Writ Petn. No. 15602 of 1993

7th December, 1993.

Petitioner Counsel: D. Suresh Kumar and S. R. Sanku, for
Respondent Counsel: Advocate General, A. P., Hyderabad,

Cases Cited:
1993 Cri LJ 2899,AIR 1993 SC 1960,1993 AIR SCW 2366 [Para 22]
1992 Cri LJ 527,AIR 1992 SC 604,1992 AIR SCW 237 [Para 20]
(1992) 2 Crimes 184 (Andh Pra) [Para 18]
1991 Cri LJ 3086,AIR 1991 SC 2176,1991 AIR SCW 24l9 [Para 20]
1986 Cri LJ 192,AIR 1986 SC 494,1986 All LJ 663 [Para 22]
1983 Cri LJ 642,AIR 1983 SC 378 [Para 14]
1974 Cri LJ 465,AIR 1974 SC 510 [Para 17]
AIR 1971 SC 2197 [Para 17]
1966 Cri LJ 602,AIR 1966 SC 816 [Para 17]
1953 Cri LJ 1113,AIR 1953 SC 277 [Para 17]

JUDGMENT

N. D. PATNAIK, J. :-This writ petition is filed to issue a writ of habeas corpus to search for one person by name Masi wherever he is held by the police in the State of Andhra Pradesh and to produce him before this Court and set him at liberty and pass appropriate orders

2. The writ petition is filed by Prof. S. Seshaiah, who is working as a Professor in the Department of Law in Sri Krishnadevaraya University, Ananthapur based upon a newspaper report dated 12-10-1993 published in the Indian Express. The petitioner alleged in his affidavit that one Vijaya, 17 years old, tribal girl, who belongs to a remote village called 'Athiyur' near Gingee of Cuddalore District, Tamil Nadu State, is said to have been raped by police men of Pondicherry on July 29, 1993; that for reasons unknown the father of the victim girl by name Masi was forcibly taken away to Tirupathi by the police men of Andhra Pradesh on the night of 2-10-l993 and therefore requested this Court to issue a writ of habeas corpus.

3. The Superintendent of Police, Chittoor District filed two counter-affidavits. In the first counter-affidavit sworn on 24-10-l993, he stated that the Andhra Pradesh Police from Chittoor District never visited the house of either the victim girl Vijaya or her father Masi at their native place on 2-10-1993 and denied the allegation that the police men led by the Sub-Inspector of Police, Tirupathi abducted Masi from his house into a van and that he was taken away to Tirupathi. He further stated that after making enquiry, he found that one Ruddrayya of Tirupathi gave a complaint in the Central Crime Station, Tirupathi stating that on 21-10-1993 at about 6.00 p.m. at S. V. Old Bus Stand, Tirupathi, he along with his friend Mastan was going to Tirumala, the accused person described by him as Kannan alias Mani alias Ponnuswamy alias Masi, resident of Athiyur of Cuddalore District of Tamil Nadu, has snatched a gold chain from his neck in the pilgrims crowd and that he and his friend caught hold of the said person red-handed with the stolen property and produced him before the Sub-Inspector of Police, Central Crime Station, Tirupathi, who registered the complaint as Cr. No. 400/93 under S.379, I.P.C. and produced him before the Second Additional Munsif Magistrate, Tirupathi on 22-10-1993 and the said person is in judicial custody in Tirupathi, Chittor District. He alleged that efforts are being taken to verify the identity of the said person if he is referred to as Masi, in the writ petition filed by the petitioner.

4. Since it was brought to our notice that the alleged detenu was lodged in the Sub Jail, Tirupathi as per the order of the learned Second Addl. Munsif Magistrate, Tirupathi in Cr. No. 400/93 of Central Crime Police Station, Tirupathi (C.O. No. 473 of 1993 on the file of the II Addl. Munsif Magistrate, Tirupathi), we have directed the detenu to be produced before us on 23-11-1993, as per our order dated 10-11-1993. On 23-11-1993 the detenu Masi, who was said to have been released by the Magistrate on bail, was produced before us by Sri P. Kalyani, a Senior Lecturer in Physics, Government Arts College, Tindivanam, Tamil Nadu.

