SEBASTIAN M. HONGRAY v. UNION OF IN!)IA AND OTHERS .

The Judgment of the Court was delivered· by G DESAI, J. Petitioner is a s\udent of Politicai Science st'iidying in Jawaharlal Nehru University at Delhi. He belongs to Naga community and hils from Manipur. He has moved . this petition under Art. 32 of the Constitution praying for a writ of habeas corpus H calling u'pon the respondents-Union of Iµdia, State of Manipur and 1· Commandant, 21st Sikh Regjment to produce before this Court Shri c: Daniel, a former Naik Subedar attached to Manipur Rifles and at the relevant time Head Master of fonior High School, Huining, •

. SEBSTIAN HONGRAY v. UNION (Desai, J.) 907

Ukhrul East District Manipur State and Shri C. Paul, Assistant Pastor, attached to the "Baptist Church in Huining village who accor· A ding to the petitioner were whisked away on March 10, 1982 from Ruining village to Phnngrei Camp and detained by the officer incharge of 21st Sikh Regiment and are h.eld incommunicado, not released till today nor their whereabouts are made known. B· ' Petitioner averred that 21st Sikh Regiment has set up a camp at Phungrei, Some jawans attached to this regiment visited Huining ~ village on March 5, 1982 rounded-up villagers and detained them in the playground and the ":Omen folk and childern were confined in the S.D.A. Church Building. · Most of villagers were released'. on March 6, 1982 around J0.30 a.m. Three stude11.t~ K. Nelson, H.R. Aaron c and K. Paul studying in Petig~w ·College were arrested and. taken away. The jawans resorted. to firing which resulted in the death of \one Luinam. It was only at about 11.00 p.m. on March 6, 1982 when the Major and Captain of the 21st Sikh Regiment w~re presen- ted with some shawls that the captives were reld!lsed. On March D 7, 1982 one Mr. Joshi. Deputy Commissioner, East Ukhrul accom- panied by Additional District Magistrate visited Huining village to enquire about the incidents of the previous. day. The army, j;iwans, ,1.._who were present in the village, produced before the afore-mentioned

> officers certificates of villagers .. exonerating them of allegation of ill treatment and praising th~ conduct of jawans, which according to the E ..\ petitioner were obtained under duress from the local residents. On · , March 7,' 1982, the Sunday service by Sri C. Paul, Assistant Pastor and C. Daniel, Head Master in the Church, was disturbed by ooe Subedar and 4 jawans who proceeded to ·collect· some signatures under duress from those who had assembled to participate in the Church service. The certificates were ostensibly obtained to show· " that the 'army officers and jawans bad not treated. the villagers with force or cruelty and nothing untoward had-happened on the previous .4wo days. On March 10, 1982, C. Daniel and C. Paul were· arrested by the army jawans and were tak~n .away from the village. At the same time, some signatures were obtained by the jawans on blank G papers from Machihan, village headman, and from one Shangnam a member of the village authority. On the next day, Machihan village headman, reported the fact of arrest of C. Daniel and c. Paul to the Deputy Commissioner, East Ullhrul Shri Joshi. As C. Daniel and C. Pa~I did not ~eturn to the village till March 15, 1982, Mrs. H . C. T.Wngkhuda, wife of Shri C. Daniel and Mrs. Vangamla, wife of - r Shrt c. Paul wept Ip Pl.unpei ramp in >earc!i of their respective

908 SUPREME .COURT REPORTS [!984j J S.C.R.

husband and when they were waititig there, they saw C. Daniel and A C. Paul being led away by 4 army jawans towards the west. In the meantime, on a complaint made by Machihan, Shri Joshi, Deputy Commissioner directed Superintendent of ·Police to ,make enquiries about the absence of C. Daniel and C. Paul from March I 0, 1982 .• A radiogram meosage was sent on March 15, 19S2 to the Superin- B tendent of Police (East) Ukhrul requesting hirri to enquire about and ascertain the whereabouts of (I) Roshing (2) C. Daniel and (3) C. Paul, .all of Huining village and four othtrs. The direction given to the Superintendent of· Police was Jo find .out the where- abouts of the persons named fo the radiogram and to submit his report at an early ·date. Accordingly, the Superintendent of Police c ·submitted his report on March 27, 1982 stating therein that three persons of Phutigcham village mentioned in· the radiogram have been released by Assal)l· Rifles on March 19, 1982. The reporf further recites as under : 1 •• "As ·regards. persons belonging to Huining village D it is learnt that K. Roshirtg is still . under interrogation ·with Army and whereabouts of other persons are not ... known. They were released one day after arrest by . Army as reported." · ·

E On March 29, 1982, 5 residents ·.of Huining village inc!Uding · Machihan, village headman, submitted a ·written complaint' to the Deputy .Commissioner; Manipur East District, Ukhrul setting out therein the circumstances in which•on March JO, 1982 C. Daniel and C. Paul were taken away by the army jawans. They also complained ' how .the village pe'ople \Vere forced to pui their signatures on blank paper. They further complained ·that they have not issued any certificate· showing that C. Daniel and C.- Paul were released in their presence on March 11, 1982. On March 30, 1982, the Deputy Commissioner in response to the query from the Chief Secretary, •.A Manipur ·state, reported that the village headman and other village authority mempers of Huining have given a report in writing that. it is not correct that C. Daniel and C. Paul were released in presence of vil!age authority members and that both of 'them were still .missing. It is further stated· that the village headman and other· members of the village authority have reported· that they had not issued any certificate as claimed by the army authority that C. Daniel and C. Paul were released by the army authority on March I I, 1982 in their presence. The report further recites th!it a complaint has been. made that the security forces personnel had

