Lakshmi v. Deputy Superintendent Of Police

Arunachalam, J. — Petitioner Lakshmi is the mother of Velu, who is A-1 in C.C 3 of 1993, pending on the file of First Additional Designated Court, Madras. On 14.9.1993, Designated Court framed 11 charges against Velu and A-2 Sisubalan, which include commission of offence punishable under Sections 3 (2), 3 (3), 4, 5, and 6 of TADA (P) Act, 1987. Other offences alleged are punishable under the provisions of Indian Penal Code, Railway Act and Explosive Substances Act.

2. This is not the first time, that the petitioner has chosen to approach this Court, on behalf of her son Velu, for at least from the records placed before us, she had invoked the writ jurisdiction of this Court, on four earlier occasions.

3. We deem, it necessary to state the details of those writ petitions and the orders passed thereon, for we are unable to exclude an impression, that every time, same grounds are sought to be put forth for a decision before this Court, whether taken in the memorandum or not, and the ultimate purpose appears to be intended, to delay the progress, in trial. Even in the instant Habeas Corpus Petition, though grounds taken in the memorandum are very limited, Mr. R. Sankarasubbu, learned counsel appearing on behalf of the petitioner in the instant petition as well as in the earlier petitions, has placed a huge variety of submissions, most of them decided in the earlier petitions and a few of them fresh for our consideration. Even at the outset, we must state, that it will not be fair either for the petitioner or her counsel to put forth the same contentions which have been the subject-matter of verdicting by this Court, for we do not sit in appeal over those decisions rendered by other Division Benches of this Court. If the petitioner or her counsel stood aggrieved by those orders, the remedy for them would certainly be elsewhere and not in this Court over again by mere repetition of the gamut of submissions made and considered earlier, by this Court.

4. The earliest of the Habeas Corpus Petitions, preferred by the petitioner, was disposed of by a Division Bench of this Court on 13.11.1992 That concerned petitions is H.C.P No. 494 of 1992. In that petition, Lakshmi, mother of detenu Velu, had pleaded for production of her son before this Court, to be set free, alleging that he was illegally arrested by the ‘Q’ Branch Police, Dharmapuri on the evening of 8.11.1992 and not produced before any Court till 10.11.1992 There was a further allegation that Velu was being systematically tortured. On notice, it was represented by the State, that Velu was arrested on 9.11.1992 in respect of Crime No. 80 of 1992 on the file of Dharmapuri Railway Protection Force, registered for offences Punishable, under the Railway Act and Explosive Substances Act. It was also then submitted by the State, that the detenu was remanded by Judicial Magistrate-No. I, Dharmapuri on 10.11.1992 This Court, on being satisfied, that there was no ground to hold that there was illegal custody, dismissed the Habeas Corpus Petition. All that we have to note at this stage, is that the arrest of the detenu and his non-production stood questioned at the earliest point of time on which a decision was rendered by this Court.

5. H.C.P No. 841 of 1993 is the second in the series of Habeas Corpus Petitions preferred by Lakshmi, petitioner herein, on behalf of her son Velu. This Habeas Corpus Petitions was disposed of by another Division Bench of this Court by its order dated 22.6.1993 In the affidavit sworn to in H.C.P No. 841 of 1993, petitioner Lakshmi had stated, that from 8.11.1992, her son stood detained under Sections 3, 4, 5 and 6 TADA Act and was facing prosecution in C.C No. 3 of 1993 on the file of Designated Court No. II, Madras. According to her, detention of her son, was illegal, for the material placed before the Designated Court was devoid of substance, to connect him with any of the provisions under TADA Act. It was also her case, that statement of witness Chinnasami and confession of a co-accused without an identification parade, could not be held to be sufficient material and further even if explosives had been seized from Velu, if he cannot be connected with any terrorist act, he could not have been taken before a Designated Court. The prayer was that if the offences punishable under TADA Act were excluded, Velu should have been released on the expiry of 90 days, since by then final report, had not been laid Mr. R. Sankarasubbu and Mr. I. Subramanian, learned Additional Public Prosecutor, were heard in extenso and ultimately this Court held, that the Designated Court which has power to scrutinise, if prima facie offences punishable under TADA Act were discernible, had found that commission of such offences did loom large on the material placed before it and therefore the question of ordinary law becoming operative, did not arise. Soon after the said Habeas Corpus Petition was dismissed by this Courts Mr. R. Sankarasubbu made an oral application for leave to appeal to the Supreme Court. This Division Bench negated the oral prayer, since the Division Bench was satisfied that its decision was based on the law laid down by the Supreme Court, which was applied to the facts placed before them. Mr. R. Sankarasubbu stated today before us, that the petitioner did not choose to challenge the order in H.C.P No. 841 of 1993, before the Supreme Court.

6. H.C.P No. 538 of 1993 is the third Habeas Corpus Petition preferred by Lakshmi, pleading for producing of her son Velu, to be set at liberty. That Habeas Corpus Petition was dismissed for non-prosecution on 6.9.1993 Even then, it will be our duty to state the facts which led to the preferring of the said Habeas Corpus was dismissed for non-prosecution on 6.9.1993 Even then, it will be our duty to state the facts which led to the preferring of the said Habeas Corpus Petition. In her affidavit therein, Lakshmi has stated, that her son Velu was arrested on 8.11.1992 and was not produced before any Magistrate immediately which led to her preferring H.C.P No. 614 of 1992, wherein it was stated by the respondent, that he had been produced before the Magistrate on 10.11.1992, for alleged commission of offences punishable under the Explosive Substances Act and Railways Act. Petitioner was further aware, that police custody had been obtained on 16.11.1992 and thereafter Velu was remanded to judicial custody till 25.11.1992 On 25.11.1992, he was informed that he will be produced before, Designated Court No. II, Madras, on 9.12.1992 But, on the date, he was not produced before the said Court at Madras, but the learned Designated Judge, went over to Jail premises at Salem and extended the remand without considering, whether the material placed before him would attract offences punishable under the provisions of TADA Act. Further, on the same day, Designated Judge, entertained an application preferred by the prosecution seeking police custody and without furnishing an opportunity to Velu, disposed of the said application. Non-furnishing of opportunity to Velu was violative of Article 21 of the Constitution. Lakshmi had further stated in her affidavit, in that Habeas Corpus Petition, that an application under Sec. 28 of TADA (P) Act preferred on behalf of her son, was dismissed on untenable grounds. His counsel and relatives were waiting at Madras, but without any opportunity to them, to help the detenu, remand orders were passed at Central Prison, Salem, on 9.12.1992 The case of Lakshmi was, that extending of remand at jail premises, would be unjust and illegal. Though the dismissal order in H.C.P No. 538 of 1993 was passed on 6.9.1993 on the ground of non-prosecution neither the petitioner nor her counsel had chosen to plead for restoration of the said Habeas Corpus Petitions was only a planned course of conduct to have the trail delayed. At this stage, Mr. R. Sankarasubbu submitted, that he had preferred an application for restoration of the Habeas Corpus Petition, but the said application was not numbered. If obtaining of a remedy was found imminent, counsel would have certainly processed that petition, and brought it for hearing, for it is not unusual for Mr. R. Sankarasubbu, to bring to our notice, any infirmities found in passing of papers in the concerned Section of this Court. We say this much and nothing more.