5. On 23-11-1993 P. Masi, resident of Athiyur village, Gingee Taluk, Villupuram R.P. District, Tamil Nadu State, filed an affidavit in this Court in which he has stated that on 29-7-1993 his daughter by name Vijaya, aged about 17 years, was gang-raped by six police men of Pondicherry, that on the telegrams and complaints sent to various authorities and on the directions of the Sub Collector, Thindivanam, the Police of Ananthapuram in Tamil Nadu State registered an F.I.R. on 13-8-1993, that the newspapers were regularly publishing reports about this matter and a team consisting of College Teachers, Advocates, Press men, etc., came to their place and recorded statements and released a report on the incident to the press and the matter became a burning issue in Tamil Nadu and Pondicherry. He stated that on the night of third Saturday of Purattaasi month equivalent to 3-10-1993, a group of persons came to his house along with Mrs. Renuka, wife of Vellaiyan, the son of his elder brother. They were asking him whether Ganesan, the brother of Vellaiyan, was seen by him and he told them that he had not seen him. When he was asked to accompany them, he accompanied them and he was taken to the vehicle which was parked near a rice mill close to the main road. He was asked to accompany

them up to Gingee but he refused. Then he was bundled and thrown inside the vehicle. His resistance and the attempt of his family members to rescue him were ineffective. He was brought to Tirupathi at about 10.00 a.m. on Sunday i.e., 3-10-1993 and he was produced before the Central Crime Station, Tirupathi. He has narrated what all happened in the Police Station including the torture by the police from that date till he was produced before the Judicial Magistrate on 22-10-1993 and he was taken again to the Court on 23-10-l993 and committed to Sub Jail. He had written a letter to his wife on 28-10-1993 with the assistance of one Murugan. Mr. P. Kalyani, a senior Lecturer in Physics, Govt. Arts College. Thindivanam and Mr. Ziauddin Ahmed, an Advocate of Madras met him in the Sub Jail on the evening of 9-11-1993 to whom he told his experience with the police. On the evening of 10-11-1993 Mr. Kalyani met him and told him that the Court ordered bail and will be taken out on Friday and that he was released on bail on 12-11-1993 from the Sub Jail. On 18-11-1993 when he appeared before the Hon'ble Judicial Magistrate, Tirupathi, he was informed of the direction of 10-11-1993 issued by this Court. He was also informed that Mr. P. Kalyani filed a Habeas Corpus Petition No. 1894 of 1993 on 11-10-1993 in the Hon'ble High Court of Madras giving the background of his daughter's suffering and the abduction and illegal confinement being exercised on him from the date of 3-10-1993 by the police men of Tirupathi. He was told that he was implicated in a case of theft of jewels but he was unaware of the date of complaint or the contents of the F.I.R.

As per our directions given on 23-11-1993, Mr. P. Kalyani, Senior Lecturer in Physics, Government Arts College, Thindivanam, villupuram R.P. District, filed an affidavit on 24-11-1993 mentioning about the habeas corpus petition filed by him in the Madras High Court and his meeting the detenu in Tirupathi on 9-11-1993 along with Mr. Ziauddin Ahmed and getting him released on bail and accompanying him to this Court on 23-11-1993.

