1977 K. L. T. 335

Subramonian Poti & Khalid JJ.

T. V. EACHARA VARIER

v .

SECRETARY TO THE MINISTRY OF HOME AFFAIRS & OTHERS

Constitution of India, Art. 226—Writ of Habeas Corpus—Dispute regarding the issue of the detention–Evidence if can be  taken by the court.

So long as it is the duty of the court to protect freedom of a citizen and his immunity from illegal detention the court cannot decline to exercise its jurisdiction merely because a dispute has arisen on the issue of the detention. “It is wrong to think that in Habeas Corpus proceedings the court is prohibited from ordering an inquiry into a fact. All procedure is always open to a court which is not expressly prohibited and no rule of the court has laid down that evidence shall not be received if the court requires it.”

1964 SC 1625; 1972 SC. 1140               Relied on

Constitution of India, Art. 226—Writ of Habeas Corpus—Respondents denying arrest and custody of person sought to be released–Court finding on evidence that the person has been arrested by Police Officers–Relief to be granted in such cases.

A writ of habeas corpus need not be equated with its counterpart in England, though analogy may be drawn from it. The High Court has power to mould reliefs to suit the requirements. In this case, having found that the petitioner’s son was taken into police custody and has not yet been released or accounted for by the police we would be distressed at leaving the matter there merely because of the affirmation by the respondents that the boy is not with them under the custody of any police officer in the State. If in spite of the facts that have come to light in this case no consequences follow it may lead to continued use of unfettered powers by the executive and especially the police which may ultimately erode the basic values on which the democratic way of life in this country is founded. If we are not satisfied about the answer by the respondents particularly because no explanation is even attempted as to how they have dealt with the son of the petitioner and where he is at present we should be able to deal with the matter. Personal freedom and liberty is the most cherished fundamental right of an individual and when we find as in this case that the authorities who have the backing of the police force of the State have infringed that freedom by taking a person into illegal custody we will not be satisfied unless it is shown that it is not possible for this Court to exercise its power to set the person at liberty. The very vehement plea by the Additional Advocate General that any direction would result in finding the respondents guilty of something for which they are not shown to be personally responsible and therefore we should desist from issuing any writ does not impress us at all. Our objective is not to impose any punitive actions for the improper conduct of any official but invoke and exercise the authority placed in this Court to protect the citizens’ freedom solemnly remembering the obligation of the Higher Judiciary of the land to act as sentinels of human liberty whenever and wherever there is serious threat to it. The petitioner’s grievance is genuine. As a distressed father he invoked the powers of the Court to command whoever is in custody to direct production of his son in this Court so that he may be released. Having positively found on the evidence that the son of the petitioner has been taken into police custody and on the presumption that unless it is shown that the custody came to an end it would have continued with the police, we cannot but grant relief in this case. But we shall not foreclose the opportunity of the State to make amends for what it should have done earlier. What we have in mind by way of direction to be issued in this case would, we hope, achieve this object. When the fact is that officers using police power of the State take persons into custody and deal with them as if such custody is required for the purpose of interrogation, it is not necessary that the petitioner should show which officer has the custody of the person at the moment. To say otherwise would be to unreasonably limit the doctrine of habeas corpus and deny the legitimate exercise of the function of this court. If the son of the petitioner came into police custody in whose custody he is at the moment is a matter which must be peculiarly within the knowledge of respondents in this case and in such a case the writ must issue against those persons who are in a position to give effective compliance to the writ.

1966 S.C. 81; 1892 A.C. 326                Relied on

S. Easwara Iyer & K. Ramakumar                   For Petitioner

Addl. Advocate General (T. C. N. Menon)            For Respondents

JUDGMENT

Subramonian Poti, J: — The case before us is unique in several respects. The petitioner here is the father of one Sri P. Rajan who was a final year student in the Regional Engineering College, Calicut during the academic year 1975-76. The petitioner complains that his son Rajan was taken into police custody on  1-3-1976 when Rajan was staying in the College Hostel and so far the police had not made known his whereabouts. The Principal of the College informed the petitioner by registered letter sent on the same day that his son had been arrested by the police. This was at a time when the proclamation of emergency was in force. The petitioner has not seen his son thereafter nor has he been able to get any definite information about him. The only remedy available to him at the time was to make representations to the authorities which he did with no result.

2. The petitioner has been residing in Cochin after he retired as a Professor of Hindi in the Government Arts and Science College, Calicut. Rajan is said to have been a fairly bright student and he is said to have never indulged in any kind of political or objectionable activity. His only activity was said to be in the field of Music, Drama and other arts, He had been the Secretary of the Arts Association in his college in 1973-74.

3. The petitioner’s  case is that he did not know why his son was arrested, that he made enquiries to police officers, who, he felt, would be able to give him the details about his son’s arrest and also about his whereabouts. It was then that the petitioner understood that Rajan was arrested under directions of the Deputy Inspector General of Police, Crime Branch, Trivandrum who is the 3rd respondent in the petition and was kept under custody of the Crime Branch of the State Police. The petitioner avers that he met the then Home Minister of the State Sri K. Karunakaran on 10-3-1976 and complained to him, whereupon    Sri Karunakaran promised to look into the matter. But nothing turned out of it. He sent a petition to the Home Secretary to the Government of Kerala on 15-6-1976, another on 1-7-1976 and yet another on 6-8-1976. To all these, the petitioner avers, there was not even a reply or acknowledgment. The petitioner stated in the earliest petition, copy of which is filed as Ext. P1 that his son had been arrested on 1-3-1976 and ever since then the petitioner has been unable to know anything about the whereabouts of the boy. The prayer that he made was that at least the whereabouts of his son may be make known to him so that the sufferings of himself and his family, may be alleviated. It appears that the petitioner continued his efforts at getting some information about his son but similar representations made to the President of India and Home Minister to the Government of India with copies to all the Members of Parliament from Kerala. The President of India informed the Petitioner that the matter had been referred to the Chief Secretary to the Government of Kerala. The petitioner avers that he made similar representations to the Prime Minister of India and others too all with no effect.

4. The Petitioner further avers in his affidavit that two of the Parliament Members from Kerala, late Sri A. K. Gopalan of the Lok Sabha and Sri V. Viswanatha Menon informed him of the intimation received by them from the Prime Minister and the Home Minister to the Government of India respectively that the matter was receiving their attention. Sri Viswanatha Menon M.P., also informed the petitioner that the matter was raised by him on the floor of the Rajya Sabha and by Mr. Samar Mukerji M.P. in the Lok Sabha.

5. The petitioner made his representation to the then Minister for Home Affairs in Kerala, Sri Karunakaran. In that letter it was pointed out that Rajan’s mother had become insane by reason of these developments and she was hospitalized. Ultimately when pursuant to the notification ordering elections in the Lok Sabha most of the political prisoners were released the petitioner was hoping that his son Rajan would also be released. In the meanwhile Sri Viswanatha Menon supplied the petitioner with a copy of the intimation received by him from the Home Minister of Kerala that the release of Rajan was under consideration. It has turned out during the course of the proceedings that the reference is to the letter dated 10th December 1976 written by the Honourable Minister for Home Affairs Sri K. Karunakaran to Sri Viswanatha Menon. Therein he acknowledges the receipt of a letter written by Viswanatha  Menon to him enclosing an application praying that Sri Rajan, son of Sri Eachara Varier should be released from detention. He informs Sri Viswanatha Menon that the said matter was under consideration. Ext. P3 is the copy of that intimation.

6. The petitioner further avers that on receiving the copy of Ext. P3 from Viswanatha Menon he met several police officers to ascertain the whereabouts of his son Rajan and coming to know that some of the students who had been similarly arrested were detenues in the Cannanore Central Jail the petitioner was vigorously searching in vain for his son in the three Central Jails of the State and also in the various other police camps and other places. He is said to have met the then Chief Minister Sri Achutha Menon several times and he further avers that Sri Achutha Menon had personal knowledge of the arrest of his son and also of his detention. However, it is said that on the last occasion the petitioner met Sri Achutha Menon the latter expressed his helplessness in the matter and said that the matter was being dealt with by Sri Karunakaran, Minister for Home Affairs. The  petitioner is seen to have thereafter appealed to the general public in Kerala by expressing his grievance in a pamphlet distributed to the public. He further avers in the petition that the Home Minister, who was a candidate in the recent elections, addressed several public meetings in Mala, Kalpetta and other constituencies of the State and in some of the meetings he is said to have made mention of the fact that the petitioner’s son Rajan was involved as an accused in a murder case and that was why he was kept in detention. If that be the case, according to the petitioner his son should have been produced before a Magistrate under the provisions of the Code of Criminal Procedure, in spite of the fact that the rights under Articles 21 and 22 remained suspended during the period of proclamation of emergency.

