(Order of this Court was made by T.Mathivanan.J) Heard Ms.V.Preetha, party-in-person, as well as Mr.R.Rajarathinam, the learned Public Prosecutor, assisted by Mr.V.M.R.Rajentren, the learned Additional Public Prosecutor, appearing on behalf of the respondents.
2. This Habeas Corpus Petition has been filed praying that this Court may be pleased to issue a direction to the Respondents 1 to 3, to produce the detenue, namely, M.Geetha, Member of the Legislative Assembly (hereinafter referred to as M.L.A), Krishnarayapuram Constituency, before this Court and to set her at liberty.
3. We have perused the averments made in the affidavit filed in support of the petition, along with the relevant materials placed before us. Having given our due consideration to the submissions made on behalf of both sides and on considering the facts and circumstances of the case and the nature of the issues involved, the following order is being passed.
4. The petitioner, Ms.V.Preetha, who is appearing as a party-in-person is a practicing lawyer of this Court. She has stated that she is the second cousin of Mrs.M.Geetha, Member of the Legislative Assembly, elected from Krishnarayapuram constituency. The petitioner has stated that all the M.L.As of the A.I.A.D.M.K party are under the illegal custody of the fourth respondent. She has further stated that one such M.L.A, namely, Ms.M.Geetha, is her second cousin and that she was made to understand that the M.L.As are not allowed to use their cellphones and to move around freely. Their fundamental right of freedom of movement is curtailed, completely, and therefore, she had given a representation to the respondents 1 to 3 on 09.02.2017. However, they had failed to take effective steps to rescue and to set the detenue at liberty. Thus, the fourth respondent has violated Articles 19 and 21 of the Constitution of India.
5. When this Habeas Corpus Petition came up for hearing, on 10.02.2017, this Court had recorded the submission made by the learned Public Prosecutor to the effect that the members of the Legislative Assembly, who were alleged to be in illegal detention, were free and were staying on their own volition in the M.L.As hostel, at Chennai.
6. Considering the above submission, this Court had found that it would be appropriate to provide an opportunity to the State to inform its response.
Accordingly, this matter stood posted, on 13.02.2017. On that day, Mr.K.Shankar, the Additional Commissioner of Police, Law and Order South, Greater Chennai, had filed a counter affidavit, through the learned Public Prosecutor. In his counter affidavit, the Additional Commissioner of Police, Law and Order South, Greater Chennai, had refuted the allegations made in the Habeas Corpus Petition. He has stated that the petitioner had sent a representation, dated 09.02.2017, by post, on 10.02.2017, and the same was received by the Inspector of Police, R3 Ashok Nagar, Law and Order Police Station, on 11.02.2017, afternoon. With regard to the allegations made in the representation, he has stated that an enquiry was conducted, on 11.02.2017, by the Additional Superintendent of Police, Prohibition Enforcement Wing, Kanchipuram, along with the Tahsildar, Cheyyur Taluk. On such enquiry it was found that Tmt.Geetha, M.L.A of Krishnarayapuram, who is said to be in illegal detention of the fourth respondent, is staying at Golden Bay Resort, Koovathur, Kanchipuram District and during the course of the enquiry, she had given a statement, voluntarily, in her own handwriting. The vernacular version of the statement said to have been given by the detenue is extracted hereunder:
“M.fPjh fU::h; khtll k; fpUc&z uhag[uk; rll kd;w cWg;gpduhfpa ehd; fh";rpg[uk; khtllk;. bra;a{[h; tllk;.
Ttj;J}h; fpuhkj;jpy; cs;s nfhy;ld; ng hprhh;oy; fle;j 3 ehl;fshf j';fp cs;nsd;/ fle;j 5-k; njjp kjpg;gpw;Fhpa rpd;dk;kh mth;fis rllkd;w FGj; jiyt[uhf njh;e;J vLf;f brd;id teJ rl;lkd;w cWg;gpdu;fs; tshfj;jpy vdJ fztUld; j';fpapUe;njd;/ rpy murpapy;
fhuz';fSf;fhf midj;J rllkd;w cWg;gpdu;fSk brd;idapny j';fpapUf;FkhW mwpt[Wj;jg;gl;oUe;jJ/ Mdhy; fle;j rpy ehl;fspy; eilbgw;W te;j khwp te;j murpapy; NH;epiyapd; fhuzkhf kpft[k; beUf;foahd NH;epiyapYk;. gy mr;RWj;jpypd; fhuzj;jpdhYk; ehd; vd;Dil tpUg;gj;jpd; mog;gilapy; vdJ fl;rpia rhh;e;j m,mjpKf rl;lkd;w cWg;gpdu;fSld; nrh;e;J ehd; nkny Fwpg;gpl;l ,lj;jpy; j';fp tUfpnwd;/ Mdhy; ehd; fhztpy;iybad;Wk;
vd;id cldoahf nfhh;l;oy; M$hh; gLj;j ntzLk; vd;W Ml;bfhzh;t[ kD nghlg;gloUe;jJ/ vd;id ahUk flj;jtpy;iy ehd; vd; fztUlDk;. vdJ rllkd;w cWg;gpdu;fSlDk; vd; tpUg;gj;jpd; moggilapy; j';fp j';fpapUf;fpnwd;/ vdfF ,';F midj;J trjpfSk; czt[.