I SEBST!AN HONORAY •• UNION (Desai, J.) 909

obtained signature on blank papers from village people. during their combing operation in Huining village on March 10, 1982. Petitioner A further averred .that after C. Daniel and C. Paul were taken away ·by army jawans of 21st Sikh .Regiment on March 10, 1982 around 3'.00 p.m. from Huining village, they have not been released by the officers and jawans iBcharg(; of 21st Sikh Regiment and the~ are . ' ' f . illegally and uuauthorisedly detained and they are held incommuni· B cado. It is alleged that this continuous detention by the officers and j'awans of the army is illegal, invalid and contrary to Art. 21 and that.all attempts to secure the knowledge· as to how the officers and jawans of'21st Sikh Regiment have dealt ,with· the aforemen· tioned two persons have not met with success and he has no other option b~t to file this petition for a writ of habeas corpus. · c ' Photostat copies of the affidavits of Mrs. C. Thingkbuila, wife of Shri C. Daniel, Mrs. C. Vangamla, wife of Shri C. Paul and C, Shangnam, originals of which · were produced in earlier writ petitions were annexed. to the present writ. petition. The petitioner also annexed origlllaf affidavit of Shri H. L. Machihan, village ·D head.man and Shri "c. Sangnam, village authority member to the . petition. I

Th~ petitioner impleaded four· respondents being (!) Union · of India thrpugh the Secretary, Ministry of. Defence, (2) Union of E India through the Secretary, Ministry of Home Affair~•. (3) State of Manipur through the Chief Secretary and (4) Commandant, 21st Sikh Regiment, Phungrei Camp, Ukhrul.

On February 9, 1983, the Court directed notice to be served upon the respondents.

In response to the.notice, one J. C. Sachdeva, Under Secretary, Ministry of Defence, Govt. oflndia, New Delhi filed the first return. Heclaimed his source of knowledge about the facts stated in' the . affidavit as· being personal, being conversant with the facts but remained conspicuously silent about his access to any record on the strength of which he filed· his affidavit save making a vague statement. in the last para of his affidavit, "that , the factual statements made above, are based on the report• and information received. which I believe to be correct." In his affidayit, he referred to three other writ petitions being W.P. No. 550 of 1982, W.Ps. Nos. 9229-30 of 1982 1md W.P. l'fo. 5328 of 1980 in which constitutional validity of Assam

910 SUPREME COURT REPORTS (1984] I S.C.R •

Disturbed Areas (Special Power of Armed Forces) Ordinaqce, 1947 and Armed 'Forces (Special Powers) Regulations, 1958. was questioned. He proceed~d . to reproduce, some of the ·paragraphs, from the counter-affidavit filed in e11rlier petitions. Dealing with 1 the petition for habeas corpus, it was admitted that on March 6, 1982 jawans of 21st Sikh Regiment carried out the search in Ruining village lasting for a period of 3 to 4 hours and admitted that certain certificates were obtained by the army personnel from village authorities, Pastors etc. contradicting the ·allegations made in the writ petition. Copies of those certificates were annexed to the return filed in W.P. No. 550 of 1982. · Concerning C. Daniel and C. Paul, it was reiterated that both of them were called for the purpose of identification of certain suspects on March IO, 1982 and after spending the night at the army camp they were allowed to go on March II, 1982 and since ihen the security forces have no know- · ledge about their whereabouts. Proceeding further it was admitted' . that a Deputy Commissioner of Ukhrul (presumably Mr. J.P. Joshi) did visit village Hujning on March 7, 1982. ·It was denied that· Mrs. Thingkhuila and Mrs: Vangamla ever . visited the army post on March 15, l 982.' Jt was admitted that in response to· an appeal made to the Chief Minister regarding C. Daniel and C. Paul not having returned to their village. the Security Forces alongwith a police constable (presumably Yangya Anei Thangkhul also known as Matuganai Tankhul) did visit village Ruining on May 8, 1982 in order to inform the wives of C. Daniel and C. Paul that they had left the Army Camp on March IJ. 1982. It was denied that at .the time of this visit signatures from the village headman or members of the village authority or from other inhabitants of the village were ' obtained on blank papers There was a perfunctory deniel about ihe affidavits annexed to the present writ petition. · A request was made that either the writ petition may be disposed of relying upon th~ statements 'made in the affidavit of Shri Sachde~a or that the persent writ petition be tagged on·wlth the earlier writ petitions. ' . . The petitioner filed a rejoinder affidavit in which inter a/ia it was· stated that the-earlier writ petitions were not specifically concer· ned with the mysterious disappearance of Shri C Daniel and Shri C. Paul after they were taken away by the arrpy personnel but they were primarily concerned with the constitutional validity of the afore· mentioned Armed Forces (Special Powers) Act, 1958. · It was forther stated that the Court should direct the respondents to produce. the

Si1BSTIAN°HONORAY v. UNiON (l>esal, J.) 911

report of enquiry made by the Superintendent of Police,. Ukhrul to the Deputy Commissioner and the connected documents. A Mer hearing both the parties, rule nisi was issued.