7. Then came H.C.P No. 614 of 1992 for decision by this Court. This Habeas Corpus Petition was disposed of by a third Division Bench by its order dated 9.1.1993 The averments in the affidavit filed therein by Lakshmi was, that her son was taken into custody on 8.11.1992 at 1-00 p.m by the ‘Q’ Branch Police, Dharmapuri and he was not produced before any Magistrate even on 9.11.1992 She sent a telegram on 9.11.1992 and thereafter moved a Habeas Corpus Petition, before this Court, on 10.11.1992 While so, on 11.11.1992, her son was produced before Judicial Magistrate No. I, Dharmapuri in Crime No. 80 of 1992. This affidavit contains, details of police custody ordered initially by the learned Magistrate, and later ordering of judicial remand, though it stood stated by the petitioner, that such remands or extensions were mechanically made and hence illegal. As has been done previously, the case of the petitioner was countered by the State giving out various dates apart from facts, which were sufficient to indicate involvement of the petitioner in commission of offence punishable under TADA (P) Act.

8. Passing here for a moment, we are bound to observe, that some of the allegations made therein, do certainly overlap on the averments made in the earlier Habeas Corpus Petitions and also to some extent on those made in the instant Habeas Corpus Petition. Srinivasan, J., speaking on behalf of the Division Bench stated as follows:

“From the facts set out in the counter-affidavit filed on behalf of the respondent, it is clear that the detention of the accused is under judicial orders of remand. If those orders are illegal, the proper remedy of the petitioner is to file appropriate proceedings, challenging the validity of the said orders. When the petitioner has come to this Court with a petition alleging that her son was not produced before any Magistrate and was being kept illegally, it is not open to her to collaterally attack the orders of remand made by the Judicial Magistrate under the statutes . . . . . It is not necessary for us to go into the question whether the provisions of Section 167 of the Code of Criminal Procedure will permit remand for more than 60 days or the provisions of the said Code have been modified by the provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987, as a result of which there can be remand for more than 15 days at a time. Those questions are alien to the consideration by this Court of this petition.”

H.C.P No. 614 of 1992 was accordingly dismissed.

9. The state is now set to detail the averments made by the petitioner in the instant Habeas Corpus Petition. Petitioner has stated in her affidavit, that her son Velu was arrested on 8.11.1992 and charged for offences punishable under Section 3 (3), 4, 5 and 6 of TADA (P) Act. Though he was an under trial prisoner, charge-sheet was not filed within six months, and the detention beyond 8.5.1993 was illegal and therefore extension of remand mechanically, was violative of Section 20 (4) of TADA (P) Act. She has further alleged, that the charge-sheet and the documents appended to it were in English. The same was returned to the Designated Court by Velu on 30.8.1993, with a request to furnish Tamil translations of the documents found in English. However, the Court furnished 27 pages of Tamil translations alone, as against 98 page paperback supplied earlier. Though the said irregularity was pointed out to the Designated Court, without attaching any seriousness, the Court concerned, merely framed charges on 14.9.1993 Petitions preferred by Velu, under Section 207, Cr.P.C, for furnishing of the entire material sought to be relied upon by prosecution were dismissed, and without a proper and reasonable opportunity, charges stood framed on 14.9.1993 This procedure was violative of Article 21 of the Constitution. Again, the usual prayer made by the petitioner, in all the Habeas Corpus petitions, that the remand was illegal, has been repeated herein, with an addition that remand beyond six months without reason, was illegal, and violative of Article 21 of the Constitution, Petitioner has further stated in her affidavit, that taking of cognizance of the case, without prior sanction from Inspector General of Police, was illegal. If cognizance had been taken by the Designated Court, it must be held to be non-est.

10. of course, Mr. R. Sankarasubbu, as is usual of him, did not restrict his submissions to the grounds taken in the affidavit, but extended, it by advancing several submissions, which, again, as usual, we did permit him to urge, for, in our view, if any genuine grievance could be spelt out, it will have to be remedied by this Court, for furtherance of the cause of justice. Though the question of initial remand by Judicial Magistrate, Dharmapuri, inclusive of his directions to produce Velu before the Designated Court and the further order of the Designated Court, directing holding of sitting at Salem prison, to extent the remand, has been held to be legal, in the earlier Habeas Corpus Petitions, the same argument was repeated. However, Mr. Sankarasubbu contended, that in so far as the remand at Central Prison, Salem, on 9.12.1992 is concerned, Velu was not put on notice that he could have the assistance of his counsel at the time of remand. Therefore, the earlier remand process has to be struck down. He invited this Court to hold that subsequent remand orders cannot survive in view of illegal remands earlier. He submitted, that with effect from 22.5.1993, Section 20-A, has been introduced in TADA (P) Act which prohibits recording of information about the commission of offences under TADA Act by the police, without the prior approval of the District Superintendent of Police and further puts a bar, on a Court, from taking cognizance of any offence under that Act, without the previous sanction of the Inspector-General of Police or, as the case may be, the Commissioner of Police. His contention was, that cognizance taken by the Designated Court without previous sanction of the authorities referred to under Section 20-A (2) of the Amending Act, would suffice to hold in favour of accused Velu. He then referred to amended Section 20 (4) of the Act, which substituted in clause (b) of the old Section, the words “one hundred and eighty days” instead of the words “One year” at both the places, where they occur. He then referred to added proviso in sub-Section (2) after the existent proviso, which reads as hereunder:

“Provided further that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Designated Court shall extend the said period up to one year, on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days”.