,Ug;gplk;. kUj;Jt trjpfs; ey;y Kiwapy; braJ; jug;gLfpwJ/ vd; cwtpdh;fSld; bjhiyngrpapy; miHj;J jpdKk; ngrp tUfpnwd;/ ,d;W vd;id tprhuiz bra;jPh;fs;/ vdJ thf;F K:yj;ij ve;jtpj tw;g[Wj;jnyh J}zLjnyh ,y;yhky; vd; Ra tpUg;g[ld; ehnd ifg;gl vGjpf; bfhs;fpnwd;/ -v';fs; Kd;ghf-
Sd/- Sd/- ,ggofF.
Tahsildar ADSP/KPM M.Geetha Cheyyur (TtjJ}h); “
7. On a cursory perusal of the statement said to have been given by the detenue, we find that no adequate grounds are available to maintain this petition within the scope of a Writ of Habeas Corpus. The detenue herself has stated that she is not in illegal custody of anybody and she has been staying at the Golden Bay Resort on her own volition, without any threat or coercion. She has also stated that she is still in contact with the people of her constituency as well as her relatives and that she is having every facility, including proper medication, in the said resort. From the statement said to have been given by the detenue, we do not find any reason to say that she is illegally detained in the Golden Bay resort, at Koovathur.
8. In the common judicial parlance, a practicing advocate can appear on behalf of his client, but he cannot act as his own client and cannot also enter himself into the shoes of his client. Insofar as this case is concerned, all the averments of the petition seems to have been made by the petitioner herself, who is admittedly a practicing lawyer. No supporting affidavit is filed by the alleged detenue. As per the statement said to have been given by the detenue, she is not in illegal custody and it is found that she has not been detained against her will. In this connection, we would like to make reference to Sections 7 and 30 of the Advocate Act 1961 and Rules 6, 9 and 18 of Part VI of the Bar Council of India Rules.
9. Section 7 of the Advocate Act, 1961, deals with the Functions of the Bar Council of India. Clause (b) says that the Bar Council of India shall lay down standards of professional conduct and etiquette for advocates. Clause (d) envisages to safeguard the rights, privileges and interests of advocates. Clause (g) says that the Bar Council of India shall exercise general supervision and control over the State Bar Councils. Section 30 of the Advocates Act, 1961 contemplates the rights of advocates of practice.
10. Insofar as Section 30 is concerned, the Apex Court, in Pravin C.Shah V.K.A.Mohd.Ali reported in (2001) 8 SCC 650, has held that “the right to practice is the genus of which the right to appear and conduct cases in the court may be a specie. But the right to appear and conduct cases in the court is a matter on which the court must have the major supervisory power. Hence, the court cannot be divested of the control or supervision of the court merely because it may involve the right of an advocate.”
11. Rules 6, 9 and 18 of Part VI of the Bar Council of India are extracted as under:
“6.An Advocate shall not enter appearance, act, plead or practice in any way before a Court, Tribunal or Authority mentioned in Section 30 of the Act, if the sole or any member thereof is related to the Advocate as father, grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother- in-law, daughter-in-law or sister-in-law.”
“7.An Advocate should not act or plead in any manner in which he is himself pecuniary interested.”
“ 18.An Advocate shall not, at any time, be a party to fomenting of litigation.”