In response to the rule, again Shri J.C. Sachdeva filed a return mai·ntaining an eloquent silence with the regard to the source of knowledge about the various factual statement made. by him in the B affidavit save and except repeaiing the same vague statement with slight modification that "the statements made above are correct to the best of my knowledge as from the records of tlie case." The cha~ge· in .the tune is deliberate as wUI be presently mentioned. This return· is almost a carbon copy of the earlier return omitting the extracted statements from the still earlier affidavit. It · c ,.. \. was specifically stated that' C. Daniel and C. Paul were respectable persons who were asked to go to the Army Camp on March I 0, 1982 to identify some suspects (names not me.ntioned) and that after the identification they were permitted to leave. It was stated that after they work of identification was over · C.. Daniel and C. Paul were D permitted to leave the Arnly ·can1P hut as ·it was evening time and it was dangerous to.travel at night on account of fear of the insurgents, both of them preferred to spend the night at the Army Camp which the Camp Commandant permitted and they ·left in the. morning of March II, 1982. It was further stated that since the suspects belong- ing to the insurgents group are mixed up with the local population, it is not easy to identify them. or apprehend them ·unless there is information or identification through loyal and respectable citizens of the country: It was further stated that C. Daniel and C. Paul were not suspects or accused in any of the cases initiated by the Security Forces aud that they were never arrested or apprehended by the F · Security Forces. · With regard .to the -request for production of the reports of the Superintendent of Police and Deputy com:missioner, it was stated that they were produced on an earlier occasion in another Writ Petition in the Court. But a privilege was claimed by the Government of Manipur on the ground that the natu- re of the .contents of the said document did not permit the produc- G tion of the same being against public interest. , I The matter was then. set dow~ f~r 'hearing on May S, 1983. Mr. P.P. Singh appeared for the Union of India. The first enquiry . the Court made was about the source of knowledge of Mr. Sachdeva . H with special reference to reports and information received at Delhi and the record of t)le case. Mr. Singh was called upon to disclose

• 912 litiPREME CoURT Rlil>ORTs [i9~4l i s.c.li.. the records if any, on the basis of which factual averments were A made in the affidavit. It was pointed out to him that Mr.Sacbdeva is a Delhi based officer and either be must explain his source of knowledge or if he has relied on any record the same may be pro- duced before the Court, on the pain of both the returns being rejected as utterly unrealiab le. In response to the query of this Court surprisingly, Mr. P.P. Singh, learned counsel for the Union B of India stated that the Union of India is not in possession of any record which may shed light about how C. Daniel and C. Paul were dealt with after admittedly ·they were taken to the Army Camp on MarcJi. JO, 1982 and spent the night between· 10th and 11th March, 1982 at the Army Camp. The credibility and auth- enticity of documents produced at a later stage have to be adjud- ged and evaluated in the back-drop of the earlier statements in the affidavit of Mr. Sachdeva and the statement of Mr. P.P. Singh. At the request of Mr. Singh, the matter was then again adjourned.

Thiugs moved faster thereafter. The stand earlier taken be- . D came very inconvenient when presumably the. position adopted by the Court .forced the respondents to disclose some documents and therefore Sachdeva had to be replaced and another officer was selected to file one more affidavit. On behalf of Union of . India, Shri H.S. Pruthi, another Under Socretary in the Ministry of Defence filed an E affidavit discloing the source of his knowledge the records · of the case and copies of original documents with the Union of India. This is a complete summersault. To this affidavit were annex;d telex communications between 59 Mountain Brigade , and 21st Sikh Reg- • iment, Annexures A;l & A/2 dated August 25, J-982 and August· 26, 1982 respectively; Annexure A/3 being a communication from F · 59th Mountain Brigade to 8 Mountain Division. dated August 28, 1982; Annexures BJ I and B/2 being extract.s from the rogisters maintained by the 21st Sikh Regiment at Phungrei Camp; Annex· ure C/1 being·an affidavit ofShri Lt. Col. N.D. Garg·, Commanding Officer of 21st Battalion, Sikh R,egimcnt; Annexure C12 being an G affidavit of Major Joginder 'Singh Lamba attached at 21st Battalion of the Sikh Regiment; Annexure C/3 being an· affidavit Of Subedar Joginder Singh also attached .to the same battalion, Annexure C/4 being an affidavit of Naik Gurdip Singh; Annexure C/5 being affidavit of Naik Gurcharan Singh; Annexure C/6 being an affidavit H' of Nai·k Bachan;Singh who was on Sunday duty at the entrance gate · of the 21st Battalion between 12.00 hours to 18.00 hours On March JO, 1982; Annexure C/7 b•ing an affidavit of Subedar Sucha .Singh

SEHShAN iioNGkAY v. UNION (Desai, J.) 913 • who was Subedar Adjutant of 21st Battalion at the relevant time; and Annexure C/8 being an affidavit of Havildar Kultar Singh who stated A amongst others that on March 11, 1982, two persons Shri Machihan Shri Shangham came to t·he gate where he was on duty and . they enquired iabout C. Daniel and C. Paul ·whereupon after obtaining permission from Adjutant' he and Shri Subedar Sucha Singh brought C. Daniel and C. Pan! 'at the gat'e and they left in company of Shri B Machihan and Shri Shangham.