7.  It is therefore pleaded that the further detention of the petitioner’s son in the police custody to which he was taken is without any authority and therefore the respondents must be called upon to produce his son in court and he be released. The 1st respondent is the Home Secretary to the Government of Kerala. The 2nd respondent is the Inspector General of Police. The petitioner moved for impleading the Honourable Minister of Home Affairs, Sri Karunakaran and the District Superintendent of Police, Calicut as additional respondents 4 and 5. After hearing parties they too have been impleaded as parties.

8. Respondents have filed counter affidavits individually. The 1st respondent, the Secretary to the Government Home Department admits receipt of two petitions, one dated 15-6-1976 and another dated 6-8-1976, by the Home Department. He also admits receipts of a number of petitions sent by the petitioner to the Home Minister, Government of India, and the President of India subsequently forwarded to the Government of Kerala for appropriate action. The receipt of a similar petition from the petitioner also with a letter from Sri Viswanatha Menon to the Home Minister for the Government of Kerala is also admitted. It is said that the copies of these petitions were forwarded to the Inspector General of Police for enquiry into the allegations made therein. It is further said that on 7-1-97 the Inspector General of Police sent a letter to the Government stating that an enquiry had been conducted into the allegations made in the petitions but it was revealed that the petitioner’s son had not been taken into police custody at any time and that the principal wrote to the petitioner about the alleged arrest of the petitioner’s son based upon some hearsay information. The Inspector General of Police is also said to have informed to the Government that one Joseph Chali, a student of the Regional Engineering College, had been arrested and detained under the MISA on 8-3-1976 and from the said student the police got information about the involvement of one Muraleedharan a student of the Regional Engineering College and son of Sri K. M. Kannampilly, former Indian Ambassador to Jakarta, and the said Muraleedharan was arrested on 18-4-1976. It is further said that the Inspector General of Police informed the Government that when Muraleedharan was questioned by the police they got information that the petitioner’s son Rajan was affording facilities and shelter to some of the extremists. But it is said that by the time that information was received the police could not locate him as, by that time he had made himself scarce. Based upon this report of the Inspector General of Police which is marked as Ext. X1 dated 7-1-1977 the Government of Kerala is said to have sent up a report to the Government of India on the matter. That in spite of several petitions to the Government  by the petitioner he got no communication from the Government at any time is not denied in the counter affidavit of the first respondent.

9. The Inspector General of Police in a very short counter affidavit denies the arrest of Sri Rajan by the Police and the fact of custody by the police. He states that Sri Rajan has not been arrested by any police officer of the State. He further mentions that he made enquiries about this matter on the petition sent to Government of India and he submitted a report to the Government.

10. The 3rd respondent, the Deputy Inspector General of Police, Crime Branch, also avers that the allegation that the petitioner’s son was arrested by the State Police was untrue. He would say that he had not given any direction to arrest the petitioner’s son and the petitioner’s son had not been arrested by the State Police.

11. Sri K. Karunakaran who was formerly the Minister for Home Affairs and now the Chief Minister of the State has filed a counter affidavit denying the averments in the affidavit of the petitioner that he told the petitioner on 30-3-1976 that his son Rajan had been arrested from his college for involvement in some serious cases and he would do his level best to look into the matter and help the petitioner. While averment was made by the petitioner in the affidavit filed by him to seek impleading of the 4th respondent, the Chief Minister avers that he never told the petitioner that his son was in police custody at any time and so far he had no knowledge that the said Rajan had been in police custody at any time. He admits that he wrote Ext. P3 letter to Sri Viswanatha Menon M.P. but according to him he never admitted that the question of release of Rajan from custody was under examination. He also denies the averment that he spoke in public meetings about the petitioner’s son being an accused in any murder case and kept in police custody for that reason.

12. The District Superintendent of Police, who was impleaded as 5th respondent in the original petition, denies having taken the petitioner’s son into custody at any time. He would say that Sri Rajan was not wanted in any of the cases investigated by him and he had not been in the custody of any of the police officers. He refers to the two petitions sent by the petitioner and forwarded by the Government and the D.I.G. of Police, C.I.D. and Railways alleging that the petitioner’s son had been in the custody of the police from March 1976 onwards and praying for his release. He is said to have made a detailed enquiry. During the course of his enquiry he questioned the Principal of the Regional Engineering College, Sri Bahauddin, the Chief Warden Mr. Srinivasan and some others. He would say that from such enquiry he found that there was no evidence to show that the petitioner’s son had been arrested by police at any time. He would say that one Joseph Chali had been arrested in March 1976 by order dated 8-3-1976. According to him the Principal of the Regional Engineering College whom he contacted told him that the files kept in the college do not show that he had sent any such letter to the petitioner. But he told him that the Warden of the Hostel informed him that the petitioner’s son had been arrested by the police. The Warden who was also questioned is said to have told him that he got the information from one Ramakrishanan who was not available for questioning as he was on leave. He would say that Sri Ramakrishnan was informed about the alleged arrest of the petitioner’s son by some students, whose identify was not known.

13. The 5th respondent, the Superintendent of Police, further states that the petitioner’s son was not arrested in connection with the investigation of Crime No.19 of 1976 of Kayanna Police Station. He himself was present at Kayanna investigation camp from 28-2-1976 to 12-3-1976 and so was in a position to state that Rajan had not been brought for investigation to the camp by any police officer. But he says that police knew that the said Rajan was involved in extremist activities from Sri Muraleedharan, a student of the College who was absconding from the college from 16-9-1975. The 5th respondent further stated in his affidavit that the result of his enquiries revealed that the petitioner’s son had absconded from the college early in March 1976 probably apprehending police action against him when Joseph Chali, a student of the very same college was arrested. The report by him to the Deputy Inspector General of Police dated 28-12-1976 is marked as Ext. R1. In that he mentions that the police obtained information of the involvement of certain students of the Regional Engineering College in the Naxalite activities leading to the attack on the police station on 29-2-1976 from a source. It is said that enquiries were made from 1-3-1976 onwards and one student Sri Joseph Chali was interrogated in detail on the same day. Sri Chali was said to have been subsequently detained under MISA on 8-3-1976. It is further said that it was revealed that Rajan afforded facilities to some of the important accused concerned in the Kayanna Police Station attack case to conduct their clandestine meetings and it is also understood that Rajan had arranged shelters to some of the accused who had absconded after the occurrence in the said case.

14. We are met with an unusual situation here. Cases that have come up before the courts seeking the issue of rule of habeas corpus are those where the courts had been called upon only to decide the legality or the validity of the order of detention by the police or others having the custody of the person who was the subject matter of the habeas corpus petition. We have not been referred to any authority nor have we been able to locate any case where the court had to undertake the task of finding out the truth or otherwise of the plea of the detention itself. But such a situation has arisen here. But so long as it is the duty of this court to protect freedom of a citizen and his immunity from illegal detention we cannot decline to exercise our jurisdiction merely because a dispute has arisen on the issue of the detention. The Supreme Court in Mohd. Hussain v. State of U.P. A.I.R. 1964 S.C. 1625 said that:

‘It is wrong to think that in Habeas Corpus proceedings the court is prohibited from ordering an inquiry into a fact. All procedure is always open to a court which is not expressly prohibited and no rule of the court has laid down that evidence shall not be received, if the court requires it. No such absolute rule was brought to out notice.’

