Hon'ble Yogendra Kumar Sangal,J.
Counter Affidavit filed by D.I.G./S.S.P., Kanpur City is taken on record. Petitioner may file rejoinder affidavit within three days.
The present Habeas Corpus writ petition has been registerred in pursuance of the Telegram sent by Smt. Santosh Gupta on 28.05.2010 with the allegation that the petitioners were taken away by the Police at about 5:30 A.M. on 28.05.2010 and were illegally detained. It has been stated by the learned counsel for the petitioner that after filing of the writ petition and issuance of notices by this Court, the petitioners were released on 3rd June, 2010 at about 2:00 in the morning. By an order dated 14th June, 2010 this Court has directed the D.I.G. /S.S.P. to appear in person so that statement of the petitioners can be recorded in his presence for further necessary action.
Today the petitioners are present in person.
Shri Jyotindra Mishra, learned Advocate General of the State has raised preliminary objection that as the petitioners are not in detention, hence the petition is not maintainable. He submits that on 14.06.2010 when the order was passed, since the petitioners were not in detention, the petition is not maintainable. The petitioners' counsel submits that the writ petition was filed on 2nd June, 2010 and the affidavit was prepared on 29th June, 2010 when the petitioners were in illegal detention.
A counter affidavit has been filed on behalf of the State that the petitioners were not in in illegal detention but they were directed to come at the Police Station on each and every date.
So far as the detention is concerned, since the petitioners have been released by the Police, to that extent, no order is required from this Court. However, whiled dealing with the unlawful detention by the Police of a citizen without following due process of law, this Court possess ample power to issue appropriate order or direction to impart justice to the person who has been unlawfully detained. In case, the submission of the petitioners' counsel is correct that the petitioners were left free on 3rd June, 2010 then it amounts the unlawful detention of 4-5 days. It is a very settled proposition of law that this Court has ample power to take action and pass order of compensation in favour of the unlawfully detained person and to register a criminal case against the Police Officers who are involved in detaining a person in violation of statutory provisions. Accordingly, submission of the learned Advocate General with regard to maintainability of the writ petition is rejected.
During the course of arguments, it has been stated by the State that there are certain other documents in his possession to prove that submission of the petitioners' counsel are not correct. Let a supplementary counter affidavit be also filed within a period of three days.
An objection has been raised by the learned Advocate General that evidence cannot be recorded by this Court with liberty to cross-examine the witnesses.
So far as the recording of evidence is concerned, it depends upon the facts and circumstances of a particular case. When the Police has unlawfully detained a citizen, this Court can proceed in a just and fair manner with due compliance of the Principle of Natural Justice to impart justice. Accordingly, the objection raised does not seem to be sustainable.
It has also been objected by the learned Advocate General that under the Evidence Act, it is not permissible to this Court to record evidence. That objection, keeping in view catena of judgements of Hon'ble Supreme Court and this Court that while discharging the constitutional obligations, under Article 226 of the Constitution of India, the procedure of the High Court is not regulated by the Indian Evidence Act, is not sustainable. Only condition is that the court should proceed in a just and fair manner providing due opportunity of hearing to the affected person.
List the case on 24th June, 2010. In case, the S.S.P./D.I.G. engage some counsel, representing his cause, it shall not be necessary for him to appear in person.
Order Date :- 16.6.2010/Kaushal