At ; later date, Mr. V.C. Mahajan, learned counsel appeared for the State of Manipur and filed a return on behalf of the State of Manipur. One Shri E. Kimjeswar Singh, Secretary (Home), Govt. of Manipur swore the affidavit on behalf of the State of Manipur. c The affidavit was limited in character being a response to the request ' made by the l~arned connsel for the petitioner to produce : (i) Report of the Superintendent of Police; (ii) !{eport of the Deputy Commis- sioner; and (iii) Statement ofYangya Anei Tankhul @ Malugnai 'fangkhul. .It w~s stated that with regard to the events of March 10, 1982, the Deputy Commissioner (East) Ukhrul on receipt of the D information (not in writing) on March 11, 1982 sent a wireless message to the s·uperintendent of Police (East) Ukhrul on March 15, 1982, a copy of which was annexed as R·J/A. I\ was further stated that on receipt of the wireless message, the Superintendent of Police conducted an. enquiry and sent his report to the Deputy Commissioner on March 27, 1982 (Annexure R-3/B). The Deputy E Commissioner in turn sent a· report on· March 30, 1982 to the .. . Government (An.nexure R~3/C). It was further stated that with regard to the.incident on M!lrch JO, 1982, the Deputy Commissioner received a written complaint for the first time on March 29, 1982 (Annexure R-3/D). With regard to the reports d~ted April 28, 1982 F and May 31, 1982, privilege was claimed under Sec. 123 of the !-·. Evidence Act on the ground.. that the production of the report in · Court and being made available to the· petitioner will be agai~st public interest. It was further stated that in the records with the State Government there is no statement of Police Constable Vangya Anei Tangkhul @ Maluganai Tangkhul of a date prior to the filing of G tho present writ petition and a notice was ordered to be issued. As aclarificatory effort, after receipt of notice, an attempt was made 'by the State to ascertain the fact from the concerned constable by recording his statement, a copy of which was produced at R'.3/F-t. H An affidavit of the constable · Annexure R-3/E-2 was aloo · produced. · ' •

914 SUPREME COURT REPORts (1984) 1 s.c.a.

In.a: writ eefition under Art. 32 rarely, if ever pleadings are meticulously extracted and reproduced in'the judgment. It however become a compelling necessity in thrs case for the obvious reason that . certain inferences we.re drawn and submitted for the consideration of . this Cqurt by both sides after referring to facts admitted and/or not controverted. We would, therefore, be 'justified .in deducing_ the indisputallle fact sjtuation that emerges from the rival. affidavits and then proceed to draw necessary permissible inferences that flow from them. • It is established that C. Daniel and C. P"aul for whose production before this Court this petition is filed are admittedly a respectable ciiizens, the former being the Headmaster of the Junior High School at Hui1\ing village and the latter being Assistant Pastor, resjding at Ruining village. It is equally well established that the 1 21st Sikh Regiment 'is stationed ·at Ukhrul, Manipur East Districi and has set up a camp known as Phungrci Camp, and that Ruining D village falls within the operational area of this Regiment. The jawans of this Regiment admittedly visite.d Ruining village on March 6, 1982 and carried out extensive combing operation for coupl9 of hours. They arrested at some point of time one R. Rashing of Ruining · village. It is admitted that Mr. Joshi, Commissioner (East) Ukhrul visited Ruining village on Marah 7, 1982 which would. show that E ,something untoward had occurred as complained by the petiti?ner; on March 6, 1982 at Ruining village. And this inference is reinforced by the fact that certain certificates purporting to vouchsafe good conduct of the personnel of security forces which carried out combing operation were obtained-by the army jawans from the village inhabi- tants which have been produced in the earlier petitions. C. Daniel F and ,C. Paul were taken to Phungrei Camp, the allegation of tile petitioner being that.they were arrested and ·taken away while the contention of the respondents is that they were called at the camp for identification of R. Rash.ing. 'The fact which indisputably emerges is that C. Daniel and C. Paul were brought from Ruining village by. G the army jawans 'and were taken to .Phungrei Camp. It is admitted · by the respondents that C. Daniel and C. Paul were_ at Phungrei, Camp at the instance of army officers on March 10, 1982 and spent the.night at the camp between March 10 and M~rch 11, 1982. ~ccor.­ ding to the respondents' Sbri Machihan and Shn Shi!ngam arrived at H Phungrei Camp on March 11, 1982 between 9.45 a.m._and 10.00 a.m. and they left in company with. C. Daniel and C. Paul who were brought to the camp gate by Subedar. Sucha Singh. It therefore_

SEBSTIAN HONGRAY v. UNION (Desai; J.) 915

uqquestionably transpires that from March 10, 1982 somewhere in the noon or afternoon till March 11, 1982 around 1000· a.m. A C. Daniel and C. Paul were, if not in the custody under the surveil- lance and at the request and behest of the 4th respondent in the camp and they left Paungrei Camp around I0.00 a.m. on March 11, 1982 in company of Mr. Mach.ihan and· Mr. Shahgnam, a fact disputed and seriously controvertei:l by the petitioner. Since March B 10, 1982 C. Daniel and C. Paul have not ret9rned to their village and. their whereabouts .are not known. They were last seen alive fa Phungrei Army Camp. ' Threfore, the first question which on preponderance of · probabilities this Court must examine is whether C. Daniel and · c C. Paul left Phungrei Camp on March 11, 1982 around 10.00 a.m. or somewhere thereabout because it could not be seriously questioned that since then no one has seen them, except as stated by the two ladies that they were seen being led away by a.rmy jawans, on March 15, 1982. - D . . · Affidavit of Mrs. Thing\<hu.lia', wife of C. Daniel even if it is one of a vitally intereste.d witness would permit us to hold that since ; .. the jawans and officers of the 4th respondent to.ilk away C. Daniel on March· 10, J98 2, he has not been seen· by anyone including her except on March 15, 1982 again in custody of army jawans. That averment E is disputed and for the present it may be kept out of consideratio.n. That would be equally true of C. Paul in respect of whom his · wife Mrs. Vangamla has filed an affidavit: Mr. K.G. Bhagat, ·Additional Solicitor General while reiterating that once these two persons left the army camp on March ll:1982 by about J0.00 a.m. the 4th respon- F dent and its subordinate will have no knowledge about their where· 0