15. It may be appropriate that we refer in this context to the decision of the Supreme Court reported in Jage Ram v. Hans Raj A.I.R. 1972 SC.1140. That was an appeal filed by two police officers before the Supreme Court of India for expunging certain remarks made as to their conduct in the order of the Punjab and Haryana High Court on a habeas corpus petition filed by one Hans Raj Midha for the production of his son Prem Prakash Midha who was said to have been detained illegally by the Central Investigation Agency (C.I.A) Staff Karnal. The complaint of the petitioner there was that his son Prem Prakash was taken from his house at about 5 P.M. on 5-5-1968 by police officers, that he was being tortured in the police station and that such brutal torture was continuing though there was no record of arrest. On the rule being issued by the High Court and a Reader of the Court being appointed to search the office of the C.I.A. Karnal. Prem Prakash was found in the room of the police station lying on a gunny carpet spread on the floor with his feet swollen and with some injuries on his head. As directed by the court he was taken for medical examination and on 13-6-1968 produced in court. The evidence of Prem Prakash was taken in court and the affidavits of respondents to the writ were also in evidence. The court ultimately found on this evidence that the version of torture on Prem Prakash was true and also that the confinement of the detenue was illegal till 10th May 1968. But since on 10th May an order for keeping in judicial custody had been passed a writ of habeas corpus did not issue. But all the same the court found in its order on the habeas corpus petition that the affidavits sworn by the respondents by way of return to the habeas corpus petition did not represent the true state of affairs and that calculated falsehood had been imported in material particulars. It is this finding against respondents that was sought to be expunged in the appeal before the Supreme Court. But the Supreme Court found that the High Court had properly appreciated the evidence and some of the remarks to which exception was taken could be described as unwarranted, unnecessary, or irrelevant nor can they be characterised as generalisations or of a sweeping nature . Incidentally the court said at paragraph 7 of the judgment thus:

‘In a Habeas Corpus Petition where allegations are made that a citizen of this country is in illegal custody it is the duty of the court to safeguard the freedom of the citizen which has been guaranteed to him by our Constitution and to immediately take such action as would ensure that no person however high or low acts in contravention of the law or in a high handed, arbitrary or illegal manner.’

We are referring to this decision only to indicate that  practice of taking evidence in matters of habeas corpus had been noticed in that case by the Supreme Court and that was not disapproved.

16. We however need not go into this question further since learned Additional Advocate General Sri T. C. N. Menon submitted that he was not taking the stand that the court should not embark upon the examination of the materials in this case to find whether the plea of Sri Rajan being taken into police custody was true or not.

17. The three questions which we may have to consider in this case are:

(a) Whether Sri Rajan was taken into police custody on 1-3-1976?

(b) Whether Rajan is in police custody at the moment?

(c) What relief the court should grant in the circumstances of the case and against whom?

18. On the question of Rajan being taken into police custody there is a fairly good amount of evidence in this case. The Original Petition was filed in this court on 26th March 1977 which was a Friday. It was moved on the next sitting on 28th March. The learned Advocate General took notice on behalf of the respondents in the petition and the case was posted for showing cause as to why the application should not be granted. This was so posted to 30-3-1977. On that day the petitioner moved an application for impleading the Honourable Chief Minister of the State Sri K. Karunakaran and the District Superintendent Additional Advocate General took notice on this petition and the petition was allowed on 30-3-1977. Counter affidavits by the respondents were filed on 4-4-1977 and the case was posted to 6-4-1977 for hearing. On 6-4-1977 the petitioner filed a reply affidavit. Along with it affidavits of 12 persons were also filed, evidently in support of the case of the petitioner that Sri Rajan was taken into police custody. The explanation offered by petitioner’s counsel Sri Easwara Iyer for filing these affidavits only along with the reply affidavit and also for mentioning the fact that the petitioner met the then Home Minister Sri Karunakaran on 10-3-1976 only in the petition for impleading filed on 30-3-1977, is that at no time earlier was the petitioner told that his son Rajan was not in police custody and therefore when he came to this court he could not assume that this would be an issue in the case. Counsel  states that the day after the petition was moved in this court Sri Karunakaran who is the present Chief Minister of Kerala, and was earlier the Home Minister, stated on the floor of the Assembly of the State that Sri Rajan had never been arrested and this is said to have been reported in all the papers. Evidently therefore the question whether Sri Rajan had been taken into police custody became an issue then only and it is said at the hearing that was the reason why the averment that the petitioner had met the Chief Minister on 10-3-1976 was made only in the petition dated 30th March, 1977. On 30-03-1977 another motion was made by the petitioner and that was for permission to examine the principal of the Regional Engineering College, Calicut as a witness and on that the court had directed the Principal to be examined as a witness to prove the arrest of Rajan, a matter in issue in the case. He was summoned to appear in this Court with all relevant records on 5th April 1977 and in the event the summons was not served on him by that time on 6th April 1977. When the case thus came up for hearing on 5th April the Principal of the College was not present as by that time summons to appear had not been served on him. Counsel for the petitioner offered the deponents of the 12 affidavits for cross examination on the next day, i.e. on 6-4-1977. When the case came up on 6-4-1977 Professor Bahauddin, the Principal of the Regional Engineering College was present pursuant to the summons. He was examined. Nine of the deponents were offered by the petitioner for cross-examination. On the request of the Additional Advocate General for time their examination was adjourned on the specific understanding that if the case was not closed on the 7th of April, by which time the court would close for summer recess, the hearing would be continued on 11-4-1977. Ten of the deponents of the affidavits who were present on 7-4-1977 were offered for cross-examination by respondent’s counsel on that day and they were cross-examined by him. They are PWs 2 to 11 in the case. The petitioner had sworn his affidavit was available for cross-examination and Sri Easwara Iyer offered him for cross-examination by the respondents’ counsel on his affidavit. But the learned Additional Advocate General submitted that he did not want to cross-examine the petitioner on the affidavit filed by him. Though petitioner’s counsel submitted that he was ready to cross-examine the respondents in case they offered themselves for such cross-examination, the learned Additional Advocate General submitted that the respondents were not being offered for such cross-examination. Under such circumstances the evidence was closed and the case was heard on 11-4-1977.

19. It appears from the counter affidavit filed by the District Superintendent of Police, Kozhikode that on information being received on 29-2-1976 about involvement of certain students of the Engineering College in the Naxallite activities, enquiries were made among the students of the college from 7-3-1976 onwards. That one Joseph Chali was interrogated on 1-3-1976 and subsequently detained under MISA on 8-3-1976 is an admitted fact. The case of the petitioner as disclosed from the evidence adduced here is that on the morning of 1-3-1976 at about 4-30 A.M. some police officers entered the hostel buildings of the Regional Engineering College, went about searching the various rooms for Joseph Chali as well as Rajan, that this created a commotion in the Hostel, that sometime at about 6 or 6-30 A.M. Joseph Chali was taken out from the Hostel in a van, that Rajan was also taken out from the Hostel in the same van, that Rajan was the inmate of D Hostel at that time, while Chali was an inmate of E Hostel, that they were so taken in the van to a nearby lodge situated near the poultry farm, that the two boys were taken inside the lodge, that cries were heard from within the lodge, the two boys were taken out of the lodge after sometime and subsequently Rajan was moved to some place in a van, that he was seen sitting in the van near the State Bank Branch, that he was subsequently seen at Chathamangalam in the van, that he was taken to Kakkayam Tourist Bangalow, extensibly for interrogation and that he was seen lying there on a bench tortured by six policemen, including an Inspector of Police, wherefrom he was carried away unconscious. It is said that the petitioner could not have moved this court then for production of Rajan’s body on the ground of illegal detention on account of the Proclamation of Emergency and therefore he was desperately moving the State Government as well as the authorities of the Central Government to get some information about his son. But he got none. It is further attempted to be brought out in evidence that the petitioner had met the then Home Minister Sri Karunakaran on 10-3-1976 and complained to him about his plight and the Home Minister assured to him that he would look into the matter. But nothing happened. The petitioner is said to have repeatedly met the Chief Minister Sri Achutha Menon who ultimately expressed his helplessness as the matter was one in which the Home Minister alone was concerned. It is further said that when this became a matter of popular concern Sri Karunakaran realizing the situation had to explain this at the recent election meetings in his Constituency as also other Constituencies. This, in short, is the evidence attempted to be adduced in this case.

20. Professor Bahauddin, the Principal of the Regional Engineering College is examined to prove that it was reported to him on 7 A.M. on 1-3-1976 by the acting Chief Warden that Rajan and Joseph Chali had been arrested. A written report is also said to have been given to him at 9 P.M. that day. Consequent on this Sri Bahauddin sent registered letters on the same day to the parents of the two boys informing them of the arrest by the police officials that morning. Sri Bahauddin was summoned to produce the concerned papers. Accordingly he has produced the file. In the hearing the Additional Advocate General expressly stated that he is not asking the court to disbelieve Sri Bahauddin but on the other hand whatever was stated by him from his personal knowledge may be taken as true though what he has stated on hearsay information may not be accepted as true. That, of course, is fair enough. Professor Bahauddin speaks to the report having been made to him at 7 A.M. on 1-3-1976 about the visit of the police officers that morning and about taking Sri Rajan into police custody. He speaks to the report made to him. As to the actual arrest or taking into police custody he is not a witness nor would he be able to speak to it. He does not purport to do so. There is no case that Professor Bahauddin has any reason to depose against the respondents or in such a manner as to advance the case of the petitioner. Evidently he is an uninterested respectable witness. The student Rajan is said to have been taken from the College premises in the van by about 6-30 A.M. on 1-3-1976. The evidence of Sri Bahauddin established the fact that the acting Chief Warden reported the matter to him soon thereafter at 7 A.M. Since both the students were Hostel inmates the Principal is seen to have immediately contacted the Kunnamangalam Police Station. They informed him that they had not arrested anybody and they did not know anything about it. Though he attempted to contact the Superintendent of Police, Calicut he could not get him on the telephone. When he went to the Hostel, groups of boys told him that the two boys were arrested and taken into police custody. He wrote to the guardians of the boys on the same day and dispatched these letters by registered post. By way of further enquiry about Rajan the Principal deputed one Sri Abdul Gaffer, at the moment out of India, to the police officers. A copy of the letters sent to Eachara Varier and Paul Chali contained in Ext. P1 file is Ext. P1 (a). The dispatch particulars of these letters are shown in the slip in the file marked Ext. Pl (b). In cross examination the witness concedes that apart from the report and what others told him about the arrest he had no personal knowledge about it. The attendance register of the college (final year class) for the 7th Semester of 1975-76 is marked as Ext. P2. It is seen from the attendance register that from 1-3-1976 Rajan had not attended the college.