6. The Superintendent of Police, Chittoor District filed a second counter affidavit on 12-12-1993 in which he has referred to the arrest of Masi by the Sub-Inspector of Police, Central Crime Station, Tirupathi on 21-10-l993. He denied the alleged harassment of Masi by the police. He had stated that his enquiry revealed that the son of Masi by name Subramani is a K. D. Sheeter of Ananthapuram Police Station and he was convicted in six criminal cases, that his second son Arunnachalam was convicted in two criminal cases and his brother's son Vellaiyan was convicted in number of criminal cases and he was arrested by C.C.S., Tirupathi on 27-10l993 as he was involved in Crimes Nos. 293 / 93 and 305 / 93 under S. 392, I.P.C. That Villaiyan's brother Shankar was arrested by Thiruchanur police on 21-10-1993 in Cr. No. 61/93 under Ss.457 and 380, I.P.C., that Villaiyan's wife Smt. Renuka is also an exconvict and Masi's brother's sons viz., Panduranga, Kariyappan and Govind were also hardened criminals and were also arrested by the C.C.S., Tirupathi in different crimes. All the persons including Masi are often visiting Tirupathi and committing offences and that Masi is the leader of this gang and he has been giving directions to the culprits to commit the offences. He contended that the charge sheet filed before the II Addl. Munsif Magistrate, Tirupathi against Masi is in accordance with law and that there was no ground to quash it. He also contended that the allegation that the charge sheet filed against Masi is a manipulated document is false and that it is filed in accordance with law and there was no ground to quash it nor Masi is entitled to any compensation as he was not illegally detained at any point of time.

7. Sri Polakala Damodaram, Sub-Inspector of Police, C.C.S., Tirupathi, also filed an affidavit on 13-12-1993 in which he has stated that while he was on duty in C.C.S., Tirupathi on 21-10-1993 at about 7.30 p.m. one person by name D. Rudraiah and another

person by name C. Mastanaiah came to the Police Station and produced a person and a broken gold chain and Rudraiah gave a complaint stating that on 21-10-1993 at about 6-00 p.m. while he was trying to board a bus along with Masthanaiah to Tirumala at S. V. Bus Stand, Tirupathi, when there was a heavy rush of pilgrims, he felt a jerk of his neck and soon he found his gold neck chain missing and then he and Masthanaiah found Masi briskly moving out of the crowd and that they managed to catch him and found the missing chain in his hand in broken condition and thereafter they took the accused Masi with the chain to the Police Station and gave the complaint, that he registered it as Cr. No. 408/93 under S. 379, I.P.C. and that on the next day the accused Masi was sent for remand to the Court and after completion of the investigation, he filed the charge sheet against Masi under S. 379, I.P.C. in the Court of the II Addl. Munsif Magistrate, Tirupathi. He stated that he never went to Athiyur village in Tamil Nadu and he never apprehended the accused or abducted him from his house and brought him to Tirupathi on 3-10-1993 and confined him in the lock up illegally and tortured him as alleged by the accused Masi. He also stated that he enquired about the antecedents of the accused Masi and he was informed by the Ananthapuram police, that Masi is an informer to culprits and gives directions and that his sons Subrahmanyam and Arunachalam, his daughter-in-law Smt. Renuka, his brother's sons Vellaiyan and Shankar and his close relatives Govindan, Kaniappan and Pandurangam are criminals and convicted in number of cases and number of cases are pending.

8. We have requested Sri C. Sadasiva Reddy, Advocate to assist the Court as Amicus Curiae and we are thankful to him for the valuable assistance rendered by him.

9. From the affidavits referred to above, it can be seen that there are allegations about two incidents; one is the alleged rape of the detenu's daughter by name Vijaya by the police men of Pondicherry on 29-7-1993 and the second allegation is regarding the alleged kidnapping of Masi from his village Athiyur on the night of 2-10-1993 by the Police of Tirupathi and his confinement in the Central Crime Station, Tirupathi from 3-10-1993 till he was arrested on 21-10-1993 and produced before the Judicial Magistrate on 22-10-1993. In this writ petition, we are not concerned with the alleged rape of Vijaya.

10. After going through the material on record, Mr. C. Sadasiva Reddy, Amicus Curiae has pointed out that the alleged rape on Vijaya by the Pondicherry police men does not have any connection with the abduction of Masi from his village Athiyur in Tamil Nadu to Tirupathi on the night of 2-10-1993 and that this incident regarding the detention of Masi came to light because the newspaper reporters and the Human Rights Activists were enquiring about the alleged rape of Vijaya. According to Mr. C. Sadasiva Reddy, the Police of Tirupathi appeared to have gone to the village of Masi in order to trace his nephew Vellaiyan, who was wanted in some cases of Tirupathi Police Station.