abouts and they canriot be calied upon to explain why 'they are not ). traceable, and he proceeded to explore various possibilities as to what, might have happened. It is not necessary to speculate in'that behalf because the real question is whether. on the material. placed on record, is it possible to affirmately arrive at a 'conclnsion ·that .G C. Daniel and C. Paul left the Phu.ngrei Camp latest by 10.00 a;m. or . thereabout. on March 11,. 1982. Obviously, the burden would be on the respondents I, 2 and 4 to substantiate their contention once having admitted that C. Daniel and C. .Paul were in the camp, at their request and behest' even if not actually arrested from tl;te after· noon of March 10, 19~2,

916 SUPREME COURT REPORTS (1984] I s.c.il.

The stand taken in Jhe first affidavit of Shri J.C. Sachdeva, A which merely reproduces extracts from the affidavits in earlier writ petitions, !s that C. Daniel and C. Paul were called for the purpose identification 'lf oertain suspects on March 10, 1982 and were allowed to go·on March 11, 1982 and the security forces have no information about them after they "were released". Mark the words 'called at B the army camp and were released'. The word 'released' would indicate that they were once held captive and were su.bsequently permitted to go. But the more important lacuna or omission in the first affidavit is about the name of Mr .. Mr. Shangnam 'as having come to the army camp and C. Daniei and C. Paul accompanied him and Machihan. Name of Shangnam is c.onspicuous by its Silence. 1 c This omission is glaring because at that statge it was not clear who- ? ther Shangnam wonld be disclosing some· facts. H.L. Machihan's name is referred to because he had already made a complaint to the f Deputy Commi§sioner on March 29, 1982.

D The stand now taken is that C. Deniel and C.Paul were brought to the army camp as army authority wanted them to indentify R. Rash'ing, who was arrested as a suspect' and that C. Daniel and C. Paul ,were not arrested or were not held as suspects. It is not made clear whether C. Daniel and C. Paul were brought in an army vehicle. It is equally not made clear why soon after identifying .E . R. Rashing which wou'ld hardly require a couple of minutes, they were not sent back in army vehicle. It is asserted on behalf of.the 4th respondent that C. Daniel and C Paul were 'reluctant to leave the army camp at night and at their request they were •allowed to stay at the army camp., This is far from convincing. ·If what the petitioner asserts is true that C. Daniel and C. Paul were arrested and. treated in an unbecoming manner, they would be least inclined to spend a night, if they ·were free agents to leave the place, at the ·Army camp, hardly a cosy pL,ce in an insurgently infested ·area. . Assuming that the res- pondents are right in saying that on account ·ot fear of moving out at night in a i.ungle area infested with insurgents, according to them, they left the army camp on :March 11, 1982 around 10.00 a.m. Tho respondents assert th.at H. L. Machihan, a village Headman and • C. Shangnam, village Authority Member came to army camp on March 11, 1982 to enquire about C. Daniel and C. Paul and further to enquire why they had not returned and at that time Suhedar Sucha JI· Singh on being ·informed by Guard Commander Havaldar Kultar Singh that two persons from Huining village had come and wanted to meet someone fro111 the· l?attalion whereupon Subedar Sucha Singh

SEBSTIAN HONGRAY. v. UNION (Desai, J.) 917

went to the gate and met the two persons. .It is further averred that at that time H. L. Macbihan and C. Shangnam introduced themselves A as such and enquired from Subedar Sutha Singh about C. Daniel and C. Paul, whereupon Subedar Socha Singh to.Id them that they had spent the night at the army camp. Subedar Socha Singh thereupon informed Maj. Joginder Singh Lamba, Adjutant that two persons have come to enquire about C. Daniel and C. Paul whereupon B Joginder Singh Lamba told Subedar Sucha Singh that C. Daniel and C. Paul should return to their village with Shri H. L. Machihan and ·shrtc. Shangnam. The respondents further averred' that thereupon Havaldar Kultar Singh and Subedar Socha Singh accompained C. Daniel and C. Paul to the gate and permitted them to accompany H. L. Macbihan and Shangnam. There are affidavits to that effect c of Major Joginder Singh Lamba, Adjutant, Subedar S'ucha Singh and Havaldar Kultar Singh. They have also produced extracts from the register maintained at the camp gate showing the entry and exist in ~nd out of the army camp. The relevant extracts were produced at Annexures B/l and B 12. The original registers were submitted to the D Court in sealed envelope with .a request that the other entries except the relevant entries may not be exposed as the same may endanger the safety of st'>me innocent persons. We have glanced through the registers. As copies of the relevant entries from the registers were annexed to the affidavit. of Mr. Pruthi, it was unnecessary to give inspection of the whole of the registers to the petitioner in the facts and circumsiances ofthis petition. ·