21. It appears to us that for the appreciation of the evidence of the witness in the case a proper background is furnished by the evidence of PW 1. That is because it cannot be said that the story of the arrest of Sri. Rajan was an afterthought made up for some ulterior purpose. That Rajan, a student of the final year class, had not attended the class form 1-3-1976 and the father had been moving heaven and earth to get the whereabouts of the boy is more than evident in this case. Even according to the police some information was received by them about the involvement of the students of the Regional Engineering College, Calicut in the Naxalite activities on 29-2-1976. It is also said now in the report of the 5th respondent marked as Ext. R1 that Sri Rajan had given shelter to some persons suspected to be naxalites and in spite of their efforts they have not been able to find out Rajan. There is no case that Rajan was not present in the Hostel till 1-3-1976. The evidence is that just before Rajan was taken into custody he had returned to the Hostel after attending the University D Zone Arts Festival. That on 1-3-1976 the police  came to the Regional Engineering College evidently for the purpose of interrogating at least another student Sri Joseph Chali is admitted. By about 7 A.M. the Principal gets the report of the arrest of Rajan from none other than Dr. Ramakrishnan the acting Chief Warden. It is difficult to believe that such a story about the arrest by the police of Sri Rajan was invented at that time and the groups of boys met the Principal on the same morning to inform him of such a concocted story.

22. None of the witnesses are examined in chief, for petitioner’s counsel submitted that they having deposed to the facts in their affidavits such evidence may be accepted and if any examination was desired by the respondents that may be done. Therefore the witnesses were cross-examined on the averments made by them in the affidavits. These witnesses speak to situations at different periods of time. PW 2 is a student in the final year class of the Regional Engineering College and was a student also at the relevant time. he was staying in the Hostel. PW 3 one Narayanan Nair, is the watchman who was on duty from 10 P.M. on 29-2-1976 to 6 A.M. on 1-3-1976. They are examined to speak to the fact that a group of police officers came to the Hostel and began making enquiries for Rajan.  PW 2 speaks to their making enquiries for Rajan and Chali and PW 3 speaks to the enquiries made for P. Rajan who was in room No. 144 in the D Hostel. PW 3 further swears that he informed Prakash, the Secretary of the Hostel, about this, and met Dr. Ramakrishnan the acting Chief Warden to inform him about this. In the sequence of events we must next refer to PW 5. While he was going to the Hostel that morning for his duty he saw Rajan being taken to a police tempo van by a Circle Inspector and some constables. PW 4 is the part time sweeper of the college by name Balasubramoniam. He was on duty on 1-3-1976 and by about 6-30 A.M. when he reached the college he saw two vans standing in front of the D Hostel. Near one of them he found a Detective Inspector of the Crime Branch, Sri Sreedharan, a Police Constable, Raghavan Nair, and the driver of the vehicle of the Crime Branch. They were standing near the van.  In one of the vans he is said to have seen both Rajan and Chali. The van with these two boys and policemen is said to have proceeded to a lodge nearabout and that it was stopped near the lodge. The two boys were taken into the lodge and it is said that cries were heard from inside the lodge. After about 15 minutes the boys are said to have been brought outside the lodge. Next the van is seen in front of the State Bank Branch inside the College premises. The van is seen parked. PW 6, the fulltime sweeper of the college, saw the van parked on the side of the lodge near the State Bank Branch. But at that time only Rajan was in the van flanked by policemen. PW 7, Koru the mess boy, also speaks to having seen the van parked in front of the Bank Branch in the College premises. Rajan alone was seen in the van at that time. PW 7, it maybe mentioned, was arrested from his house at about 9-30 P.M. by the police on 1-3-1976 in connection with Crime No. 19 of 1976, taken to Kunnamangalam Police Station, then to a police camp in Kakkayam, kept in the police camp for 12 days and then taken to Maloorkunnom in Chevayoor and was housed in the Cannanore Central Jail where he was a detenue till 24-3-1977. He speaks to having seen Joseph Chali at Kakkayam camp when he was there. The van seems to have proceeded further and PW 8, Surendran, saw that van at the place near Chathamangalam. He knew Rajan earlier. The van had been parked near a toddy shop. When he looked into the van he saw Rajan with policemen inside the van. We have the evidence of PW 9 to speak to what happened to Sri Rajan thereafter. PW 9 is one Rajan running a Typewriting Institute. He was arrested by the Crime Branch even as early as on 28-2-1976, according to him under the wrong impression that he was associated with Naxalite activities. He was taken by the Crime Branch Police into their custody, was interrogated and next day taken to a room in Hotel Maharani, was kept there and on 2-3-1976 he was taken to Kakkayam Travellers Bungalow in a police jeep, dragged to a room in the said Bungalow and while he was there he saw Rajan being tortured by six policemen, one of whom he knew as Sub Inspector Pulikkodan Narayanan. After some time Rajan became unconscious and he was carried out of that place by the same individuals. He also speaks to the fact that at that time the District Superintendent of Police and some of the police officers were present at the Travellers Bungalow. This in short, we may say, is the evidence sought to be adduced by the affidavit filed by these witnesses. We are particularly mentioning this to show that this is not a case brought out in cross-examination.

23. PW 4, the part time sweeper in the College Hostel who spoke to having seen officers in mufti and who could identify them, was reluctant in cross-examination to disclose further about this, for he feared something may happen to him in the event he deposed against the police. He sought the protection of the court. The Additional Advocate General assured the court that nothing would happen to the witness deposing in the case. PW 4 was in a position to mention the names of the officers particularly because according to him he was a witness in a case investigated by the Crime Branch. He was a witness to recovery of a weapon. As such he had been summoned to court and he was taken in the police van to the court for deposing. Sub Inspector Sreedharan of the Crime Branch, Constable Raghavan Nair and the driver of the Crime Branch were known to him. The same Sub Inspector had come to investigate the case in which he was a witness and which was one in the locality of his house. No attempt was made to show that the statement of this witness was not true. We can find no reason why a witness such as PW 4 should perjure to promote the case of the petitioner, a retired Professor staying far away in Cochin. It has been suggested that by this time the matter had assumed the proportions of an emotional issue and therefore witnesses may speak even to matters which they have not seen. Of course we should exercise extreme care in assessing their evidence. But this is different from saying that the witnesses are strangers to the incidents spoken to by them. They are liable to commit mistakes in regard to the exact time the persons they saw and other details, particularly as they are deposing to a matter more than a year old. But we see no reason to disbelieve the witnesses in this case as nothing has been brought out to indicate that all or any of them have been speaking untruth for any ulterior purpose.

24. We may broadly indicate that what has been attempted by cross-examination of the witnesses is only to show that there is discrepancy as to time, discrepancy as to whether the policemen were in uniform or not and whether the two boys went in one van or two vans. On carefully going through the evidence we find no material discrepancy which would persuade us to reject their evidence. Going through the evidence of the witnesses we find their case is that the police in mufti searched the room for Rajan and Joseph Chali who were in two different Hostels. Some of the officers in uniform had also come there. But they had not engaged themselves in the search. At some point of time there were two police vans in front of the College. Though the two boys were taken together from the hostel after visiting the lodge nearby Rajan was taken by himself in one of the vans. That is the evidence attempted even in the affidavits filed by these witnesses along with the reply affidavit and these are not matters brought out by cross examination.

