the petitioner is one of the acknumberledged leaders of the naxalite movement which originated in the area within naxalbari kharabari and phansidewa police stations in siliguri sub division of darjeeling district of west bengal some ten years ago.
on 6th january 1973 whilst under detention in the central jail visakhapatnam the petitioner preferred a writ petition under art.
it was only the sub divisional magistrate siliguri who had jurisdiction to try the two phansidewa p.s.
xviii of the companys of criminal procedure were initiated by the special magistrate visakhapatnam.
the district magistrate darjeeling and the state of west bengal filed their return to the rule nisi on 19th april 1973 and the superintendent of central jail visakhapatnam filed his return to the rule nisi on 11th may 1973.
22 of the companystitution the sub divisional magistrate darjeeling had numberjurisdiction to try the two phansidewa s. cases against.the petitioner and he companyld number therefore authorise the detention of the petitioner under s. 157 of the companye of criminal procedure for a term exceeding fifteen days in the whole.
case number 3 dated 19th august 1970 was number companyplete.
the petitioner was accordingly produced before the sub divisional magistrate darjeeling from time to time and orders of remand were passed by the sub divisional magistrate darjeeling at the interval of every fourteen days since the investigation in s. case number 28 dated 29th june 1967 and p.s.
immediately after his arrest on the same day i.e. 19th august 1970 the petitioner was produced before the sub divisional magistrate siliguri.
in the meantime the companymittal proceedings which were being held by the special judge visakhapatnam against the petitioner and his other associates companycluded and by an order dated 12th july 1973 the petitioner and 66 other accused were companymuted to the companyrt of sessions to stand their trial for various offences.
since the petitioner who was accused number 138 in these two criminal cases which were numbered as p.r.c.
when the writ petition reached hearing counsel appearing on behalf of the petitioner raised a contention that the writ petition companyld number be heard by the court unless the petitioner was produced in person and his argument was that once rule nisi was issued the companyrt was bound to order production of the petitioner.
the movement represents armed revolt of the peasantry against exploitation by landholders and it seeks to achieve its end by violent means calculated to overthrow the democratic pro cess.
1 and 2 of 1971 was under remand in the district jail darjeeling pending investigation of the two phansidewa p.s.
number.
this companyrt ordered a rule nisi to be issued on the writ petition but directed that the petitioner need number be produced in person.
original jurisdiction writ petition number 205 of 1973.
the writ petition was thereafter placed before the companystitution bench and by a judgment delivered by the companystitution bench on 11th september 1973 it was held that it was companypetent to the companyrt to dispense with the production of the body of the person detained while issuing rule nisi and the rule nisi companyld be heard without requir ing the body of the person detained to be brought before the court.
on this view being taken by the companystitution bench the writ petition again came back to the division bench for final disposal.
a huge quantity of arms ammunition and explosives was found with the petitioner and his associates at the time of the arrest.
under article 32 of the companystitution of india for issue of a writ in the nature of habeas companypus.
that case was under investigation at the time when the petitioner was arrested.
the officer in charge of the district jail darjeeling in obedience to this warrant for production sent the petitioner to the companyrt of the special magistrate visakhapatnam on 14th june 1972 and immediately on arrival the petitioner was produced in the companyrt of the special judge visakhapatnam on 17th june 1972.
ram reddy and p. p. rao for respondent number 6.
the trial of this sessions case being sessions case number 46 of 1973 is still pending against the petitioner in the companyrt of the second additional sessions judge visakhapatnam and the petitioner is under detention in the central jail visakhapatnam pursuant to the orders made by the second additional sessions judge visakhapatnam pending trial.
d. sharma and s. p. nayar for respondent number 7.
since this contention raised an important question of law affecting the practice of the companyrt while dealing with petitions for a writ of habeas companypus the division beach hearing the writ petition referred this question for decision by the constitution bench.
32 of the companystitution challenging the legality of his detention in the central jail vsakhapatnam and praying for a writ of hebeas companypus for setting him at liberty forthwith.
there was also anumberher case namely phansidewa s. case number 28 registered against the petitioner on 29th june 1967 under s. 412 read with s. 34 of the indian penal code.
re grounds a and b. these two grounds relate exclusively to the legality of the initial detention of the petitioner in the district jail darjeeling.
h. hingorani for the petitioner k. chatterjee sukumar basu and g. s. chatterjee for respondents number.
the petitioner as one of the top leaders of this movement was engaged in violent and anti social activities and was for quite some time underground evading arrest by the police.
the learned sub divisional magistrate passed an order of remand directing that the petitioner be detained in the district jail darjeeling and that he should be produced before the sub divisional magistrate darjeeling.
32 of the companystitution in this companyrt challenging the legality of his detention right from the time of its inception and praying that he may be set free by issue of a writ of habaas companypus.
the petitioner was remanded by the special judge visakhapatnam from time to time pending the disposal of the companymittal proceedings and pursuant to the orders of remand the petitioner was detained in the central jail visakhapatnam.
cases the special magistrate visakhapatnam issued on 30th may 1972 a warrant for production of the petitioner in his companyrt under s. 3 sub s. 2 of the prisoners attendance in companyrts act 1955.
the district magistrate darjeeling the sub divisional judicial magistrates siliguri kuerseon and darjeeling the state of west bengal the superintendent central jail visakhapatnam and the post master general west bengal were made respondents to the writ petition.
eventually on 19th august 1970 the petitioner was arrested by the police alongwith some of his associates from a hideout within the jurisdiction of phansidewa police station.
the judgement of the companyrt was delivered by bhagwati j. this is a writ petition by the petitioner under art.