11. The question that arises for consideration in this writ petition is : Whether the Police of Tirupathi have forcibly taken away Masi from his house in Athiyur in Tamil Nadu State on the night of 2-10-1993 and brought him to Tirupathi and there illegally confined him in the Police Station till he was shown as arrested on 21-10-1993?

12. Apart from the affidavit of Masi, who says that he was taken from his village on the night of third Saturday of Purattaasi month i.e., 3-10-1993 and taken to Tirupathi, we have on record the report published in the daily English newspaper 'Indian Express' on 9-10-1993 in which it is stated that :

"When the reporter met Vijaya's brother, Ponnan, on Wednesday at Athiyur, he said his father had been forcibly taken away on October 2 by six persons who said they were 'Andhra Police men'. The six, who were accompanied by Renuka, wife of Vellaiyan wanted by the Pondicherry Police, had

searched the house and asked for Vellaiyan, threatening them. They said they would give Masi Rs. 500 / - if he revealed the whereabouts of Vellaiyan, Masi told them that they had filed a case against the police and would rather be left alone, whereupon Ponnan alleged, one of the visitors kicked Masi. The six persons had then bundled Masi into a van and left, despite entreaties by Vijaya and her sister. "

The report further reads :

"That when our Cuddalore correspondent met Vijaya on Friday, she said she suspected the hand of Renuka (Vellaiyan's wife) behind the abduction. She said only one of the six who had visited their house on October 2, was in uniform (S.I.'s uniform). The others were in lungies. She said her father had been taken to Tirupathi."

13. On 11-10-1993 Mr. P. Kalyani, a Senior Lecturer in Physics, Government Arts College, Thindivanam and Human Rights Activist, filed a Habeas Corpus Writ Petition No.1894 of 1993 in the High Court of Judicature at Madras. After referring to the alleged rape on Vijaya by the Policemen of Pondicherry, he stated in para7 of his affidavit as follows :

"I state that I came to know that Masi, the father of the victim of rape, was taken away by policemen on 3-10-1993 and I went to Gingee on 7-9-1993 (obviously type mistake for 7-10-1993). I met Vijaya and her mother in Gingee they told me that a group of policemen in civil dresses except one came to their place at about 3 p.m. on 3-10-1993. They took Masi in the vehicle with them and they were talking in Telugu. They brought Renuka, the wife of Vellaiyan, who was staying in Thirupathi at that time. The said police were making a search for Ganesan, the younger brother of Vellaiyan. They took Masi in the vehicle stating that Masi had to show them the land owned by Vellaiayn. Masi asked the police to take the assistance of Renuka as she was brought by them from Tirupathi. The said police were telling that she was not co-operating and only Masi had to assist them. Masi was forcibly taken away by the police despite the objection of Masi and his family members."

That writ petition was admitted on 12-10-1993. The present writ petition was filed in this Court on 13-10- 1993 by Prof. S. Seshaiah based upon the report published in the Indian Express dt. 12-10-1993. The relevant portion of that report reads as follows :

"When this reporter met her (Vijaya) the family was reeling under another blow. Masi, her father, had been forcibly taken away, allegedly by Andhra Pradesh policemen to Tirupathi for interrogation, according to Vijaya. "

XX XX XX

XX XX XX

"Narrating the events of October 2, Vijava said a posse of policemen descended on her house that (Saturday) night. Masi had returned from a second show of a movie just before the arrival of the police. All the men in the group were wearing lungies except a SubInspector. They spoke Telugu. After making some preliminary inquiries about Masi's son-in-law ,they told him that they had captured Vellaiyan. His wife Renukambal, was also there at that time. They asked Masi to lead them to the land of Vellaiyan. When Masi hesitated and asked to be left alone, he was dragged out and pushed into a waiting van. Vijaya's pleadings to spare her father fell on deaf ears. She ran after the van for some distance and then gave up. Vijaya suspects Renukambal's hand in the whole affair. "