This, Mr. Sankarasubbu submitted, was a serious legal flaw, which can be only remedied by directing release of Velu from judicial remand.

11. The next ground urged by petitioner's counsel was, that the language of Courts in Tamil Nadu under Section 272, Cr.P.C was Tamil and if the final report and the documents accompanying the same, were not in Tamil, the Designated Court ought to have refused to take cognizance and returned the papers. As long as the final report, was not laid before the Designated Court, in the language known to the detenu, or the Court language, it must be deemed, that investigation was still in progress and therefore unless the provisions of amended Section 20 (4) of the Act, stood complied with, the whole foundation for this prosecution must be struck down as illegal.

12. Then, reference was made to Section 327 of the Code of Criminal Procedure, to contend, that the place in which any Criminal Court is held, for the purpose of inquiring into or trying any offence, shall be deemed to be an open Court to which public generally may have access so far as the same can conveniently contain them. The submission was, that the Designated Judge, should not have held proceedings in camera in Central Prison, Salem, to extend the remand of Velu. Of course, we find a proviso to this Section which reads that if the Court thought it fit, at any stage of any enquiry or trial of any particular case, can order that the public generally, or any particular person, shall not have access to or be, or remain in, the room or building, used by the Court. In extension of this argument, Mr. Sankarasubbu submitted that merely because Velu is being prosecuted under the provisions of TADA (P) Act, his rights under Article 21 of the Constitution do not get suspended or erased. He then referred to an order passed by the Designated Court in Criminal M.P No. 218 of 1993 wherein the learned. Judge has stated, that on 19.7.1993, 2.8.1993, 16.8.1993 and 31.8.1993 both sides were heard. According to learned counsel, this statement of the Designated Judge in his order dated 12.10.1993 was contrary to his order made in his own handwriting on the docket-sheet of the petition filed by him before the said Court, which reads that both sides were absent. The object of this contention was that, without hearing both parties, learned Designated Judge had chosen to give a contrary picture in his order, as though both sides were heard. In other words, the contention was, that due process of law was not observed.

13. The final ground was, that though records under Section 173 of the Code of Criminal Procedure were supplied to Velu on 10.5.1993, they were turned to the Designated Court, since certain documents were in English, which language he could not understand. He pleaded for supply, of such of those documents and statements of witnesses, which were in English language, to be translated into Tamil and copies thereof furnished to him. Translated Tamil copies of those passages in English, were supplied to the detenu, on orders of the Designated Court, on 31.8.1993 According to Mr. R. Sankarasubbu, initially documents supplied to Velu stood returned to Designated Court and thereafter only a few pages of translated documents were furnished to him while the main paperbook was retained by the Court itself. In spite of his pleading before the Designated Judge, that Velu had not been supplied with entire records, sought to be relied upon by the prosecution, without supplying such documents to him, Designated Judge chose to frame charges on 14.9.1993 Petitioner's counsel further pointed out, an order passed by the Designated Court Crl.M.P No. 193 of 1993 on 28.9.1993, which reads as hereunder:

“Copies of the documents have been already furnished to the accused. As requested by the petitioner, Tamil translation have been furnished. Copies returned by the petitioner, returned herewith.”

On the basis of this order, it was submitted, that the original paperbook supplied to the detenu, which was returned to the Designated Court, was ordered to be handed over to the petitioner only on 28.9.1993, which would suffice to show, that on 14.9.1993 when the charges were framed, Velu did not have the benefit of those records. It was further submitted by petitioner's counsel, that even though this order reads, that copies were returned to Velu, it was immediately put back into Court on the ground, that charges had been framed in the absence of full supply of records to him. A strenuous contention was put forth, that the right given to the accused, under Section 227 of the Code of Criminal Procedure, to plead for discharge, had not been reasonably afforded and therefore the charges framed must be quashed and an opportunity afforded to Velu, to put forth his submissions, at Section 227, Cr.P.C stage.

14. On these contentions, we have heard Mr. I. Subramaniam, learned Additional Public Prosecutor. Before referring to his submissions, it will be necessary to have a quick look at the counter-affidavit sworn to by Gopalakrishnan, concerned Deputy Superintendent of Police. He has questioned the maintainability of this Habeas Corpus Petition. A specific averments has been made, that Velu was arrested only on 9.11.1992 and not on 8.11.1992 as claim by the petitioner. Charge-sheet was laid before the Designated Court on 29.3.1993 and hence there was no violation of any procedure contemplated under TADA (P) Act. He has further stated, that initially documents relied upon by the prosecution were supplied to Velu on 10.5.1993 Subsequently, in view of the grievance expressed by Velu, that some of the documents were in English and that he could not understand the same copies of such of those documents and statements of witnesses which were in English were translated in Tamil and copies of the same furnished to Velu on 31.8.1993 Those documents were only a few. According to the Respondent, Velu had sufficient opportunity to go through the documents relied upon by the prosecution. Further, it was only after hearing counsel appearing for the accused, that charges were framed on 14.9.1993 by the Designated Court. There was no infringement, whatever, of the mandate of Article 21 of the Constitution. The affidavit further reads, that the provision relating to obtaining of sanction from the Inspector-General of Police, before taking of cognizance, had come into effect only from 22.5.1993 and hence charge sheet filed and cognizance taken long prior to that date were in order and the provision as amended later, was not applicable. The affidavit proceeds to, that after framing of charges, P.W 1 was partly examined on 12.10.1993, and that with the sole view of protracting the ongoing trial, this Habeas Corpus petition had been preferred.