The evidence furnished by entries in the registers leaves us cold. and unconvinced. It appears to be an attempt at supporting ·affidavits by some So·called contemporaneous documents which apart from being unworthy of credit, the circumstances in which they came to light add to our apprehension about its genuineness. We may recan here the wavering po>ition about existence or otherwise of any record taken in the affidavit of Mr. Sachdeva and the statement made by Mr. P. P. Singh before the' Court denying the existence of any record as late _as May 5, 1983. And the affidavits of various members of security forces personnel bear the date between May 24, 1983 and first week of June 1983 that is subsequent to the order dated May 5, 1983 . • To begin with, both H. D. Machihan and C. Shangam in their affidavits filed long time back stated that ·they had not gone to Phungrei Camp on March 11, 1982 either in the morning or at!any

• • !HS SUPREME COURT REPORTS (1984) l s.c.R..

time of the day. H. L.. Machihan denied that C. Daniel and C. Paul A were released in his presence OD March 11, 1982.. There is an affidavit to the same effect of ShrUlhangnam. These are two persons in whose company according to respondents C. Daniel and c; Paul left army camp on March 11, 1983.

Turning to the affidavits filed on behalf of the respon- B dents to substantiate the stand of the respondents, Havaldar Kultar Singh says in his' affidavit that at about 9.45 A.M. on March' .11, 1982, two .persons from Ruining village. arrived at the gate ~f the , army camp and introduced themselves as Shri Macbihan and Shri ·shangnam. He further says that they told .him that they bad come ' .c to enquire about C. Daniel and C. Paul as they had not returned to 'the village on the previous day. He does not say that H.D. Machihan and Shri C. Sbangnam individually or collectively was or were per- mitted to enter the camp. In fact, his affidavi( read with the affidavit of Subedar Socha Singh clearly shows· that Havaldar Kultar ..Singh werit to Subedar Sucha Slngh and informed him about .the arrival of D Machihan and Sharignam and inquired about C. Daniel and C. Paul whereupon Subei:lar Sucha Singh came to the gate, talked to H.L. Machihan arid Shri Shangnam and then retdrned inside the camp and came out with C. Daniel and C. Paul and they were· brought to the gate and they both left in company of H.L. Machihan E.. .and Shangnam. This would unmistak,ably show that H.L. Machihan and Shangnam never entered the army camp, and surprisingly yet in the two e~tracts Annexures B/l·and B/2, Machihan and Shangnam are shown to have entered the ~rmy camp one after the other 'between 9.45 A.M. and 10.00 A.M. and left at 10.05 A.M. If Machihan and Sliangnam came, upto army gate, never entered the same and accord- F ing to the respondents C. Daniel and C. Pa"ul were brought to the gate of the army camp, there . was· ·absolutely no justification for . making an entry in the register evidencing that they had both entered the army camp.

G There is a further infirmity in that the entry in the riame o ·Shri C:Daniel appearing in the Register on March 10, 1982 appear~ .to be overwritten over a~other entry which was ilready there. Therefore in view of the direct evidence' furnished by the affidavits of H.L. Machihan and C. Sha~gnam, coupled -with the suspicious H circumstances herein discussed and effort made to bolster up the stand by ·entries of dubious character as also the' eloquent 'illf 'e in the :earlier_sla'le of the proe&edil)gs about existence of any record .1

SBBSTIAN HONORAY v. UNION (Desai, J,) 919

• leave us with uo alternative but to hold that the respondents have faile~ to prove that C. Daniel and C. Paul left ,the army camp on A March 11, 1982 11round 10.00 A.M.

This inference is further butressed by the fact that -all these documents along with the affidavits were placed on record after. this'. Court made an order on: May 5, 1983 clearly pointing out that the affidavit of Shri Sachdeva lacks credibility as .the source of infor· B mation is not traced therein and after. Mr. · P.P. Singh, learned counsel for the Union of India stated that the first respondent is ncit in possession of any record in respect of C. Daniel and C. Paul.

There is one curious feature of the whole case which cannot be overlooked. Petitioner averred and it is supported by the affidavits c of H.L. Machihan an!l C. Shangnam that the army jawans ransacked r the houses and tortured the inhabitants in the course. of the ·search ~>n Mardi\ 6, 1982. They further averred that in order to s~ve. their skin, armyjawans obtained false certificates as ·also signatures on blank papers. Now if the army authorities had acted within the bounds of legitimate combing operation to trace insuregents, it was • not necessary for them to obtain certificates from. the inhabitants of' village Huining. IIl the first affidavit of Mr. Sachdeva, it is stated that ii) the counter-affidavit in Writ Petition No. 550 of 1982 . certificates from village authorities and Pastor were obtained qy the army authorities contradicting the aBegatipns niade in the statements and averments set out in the petition. There is further evidence that after the authorities of the Manipur State such as Deputy Commis· sioner and Superintendent of Police started inaking enquiries, the army jawans again went to Huining village· on· May 8 1982 and obtained some more certificates as weJI as signatures on .blank papers. F One Yangya Anei Tanghul @ Malnganai fangkhul, a Police Cons- table attached to Manipur Police Department was asked to accom· pany the army jawans when they visited Huining village on May 8, 1982. It.is admitted that this Police Constable accompanied the army jawans on May 8, 1982.. In his affidavit, the Police Constable states that security forces personnel ootained the signatures from the G Village Authority Memb~rs as proof of their having furnished the information to the village people regarding release of C. Daniel and C. Paul and eve.n he was asked to pu\ bis signature as a witness which he duly complied. Why were army jawans so keen to obtain certiii cates from village people both on March 6, 1982 and on May 8, 1982 H and certific.ates appear to have been obtaii1ed with a view tc, either

920 • SUPREME COURT REPORTS [1984]1 s.c.R.

white-washing their actiyitics or exonerating the army jawans from their improper actions which were questioned by the village people.