12. With reference to Sections 7 and 30 of the Advocates Act, 1961 (25 of 1961) and Rules 6, 9 and 18 of Part VI of the Bar Council of India Rules, in S.Sengkodi v. State of Tamil Nadu represented by its Chief Secretary to Government and four others reported in 2009 (3) CTC 6, a practising advocate filed Habeas Corpus Petition questioning the detention of her client. The detenu had filed a supporting affidavit. Detenu's blood relatives or friends did not file such a petition and no reason had been adduced by the Advocate for such people not filing the Habeas Corpus Petition. The respondents had questioned the locus standi of the Advocate being the petitioner. This Court had dismissed the writ petition finding no merits on facts and also on the question of maintainability. This Court, after applying the provisions of the Advocates Act, Bar Council of India Rules along with the principles relating to the decorum of Court, had held that an Advocate cannot step into the shoes of the detenu. This Court had also expressed anguish over the practice of Advocates subscribing their name to the hoardings of political leaders. In paragraph 10 of the above cited decision, a Division Bench of this Court had held that Rule 9 mandates that an Advocate should not act or plead, in any manner, in which he himself is peculiarly interested. Rule 18 mandates that 'an advocate shall not, at any time, be a party to fomenting litigation'. Paragraph 11 is also very much important, which is extracted as under:
“11. Therefore, according to the above provisions of law, an Advocate is barred from entering into appearance, act, plead or practise if the sole of any member thereof is related to him and wherein he is peculiarly interested. When, to maintain the decorum of the noble profession of advocacy, such a bar is created on an Advocate, by operation of law, to appear, plead and act on behalf of the blood relatives of the Advocate, we are unable to accept the contention of the petitioner that she can file this petition for the release of her client, thus acting herself as the client. In the absence of any provision of law, permitting the Advocates to enter into the shoes of their clients as a 'party interested' and further in the absence of any pleading made on the part of the petitioner as to what necessitated her to enter into the shoes of her client, when, admittedly, the detenu is having blood relatives, like wife, to champaign his cause, we are not in a position to accept the plea of the petitioner that she can very well maintain this petition. Further more, Section 30 of the Advocates Act, 1961 permits the Advocates only to practise the noble profession of law and not to substitute themselves for their clients. When the Bar Council of India Rules, prescribing the standards of professional conduct and etiquette do not permit such an action on the part of a legal practitioner and in the absence of any reason leave alone a justifiable reason for the petitioner to file this petition on behalf of her client, it is to be held in no uncertain terms that this petition, filed by the petitioner, a practicing advocate, for the release of her client, is not maintainable. “
13. Ms.V.Preetha has contended that no such statement, which is produced by the Public Prosecutor, was given by the detenue and even if it is received and produced, it might be obtained under threat or coercion. She has also suggested that, to find out the real position and to ascertain the fact as to whether more than 130 members of the Legislative Assembly have been illegally detained against their will in the above said resorts, a retired High Court Judge may be appointed as a Commissioner to go and verify the fact and to give a detailed report in this connection. She has also suggested that an amicus curiae may also be appointed so as to assist the Court to arrive at a fair decision.
14. In this connection, Mr.R.Rajarathinam, the learned Public Prosecutor has submitted that if the Court is going to appoint a Commissioner to inspect the above said resorts, then he has to get further instructions from the authority concerned.
15. With reference to the suggestion to appoint a Commissioner or an amicus curiae, we are not in agreement.
16. We have considered the counter affidavit filed by the Additional Commissioner of Police, Law and Order South, Greater Chennai, and the submissions made on behalf of the State, by the Public Prosecutor. We have also carefully considered the submissions made on both sides and having taken into consideration of the relevant facts, we find that since the question of maintainability is hanging over this petition, we do not find any merit.
17. Before parting with the order, in the interest of justice, we would like to place on record the following:
The writ of habeas corpus is known as "the great and efficacious writ in all manner of illegal confinement",being a remedy available to the meanest against the mightiest. It is a summons with the force of a court order; it is addressed to the custodian (a prison official for example) and demands that a prisoner or a detenu be taken before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner or detenu. If the custodian is acting beyond his or her authority, then the prisoner or the detenu must be released.
18. In Sengkodi's case, cited supra, in Paragraph No.12, the Division Bench of this Court in an unambiguous terms has held that “even by assuming, without accepting, that a practicing Advocate can be permitted to enter into the shoes of his client, we have to keep in mind the consequences that will follow the suit if such acts are permitted to be performed by a practising Advocate. If such a situation is permitted, then, there may not be any client-Advocate relation but only a client and defacto client relationship between the party and his counsel, resulting in adversely affecting the dignity and decorum of the noble profession and further running contrary to the Standards of Professional conduct and etiquette, prescribed under the Bar Council of India Rules, wherein Rule 9 contemplated that 'an Advocate should not act or plead in any manner in which he himself is peculiarly interested' and Rule 18 mandated that 'an advocate shall not, at any time, be a party to fomenting litigation'
Keeping in view of the fact, we are of the considered view that this petition is devoid of any merit and is therefore deserved to be dismissed. Accordingly, this Habeas Corpus Petition is dismissed.
Index: Yes/No Internet: Yes gpa (M.J., J.) (T.M., J.) 16.02.2017 Note to Office: Issue order copy today (16.02.2017) To
1. Director General of Police, Kamarajar Salai, Kailasapuram, Mylapore. Chennai, Tamil Nadu - 600 005.
2. The Commissioner of Police, No.132, Commissioner Office Building, EVK Sampath Road, Vepery, Periyamet, Chennai, Tamil Nadu - 600 007.
3. The Inspector of Police, R-3 Police Station, 2nd Avenue, Ashok Nagar, Raghavan Colony, Kodambakkam, Chennai, Tamil Nadu - 600 024.
4. The Public Prosecutor Madras High Court
M.JAICHANDREN, J.,
and T.MATHIVANAN, J.,
H.C.P. No. 244 of 2017
16.02.2017