# •'90 SAPMAWIA v. DEPUTY COMMISSIONER. AIJAL

- **Citation:** [1971] 1 S.C.R. 690
- **Court:** Supreme Court of India
- **Decided:** 1970-07-30
- **Bench:** f. D. DUA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/90-sapmawia-v-deputy-commissioner-aijal-5113
- **Pages:** 7

## Headnote

Constitution of India Article 32-Habeas. corp11s-Co1tu11it111<!nt order
neither stating the number of days of co1nnzitnient, nq_r in tern1s authorising
the jail authoritie.f to keep the petitioner, nor givinR reasons-Validity.
The petitioner, who was accused of certain criminal offences, was in
jail custody awaiting his trial.
He applied to the High Court for a writ
o.f ·habeas corpus.
On January 22, 1970 the High Court held that th<
petition \Vas not maintainable because the petitioner was an undertrial
prisoner
nwaiting his trial.
Accordingly the High Court dismissed
th~
plea for a writ of habeas corpus, but directed investigation against the
petitioner to be completed within two months.
The petitioner did not
file appeal against this order, but much later filed a habeas corpus petition
in the Supreme Court. In its return the State asserted that the investigation was completed by March 20. 1970 and sanction wa•. obtained on
. May 12, 1970, but no order by a Mll'gistrate authorising th<> petitioner's
detention in custody was produced. The last order of remand disclosed
to this Court was of February 2, 1970.
But this order neither contained
the period of remand nor did it, in terms, autho(ise the Dibrugarh Jail
authorities to keep the petitioner in their custody : reasons for keeping
him in jail custody was also not stated.
Directing the petitioner's release.
thi~ :Court :
HELD : The petitioner's custody in jail was not sho\\'11 to
b~ in
accordance with the procedure established by law.
(i) If, a person has been deprived of his personal liberty in violat1011
·Of -the .. procetlure .established by law and no cogent ground for declining
relief-in-- habeas- -corpus proceec:.ings is made out, then this Court has no
option except to order his release, for personal liberty of the individual
is highly cherished in our set up giving priority only to the interest of
the nation and the security of the State. [695 Gl
During the course of investigation, the order of the remand Magistrate
under the Code of Criminal Procedure could not extend beyond a term
of 15 days.
The State did not show any special law which authorised
a remand . for longer period in this case.
Even the order of .the Ht~h
Court directed the investigation to be
completed within two
months.
These two months expired a long time ago.
The fact that the charge
against the petitioner pertains to security of the State and the fact that .
stringent· ·measures may be necessary on our eastern and north~castcrn
horders··does not afford sufficient justification for by-passing or violating
th~ provisions of the Constitution. Executive ex_pediency ~hould not prevail over the rule of law as envis~ged therein,
For meeting with emergencies the Constitution contains adequate provisions. [694 F. 696 A-Bl
(ii) The writ of habeas corpus is a orerogative writ by which the cau_,es
and validity of a detention of a person are investigated by summary procedure and if tbe authoritv having 'his custody does not satisfy the Tourt
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SAPMAWIA v. DY. COMMR. (Dua, J.)
691
that the deprivation of his ,personal liberty is according to the procedure
established by law the person is entitled to .his liberty. [695 D]
(iii) The warrant df commitment should normally remain with
the
jail authorities directed to keep the person committed to their custody so
that they can always satisfy the court, enquiring into the legality of such
custody, that he has been deprived of his personal liberty according to
the procedure established by law.
(iv) The order of release in the case of a person suspected of
or
charged with the commission of an offence does not per se amount
to
his acquittal or discharge and the authorities are no1, by virtue of 'the
release only on habeas corpus, deprived of the power to arrest and keep
him -in custody in accordance with Jaw, for this writ is nor clesigncd to
interrupt the ordinary administration of criminal law. f695 DJ
( v) Rule nisi in hab.:as corpus pr

## Text

•'90
SAPMAWIA
v.
DEPUTY COMMISSIONER. AIJAL
July 30, 1970
[f. D. DUA, J.]