In the meantime, certain events occurred of which notice should be taken. The fir,;t search was carried out by the. army jawans on March 6, 1982. Soon after presumably upon a complaint of the local inhabitants, Mr. Joshi, Deputy Commissioner' visited Ruining village on March 7, 1982. This is admitted by Mr. Sachdeva in his .first affidavit. Obviously, the village people .must have complained to the Deputy Commissioner about the mis-behaviour of the members of the security forces. Presumably, acting upon the complaint, Deputy Commissioner Mr. Joshi directed Superintendent ' of Police (East) Ukhrul to enquire about various persons detain.°d by the army officers and missing since then. Amongst the names of 7 . perspns, the Deputy Commissioner, has set out ~he names of H C. Daniel and C. Paul. The Superintendent . of Police was called upon to furnish the report about the whereabouts of the perrnns whose names were set out in the direction. given to him. In response

SEBSTIAN HONGRAY v. UNION (Eesai, !.) 921

to this enquiry by the Deputy Commissioner, the Superintendent of Police submitted his report on March 27, 1982 part of which m·ay be A extracted :

"Following persons were released by Assam Rifles on 19/3/82 :-

1) Rr.. Nganaopam () B

2) Pr. Pheireisang () All of Phungcham village

3) Hr. Wungnaokan ()

As regards persons belonging to Huining- village it is c learnt that K. Rashing is still under' interrogation with Army & whereabouts of other persons are not" known. · They were released one day after arrest by ·army as reported."

It appears from this report that with regard to. C. Daniel and D C. Paul, the Superintendent of Police could not ascertain their where· abouts but he noted the fact that according to. the army authority,· they were released one day afier the arrest by army authorities. It again appears that the assertion by -Respondents I, 2 and 4 that C. Daniel and C. Paul were invited to identify R. Rashing, is not borne out by this report because the Superintendent of Police states that they were released after their arrest. Pursuant to this report, the Deputy.Commissioner submitted a report to the Chief Secretary, ManipurState that C. Daniel and C. Paul are missing and that the certificates are not correct and that the \'illage headman had stated that they were made to sign blank papers. Before this report was submitted, the Deputy Commissioner had received an application signed by five persons including village headmen Machihan setting out the details about the events that occurred on March 10, 1982 and the fact that their' signatures were obtained by the army authori· ties ·on blank papers and that they ·had not si&11ed the certificates and it was not true that C:. Daniel and C. Paul were released in their ·presence on March 1l,_1982.

From the evidence herein collated, it unquestionably follows that not only C. Daniel and C. Paul after admittedly they were taken presumably under arrest to Phungrei Camp on March 10, 1982 in the afternoon, they never left the Phungrei Camp on March 11, J9S2 as claimed on the resl'ondents in comrany. of H.L. Machihan and

922 SUPREME COURT REPORTS [1984] I s.c.R.

Shangnam, but -a very crude attempt was made to concoct evidence in the from of ce_rtificates with a view to disowning the responsibility to explain wh~t happened.Jo C. Daniel and C. Paul after ,they were taken to army camp on March 10, 1982 .. The affidavit cir gateman Kultar Singh and Adjutant Subedar Sucha Singh and tlie Registers do not carry conviction, more so in the light oftbe fact that if what is claimed is genuine this subsequent attempt to doctor facts would not have been undertaken. We are therefore constrained to reject the cont)'ntion that C. Daniel and C. Paul left the army camp- orf March II, 1982 either on their own or in'company of Machiha~ and Shangnam.

c In reaching the conclusiOn that the, respondents have railed to discharge the -burden heavily lying on them to affirmatively establish, once having _admitted taking' them to army camp on March JO, 1983 that C. Daniel and C. Paul left Phungrei • Camp .on March 11, 1982 around 10.00 A.M., we have completely overlooked and i1ot take into consideration the affidavits of Mrs. D Thingkhuila, wife of Shri · C. Daniel and Mrs. Vangamala, wife of Sl)ri C. Paul, that they had· seen C: Daniel and C. Paul being Jed . away by· arniy personnel . on March 15, 1982, as contended by Mr. Bhagat.

E Once we unerringly reach the conclusion that C. Daniel· and C: Paul were taken to Pungrei Camp by officers and jawans of 21st Sikh Regime11t on March 10, 1982 and they never left the army camp as canvassed on behalf of the respondents on March 11, 1982, ·it is obligatory upon the respondents to produce c. Daniel and C. Paul · and to explain their whereabouts, more so ~ecause respodents claim F the power to arrest and question anyone under the provisions of Armed Forces (Special Powers) Act, 1958.