In the letter dated 28- 10-1993 written by Masi from the Sub Jail, Tirupathi to his wife, she also refers to the facts that the police accompanied by Renukambal bundled him into the van by about 2-00 a.m. on the night of third Saturday in the month of Purattaasi. Therefore, it can be seen that the reports published in the newspaper within a few days after the incident referred to the taking away of Masi from his village Athiyur by Telugu

speaking policemen on the night of Saturday i.e. 2-10-1993 in the early morning and his being taken to Tirupathi, apart from the affidavit filed in the High Court of Madras by Mr. P. Kalyani in the habeas corpus petition on 11-10-1993 and the affidavit filed by Prof. S. Seshaiah in this writ petition on 13-l0-1993. In those circumstances, the counter affidavit filed by the Superintendent of Police, Chittoor District and the Sub-Inspector of Police, Central crime Station, Tirupathi, that Masi was produced before the Sub-Inspector of Police, Central Crime Station, Tirupathi, on the night of 21- 10-1993 by Rudraiah and Masthanaiah along with a broken gold chain alleging that he had committed theft of gold chain of Rudraiah and then a Crime No. 400/ 93 was registered and a case was booked against him under S. 379, I.P.C. and he was produced before the Judicial Magistrate on the next day and remanded to the judicial custody and prior to 21-10-1993 he was not in their custody cannot be accepted. It may be pointed out at the cost of repetition that even on 11-10-1993 a habeas corpus writ petition was filed in the Madras High Court and on 13-10-1993 this petition was filed alleging that Masi was taken away by the Andhra Pradesh police on the night of 2-10-1993 and taken to Tirupathi.

14. Sri Gangaiah Naidu, the learned counsel appearing for the Sub-Inspector of Police, C.C.S., Tirupathi, has contended that when Masi was produced before the Judicial Magistrate at Tirupathi on 22- 10-1993, he did not make any complaint to the learned Magistrate that he was taken from his village on the night of 2-10-1993 to Tirupathi and he was tortured at Tirupathi Police Station by the Andhra Pradesh Police. But being unaware of his legal rights, he might not have told the learned Magistrate about the said fact. In the decision reported in Sheela Barse v. State of Maharashtra, AIR 1983 SC 378 : (1983 Cri LJ 642) The supreme Court has pointed out : "we are aware that S.54, Cr.P.C., 1973 undoubtedly provides for examination of an arrested person by a medical practitioner at the request of the arrested person and it is a right conferred on the arrested person.But, very often the arrested person is not aware of this right and on account of his ignorance, he is unable to exercise thisrighteven though he may have been tortured or maltreated by the police in police lock up. (Emphasis supplied by us)". So, merely because Masi did not complain to the Magistrate when he was produced before the learned Magistrate on 22-10-1993 that he was brought from his village Athiyur by the police on the night of 2-10-1993 and was illegally detained by the police in the Central Crime Station at Tirupathi and was harassed there, we cannot disbelieve the various reports in the newspapers and the affidavits filed by the petitioners in the Madras High Court and in this Court about that fact, as also the affidavit of Masi.

15. Mr. G. Manohar, the learned Govt. Pleader representing the Advocate-General, has pointed out that the enquiries made by the police revealed that the nephew of the detenu by name Vellaiyan, his wife Renukambal, and his brother, Masi brother's sons and his sons were all involved in several criminal cases and that Masi was directing their operations. But there is no material on record to show that Masi was involved in any case prior to the registration of this case in Cr. No. 400/93 in Central Crime Police Station, Tirupathi. Even assuming that Masi was associated with some criminals, he cannot be illegally kept in the Police Station without being arrested and produced before the nearest Magistrate within 24 hours as required by law. Therefore, the detention of Masi in the Central Crime Station, Tirupathi from 3-10-1993 till he was arrested on the night of 21-10-1993 is illegal.

16. It is further contended on behalf of the respondents that the Court has to consider whether the detention is legal or not with respect to the date of return in the writ of habeas corpus.