Constitution of India Article 32-Habeas. corp11s-Co1tu11it111<!nt order
neither stating the number of days of co1nnzitnient, nq_r in tern1s authorising
the jail authoritie.f to keep the petitioner, nor givinR reasons-Validity.
The petitioner, who was accused of certain criminal offences, was in
jail custody awaiting his trial.
He applied to the High Court for a writ
o.f ·habeas corpus.
On January 22, 1970 the High Court held that th<
petition \Vas not maintainable because the petitioner was an undertrial
prisoner
nwaiting his trial.
Accordingly the High Court dismissed
th~
plea for a writ of habeas corpus, but directed investigation against the
petitioner to be completed within two months.
The petitioner did not
file appeal against this order, but much later filed a habeas corpus petition
in the Supreme Court. In its return the State asserted that the investigation was completed by March 20. 1970 and sanction wa•. obtained on
. May 12, 1970, but no order by a Mll'gistrate authorising th<> petitioner's
detention in custody was produced. The last order of remand disclosed
to this Court was of February 2, 1970.
But this order neither contained
the period of remand nor did it, in terms, autho(ise the Dibrugarh Jail
authorities to keep the petitioner in their custody : reasons for keeping
him in jail custody was also not stated.
Directing the petitioner's release.
thi~ :Court :
HELD : The petitioner's custody in jail was not sho\\'11 to
b~ in
accordance with the procedure established by law.
(i) If, a person has been deprived of his personal liberty in violat1011
·Of -the .. procetlure .established by law and no cogent ground for declining
relief-in-- habeas- -corpus proceec:.ings is made out, then this Court has no
option except to order his release, for personal liberty of the individual
is highly cherished in our set up giving priority only to the interest of
the nation and the security of the State. [695 Gl
During the course of investigation, the order of the remand Magistrate
under the Code of Criminal Procedure could not extend beyond a term
of 15 days.
The State did not show any special law which authorised
a remand . for longer period in this case.
Even the order of .the Ht~h
Court directed the investigation to be
completed within two
months.
These two months expired a long time ago.
The fact that the charge
against the petitioner pertains to security of the State and the fact that .
stringent· ·measures may be necessary on our eastern and north~castcrn
horders··does not afford sufficient justification for by-passing or violating
th~ provisions of the Constitution. Executive ex_pediency ~hould not prevail over the rule of law as envis~ged therein,
For meeting with emergencies the Constitution contains adequate provisions. [694 F. 696 A-Bl
(ii) The writ of habeas corpus is a orerogative writ by which the cau_,es
and validity of a detention of a person are investigated by summary procedure and if tbe authoritv having 'his custody does not satisfy the Tourt
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SAPMAWIA v. DY. COMMR. (Dua, J.)
691
that the deprivation of his ,personal liberty is according to the procedure
established by law the person is entitled to .his liberty. [695 D]
(iii) The warrant df commitment should normally remain with
the
jail authorities directed to keep the person committed to their custody so
that they can always satisfy the court, enquiring into the legality of such
custody, that he has been deprived of his personal liberty according to
the procedure established by law.
(iv) The order of release in the case of a person suspected of
or
charged with the commission of an offence does not per se amount
to
his acquittal or discharge and the authorities are no1, by virtue of 'the
release only on habeas corpus, deprived of the power to arrest and keep
him -in custody in accordance with Jaw, for this writ is nor clesigncd to
interrupt the ordinary administration of criminal law. f695 DJ
( v) Rule nisi in hab.:as corpus proceedings demands in1mediate attention and urgent compliance as it concerns the question of liberty of the
custody, !hat he has be...1 deprived of his pen;onal liberty according to
subject.
[Delay in securing papers
for production
in this Court
disapproved.] [696 EJ
ORIGINAL JuR1so1ctION : Writ Petition No. 269 of 1970.
Petition under Art. 32 of the Constitution for a writ in the
nature of habeas corpus.
B. R. Agarwala, for the petitioner.
Naunit Lal, for the respondent.
The Judgment of the Court was delivered by
Dua, J.--Sapmawia son of Tivuala, has forwarded from the
Dibrugarh Jail his petition for a writ of habeas corpus. Accord·
ing to the averments made in this petition he claims to be
a loyal ,citizen of India hailing
from
Bairabi
(Bairangal)
village, Mizo District.