15. Mr. I. Subramanian, learned Additional Public Prosecutor, while countering the submissions made by Mr. R. Sankarasubbu, submitted, that neither introduction of new Section 20-A in the TADA (P) Act nor amendment to Section 20 (4) of the Act, would make any impact on the instant facts, since the final report was laid even on 29.3.1993 long before introduction of these provisions with effect from 22.5.1993 He contended, that cognizance can be taken only once and that had been taken in accordance with law much earlier to 22.5.1993 when certain amendments were sought to be introduced in TADA (P) Act. He then contended, that on the filing of the final report, provisions under Section 167, Cr.P.C become inoperative, for recourse to provisions under Section 309, Cr.P.C step in automatically. He pointed out, that every time after 29.3.1993, when the final report was laid, accused was produced before the Designated Court and after hearing parties concerned, remand stood extended till the next adjourned date. He has given a list of dates, which are 12.3.1993, 26.4.1993, 10.5.1993, 24.5.1993, 7.6.1993, 21.6.1993, 5.7.1993, 19.7.1993, 2.8.1993, 16.8.1993 and 31.8.1993 He also placed for our scrutiny orders passed by the Designated Court, on each one of the those dates, stating the reasons for postponing hearing, while extending remand of the accused concerned, through those orders. He reiterated that all documents were supplied to the accused on 10.5.1993 and when certain translations were requested on the directions of the Designated Court, they stood furnished to the accused on 31.8.1993 He strenuously argued, that at the time when charges were framed, Velu had participated in the proceeding, through his counsel and hence he cannot now take a ground, as though he had been impaired in placing his case before the Designated Court, at that stage. He submitted, that it appeared prima facie, from the ledger maintained by the Designated Court, that the original paperbook containing the case record had been returned to the Court only on 28.9.1993, subsequently to the framing of the charge. If that be so, the grievance of Velu, cannot at all be real. He then pointed out to the limited prayer made by the petitioner in her affidavit, which does not indicate further return of papers on 28.9.1993, which, in turn would permit an inference being drawn that the paper book was available with Velu, at the time of framing of charges on 14.9.1993 He has placed for our scrutiny. G.O.Ms No. 10, Law Department, dated 21.1.1976 which states that with effect from 13th April 1976 Tamil shall be the language of all Criminal Court subordinate to there High Court in the State of Tamil Nadu for the purpose of writing judgments and orders provided that the Presiding Officer whose mother tongue is other then Tamil, may continue to write judgments and other orders in English. Similarly, even if the mother tongue of the Presiding Officer is Tamil, but, in his opinion, he may not be able to write judgments and other orders in Tamil, he may continue to write judgments and other orders in English. This G.O further provides that the Presiding Officer may employ. English words and phrases in writing judgments and other orders wherever he feels necessary to bring out the exact purported meaning. Again, G.O.Ms No. 2807, Public (Tamil Development) Department, dated 13.11.1969 was placed before us, to show that Tamil shall be language of all criminal Courts in the State of Tamil Nadu for the purpose of recording evidence in all the proceedings. He contended that Section 272, Cr.P.C relates to mode of taking and recording evidence in enquiries, for which the State Government may have to determine what shall be the language of each Court, within the State other than High Court. According to him, it will be erroneous to contend that Courts will not be entitled to take cognizance if a portion of the record was laid in English and the remaining in Tamil Language, unless the Presiding Officer, did not know English language, in which certain documents were presented before him. So long as the Court concerned knew both the languages, there could have been no impediment in applying its mind to the documents placed before it and thereafter choosing to take cognizance. He argued, that under Section 16 of TADA (P) Act notwithstanding anything contained in the Code of Criminal Procedure, all proceedings before a Designated Court shall have to be conducted in camera if the Designated Court so desired. Provisions under the TADA (P) Act were converse to the provisions found under Section 327, Cr.P.C He then pointed out, that under Section 10 of the TADA Act, the Designated Court may on its own motion or on application made by the Public Prosecutor, decide to sit for any of its proceedings at any place other than its ordinary place of sitting, if it considered it expedient or desirable so to do. Even on 4.12.1992 while taking cognizance, Designated Court had ordered, that further remand of Velu, would be held at Central Prison, Salem and, therefore, contentions advanced as though proceedings were conducted in secret, can have no probative value. He further submitted, that every time remand ordered was in accordance with law, and that in any event if the detention of Velu can be held to be legal on the date of hearing of this Habeas Corpus Petition that would suffice and earlier illegality, assuming, if any, cannot alter the position By pointing out certain portions of original record summoned from the Designated Court, Mr. I. Subramanian submitted that every time Velu was put on notice and was represented throughout by his counsel. It will be odd to contend, that the accused had no opportunity to effectively put forth his case through his counsel.

16. We have assessed and evaluated that inherent merits of the divergent contentions placed for our decision. While there cannot be a second opinion, that if the rights of the accused stand affected, he could certainly have liberty to approach this Court to have injustice, if any, occasioned to him, remedied. At the same time, one cannot overlook, that the grievance or violation alleged, must be real and cannot be fanciful or imaginary. Further, it will be travesty of justice to indulge in preferring consecutive Habeas Corpus Petitions, alleging or pleading same factual details and claiming a relief, though different in label, amounting to one and the same, negatived on merits earlier. As much as the liberty of a citizen will have to be given top priority, counsel owe a duty, not to flood this Court with petitions by the same party, raising the same issues, considered and decided, for then the imagined liberty of an individual, tends to affect the untested and live liberty of so many other litigants, wanting some portion of the time of this Court, to be spared for that process. It is quite possible to use different terminology, in the petitions or affidavits, to effect an entry into the writ jurisdiction of this Court, but desecration must prevail on the counsel, more so, when the counsel happens to be the same person, to avoid entry into this Court, with prayers for game relief on the same facts, negatived earlier by this Court. All these we are constrained to state, since in almost all Habeas Corpus Petitions, the factual details as well as the prayer, be it in any form, ultimately plead for setting Velu at liberty. The story starts from the date of arrest and every time the prior remand, though upheld by this Court, is sought to be challenged. In between these entries into this Court, we find that similar prayers have been made before the Designated Court, quite often and even after negation of the same, petitioner had preferred similar applications of the same nature before the Designated Court, though one can easily understand, that the ultimate result cannot be anything else other than the earlier verdict, on the same facts, more so, without any special or changed circumstances.