17. In Ram Narayan Singh v. State of Delhi, AIR 1953 SC 277 : (1953 Cri LJ 1113), it has been held that (para 4) :

"In habeas corpus petition, the Court is to have regard to the legality or otherwise of the

detention at the time of the return and not with regard to the institution of the proceedings."

In A. K. Gopalan v. Govt. of India, AIR 1966 SC 816 : (1966 Cri LJ 602), it is pointed out that (para 5) :

"It is well settled that in dealing with a petition for habeas corpus, the Court has to see whether the detention on the date on which the application is made to the Court is illegal, if nothing more has intervened between the date of the application and the date of hearing. "

In Col. Dr. B. Ramachandra Rao v. State of Orissa, AIR 1971 SC 2197, it is held that (paid 5) :

"Such a writ is not granted where a person is committed to jail custody by a competent Court by an order which prima facie does not appear to be without jurisdiction or wholly illegal..............." In Kanu Sanyal v. District Magistrate, Darjeeling, AIR 1974 SC 510 : (1974 Cri LJ 465), it is stated that :

"In a petition for habeas corpus writ, the earliest date with reference to which the legality of the detention is to be considered is the date of filing the petition for such writ. Therefore, any defect in the legality of the detention of the petitioner prior to the date of filing the petition cannot affect the detention if it is legal on the date of the petition. " In that case, detention was challenged on three grounds. The Supreme Court held that the illegal detention of the petitioner in the Central Jail, Visakhapatnam will have to be considered on its own merits and since the production of the petitioner before the Special Judge, Visakhapatnam could not be said to be illegal and his subsequent detention in the Central Jail, Visakhapatnam, pursuant to the orders made by the Special Judge, Visakhapatnam pending trial must be held to be valid, following the decision in AIR 1971 SC 2197 (cited supra).

18. Mr. Gangaiah Naidu, learned counsel appearing for the Sub-Inspector of Police has cited a decision of our High Court in W. P. No. 1476/92 in N. V. Krishnaiah, M.L.A. v. Sub-Inspector of Police, Srikakulam, (1992) 2 Crimes 184. In that case the writ petition was dismissed on the ground that the alleged detenu was released and was not in police custody and on the ground that the petitioner's counsel informed the Court that the detenu was released and therefore the petition has become infructuous.

19. As we have already stated above, the detenu Masi was in illegal detention in the Central Crime Station, Tirupathi from 3-10-l993 to 21-10-1993. So, on the date when this writ petition is filed on 13-10-1993, he was in illegal detention. According to the counter-affidavits of the Superintendent of Police, Chittoor and the Sub-Inspector of Police, Central Crime Station, Tirupathi, he was said to have been arrested on the evening of 21-10-l993 on the complaint given by one Rudraiah for an offence of theft and then on the next day he was produced before the Judicial Magistrate and remanded to judicial custody. Normally when it is brought to the notice of the Court after the notice was served that the detenu is in judicial custody, the High Court will not interfere and issue a writ of habeas corpus. But, in this case, as we have already pointed out above, two writ petitions have been filed one in Madras High Court on 11-l0-1993 and the present writ petition in this Court on 13-10-1993 for the issue of writs of habeas corpus for release of the detenu Masi, who has been taken away by the Andhra Pradesh Police in the early hours of 3-10-1993 and he is in the custody of the police at Tirupathi. In the first counter-affidavit filed by the Superintendent of Police, Chittoor dated 24-10-1993 in paragraph (5), he says that on receipt of letters from the AdvocateGeneral, Andhra Pradesh, Hyderabad, he caused enquiries about the accused Masi from all the police stations in his jurisdiction obviously after coming to know of the filing of the present writ petition for habeas corpus, in order to cover up the illegal detention the

police have registered a case of theft against Masi by obtaining a complaint from Rudraiah on the evening of 21-10-1993. Actually at that time when he is alleged to have committed the offence of snatching gold chain from the neck of Rudraiah at the old bus stand at Tirupathi, Masi was in the custody of Central Crime Station, Tirupathi and so he could not have committed the offence.