We' may now examine some technical contentions raised on behalf of the respondents. G Mr. Bhagat fo~ the respondents contended that once· the respondents have adopted a position that C: Daniel, and C. Paul had . come to the army camp at the request of the army authority, but· they left- that place on their. own in company of their frinds, a writ of habeas corpus . connot be issued, and the responde'.'ts cannot be called upon to file a return to the writ. Wilen a i>etition for a writ

SEBSfIAN HDNGRAY v. liNIDN (Desai, J.) 923 of habeas ~orpus under. Art. 32 .of the Constitution is moved before the Court, ordinarily the Court would not issue ex-parte a writ of habeas corpus unless the urgency of. tee situation so demands or issuing of a notice m.otion was likely to . result in defeat of justice. Further the Court will be reluctant to issue a writ of hab,eas corpus ex:parte where the fact of detention may be controverted audit may become necessary to investigate the facts. the normal practice is that when a petition for a writ of habeas corpus is moved, the Court would direct a notice to be served upon the. respondents with a view to affording the respondents to file evidence in reply. If the facts alleged in the p»tition are controverted by the respondents appeariog in response to the notice by filing its evidence, the ·court would proceed to. investigate the facts to determine whether there is subs- .c tance in the petitton for a writ ,ef habeas co~pus. (See Holsbury's Laws of England, Fourth Edition, Vol. 11, paragraph 1482).

If on investigation of facts, the Court rejects the contention of the respondent and is satisfied that the respondent was responsible for unauthorised and illegal defention of the person or .persons in respect of whom t)le writ is sought, the Court would issue a writ of hebeas corpus which would make it obligatory for the respondents to file a return. His in this sense that i~ Thomas Jahn Barnardo v. Mary Ford, 1), the House of Lords held that even if upon a notice of motion, it is contended by the person against whom the writ is sought that the person alleged to.be in the custody of the respondents has long since left the custody, a writ can be issued and return insisted upon. A few facts' Of that case will render. some assistance in ascertaining the ra~io of the cas.e. One Harry Gossage was put at the instance o( a clergyman in an institute comprising homes for • F destitute children and of which appellant Thomas John Barnardo was the founder and ·director. 'vlother of Harry. Gossage desired that her son Harry Gossage be transferred to St. Vincent's Home, Harrow Road, a Catholic home and a request to that effect was made to the appellant. After some correspondence was exchanged. between the parties, a ·petition was moved in the Queen's Bench G Division, whereupon a summons was. served upon the appellant to attend the Court to show cause why a writ of habeas corpus commanding him to produce the body of the said Harry Gossage· should not be issued. The appellant filed several allidavits inter a/ia contending that the boy Harry Gossage, was adopted .by one Mr. ·u (I) [1892] A.C. 326.

SEBSTIAN HONGRAY v. UNION (Desai; J.) · 92S

· command of the army authority at Phugrei Camp, it would be necess- ary not only to issue a writ of habeas corpus thereby calling upon A. the respondents 1,2 and ~Ho file the return. In this context, it may be pointed out that the petittioner has prayed for is>uing of a writ of habeas corpus direcfing the respondents to produce. C. DaJ!iel, retired Naib Subedar .of Manipur Riftles and Headmaster of the Junior High Schqol of Ruining village and C. Paul, Assistant Pastor B of Ruining Baptist Church, the writ must be issued and the petition must succeed to that extent.

It may be mentioned that the Manipur State Authorities Res~ pondent 3 had received numerous complaints about the behaviour of the army personnel. The search in village Ruining was taken by the c jawans of 21st Sikh Regiment on March 6, 1982. On March 7, 1982, Mr. Joshi had to visit the viliage when he received complaints of torture and ill-treatment of village inhabitants at the hands of the personnel of the securiiy forces; Thereafter certain enquiries were made by the Chief Secretary, Manipur State which we have already deal with. In the course of hearing, a request was made by Mr. Vaidyanathan, learned counsel for the petitioner and.at a later date by Miss Haskar that the Manipur. State Goyernment be called upon tp produce; (I) Report of the Superintendent of Police (ii) Report of the Deputy Commissioner and (iii) Statement of Yangya Anei Tangkhul alias Malugnai Tangkhul. A copy of the third document is already produced. As far as reports mentioned at (i) and (ii), privilege was claimed on behalf of the E. Kunjeshwar Singh, Secre- tary (Home), Manipur. In the affidavi.t claiming privilege, It is stated that the aforementioned two reports dated April 28, 1982 and 31st may, 1982 were with regard to the incident that occurred on March F ). 10, 1982. Befqre adjudicating upon the claim of privilege, we called upon Mr. V. C. Mahajan, learned counsel for the State of Maniprir to produce the reports for onr perusal. We' read the reports. We are not inclined to examine the question of privilege for the obvious reason that these reports are hardly helpful in any manner in the dis- posal of this petition, and further the three relevant do<;Uments, G namely, the telex message sent by the Deputy Commissioner to· Superintendent of Police, the report made by the Superintendent of Police to the Deputy Commissioner and the short report submitted by the Deputy Commissioner to the Chief Secretary, Manipur State have been disclosed in the proceedings. Therefore, we ~o not propose H merely to add to the length of the judgment by examining the ques- tion of the privilege claimed in respect of the two reports first dated

926 Stii>ilEME COURT REPORT$ [1984) t s.c.tt.

April 28, 1.982 by the Superintendent of. Police. and another dated A May 31, 1982 by tbe Deputy Cotµmissioner.

. Accordingly, this ·petition is allowed and we direct that a. writ of habease corpus be issued to tne respondents I, 2 and 4 commanding th.em to produce C. Daniel, retired Naik Subedar of Manipur Rifiles • atid Headmaster of the Junior High School of Ruining Village and B C. Paul, Assistant Paster of Ruining Baptist Church, who were. taken to Phungrei Ca.mp by the jawans of 2 lst Sikh Regiment ~n· March 10, 1982 before this Court on Dec. 12, 1983 an~ file the return. .,

H. S. K. Petition allowed.