17. We were further surprised to notice a petition preferred by petitioner's counsel before the Designated Court as though some oral observations were made by this Court in H.C.P No. 614 of 1992 on 8.12.1992 especially when this Court had passed a written order which reads as follows:

“P.P takes notice. Post on 9.12.1992”

ON 2.12.1992, A division Bench constituted by Arunachalam, J. and Rengasamy, J., Directed issue of notice to learned Public Prosecutor returnable on 7.12.1992 There appears to have been no need to mention the name of any Judge of this Court in that petition. H.C.P No. 614 of 1992 was finally disposed of by a Division Bench constituted by Srinivasan, J. and Abdul Hadi, J. Though petitioner's counsel who was afforded an opportunity to speak out, denied any attempt having been made, to state wrong facts, there appears to have been an attempt on the part of the petitioner or his counsel to put forth certain facts though vaguely with ambiguity which could not have been without any purpose.

No Court makes any oral directions to be incorporated in any petitions before the subordinate Courts. Any order, if necessary, to be made, this Court always makes it in writing to be communicated to the Court concerned. If petitions of this nature, alleging certain oral comments made by Judges form part of petitions preferred before subordinate Courts, there will be no opportunity for subordinate Courts themselves, to check up all that had happened, and at the same time they would be in unenviable position, as not to attack importance to the contents of the petition, more so when some oral directions stated to have been made by this Court, stand placed before them in writing. It is possible to comprehend, that by making statements of this nature, subordinate Courts are placed in a critical and difficult position, to facilitate obtaining of orders, in a particular pattern, relying upon perused oral observations made by this Court. It so happened that while perusing the original records we were able to find this piece of paper referring to certain oral comments made by this Court, while pleading for release of Velu. Members of the Bar owe a duty to uphold purity in judicial administration. We do not know how much more misuse of this nature is prevalent, for only occasionally, we come across documents, which shock our conscience. It is hoped that responsible counsel will put an end to such practice, for they are equally officers of Court and have a duty to protect the majesty of justice delivery system.

18. As we have already stated, in every one of the prior Habeas Corpus Petitions, earlier remands have been questioned as illegal. It would suffice for us to refer to the order passed by a Division Bench of this Court in H.C.P No. 614 of 1992 wherein the legality or otherwise of the remands of Velu upto 9.12.1992 have been considered. As a matter of fact, the said Division Bench had also taken note of the order of the Designated Court, directing production of the accused on 9.12.1992 at Salem, where he was expected to sit, the venue having been fixed under Section 10 of TADA (P) Act. We have to keep in mind, that the Division Bench of this Court disposed of H.C.P No. 614 of 1992 on 9.11.1993 If the petitioner was interested in challenging the further detentions after 9.12.1992 as illegal, nothing could have prevented the petitioner and her counsel from placing those facts as well before the said Division Bench, for its decision, for, by then, almost a year had elapsed after December, 1992. It is not as though that arguments are restricted only to the grounds taken in the memorandum, for quite often not only arguments are advanced on points not taken, but several H.C.Ps get allowed on those fresh points. Petitioner's counsel owed a duty, to have brought to the notice of that Division Bench, which had disposed of H.C.P No. 614 of 1992, illegality, if any, in respect of further remands, for there cannot be a second opinion that even with effect from 22.5.1993, six months prior to the disposal of H.C.P No. 614 of 1992, certain amendments had been made, to the main TADA (P) Act. It only reflects an impression, that with a view to present another Habeas Corpus petition and delay further proceedings, arguments are advanced in instalments, every time. We are quite pained as to the manner in which successive Habeas Corpus petitions are filed, almost pleading for the same relief. We entirely agree, with the observations of the Division Bench in H.C.P No. 614 of 1992, that once it appears clear that accused is in remand under judicial orders, there will be no scope, whatever, for seeking issue of a habeas. It will be relevant to refer even at this stage to the judgment of a Division Bench of this Court in T. Mohan v. State by Inspector of Police, CBCID, Madras, 1993 L.W (Cr.) 392, wherein, after referring to certain judgments of the Supreme Court, it was observed as follows:

“On the facts of this case narrated above, we have seen that the prosecution has promptly produced the petitioner before the proper Court, but unfortunately in the absence of the proper Presiding Officer, Judicial Magistrate No. I, Chengalapattu, who had no power to extend the remand, has granted extension of remand. Therefore, the mistake committed by the Court, should not cause injury to the prosecution. Viewed from that angle, coupled with the fact that subsequently there is a valid remand order, the relief of habeas corpus cannot be granted.'

There is abundant case law, that in a Habeas Corpus Petition, Court has also to consider, legality of detention on the date of hearing. We are unable to discern any illegality in remands ordered, at any point of time, either before, on or after 9.12.1992 Accused Velu, who was represented by counsel had been afforded sufficient opportunity every time.

19. We have already furnished certain dates, placed before us, by learned Additional Public Prosecutor. Every time, the endorsement shows, that Velu had been produced before the Designated Court and thereafter remand was extended. On the filing of a final report, power to postpone or adjourn proceedings, will fall within the purview of Section 309, Cr.P.C Under Section 309, Clause (2) Cr.P.C, if the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, it may, from time to time, for reason to be recorded, postpone or adjourn the same, on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody. Of course, such remand to custody cannot exceed 15 days at a time. Needles to state, when the provisions under Section 309, Cr.P.C become operative, recourse to Section 167 of the Code of Criminal Procedure cannot be had. At this stage, we are bound to consider the submission made by Mr. R. Sankarasubbu, that on the peculiar facts of this case, it must be deemed, that investigation was pending till 31.8.1993, when translated documents in Tamil were furnished to Velu and if that be so, provisions of Section 167, Cr.P.C must be held to be operative, at least till 31.8.1993 A Reference to Chapter XII of Code of Criminal Procedure, appears to be really relevant. It relates to information to the police and their powers to investigate. After exercising the powers contemplated in several sections under the Chapter, the police officer concerned must have to forward his report, on completion of investigation to the Court which exercises jurisdiction. On such report being forwarded, the Court exercises its powers under Section 190 of the Code of Criminal Procedure, to take cognizance, upon a police report of such facts. Once cognizance is taken by the Magistrate on the police report, there is no question of going back to the precognizance stage. Once cognizance is taken, provisions under Section 167, Cr.P.C stand erased from the scene, giving way to the provisions enumerated under Section 309, Cr.P.C Section 167 relates to the stage of investigation, while Section 309 refers to a stage after cognizance is taken. The demarcation is clear and categoric that there is no scope for any confusion as to the stage of application of these legal provisions.

