate General contended that the acts of R. 2 to R. 4, if held to be proved, are in excess of the authority and, therefore, the State cannot be rendered liable for their personal acts. It should be borne in mind that what all was done by R. 2 to R. 4 was in the garb of their official capacity as Police Officials and in excess of their authority. We cannot, therefore, accept this contention of the learned Advocate General. This is a case of one of the examples where the police, who should safeguard the life and liberty of the citizens, shielding themselves with the official status resorted, with malicious intent, to infringe the right guaranteed under Articles 21 and 22 of the Constitution of India in order to elicit the whereabouts of the daughter of the third respondent and in that process not only kept P.W. 3 (the detenu) under illegal detention but also beat him while under custody resulting in a number of injuries as certified by the Doctor. One more itching aspect of the matter is that one of these respondents, viz. 2nd respondent, did not even care to respect the warrant issued by the Criminal Court when showed to him by the Advocate - Commissioner (P.W. 2) and refused to hand over P.W. 3 (the detenu) to P.W. 2 when asked for and thereby, in our view, rendered himself (R. 2) liable for criminal contempt inasmuch as his conduct amounts interference with the judicial process of the Court. We accordingly take cognizance of the contempt under section 15 of the Contempt of Courts Act and direct the Registrar (Judicial), High Court of A.P., to take appropriate steps by addressing a letter to the learned Advocate General to initiate contempt proceedings against the second respondent forthwith keeping in view the period of limitation.
27. Before parting with this matter, we intend to make it clear that the first respondent (State) is at liberty to proceed against the other respondents (R. 2 to R. 4) to have recourse for making good the compensation inasmuch as the State is rendered liable to pay the same for the Acts of R. 2 to R. 4, who being Police Officials and custodians of law and order, ought to have had the greatest respect for the personal liberty of the citizens and ought not to have flouted the laws and freedom guaranteed under Articles 21 and 22 of the Constitution of India by stopping to bizarre acts of lawlessness. In view of the observations made by us in this case, we earnestly believe that the Government would take appropriate action against the erring respondents.
28. In the result, the writ petitions are disposed of as indicated supra. No costs.
29. Order accordingly.