25. It is said by the learned Additional Advocate General that in the affidavit filed by PW 2 it is said that both Rajan and Chali were taken away in the van but some of the witnesses speak only to Rajan being taken into the van. Going through the affidavit of PW 2 marked as Ext. P5 along with the reply affidavit it is seen that what is stated there is not that both Rajan and Chali were taken simultaneously into the van. In fact they were in two different Hostels and it is unlikely that they would have been taken simultaneously. According to PW 2, though the persons who took the two boys from the hostel were people in mufti, officers in uniform had also come there and he assumed that those who took Rajan were police officers because the same set of officers had taken Chali also, and Chali was later reported to be arrested. He does not speak to the boys being taken to the van or having seen them getting into the van but speaks to both of them being taken from the hostel premises in the same van. Of course that is the case of the petitioner as reflected in the affidavits of the witnesses filed. The evidence of PW 3 is challenged on the ground that in his affidavit he mentions the group of police officers in plain clothes coming to the hostel and searching in the rooms asking for Rajan, but in cross examination mentioning that some persons had uniform. But in re-examination the witness speaks to the fact that it was the person in mufti who searched the rooms, which is the substance of the affidavit filed by him. He did not say in the affidavit that the officers in uniform were not there at any time. That they were also there is consistent with the other evidence in the case. PW 5 speaks to the moment of time when Sri Rajan was taken into the police tempo van and he only speaks to this fact. That there were police officers at that time is what other witnesses have also spoken to and if the witness saw the officers in uniform actually putting Rajan into the van there is nothing wrong with that evidence. At that time there was only one van. After 10 minutes the van is said to have gone west. But he was not asked as to what happened in between that time. PW 4 Balasubramoniam evidently came to the scene at a time when both the boys Rajan and Chali had been put into the same van and the van thereafter proceeded to the lodge. At that time there were two vans. The existence of two vans is quite consistent with the petitioner’s case, for, after the boys were taken to the lodge, according to the petitioner’s case, Rajan was separated and he alone was in the van thereafter. That would mean that the other van must have been available for taking Chali. There is no reason to doubt the veracity of his evidence. By the time PW 6 sees the van in front of the State Bank there was only Rajan in the van and there were three or four policemen in the van, one or two of them being in uniform. He did not wait for the van to leave the premises of the State Bank. PW 7 also speaks to having seen the van in the same place with two or three men inside. It is significant that in spite of his statement that he had been arrested at 9-30 P.M. on 1-3-1976, taken to Kunnamangalam Police Station and later to the police camp at Kakkayam where he was detained for 12 days, no cross-examination was made about this by the respondents. Evidently his case about the detention by police must be true and it was at Kakkayam that he saw Chali as spoken to by him. There was no suggestion made to PW 8 as to why he was interested in deposing for the petitioner. The van had by that time proceeded from the State Bank premises further to the place known as Chathamangalam and it had been stopped in front of a toddy shop. We see no reason to disbelieve this witness also.

26. We have anxiously gone through the evidence of PW 9, for according to us his evidence goes a long way to substantiate the petitioner’s case. He has categorically stated in his affidavit that he had been taken to the Kakkayam camp, was there for a number of days and at that time he saw Rajan there. There is not even a suggestion in his cross examination that he was not taken by the police on 28-2-1976 or that he was not in Kakkayam for the days he mentioned he was there. The only question that had been asked to him was whether he knew anyone of the 6 people at the Kakkayam T.B. and he said he did know one of them, Pulikkodan Narayanan. He was also asked whether he saw Rajan on that day, whether he saw Chali, and was also asked why he was arrested. The case of this witness that he had been taken to police custody even on 28-2-1976, that he saw Rajan at Kakkayam T.B. and that Rajan was tortured and was thereafter taken out in an unconscious condition is evidence which we see no reason to disbelieve. Nothing has been shown to us as to why we should consider the evidence of these witnesses as not reliable. The learned Additional Advocate General, beyond pointing out certain discrepancies in the evidence of these witnesses, has not indicated that all these witnesses are clearly perjuring to matters they have never seen. No attempt has also been made in the cross examination of these witnesses to suggest such a case. Therefore an overall appreciation of the oral evidence leads us to the conclusion that Rajan was taken on the morning of 1-3-1976 from the Regional Engineering College by the police, was seen later under the police custody at Kakkayam T.B. being tortured by six policemen including Pulikkodan Narayanan and therefore it is established that till that point of time he was in police custody.

27. There is another point attempted to be proved by the petitioner. Sri Karunakran was a candidate from the Mala constituency during the recent Assembly elections. The petitioner, Sri Eachara Varier, is said to have published a pamphlet appealing to the public about the cause of his son. It is said that to counter the popular appeal of this pamphlet and consequent adverse reaction on the election prospects, Sri Karunakaran had to advert to the matter during his election campaign. At the ‘samapana rally’ of the election campaign he is said to have admitted the detention of Sri Rajan, and explained it to be because he was a member of a banned organisation. PW 10 and PW 11 are two persons who are said to have heard the speech. Their cross-examination indicates that the answer to their evidence is that they are interested persons as they belong to the politically opposite camp. That  by itself may not be sufficient to discredit their evidence. But we are not basing our decision on the evidence of these witnesses for another reason. If we believe the case that Sri K. Karunakaran, the then Home Minister, admitted the detention of Sri Rajan, that by itself would be sufficient to allow the petition. We would base our conclusion on the evidence of the witnesses in this case who speak first hand rather  than what is said to be admitted especially when that is refuted. So in the case with the Ext. P3 letter to which we will advert in due course.

28. The petitioner in this case avers in his affidavit of 30-3-1977 that he met Sri Karunakaran, the then Home Minister, on 10-3-1976 at the Manmohan Palace at Trivandrum and Sri Karunakaran told him that his son Rajan had been arrested from the College for involvement in some serious case and he would do his level best to look into the matter and help the petitioner. He would also say that he later met Sri A. K. Antony, K.P.C.C. President, and a former student of the Maharaja’s College, on the 4th of January, 1977 and on the 2nd of February, 1977 and Sri Antony assured him that Rajan was alive and in custody and he would see the Home Minister in this regard. In the counter affidavit filed by Sri Karunakaran reference is made to the averment of the petitioner. What is stated in reply is this:

‘The allegation made in paragraph 2 of the additional affidavit that I told the petitioner on 10th March 1976 that his son Rajan had been arrested from his college for involvement in some serious cases and he would do his level best to look into the matter and help the petitioner is absolutely incorrect. I have never told the petitioner that his son Rajan was in police custody at any time, and so far, I have no knowledge that the said Rajan has been in police custody at any time.’

We regret to say that this is not meeting the point raised by the petitioner, for one would like a direct answer – particularly in view of the seriousness of the averment – as to whether the petitioner did meet Sri K. Karunakaran on 10th March, 1976. If he did meet him it would have been necessarily for the purpose of complaining about the disappearance of his son and more than what the reply of Sri Karunakaran was, the fact of meeting Sri Karunakaran itself would be relevant. Sri Karunakaran could also have then said what reply he gave to the petitioner. One would be tempted to read from the counter affidavit that the case is that the petitioner had not met the then Home Minister. But at the hearing when we put this question specifically to Sri T. C. N. Menon,  it was submitted that Sri Karunakaran was not denying the fact of the petitioner meeting him, but he was only denying the case that he admitted about the arrest of Sri Rajan. Counsel would also say that he is also not admitting about the date for Sri Karunakaran is not sure of it. One may not remember on what date  any visitor met him. But we would have been happy to find the case in the counter affidavit that though the petitioner met him sometime he did not mention to the petitioner that Rajan was in police custody but mentioned something also. Though this was what was submitted by the learned Additional Advocate General we are surprised to find later a different stand taken in the hearing note submitted by the Additional Advocate General at the hearing. The hearing note did not come at our instance. In fact we do not normally encourage the practice of filing hearing notes. When the case was being heard the hearing note was filed by the learned Additional Advocate General requesting us to look into the notes before disposing of the case  On going through the notes it is seen stated:

‘Another important aspect which may be dealt with here is the petitioner’s allegation that he met the then Home Minister, Kerala on 10-3-1976 and then the Home Minister told him that the petitioner’s son had been taken into police custody in connection  with a serious criminal case. I would like to submit that this allegation is absolutely unfounded. Apart from the categorical denial of the then Home Minister in his counter affidavit filed before this Court, the entirety of the circumstances and the petitioner’s conduct shows that this allegation cannot be true.’

