LexSEBASTIAN M. HONGRAY versus UNION OF INDIA AND OTHERS
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,. • SEBASTIAN M. HONGRAY A < v. UNION OF IN!)IA AND OTHERS . B November. 24, 1983 [D. A. DESAI AND 0. CHINNAPPA REDDY, JJ.] Conftitution of Indja-Art. Ji-Scope of-When Court may issue writ of habeas corpus ex parte. If 011 notice, facts controverted by respondent Court n1ust investigate facts to satisfy itself before issuing'f.writ of habeas. cor'1~s. On C writ bei'itg. issued respondent obliged to file return. A writ can be issued and return ilisisted upoh even if person alleged to be in custody of respondent has long since left the cuStody. D E F' j G The petitioner asKed for a writ of habeas co~pus under ArL 32. of ~he Constitution to be issued to the. respondents to produce the two persons, C. Daniel and C. Pauf in the Court, who, according to the petitionl!r, were whisked aWr.y by the army jawans frorri Huining village to Phungrei ·Camp and unauthorisedly detained by the Officer incharge of 21st· Sikh Regin1ent and were held.incommunicado and whose whereabouts were not made known~ The petitioner averred that S;Pme jawans attached to 21st Sikh Regiment ;isited village Huinin.g on March 5, 1982 and rounded up some villagers. These villagers wer'e re.leased ori March 6, 198"2. On March 7 the Deputy Commis- sioner accOmpanied by the Additional District Magistrate of that area visited· Ruffling viJlagc to enquire ab~ut the incidents of the previous day. Son1e of the army jawans who had· obtained, under duress, certificates from some villagers·exon~rating them of the allegation of ill-treatment and praising the conduct of the jawans, showed these certificat(!S to these officers. On March 10, 1982 C. Diniel C. Paul were arrested by the army jawans and were taken away from Ruining . village. · At. the same time some jawanS had _obtained signatures on blank papers from Machiban, village. beadrrian and from one Shangnam, a member of the village . authority. On the next day· Machihan reported this fact to the Deputy Commissioner. As C. Daniel and C. Paul did not return, their wives went to the Phungrei Camp in search of tbefr respeCtive h~sband and while waiting there they saw 'C. Daniel and C. -Paul· being led away by four .army jawans towards the West. ·The village headman and others made a written complaint to the Deputy Commissioner. They a1so complained that they had n"ot issued any certificate showing that C. Daniel and C. Paul were released in their preSence on March 11, 1982. The Deputy Commissioner had an enquiry made into the comPiaint by the Superintendent of Police and reported to the Chief Secretary of the State that the village head· man and. other menrbers. of the village author'ity. had ~ven~ i? writing that it was not correct that C. ban1el and C. Pa&l were released 10 thetr presence an.d that both of them were still missing. In· respone ·to the notice ihe respond~nts stated that both C. Daniel and C. Paul were -called to the army .camp for the purpose of identification of Certain suspects on March 10, 1982 ap.d after_spend- ina: the night at tho army camp they were-allowed to go C!D March 11, 1982 in 1· ' ~!EieASTIAN HONGRAY v. UNION the company of Machihan and Shangnam, their friends. and since then the security force had no knowledge about their whereabouts. The respondents denied that the respective wives of C. Daniel and C. Paul ever visited the army . .;amp on l\1arch 15, 1982. They further de'nied h~ving obtained signatures on blailk papers from the village headman and others. ln response to the rule the respondents. reiterated their earlier stand. The respondents contended .. that once they had adopted the position the C. Daniel and C. Paul had cotne to the army camP at the request of the army authority and they left that place on their request in company of their friends, a writ of habeas coipus cannot be· issued~ ·"and the respondents cannot be called upon to file a, return to the writ .. Allowing the petition, HELD : A writ of habeas corpus be i.ssued to the respondents 1, 2 and 4 commanding them to produce C. Danie} and C. Paul 6efore this court and fi~e the return. (626 BJ · When a peiition for a writ of habeas corpus .under Art. 32 of the Constitution is moved before the ·court,. ordinarily the court would not isSue ex part~ a writ of habeas ·corpus unless the urgency or the sitllation so deniands or issuing of a n~tice of motion was likely to result in defeat pf justice. Further, the court wilt be reluctant to issue
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