20. The corollary to the question is, whether the Designated Court was justified in taking cognizance of the final report, with appended documents in the instant case on 29.3.1993 Though the word “cognizance” has not been defined, it is settled law that it denotes steps being taken by the Court concerned, to act in a particular way. That particular way relates to proceeding under the provisions of Section 190, Cr.P.C or the other contingencies contemplated there in like taking recourse to Section 200, Cr.P.C and the following Sections. Ultimately, commencement of proceedings is based on issue of process. At the time of taking cognizance, application of mind, to the record placed before it, by the concerned Court, is the primordial requisite. For application of mind, to the facts placed before it, obviously the Court concerned, must be aware of the language in which the final report and the documents appended to it, stood filed. If all the documents, for example, are in Gujarati or Hindi, which the Court does not know, then it can easily be concluded, that the Court could not have applied as . . . . . taken cognizance on the basis of records, in those languages, placed for its scrutiny. But, when it is apparent, that the record placed before the Designated Court was mostly in Tamil and partly in English, in both of which language the Court is not only conversant, but is expected to be conversant, it cannot even be remotely held, that merely because a part of the documents were in English, cognizance taken by the Designated Court should be deemed to be non-est. We have no hesitation in holding that cognizance had been rightly taken on the final report laid by the investigating agency, revealing commission of offences punishable under various provisions including those under TADA (P) Act. As a matter of fact, in one of the earlier H.C.Ps (H.C.P No. 841 of 1992) applicability of TADA (P) Act, was questioned before a Division Bench of this Court. The answer was not in favour of the petitioner. We reject the argument of Mr. R. Sankarasubbu, that unless entire documents stood filed in Tamil, cognizance should not have been taken. Article 345 of the Constitution enables the State Legislature to adopt Hindi or any State language as the official language of that State, it does not lay down that after such adoption, English shall cease to be an official language or that proceedings conducted or orders issued in English, shall be invalid. No express legislation, as envisaged in the proviso to Article 345 has been placed before us to hold that entry of English into subordinate Courts has been barred by legislation.

21. Mr. R. Sankarasubbu has not disputed, that initially, the documents sought to be relied upon by the prosecution were supplied to Velu under his acknowledgment on 10.5.1993 Once a Court, that some of the documents were in English, a language not known to Velu, the Designated Court had directed the investigating agency, to supply translation of those documents in Tamil, the only language known to the accused. There is also no dispute, that those documents in English were translated in Tamil and the copies of the same were furnished to Velu on 31.8.1993 As a matter of fact, Mr. R. Sankarasubbu showed before us a yellow paperbook, which contains translated copies of the whole of English documents. Therefore, it is clear that the accused, through his counsel, was and is in possession of those documents in English, relied upon by the prosecution, supplied to him in Tamil, at his request. The only defect appears to be, that the accused, through his counsel, had chosen to return the pink paperbook supplied to him, containing the entire documents sought to be relied upon by the prosecution, on 10.5.1993, while pleading for supply of certain portions of those documents, in Tamil language. It appears rather odd as to why the defence counsel had chosen to return the original paperbook to the Court and it is equally astonishing as to how the Designated Court had allowed those papers to be taken back by Court officials. Furnishing of documents to the accused is not an empty formality. A duty is cast upon Court, to satisfy itself, that all documents sought to be relied upon by the prosecution, stood supplied to the accused concerned, so that he will not be taken by surprise, in the conduct of his defence, Documents are supplied to accused concerned, under acknowledgment and such acknowledgements, unless open to doubt, can safely be taken as acceptance of receipt of all documents concerned by the accused, to enable him to enter into his defence. If the accused had any grievance, that part of those documents needed Tamil translation and to that course Designated Court was also agreeable, we are unable to visualize any need for the accused through his counsel to have returned the original paperbook, for while retaining the same, he could have asked for supply of that part of the documents which were in English, to be translated in Tamil. That is the only legitimate approach, that could have been made, to have the grievance redressed. If documents are supplied to the accused, under acknowledgment by him, and they stand returned, then he certainly owed a duty to have such return acknowledged by the Court concerned. As long as that is not done, it can always be presumed, that official acts were properly performed, and the claimed return of the documents to the Designated Court, can only be in the realm of imagination. However, in the instant case, counsel, as well as the Court, had acted, not in accordance with law, but in a totally irresponsible pattern. We are constrained to state “irresponsible”, for the court's time, had been wasted for quite a length, to hear arguments, at Section 227, Cr.P.C stage, which we are now bound to set aside and send for a re-hearing, for the order passed by the Designated Court in Crl.M.P No. 193 of 1993 on 28.9.1993, reads that “copies returned by the petitioner, are returned herewith” meaning, that copies of documents returned by the petitioner to the Court, stood returned on 28.9.1993 If charges had been framed on 14.9.1993 and a portion of the case record stands returned to the petitioner on 28.9.1993, it is apparent that when arguments were heard at Section 227, Cr.P.C stage, accused did not have the advantage of possessing all the documents, on which the prosecution had chosen to place reliance. The Designated Court, did owe a duty, to have satisfied itself, that the original paperbook containing the entire record was in the possession of the petitioner, when Tamil translated copies in the form of another paperbook was supplied to him, the procedure adopted by counsel and Court reminds us of playing ducks and drakes. Of course, it was pointed out by learned Additional Public Prosecutor, that on 28.9.1993, Designated Court had directed the petitioner to take back copies returned, within three days, which was not only not done but the petitioner had chosen to prefer an application under Section 227, Cr.P.C, over again. We are unable to understand the object behind preferring an application under Sec. 227, Cr.P.C, when the counsel had chosen to agitate the same question before us in this Habeas Corpus Petition. Does it mean, that the petitioner was attempting to create for himself another opportunity to approach this Court, by way of another cause, be it on writ side or criminal side. Irrespective of divergent stands, taken by parties concerned, about the availability of documents in full, at the time when the charges were framed, we are of the firm opinion that accused Velu, must be furnished an opportunity to advance arguments, before framing of charges or otherwise, since we find in the Court records summoned from the Designated Court, the pink paperbook containing entire documents, initially supply to this accused Velu. Such presence of this paperbook in Court record does show, that the entire records were not available with the petitioner at the time when arguments were advanced before framing of charges. Whatever may be the object or modus operandi adopted by the accused, the Designated Court did owe a duty to have stop such unsavory infringements, of procedural safeguards, eitherway, one afforded to the accused concerned and the other available for confirming adoption of due process of law in the conduct of a fair trail. It is often said that justice must not only be done, but must seem to be done as well. Keeping that salutary principle in view, we quash the charges framed on 14.9.1993 and direct the Designated Court to afford sufficient opportunity to the prosecution and the defence, to put forth their respective cases, and then act in accordance with law.