We assume that in view of what was stated by the learned Additional Advocate General before this court he is not pursuing this stand taken to his notes. If it is admitted that the petitioner met Sri Karunakaran on 10-3-1976 or some other day at about that time and then representation was made to Sri Karunakaran if the answer was different from what is stated by the petitioner that should have been mentioned in the counter affidavit. Whatever that be we cannot fail to give credence to the petitioner’s case that he met Sri Karunakaran to represent about his grievance and evidently that must have been either on  10-3-1976 or somewhere about that time. It is more so when the petitioner has offered himself for cross-examination on his affidavit and the learned Additional Advocate General said that he does not desire to cross examine him.

29. It has come out that repeated representations made to the Government of Kerala were not of any use to the petitioner. He was not even shown the courtesy of an acknowledgment. To the Home Secretary he is said to have sent representations on 15-6-1976 by registered post, on 1-7-1976 and yet another on 6-8-1976. Mention is made in the counter affidavit of the 1st respondent that two unsigned petitions one dated 15-6-1976 and another dated 6-8-1976, were received in the Home Department. There is no denial that the petition dated 1-7-1976 was not received or that it was not signed. It appears that the case is that no action was taken on the petitions because they were unsigned. But it is seen that the petition dated 15-6-1976 is received, numbered and some action taken thereon, while not even any any initials are seen on the petition dated 6-8-1976. Anyhow it is not necessary to go into this further. It is only when representations made by the petitioner to the Members of Parliament, Home Minister of Government of India and President of India were forwarded to the State Government that the necessity was felt for sending a report to the Central Government and the report Ext. X1 was obtained in that context. It is evidently based upon the report of the District Superintendent of Police, Kozhikode. A copy of that report was filed by him along with his counter affidavit marked Ext. R1. That shows the indifferent and careless manner in which an enquiry is said to have been conducted. In that report it was mentioned that the principal could not trace out the office copy of the communication from the college office. The background materials based on which he wrote to Sri Eachara Varier were also said to have been not available at the college office. Evidently the reference is to Ext. P1 file. The Principal categorically stated that the police officers did not question him about the letters he had written and about the report to the Governing Body and also to the Ministry of Education. Evidently therefore no serious attempt was made to look into this matter.

30. By itself the question whether the petitioner met the Home Minister on 10-3-1976 to represent about the disappearance of his son may not be very significant. But that becomes relevant as background material to assess the subsequent conduct of the Home Minister. It could possibly be said that the several representations received by the Home Secretary direct from the petitioner and through the Central Government did not come to the notice of the Home Minister. But the representation sent along with the letter of Sri Viswanatha Menon did come to his notice. The reply Ext. P1 is signed by him personally. If  on 1st March, 1976 or thereafter the petitioner had met the Home Minister in connection with the controversy and the issue had not been closed for months, the Home Minister would have been, in the normal course, able to say that no action was called for as Rajan was not in custody. Ext. P3 is at least evidence of the fact that even as late as in December, 1976 the State or its officers had no case that Rajan had not been taken into custody, though the Home Minister himself had been contacted soon after 1-3-1976. Whether by Ext. P3 the Home Minister intimated that the matter of release was under consideration is a question on which there is keen controversy. For the Home Minister it is said that this was not what was meant. Though plainly read this is what appears from the words “prasthutha karyam” [“the said matter”] in the Ext. P3 letter. We do not want to rule out the possibility that what was meant was only that the petition was under consideration. If at all we err in this, we would like to err so as to accept the explanation of the author of the letter. Moreover we would like to base our decision on surer grounds and not on the construction of Ext. P3 letter. But the conduct of all those who dealt with and who were responsible for dealing with the successive representations of the petitioner received by the Home Secretary and the Home Minister is callous, if not highly suspicious. Though no action seems to have been initiated on representations received by the Home Secretary directly from the petitioner, it had to be a different story when representations made by Members of Parliament to the Central Government were forwarded to the 1st respondent. Sri A. K. Gopalan’s letter together with the petitioner’s representation is seen forwarded to the 1st respondent on 10-9-1976. Thereupon this was sent by the 1st respondent to the 2nd respondent, the Inspector General of Police, for his remarks. This was by letter dated 17-9-1976. A similar representation from M. K. Krishnan, M.P. was forwarded to the 1st respondent by the Home Ministry of the Union Government on 13-9-1976. It was then that Viswanatha Menon, M.P. forwarded the representation of the petitioner along with his letter to the Home Minister Sri Karunakaran along with his letter dated 19-9-1976. That again was directed to be forwarded to the 2nd respondent for enquiry and necessary action. The Inspector General of Police seems to have sent up no report, so much so that he had to be reminded by letter dated 11-10-1976. On 22-10-1976 the Inspector General seems to have informed the 1st  respondent that the matter was under correspondence with the D.I.G., C.I.D. and Railways and the report was awaited. In the meanwhile Sri Viswanatha Menon complained to the Home Minister by his letter dated 5-11-1976 that his earlier letter had not even been acknowledged. Possibly it was because of this reminder that Ext. P3 was sent nearly a month later. The Inspector General of Police was again reminded by the 1st respondent for the report by his letter dated 11-12-1976. The 2nd respondent in his turn wrote to the Deputy Inspector General of Police, Railways and C.I.D., reminding him that the report be sent. The Deputy Inspector General of Police, Railways and C.I.D. replied to the Inspector General of Police, that the report had been called for from the Superintendent of Police, Kozhikode and that was not received and hence was being reminded. Then comes the report of the Superintendent of Police, Kozhikode already adverted to elsewhere in this Judgment. Nothing but a casual enquiry seems to have been made. But every officer concerned seems to have been quite satisfied. They were evidently more interested in some report to be forwarded to the Union Government than in the report itself. None seems to have exercised himself on the correctness or adequacy of the report. The inordinate delay in setting a report, the casual manner in which the report was prepared, and the indifference with which it was considered by those through whose hands it passed need not be particularly commented. We are afraid it is nothing but a general reflection of an attitude of indifference to such issues relating to liberty and freedom of the citizen, and it must be a matter of great concern particularly because at the relevant period the citizen had no protection from court but had depended on the good sense and fairness of the executive.

31. Though all the respondents in this case have filed counter affidavits respondents 1 to 4 do not purport to speak on the issue before us from their personal knowledge. They were not in position to say from first-hand knowledge that Sri Rajan was not taken into police custody. The 5th respondent swears that he was present throughout in the Kakkayam Tourist Bungalow and that Rajan had not been taken there. We are not impressed with his statement. We have commented elsewhere in this judgment about the report prepared by him on the matter of disappearance of Rajan, a copy of which is filed along with his counter affidavit. We have, on the evidence of Professor Bahauddin, found that Ext. P1 file which was available was never sought by the police officers who conducted the enquiry and if so to say that background material was not available as seen stated in the report of the 5th respondent is nothing but dishonest. Even after this evidence came into the case, Sri Lakshmana, the District Superintendent of Police had not offered himself for cross- examination. We have chosen to accept the evidence PW 9 who saw Rajan in the Kakkayam Tourist Bungalow. In these circumstances the counter affidavits filed by the respondents in this case are of no assistance to them in meeting the case that Rajan was taken into custody by the police on 1-3-1976.

32. It may not be out of place to point out that the counter affidavits have not been of much assistance to us also. Taking into account the gravity and the seriousness of the case we would have expected the counter affidavits of the Home Secretary or the then Home Minister to detail all the steps taken by the State Government in the matter of enquiry into complaints relating to the whereabouts of Sri Rajan. We would have expected an explanation for the delay in getting a report. We would have expected the affidavit of Sri Karunakaran, the present Chief Minister also to be more categorical, particularly in answering the plea that the petitioner met him on 10-3-1976, soon after the date on which the student is said to have been arrested. We would also have liked to know what, if any, was his response, if it was not that he would look into the matter. We would naturally have been anxious to know whether there was any follow up by Sri Karunakaran. We leave the matter of the counter affidavits at that.

33. At the hearing the learned Additional Advocate General submitted that it was proposed to appoint a Commission of Enquiry to go into this question. The issue arose long ago and it was only after the petitioner moved this Court that any such idea of appointing a Commission has arisen. We are not impressed by this offer. That apart, that would not be an answer to this writ. We cannot abdicate our function to adjudicate on this application in the hope that Government may in due course set about finding about the truth of the case. We are constrained to decide this case on the evidence before us.

34. From what we have discussed above, we find that Sri P. Rajan, son of the petitioner, was taken into custody from the premises of the Regional Engineering College Hostel, Calicut on the morning of 1-3-1976, that he was taken to Kakkayam Tourist Bungalow and was seen there on 2-3-1976. Therefore that part of the case stands proved.