On the 14th August, 1968 he was taken
by
th.~ Security Forces from his house in Bairabi, Mizo Dist.
to work as a porter for carrying their luggage to the next village.
The petitioner was, however, not allowed to return home.
He
was kept under military guard for about three months without
any interrogation. On November 23, 1968 he was sent to ')ilchar
District fail where he was interrogated by a Sub-In:;ie;tor of
Police.
He was thus kept as an under-trial prisoner sinr-e his
arrest.
On enquiry from jail authorities he learnt that he was
charged with offences under s. 121, I.P.C. and
under
rules
41 (5) and 32(5) of the Defence of India Rules and alsc under
ss. I 0, 11 and 13 of the Unlawful Activities (Preventio.1) Act.
The petitioner was transferred from Silchar Jail to Nowgong Jail and from there to the District Jail, Dbrugarh.
Later
the
charges
under
s. 121, I.P.C. and rr.
41 (5),
and 32(5), Defence of India Rules were withdrawn leaving
only charges under ss. 10,
11
and 13 of
the Unlawful
Activities (Prevention)
AcL
The
petitioner
on
an
L13 Sup. Cl/70-16
692
SUPREME COURT REPORTS
(1971] 1 S.C.R.
earlier occasion applied to the Assam High Court for a writ of
habeas corpus. That court on January 22, 1970 directed
the
State to complete investigation of the cases against him within
two months.
The petitioner complians
that no further action
has so far been taken in thise connection.
On July 9, 1970 Shri B. R. Aggarwal, an Advcrcate of this
Court appeared as amicu.s curiae in support of
this
petition.
Rule nisi was issued returnable on July 16, 1970.
The State
was directed to produce in court all relevant previous records.
An application dated July 14, 1970 was filed in this Court by
the State through Shri Naunit Lal, Advocate, seeking adjournment for two weeks for producing the petitioner and for filing
the counter-affidavit.
On July 16, 1970, however, though the
petitioner was produced in this Court
no
return
was
filed
on the plea that the relevant papers had not yet been received
by the Counsel.
The case wa" accordingly adjourned
to
the
following day as prayed by the State counsel.
ln the return dated July 15, 1970 it is stated that the petitioner was produced at the Kobsib police station on November
23, 1968 and a case under ss. 10, 11 and 13 of the Unlawful
Activities (Prevention) Act was registered against him. During
the investigation evidenc.~ for prosecution under ss. 10 and 13
of the said Act as well as under s. 11 of the Assam Maintenance
of Public Order (Autonomous Districts) Act was
also
forthcoming.
The exact words of the· return. of this aspect are ;
"During investigation sufficient evidence for
prosecution under s. 10/ 13 of
the
Unlawfo'.
.\ctivities
(Prevention) Act as well as under sectio;i. 11 of the
Assam Maintenance of Public
Order
(APtonomous
Districts) Act w.~re found against the
accused.
The
accused-petitioner has been chargesheeted on 20-3-70
under s. 11 of the
Assam Maintenance of Public
Order (Autonomous Districts) Act and the Commissioner for Cachar & Mizo District was requested to
accord sanction for prosecution of the
accused petitioner under ss. l 0 and 13 of the Unlawful Activities
(Prevention) Act.
Sanction of the Commissioner was
received on 12-5-70 and the relevant
sections
have
been added to the ·chargesheet.
Production
warrant
hai< been issued by the Additional District Magistrate
Aijal for appearance of the accused before the Aiial
Court on 5-8-70 for trial.
On the habeas COFfJllS petition filed by the accused
petitioner, the Hon'ble High Court, Gauhati allowed
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SAPMAWIA V. DY. COMMR. (Dua, J.)
two months' tithe to complete investigation vide order
dated 22-1-1970.
Investigation was completed within
the time allowed by the Hon'ble High Court and the
accused petitoner has been charge-sheeted under s. 11
of the Assam Maintenance of Public Order (Autonomous Districts) Act on 20-3-70 and u/s 10/13 of the
Unlawful Activities (Prevention) Act."