22. Though A-2 in the same calendar case has not challenged the framing of charges, since a charge of conspiracy is also included, it could be better, that he is also furnished an opportunity, if he so desires, to put forth his case over again before the Designated Judge at the stages of framing of charges or otherwise. A-2 shall also be put on notice by the Designated Court, that the charge already framed now stand quashed and afresh opportunity is being made available to him to ventilate his case.

23. Not wanting any further grievance being made, about non-supply of records, by Velu, we are handing over the pink paperbook containing the entire material relied upon by prosecution in C.C No. 3 of 1993, to Mr. R. Sankarasubbu who has also placed before us the yellow paperbook which contains the Tamil translation of those documents furnished in English, in pink paperbook. Mr. R. Sankarasubbu, after receiving from this Court, the pink paperbook, placing it along with yellow paperbook, in his prosecution fairly stated that all the documents now relied upon by the prosecution are in his custody on behalf of his client Velu (A-1) and therefore no further grievance can arise as far as supply of documents are concerned. This undertaking of Mr. R. Sankarasubbu shall stand recorded. As a matter of fact, Mr. R. Sankarasubbu has furnished an acknowledgment to this court that he has received the entire case record sought to be relied upon by the prosecution and hence there can be no further impediment in the progress of proceedings before the Designated Court. However, as a matter of caution, it will be the duty of the Designated Court, to satisfy itself in terms of the provisions of Criminal Procedure Code, that all documents stand furnished to Velu before arguments commence. The prosecution will be at liberty to place the order of this Court before the Designated Court, to affirm that such process had been undertaken by this Court itself, to avoid clumsiness, which stands exhibited in the prior proceedings. As a matter of fact, it will also be better for the Designated Court to obtain the signature of Velu himself, that all the documents were in possession of his counsel on his behalf even before arguments commenced, at the pre-trial stage. These are all safeguards, which have become necessary, on the peculiar facts, placed before us.

24. In the submission of Mr. R. Sankarasubbu, that the learned Designated Judge had wrongly stated in his order dated 12.10.1993 in Criminal M.P No. 218 of 1993, that he had heard the arguments of both sides on 19.7.1993, 2.8.1993, 16.8.1993 and 31.8.1993, contrary to his order made in his own handwriting in the docket sheet that both parties were absent. We have to only state, that petitioner's counsel had made an erroneous statement without, referring to the original record. The original records on an application, made by the accused were permitted to be perused by counsel for the accused, by the Designated Judge, and such perusal was also done. Even in the handwritten order passed, on the petition preferred by Velu, learned Designated Judge has stated that on all these days, both sides were heard. Apart from such statements made in ink writing by the Designated Judge, we have also looked into the calendar extracts, for all these days, and every time we find that the Designated Judge has stated “Heard both sides” and then adjourned the case, while extending the remand. We are constrained to state, that it will be the duty of counsel on either side, in this matter or in any other matter, to make sure, that they have based the stands taken by them, on impeccable material especially when they choose to make allegations against Judicial Officers, in the discharge of their duties.

25. We have no hesitation in rejecting the contention of Mr. R. Sankarasubbu, that Section 20-A of TADA Act and amended Section 20 (4) of the said Act, will have to be deemed, to be retrospective. A mere look at Section 20-A furnishes the answer for this submission. It states that not withstanding anything contained in the Code of Criminal Procedure, no information about the commission of offence under this Act, shall be recorded by the police without prior approval of the District Superintendent of Police. The offence in the instant case, stood committed, long prior to introduction of these provisions and it is not known how we can get back to that stage, to have the prior approval of the District Superintendent of Police. Similarly Section 20-A (2) cannot operate retrospectively in the instant case, for cognizance had already been taken and once that process is over, obtaining previous sanction of Inspector-General of Police cannot arise. If the law on the date of taking cognizance, was that, cognizance could not have been taken without the previous sanction of Inspector-General of Police, the position might have been different. Subsequent legislation of this nature cannot affect the earlier cognizance taken in accordance with law by the Designated Court. Under amended Section 20 (4), all that is contemplated, is, if it is not possible to complete investigation within 180 days, the Designated Court shall extend the said period up to one year on the report of the Public Prosecutor indicating the progress of investigation and specific reasons for detention of the accused beyond the said period of 180 days. Naturally, this provision cannot attract the instant facts, because not only the final report was laid, but cognizance was also taken long before the induction of these provisions. It is also apparent, that within the period of 180 days, final report stood filed in this prosecution, for the arrest was on 9.11.1992, while the charge sheet was laid before the Designated Court on 29.3.1993 Even if it is assumed that Velu was arrested on 8.11.1992, it can make no difference as far as cognizance is concerned. We reject the submission that detention beyond 8.5.1993 was illegal. Mr. R. Sankarasubbu was desirous, of having an opportunity left open to him, to challenge before the Designated Court, the prospective or retrospective nature of these provisions, but we stated, that it would only give rise to another round litigation and hence we would rather decide it ourselves, since arguments were advanced. These provisions, on the facts available before us, can only operate prospectively and cannot be held to be retrospective in their application. This question cannot arise any more for consideration by the Designated Court.

26. As we have stated earlier, without, all this discussion, this Habeas Corpus Petition could have been easily disposed of by holding, that there is no custody illegal, whatever. However, when we were able to notice an infirmity, which tended to affect the right of the accused to effectively defend himself, we decided not to stand on technicalities of the cause before us, since justice alone can be our concern and nothing else. We are more worried about substance, for chasing shadows can lead nowhere. It is only in that view, to set right the injustice cause, we have quashed the charges, while affording a fresh opportunity to Velu, the other accused and the prosecution to put forth their respective cases, before the Designated Court.