35. The next question is whether it is shown that Sri Rajan continues to be in the police custody. If he does not, even if we find that he was once taken into custody we may not be able to issue any writ to the respondents. We do remember that a writ of habeas corpus is purely remedial and ‘carries no punitive or deterrent force, save in so far as the authorities may be embarrassed by adverse publicity’. But the question whether Sri Rajan is in police custody now is a matter for investigation. Now that we have found that he was taken into police custody normally he should be deemed to continue in such custody unless otherwise shown. Of course it is open to the respondents to show that he is no longer in such custody by reason of his having been released or he having absconded or having died in police custody. This is a pleading which the respondents should make in reply to the rule when once the fact of the police taking Sri Rajan into custody is either admitted or proved. But unfortunately the respondents have disabled themselves from pleading so or proving it by the stand they have taken. If we are called upon to decide one way or the other as we are, normally the presumption that Rajan continues to be in police custody has necessarily to be drawn by us. We have necessarily to notice the peculiar circumstances under which we come to the conclusion for the purpose of this petition that Sri Rajan is in the custody of the police. In moulding the relief in this case we will have to bear in mind this unique circumstance.

36. The very difficult part of our decision-making process in this case is the determination of the remedy that should be granted to the petitioner in the circumstances indicated. That a writ of habeas corpus need not be equated with its counterpart in England, though analogy may be drawn from it, is a principle well established. The power of the High Court to mould relief to suit the requirements has been recognised by the Supreme Court of India in Dwarka Nath v. Income Tax Officer, Special Circle D Ward, Kanpur and another (AIR 1966 SC. 81). The Court said:

‘............... but the scope of those writs also is widened by the use of the expression ‘nature’, for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Court to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure.’

37. While discussing the relief that should be granted in this case it will be profitable to advert to a decision of the House of Lords in Thomas John Barnardo v. Harry Ford (1892 A C. page 326.) That was a case where on an application by the mother for a writ of habeas corpus in respect of her child directed to the head of the institution in which the child had been placed, it appeared that the child had been handed over to another person to be taken to Canada without the authority from the mother. The Queen’s Bench Division directed the issue of a writ in the circumstances and the Court of Appeal confirmed it. The House of Lords confirmed the decision of the Court of Appeal holding that the writ ought to issue on the ground that the applicant was entitled to require a return made to the writ in order that the facts might be more fully investigated. Having found that the petitioner’s son was taken into police custody and has not yet been released or accounted for by the police we would be distressed at leaving the matter there merely because of the affirmation by the respondents that the boy is not with them under the custody of any police officer in the State. If in spite of the facts that have come to light in this case no consequences follow it may lead to continued use of unfettered powers by the executive and especially the police which may ultimately erode the basic values on which the democratic way of life in this country is founded. If we are not satisfied about the answer by the respondents particularly because no explanation is even attempted as to how they dealt with Rajan and where he is at present we should be able to deal with the matter. Personal freedom and liberty is the most cherished fundamental right of an individual and when we find as in this case that the authorities who have the backing of the police force of the State have infringed that freedom by taking a person into illegal custody we will not be satisfied unless it is shown that it is not possible for this Court to exercise its power to set the person at liberty. The very vehement plea by the Additional Advocate General that any direction would result in finding the respondents guilty of something for which they are not shown to be personally responsible and therefore we should desist from issuing any writ does not impress us at all. We repeat that our objective is not to impose any punitive actions for the improper conduct of any official but invoke and exercise the authority placed in this Court to protect the citizens’ freedom, solemnly remembering the obligation of the Higher Judiciary of the land to act as sentinels of human liberty whenever and wherever there is serious threat to it. The petitioner’s grievance is genuine. As a distressed father he invoked the powers of this Court. to command whoever is in custody to direct production of his son in this Court so that he may be released. Having positively found on the evidence that Sri Rajan has been taken into police custody and on the presumption that unless it is shown that the custody came to an end it would have continued with the police, we cannot but grant relief in this case. But as we said earlier we shall not foreclose the opportunity of the State to make amends for what it should have done earlier. What we have in mind by way of direction to be issued in this case would, we hope, achieve this object.

38. Lastly, Sri T. C. N. Menon, the learned Additional Advocate General urged that if some police officers misconducted themselves by taking into police custody any person without authority and kept him in police custody for the purpose of interrogation that will certainly call for stern action against such officers but would not be sufficient to issue a writ against the superior officers who are not directly responsible for the illegal detention. We are afraid this is oversimplification of the issue. The police officers taking a student from a college hostel for the purpose of interrogation possibly at places designed for this purpose in connection with investigation of cases are acting in their role as police officers. It is more so when, in spite of notice of the State being brought to this situation, nothing has been done to disapprove of such action. If what is alleged in this case is true—we have found it to be so—it is only a symptom of a disease. It would not be possible under such circumstances for any person seeking a writ of habeas corpus to pinpoint the officer who has taken the person into police custody. When the fact is that officers using police power of the State take persons into custody and deal with them as if such custody is required for the purpose of interrogation, it is not necessary that the petitioner should show which officer has the custody of the person at the moment. To say otherwise would be to unreasonably limit the doctrine of habeas corpus and deny the legitimate exercise of the function of this Court. The belated attempt made by the learned Additional Advocate General at the hearing to assign the blame on some overzealous police officers does not impress us as sufficient to warrant refusal of relief to the petitioner for that reason. It is not as we have no material in this case to indicate the police officers who could be said to be involved in the taking of Rajan into police custody. PW 4 had particularly identified the Crime Branch Inspector Sreedharan and the police constable who were on the scene when Rajan was taken into the van. The presence of Pulikkodan Narayanan at the Kakkayam Tourist Bungalow when Rajan was seen to be under restraint and was being tortured has also been spoken to. The presence of Superintendent of Police Sri Lakshmana at Kakkayam Tourist Bungalow at the time when Sri Rajan was being put on torture is also spoken to by PW 9 and we have accepted his evidence. Maybe if we are concerned with pinning the responsibility on one officer or the other, this evidence may have to be used. But this is not relevant because the question here is who is in custody of Rajan at the moment. If Rajan came into police custody in whose custody he is at the moment is a matter which must be peculiarly within the knowledge of respondents in this case and in such a case the writ must issue against those persons who are in a position to give effective compliance to the writ.

39. We may refer to a passage from the treatise on the Law of Habeas Corpus by R. J. Sharpe at page 170. The learned author says:

‘The general rule is that the writ of habeas corpus should be directed to the person who has physical custody of the prisoner. The writ may, however, be directed to several persons where there is some doubt as to who has custody or, to some person other than the gaoler or actual custodian of the party detained. With respect to the latter possibility, problems may occur where it is doubted that the person to whom the writ is directed has sufficient custody or control of the prisoner.

This issue will usually arise where it is sought to make a minister of the crown respondent to the writ. This has been done in a large number of cases without any argument or comment.’

In King v. Secretary of State for Home Affairs, Ex. Parte O’Brien (1923 (2) K.B. 361) the Court of Appeal in England considered the issue of an application of writ of habeas corpus to the Secretary of State when the applicant had been arrested and had been deported to Dublin. His case was that he should not have been restrained and therefore should be released. By surrendering the applicant to the Free State Government the Secretary of State had lost the legal control of his body. But notwithstanding this the Court of Appeal took the view that the application was properly made against the Secretary of State as there was sufficient doubt whether he had not, in view of his agreement with the Government, exercised de-facto control over the applicant’s detention. The author to whom reference was made earlier, Mr. R. J. Sharpe commenting on O’Brien’s case remarks thus:

‘The principle established in the O’Brien’s case is a sound one. It identifies the real issue as being that of control so that the Court’s order will be effective. The test may be stated as follows: if an order of discharge is made but not carried out, would it be reasonable to hold the prospective respondent to account for failure to implement the order?’

40. It is not disputed that the police visited the Regional Engineering College to interrogate the students in connection with the Crime No. 19 of 1976. In paragraph 5 of Ext. R1 it is admitted that the investigation of the case was conducted jointly by the Crime Branch and the local police and the 5th respondent was present throughout from 28-2-1976 to 12-3-1976 at the investigation camp at Kakkayam. His statement that Sri Rajan was not brought to the investigation camp cannot, as we have already found, be believed. Therefore it is only natural that the writ is to issue to him as well as the 3rd respondent, the Deputy Inspector General of Police who was in-charge of the investigation of the case on behalf of the Crime Branch. Since it is not ascertained as to which officer of police or which station of the police is in custody of Rajan now it cannot be said that the writ cannot be issued to the Inspector General of Police. It would be only appropriate in the circumstance of the case that the Secretary, Home Affairs and the Chief Minister are also those to whom the writ is directed in the context of what we have said earlier. In the circumstances we think that in order to obtain compliance the writ should be issued to respondents 1 to 5.