20. In the case reported in State of Haryana v. Bhajan Lal, AIR 1992 SC 604 : (1992 Cri LJ 527), the Supreme Court has given certain categories of cases by way of illustrations wherein the power under Article 226 of the Constitution or the inherent power under S.482, Cr.P.C. can be exercised to quash the proceedings either to prevent the abuse of process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. It enumerates seven categories of cases. Mr. C. Sadasiva Reddy, Amicus Curiae, has drawn our attention to Category No. 7 which reads as follows (para 108) :

"Where a criminal proceeding is manifestly attended with mala fide and / or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. "

He has pointed out that since the arrest and subsequent filing of criminal case against the detenu Masi in the Court of the II Addl. Munsif Magistrate, Tirupathi, is only mala fide in order to cover up the illegal detention, the proceedings can be quashed by this Court. In the case reported in Delhi Judicial Service Association, Tis Hazari Court v. State of Gujarat, AIR 1991 SC 2176 : (1991 Cri LJ 3086), where the Chief Judicial Magistrate, Nadiad, in the State of Gujarat, was arrested handcuffed, assaulted by the police and was taken to the hospital for medical examination on the alleged charge of having consumed liquor. The Supreme Court has rejected the contention that since the charge sheet had already been filed in the Court, Mr. Patel, the Chief Judicial Magistrate has full liberty to defend himself before the criminal Court and so the Court cannot interfere with the proceedings. It held that (para 48) :

"If police is permitted to prosecute the Chief Judicial Magistrate on the false allegations merely on the basis that charge sheets have been submitted by it, it would amount to gross abuse of the process of the Court. In the circumstances, proceedings against the Chief Judicial Magistrate are liable to be quashed.''

21. Since the arrest of Masi on the evening of21-10-1993 on false charge of theft and subsequent production before the Judicial Magistrate is only an attempt to cover up the illegal detention. We are unable to accept the contention of Mr. G. Manohar, the learned Government Pleader representing the learned Advocate-General that since he is already in judicial custody, no writ of habeas corpus can be issued. For the reasons stated above, we hold that the prosecution of Masi for a theft case before the II Addl. Munsif Magistrate, Tirupathi in C. C. No. 473 of 1993 is an abuse of the process of Court and accordingly we quash the proceedings in C.C. No. 473 of 1993 on the file of the II Addl. Munsif Magistrate, Tirupathi.

22. As we have already stated above, the detenu Masi was released on bail by the learned Magistrate on 12-11-1993 and now he is not in custody. The learned counsel for the petitioner contended that it is a fit case where compensation should be awarded to Masi for his illegal detention by the Andhra Pradesh Police at Tirupathi. In Bhim Singh, MLA v. State of Jammu and Kashmir, AIR 1986 SC 494 : (1986 Cri LJ 192), the Supreme Court has pointed out that (para 3) :

"When a person comes to the Supreme Court with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional

and legal rights were invaded, the mischief or malice and the invasion may not be washed away or whisked away by his being set free. In appropriate cases the Court has the jurisdiction to compensate the victim by awarding suitable monetary compensation. "

In Smt. Nilabati Behera v. State of Orissa, AIR 1993 SC 1960 : (1993 Cri LJ 2899), the Supreme Court has pointed out that (para16) :

"A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution is an acknowledged remedy for enforcement and protection of such rights and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. "

23. Having regard to the fact that Masi was deprived of his personal liberty from 3-l0-1993 to 21-10-1993, we feel that it will be appropriate to direct the State of Andhra Pradesh to pay him compensation of Rs. 5,000,/ - (Rupees Five thousand only) in the circumstances of the case.

24. In the result, the writ petition is allowed with the following directions :

(i) The proceedings in the criminal case C.C. No. 473 of1993 on the file of II Addl. Munsif Magistrate, Tirupathi filed against Masi are quashed; and

(ii) the State of Andhra Pradesh is directed to pay compensation of Rs. 5,000/ - (Rupees Five thousand only) to Masi for his illegal detention, within two months from today.

Petition Allowed