27. We agree with learned Additional Public Prosecutor that under Section 16 of TADA (P) Act, it would be possible for the Designated court to conduct proceedings in camera if it so decided. Similarly, under Section 10 of the Act, a Designated Court may, on its own motion or on an application made by the Public Prosecutor, can sit for any of list proceedings at any place, other than its ordinary place of sitting, if it considered such a step expedient or desirable. Therefore, we are unable to find any violation, as alleged by Mr. R. Sankarasubbu, referable to Section 327 of Code of Criminal Proceeds, which will have to give way to the provisions of special Act.

28. As far as Section 272, Cr.P.C is concerned, we have referred to certain notifications placed for our scrutiny by the learned Additional Public Prosecutor. As a matter of fact, Tamil Nadu Official Language Act, 1956, was ushered in almost on similar lines, as the earlier notifications, which, on the advent of the Act have ceased to be operative. To reiterate, language of the subordinate Courts is Tamil for a limited extent and not that English had been barred entry from proceedings in subordinate Courts lock, stock and barrel.

29. Since certain decisions were referred to by counsel on either side, it has become necessary for us to refer to them to give a logical termination to this order. In State of U.P v. Lakshmi Brahman, AIR 1983 SC 439, Supreme Court stated as hereunder:

“From the time the accused appears or is produced before the Magistrate with the police report under Section 170 and the Magistrate proceeds to enquire whether Section 207 has been complied with and then proceeds to commit the accused to the Court of Session, the proceeding before the Magistrate would be an inquiry as contemplated by Section 2 (g) of the Code. Obviously Section 309 would enable the Magistrate to remand the accused to the custody till the inquiry to be made is complete.”

If further stated as follows:

“The order of the High Court therefore granting bail to the accused on the short ground that they could not be remanded to the custody before the order committing them to the Court of Session is made, is erroneous. It is incorrect to say that after the accused is brought before the Court along with the police report, the Magistrate must forthwith commit the accused to the Court of Session because the Magistrate would have no jurisdiction in the absence of any provision to remand the accused to custody till the order committing the case to Court of Session is made”.

Our decision is based on the law laid down by the Supreme Court.

30. A single Judge of Andhra Pradesh High Court in Matchumari China Venkatareddy & others v. State of A.P, 1993 (2) Crimes 438, observed that if the police report was not filed in complete form, that is, by complying with the provisions of Section 173 (2) and 173 (5), Cr.P.C within the stipulated period contemplated by Section 167 (2), Cr.P.C accused concerned would have absolute right for being released on bail. Such a contingency does not arise in the instant case, for the final report was laid incomplete form. The only objection taken by Mr. R. Sankarasubbu is that certain documents which formed part of the final report were in English. That cannot make the final report incomplete.

31. In Aslam Babalal Desai v. State Of Maharashtra., 1992 S.C.C (Crl.) 870, Supreme Court was concerned with the manner in which bail granted under Section 167 (2), Cr.P.C could be canceled on production of charge-sheet. The majority opinion was that cancellation of bail, ordered on default by the prosecution, must be based on strong grounds. It is not known how the said ruling can have any bearing to the issue involved in this Habeas Corpus Petition.

32. Decision of the Supreme Court in Gurbachan Singh v. Satpal Singh, 1990 S.C.C (Cri.) 151., was referred to, to contend that new Section 20-A of TADA (P) Act, and amended Section 20 (4) of the same Act, should be deemed to be retrospective. In that case decided by the Supreme Court, it was stated that procedural law or law of evidence may have retrospective operation in absence of any provision to the contrary. Section 113-A of the Evidence Act was considered by Supreme Court with regard to presumption as to abatement of suicide by a married woman. It was held that it operated retrospectively, being a procedural provision. Dictum laid down therein cannot be applied to the present facts, for, as we have already stated, long before induction of these two new provisions, not only a complaint was registered, but also a final report was laid in accordance with the law existing at the point of time and cognizance was also taken. That process had reached its irreversible end.

33. For the same proposition, petitioner's counsel cited the decision in Herridge v. Heridge, 1966 (1) All ER 93. There will be no need to refer to the said decision in detail, for the same had been taken note of by the Supreme Court in Gurbachan Singh v. Satpal Singh (supra).

34. Again, the decision of a Division Bench of this Court in Nataraja Pillai v. Rengasami Pillai and Others, 46 MLJ 274, only reiterates the difference between the substantive right and affect of alteration in procedural law.

35. In M.J Delaflore v. Amir Mohammed, A.I.R 1970 Mad. 308, Ramakrishnan, J., stated as follows:

“The saving provision in Section 4 (2) (a) would mean that the pending legal proceeding cannot be put an end to by reason of anything enacted in the later law, if the party affected has a right to continue the legal proceeding under the repealed Act. What is saved by the saving provision, is only the right to continue the legal proceedings notwithstanding anything in the latter enactment which may affect such continuance. What will be really relevant is to determine if there is anything in the old procedure in the nature of a vested right, a privilege, an obligation or a liability falling within the meaning of Section 4 (2) (d) of the Act, and to seek to preserve such right etc., wherever they are likely to be jeopardised by the application of the new procedural law.”

Law laid down therein is quite clear, but it does not appear to have any bearing in the present context.

36. Decision of the Supreme Court in Balumal Jamnadas Batra v. State Of Maharashtra , A.I.R 1975 S.C 2083, only reiterates that a procedural role could be applied when the case came before the trial Court in 1969, while certain goods were notified in the official gazette on 26.8.1976 and a complaint stood filed on 30.10.1968 in respect of accused having been found in possession of such goods on 21.4.1967 Law on this issue is settled and its application alone varies depending upon facts placed.

37. Though we are unable to discern any ground to issue a habeas, as we have stated earlier, on noticing miscarriage of justice, not wanting to stand on technicalities, we have quashed the charges framed by the Designated Court on 14.9.1993, and are affording opportunity to all parties concerned to put forth their submissions at the pre-trial stage contemplated under Section 227, Cr.P.C Since we do not want the trial not be unnecessarily delayed, we direct the Designated Court to conclude enquiry under Section 227, Cr.P.C after affording sufficient opportunity to all parties concerned, within thirty days from the date of receipt of a copy of this order.

38. Except quashing of charges filmed on 14.9.1993, with a fresh opportunity afforded to the son of the petitioner, no other ground survives in this Habeas Corpus Petition. This Habeas Corpus Petition is ordered accordingly.