41. We now come to the course to be adopted in this case. It is difficult to believe that any serious notice had been taken of the petitioner’s complaint at any earlier stage. That it has been brought to the notice of Sri Karunakaran, the then Home Minister, cannot be in doubt. There is some evidence disclosed to show that after the relaxation of the emergency the issue has become rather serious, particularly among the student population. We are referring to the resolution passed by the Calicut Engineering College Union protesting against the statement of Sri Karunakaran that Rajan has not been taken into custody. Possibly as a result of this or possibly as a result of this petition there is an offer by the Additional Advocate General that a Commission of Enquiry will be appointed soon after the decision of this case to go into the truth or otherwise of the arrest of Sri Rajan. As to the truth of that we have already found. If honestly the Government is not in a position to tell the Court the whereabouts of Rajan it is highly regrettable. There should no doubt be sincere anxiety to bring to book those responsible, but more than that it should be to ascertain the whereabouts of Rajan and if he is not available to make it known to the parents what happened to him after he was taken into police custody. Whether he is still in police custody and if not, how such custody came to an end, has to be found out. We do not feel that any such honest anxiety is reflected in the offer to appoint a Commission under the Commission of Enquiries Act. We know that failure to comply with the direction to produce Sri Rajan may result in the respondents being held guilty of contempt. But our primary concern is to grant effective relief in this case if that would be possible.

42. We hereby issue a writ of habeas corpus to the respondents directing them to produce Sri Rajan in this Court on the 21st of April 1977.

43. If, for any reason the respondents think that they will not be able to produce the said Sri Rajan on that day their counsel may file a Memo submitting this information before the Registrar of the High Court on 19th April, 1977 in which case the case will stand posted to 23-5-1977, the date of re-opening of the Courts after the midsummer recess. On that day the respondents may furnish to the Court detailed information as to the steps taken by the respondents to comply with the order of this Court, and particularly to locate Sri Rajan. Thereupon it will be open to this Court to pass further orders on this petition and to that extent this order need not be taken to have closed the case. We know that we are adopting a very unusual procedure for which there is no parallel or precedent. But our power to do so cannot be in question, for, it is to enforce the object of finding out the truth and giving relief that we are adopting this procedure. We cannot think of a better device by which the Court’s conscience would be satisfied.

43 (a). It is unfortunate that the respondents have not viewed the matter with the sense of responsibility expected of them at least when their attention was drawn to the serious situation. We once again reiterate that such responsibility cannot be disowned as if it is some stray act of some police officers somewhere. We do fervently hope that the guilty would meet with punishment though it is not our province to impose any.

Costs incurred in this petition so far will be borne by the respective parties.

Khalid J: —

In view of the importance and unique nature of this case, I think it proper to add a few lines to what has fallen from my learned brother. My learned brother has in his judgment just pronounced dealt with the facts and evidence in the case in great detail. I therefore refrain from repeating the same.

2. This petition poses a simple question, of which the solution also should have been simple. But the solution has been rendered difficult on account of the unhelpful attitude of the respondents. What is involved in this case in more a human problem than a legal one.

3. A heart-broken father, with his wife mentally deranged, with his home made desolate by the disappearance of his only son, with his two daughters grief-stricken over this tragedy, has, after approaching the high dignitaries of the State and the Centre, taken refuge in this Court as a last resort requesting this Court to exercise its sacred duty to cause the production of his son who disappeared from 1-3-1976. If the respondents had assisted us in this difficult task, and helped us to get at the truth, our task would have been easy. In view of the rigid stand taken by the respondents that Rajan the petitioner’s son, was never taken into custody by the police, we had necessarily to probe into the matter further by taking evidence.

4. According to the petitioner, the Principal of the Regional Engineering College informed him by a registered letter that his son was taken into custody by the police on 1-3-1976. Ever since, he has been petitioning to several important persons, going about the various jails in the State, and approaching persons highly placed in life, to ascertain the whereabouts of his son. In the affidavit filed in support of the original petition and in the reply affidavit he has given the various details which culminated in the filing of this petition.

5. In the counter affidavits filed by the respondents, the stand taken is that Rajan was never taken into custody. The counter affidavits and the documents filed along with these affidavits have been closely scrutinised by me. I have painfully to observe that the respondents have tried to hide the truth from this Court. I am emboldened to say so on the affidavits filed by disinterested persons and their oral evidence.

6. The silver lining in this unhappy case is the evidence of the Principal. He has unequivocally and in clear terms spoken about the fact that he knew in the early hours of 1-3-1976 that Rajan was taken into custody by the police. This is evidenced by the registered letter sent by him to the petitioner. He has proved the copy of the letter. He also deposed that he informed the governing body of the College and the Central Education Ministry about this matter. There has not been any challenge against his evidence. The learned Additional Advocate General during his submissions at the bar conceded that the evidence of the Principal has to be accepted in toto. The only contention raised by him was that the information obtained by the Principal regarding the taking into custody of Rajan was from others who have not been examined. In other words, the contention is that the evidence of the principal cannot be said to be direct evidence about the taking into custody of Rajan. I have no hesitation to reject this plea. On no account can the evidence of the Principal be ignored in support of the plea that Rajan was taken into custody on 1-3-1976. The life of Rajan, or for that matter of any citizen of this country, is too precious to be decided on a technical plea based on the principle of hearsay evidence. At a time when nobody was interested in fabricating any false case, the Principal has sent this letter intimating the petitioner about the fact that his son was taken into custody. This piece of evidence has all the solemnity about it and no argument will be of any avail to reject this evidence.

7. Evidence about the disappearance of Rajan is given by other witnesses also. They are PWs 2 to 10. A close scrutiny of their evidence clearly shows that on 1-3-1976 Rajan was taken into custody. Their credibility has not been challenged. All that the learned Additional Advocate General submitted regarding their evidence is that their evidence is not consistent and is full of contradictions and therefore cannot be made the basis for a conclusion that Rajan was taken into custody on 1-3-1976. A very minute analysis of the evidence may indicate that there is some discrepancy regarding the identity of the policemen who came and regarding their apparel. The discrepancies, if any, are only inconsequential. The evidence of these witnesses is conclusive on one aspect, and that is, Rajan was taken into custody on that day. It was not suggested that these witnesses were perjuring or that these witnesses have any particular bias against the respondents. The only submission made before us was that they have given an exaggerated version in view of their emotional involvement in the case. Even granting this submission to be well-founded, this cannot take away the effect of their evidence that on 1-3-1976 Rajan was taken into custody.

8. We are not interested in this case to find out the guilt of any particular person. We are only interested in this case to find out the truth whether Rajan was taken into custody on 1-3-1976.

9. The evidence of these witnesses taken as a whole proves beyond reasonable doubt that Rajan was taken into custody on 1-3-1976. He was last seen on 2-3-1976 being tortured and taken in an unconscious state. The respondents have no case that he was either released or that he made good his escape or that he has left this world. The presumption therefore is that he continues to be in the custody of the police. On this finding, therefore, a writ has necessarily to issue.

10. If the respondents had taken this Court into confidence and given all the details truly and correctly, we would have been in a better position to pass an effective order. The petitioner tendered himself for cross examination. The State Counsel did not want to cross-examine him. The petitioner’s counsel submitted that if all or any of the respondents were tendered for cross-examination he was willing to do so. We would have been happy if the respondents had made themselves available before this Court to aid us in getting at the truth. But that was not to be. At any rate the respondents cannot take shelter under the specious plea that it is outside the domain of this Court to take evidence in a case like this. Some of the affidavits filed in this case on behalf of the respondents have not been sufficiently communicative and some others are incorrect on facts. The statement in the affidavits of the 1st and 5th respondents that the Principal did not have the letter sent to the petitioner and the back papers is a reckless and irresponsible one, almost bordering on untruth when it is read along with the evidence of PW 1. Since these affidavits have been considered at length by my learned brother, I err on the side of brevity and content myself by observing that there has been more an attempt at suppressing truth than in divulging it.

11. The most difficult aspect of the case has been the nature of the order to be passed in this case. We have spent anxious hours considering about this aspect of the case. We will be abdicating our function if we do not, on the finding that Rajan was taken into custody on 1-3-1976 and continues to be in such custody, issue a writ of habeas corpus for production of Rajan, the petitioner’s son. In view of the peculiar circumstances of this case, I respectfully agree with my learned brother to the form of the order to be passed in this case.