693
In the supplementary affidavit dated July 17, 1970 sworn at
Delhi by Shri Bhupendra Sharma, Assistant in
the
Political
Department, Assam Government, it is explained that the original
case papers, charge sheet and order of remand are
at Aijal,
Mizo District in the court of the A.D.M. Aijal where the next
date fixed is August 5, 1970.
The reasons for
non-production
of these documents are stated thus :
"That the political department have been
trying
to contact on phone Aijal for further facts, but
the
telephone line between Shillong and Aijal w~1s •Jut of
order for three days, and
till
my
departure
from
Shillong on 15th A. D. M. Aijal had not been contacted."
The warrant for intermediate custody produced in this Court
shows that the last order of remand entered therein
is
dated
February 2, 1970.
No other warrant or order committing the
peti:ioncr to the custody of the .iail authorities at Dibrugarh has
been forwarded to this Court along with the petitioner.
The
supplementary affidavit of Shri Bhupendra Sharma undoubtedly
states that the papers relating to the petitioner's remand are at
Aijal, but it is not easy to understand how the Dibrugarh jail
authorities kept the petitioner in their custody without being in
possession of a valid warrant of commitment authorising them
to keep him in jail custody.
The position as it emerges from the material
produced in
this Court is that the petitioner is accused of a criminal offence
and is at present in jail custody awaiting his
trial.
He
had
applied to the Assam High Court for a writ of habeas corpus.
On January 22, 1970 a Bench of that Court held that petition
not to be maintainable because the petitioner was an undertrial prisoner awaiting hise trial in more cases than one. The
habeas corpus was accordingly dismissed.
That Court, however,
directed investigation against the petitioner to be completed within two months. No appeal was prefarred by the petiti-Jner against
the order of the High Court.
The legality of that order having
not been questioned, the petitioner's detention upto the date of
that order has to be assumed to be lawful.
694
SUPREME COURT REPORTS
[1971] 1 S.C.R.
Now, in this Court the only right the petitioner can ,enforce
in these proceedings is a fundamental right guaranteed ny Part
III of our Constitution.
In view of the order of
the Assam
.High Court there can be no question of any violation of Art.
22 ( 1) of the Constitution .and. indeed no such violation has, been
canvassed in ihis Court.
The solitary question· which requires
consideration would thus be if the petitioner had been deprived
of his personal liberty contrary of procedure
established
by
Jaw.
As observed earlier, upto the date of the order of the High
Court, the petitioner's custody was not considered by that Court
to be unlawful.
The order of the High Court, did not itself
authorise further custody : it merely ruled out the maintainability
of the habeas corpus petition and added a further direction that
the investigation against him should be completed withi.n
two
months.
The petitioner's custody was thus
governed by
the
ordinary law.
The last order of remand as disclosed to this Court cS dated
February 2, 1970 but that order is silent as to for how many
days the petitioner was remanded and it also does not in terms
authorise the authorities of Dibrugarh. Jail to keep the p1:titioner
in their custody.
Reasons. for keeping him in jail custJdy are
also not stated.
I am, however, prepared to assume 1:hat the
remand was to be in the custody of the Superintendent, Dibrugarh Ja!l.
The question, however, arises under which process
of law was the order of. remand made? The State Counsel was
unable to throw any light in this connection and he <1dmitted
that he was not in a position to make ·any . positive statement.
Further assuming that the order of remand was by a Magistrate
during the course of the investigation it could not, under
the
Code of Criminal Procedure, extend beyond a term of J.5 days.
There was no suggestion on behalf of the State counsel
that
any special law authoriEed a remand for a longer period in this
case.
Even the order. of the· High Court directed the investigation to be completed within two months.
These two months
expired a long time ago.
In the return, though it is asserted
that the investigation was complete by March 20, 1970 and
sancti_on is also stated to have been obtained on May 12, 1970
no ,rder by a Magistrate authorising the petitioner's detention
in custody has been produced.
In these circumstances I
am
constrained to hold that the
petitioner's
present custody
in
Dibrugarh Jail has not been shown to be in accordance with the
· procedure established by law.
It was contended that the petitioner. is an accused person
and that he was duly committed to Dibrugarh Jail
by
the
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SAPMAWIA V, DY. C'OMMR. (Dua, J.)
695
Additional District Magistrate. Aijal and that the papers relating to the remand are in that court.
It was added that the said
Magistrate being seized of the case against the petitioner who
is going to be produced in that court on August 5, 1970, that
court must be deemed to have full jurisdiction to remand
the ·
petitioner to whichever custody that court deems proper and this
Court should not interfere in these proceedings.
Mere irregularity in the order of r.emand said the counsel, cannot render
unlawful the petitioner's custody, in jail justifying
his
release.
Any grievance on that score. according to the submission, appropriately be made to the court of the Magistrate or to the
Assam High Court which exercises a power of superintendence
over the court of the Magistrate.
The writ of habeas corpus is a pr.erogative writ by
which.
the causes and validity of detention of a person are
investigated by summary procedure and if the authority having
hi'
custody does not satisfy the court that the deprivation of
his
perso11al liberty is according to the procedure
established
by
l&.v, the person is entitled to his liberty.
The order of release
in the case of a person suspected of or charged with the commission of an offence does not per se amount to his acquittal
or discharge and the authorities are not, by virtue of the release only on habeas corpus, deprived of the power
to
arrest
and keep him in custody in accordance with law for this writ
is not designed to interrupt the ordinary administration of criminal law.
This Court has been entrusted by the Constitution
with a duty and an obligation to enforce the fundamental rights
of the parties approaching it for such relief.
Our Constitution
is the supreme
law .framed by the selected representatives of
the entire nation after years of deep thought and deliberation.
The fundamental principles embodied therein were designed to
inspire our governmental set up.
It is from this source .that all
authorities including th.e Parliament, the President
and
this
Court derive their respective powers.
Such powers are circumscribed by the language of the Constitution itself.
It is impermissible to go against the constitutional mandate or to over-ride
it.
If, therefore, a person has been deprived of his personal
liberty in violation of the procedudre established by law and no
cogent ground for declining relief in habeas corpus proceedings
is made out, then this Court has no option except to order his
release, for personal liberty of the individual is highly cherished
in our set-up givin~ priority onlv to the interest of the nation
and the security of the State.
It is undoubtedly true that on
our eastern and north-eastern borders there are some unfriendly:
foreign powers which, with evil and hostile designs, ·are constantly seducin~ political adventurists and gullible inhabitants of
that area and aiding and encouraging their unlawful activities
696
SUPREME COURT REPORTS
[1971] 1 S.C.R.
prejudicial to our democratic set up.
Such a situation, posing
as it does a serious threat to orderly life and security of the
State demands drastic measures for meet~ng it. It i; also
correct that the charge against the petitioner pertains to >ecurity
of the State.
But these considerations do not 'afford ~ufficient
justification for by-passing or violating the provisions
of
thei
Constitution.
Executive expediency should not prevail ever the
rule of law as envisaged therein.
For meeting with emergencies
the Constitution, it may be pointed out, contairts adequate provisions.
·
Holding as I do that the petitioner's custody in Dibrugarh
Jail has not been shown to be in accord~nce with the procedure
established by law I am constrai11~d to ·direct his relea;e. But
this does not mean that the case against him is not to proceed.
It also does not debar the authorities concerned from arresting
the petitioner and keeping him in custody in
accordance with
law.
Before closing I must record my disapproval of the laxity
with w)!ich the papers relating to the petitioner's
custody
in
Dibrugarh Jail were sought to be secured by the authorities from
Aijal for production in this Court.
The explanation that the
telephone connection remained out of order for three days is
hardly convincing.
A special messenger could have been sent
to Aijal or a telegram could have been sent requiring the relevant
papers to be made available to the authorities for production
i1n this Court.
Rule nisi in habeas corpus proceedings demands
immediate attention and urgent compliance as it concerns the
question of liberty of a subject.
I am also. point out that the
· warrant of commitment should normally remain with the
jail
authorities directed to keep the person committed to their custody
so that they can always satisfy the court enquiring into the legality of such custody, that he has been deprived of his personal
liberty according to the procedure established by law.
Y.P.
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