Holding

The respondents failed to prove that C. Daniel and C. Paul left Phungrei camp on 11 March 1982, so the Court issued a writ of habeas corpus directing them to produce the two men and file a return.

Summary

The petitioner, a student, filed a writ of habeas corpus under Article 32 of the Constitution on behalf of C. Daniel and C. Paul, who were allegedly taken by jawans of the 21st Sikh Regiment from Huining village to Phungrei camp on 10 March 1982 and thereafter disappeared. The respondents (Union of India, State of Manipur and the army commandant) claimed the two men were released on 11 March after identification of a suspect, while the petitioner asserted they never left the camp and were unlawfully detained. The Supreme Court examined the scope of habeas corpus, the burden of proof on respondents, and the propriety of issuing an ex parte writ when facts are contested. After evaluating affidavits, registers, and police reports, the Court found the respondents failed to prove the release of the two men and therefore ordered a writ of habeas corpus directing the respondents to produce them and file a return. The petition was allowed.

Issues considered

When may a writ of habeas corpus be issued ex parte under Article 32?
Who bears the burden of proving lawful detention or release in a habeas corpus petition?
Can a writ be issued when the alleged detainee is said to have left the respondents' custody?
Whether the respondents can claim privilege to withhold police and administrative reports.
Whether the court can compel the respondents to file a return to the writ.

Legislation cited

Subjects

habeas corpusArticle 32illegal detentionarmed forcesex parte writburden of proofprivilegeManipursecurity forces

Judgment

SEBASTIAN M. HONGRAY
<
A
v.

UNION OF IN!)IA AND OTHERS .

November. 24, 1983
B
[D. A. DESAI AND 0. CHINNAPPA REDDY, JJ.]

Conftitution of Indja-Art. Ji-Scope of- When Court may issue writ of
habeas corpus ex parte. If 011 notice, facts controverted by respondent Court
n1ust investigate facts to satisfy itself before issuing'f.writ of habeas. cor'1~s. On
C writ bei'itg. issued respondent obliged to file return. A writ can be issued and
return ilisisted upoh even if person alleged to be in custody of respondent has long
since left the cuStody.

The petitioner asKed for a writ of habeas co~pus under ArL 32. of ~he
Constitution to be issued to the. respondents to produce the two persons,
C. Daniel and C. Pauf in the Court, who, according to the petitionl!r, were
D whisked aWr.y by the army jawans frorri Huining village to Phungrei ·Camp and
unauthorisedly detained by the Officer incharge of 21st· Sikh Regin1ent and
were held.incommunicado and whose whereabouts were not made known~ The
petitioner averred that S;Pme jawans attached to 21st Sikh Regiment ;isited
village Huinin.g on March 5, 1982 and rounded up some villagers. These
villagers wer'e re.leased ori March 6, 198"2. On March 7 the Deputy Commis-
E sioner accOmpanied by the Additional District Magistrate of that area visited·
,. Ruffling viJlagc to enquire ab~ut the incidents of the previous day. Son1e of
the army jawans who had· obtained, under duress, certificates from some
villagers·exon~rating them of the allegation of ill-treatment and praising the
conduct of the jawans, showed these certificat(!S to these officers. On March
10, 1982 C. Diniel C. Paul were arrested by the army jawans and were taken
away from Ruining .village. · At. the same time some jawanS had _obtained
F'j signatures on blank papers from Machiban, village. beadrrian and from
one Shangnam, a member of the village . authority. On the next day·
Machihan reported this fact to the Deputy Commissioner. As C. Daniel and
C. Paul did not return, their wives went to the Phungrei Camp in search of tbefr
respeCtive h~sband and while waiting there they saw 'C. Daniel and C. -Paul·
being led away by four .army jawans towards the West. ·The village headman
and others made a written complaint to the Deputy Commissioner. They a1so
G complained that they had n"ot issued any certificate showing that C. Daniel and
C. Paul were released in their preSence on March 11, 1982. The Deputy
Commissioner had an enquiry made into the comPiaint by the Superintendent
of Police and reported to the Chief Secretary of the State that the village head·
man and. other menrbers. of the village author'ity. had ~ven~ i? writing that it was
not correct that C. ban1el and C. Pa&l were released 10 thetr presence an.d that
both of them were still missing. In· respone ·to the notice ihe respond~nts
stated that both C. Daniel and C. Paul were -called to the army .camp for the
• purpose of identification of Certain suspects on March 10, 1982 ap.d after_spend-
ina: the night at tho army camp they were-allowed to go C!D March 11, 1982 in
'

~!EieASTIAN HONGRAY v. UNION

the company of Machihan and Shangnam, their friends. and since then the
security force had no knowledge about their whereabouts. The respondents A
denied that the respective wives of C. Daniel and C. Paul ever visited the army
..;amp on l\1arch 15, 1982. They further de'nied h~ving obtained signatures on
blailk papers from the village headman and others. ln response to the rule
the respondents. reiterated their earlier stand. The respondents contended .. that
once they had adopted the position the C. Daniel and C. Paul had cotne to the
army camP at the request of the army authority and they left that place on their
request in company of their friends, a writ of habeas coipus cannot be· issued~ B
·"and the respondents cannot be called upon to file a, return to the writ ..

Allowing the petition,

HELD : A writ of habeas corpus be i.ssued to the respondents 1, 2 and 4
commanding them to produce C. Danie} and C. Paul 6efore this court and fi~e
the return. (626 BJ
c
1·
· When a peiition for a writ of habeas corpus .under Art. 32 of the
Constitution is moved before the ·court,. ordinarily the court would not isSue
ex part~ a writ of habeas ·corpus unless the urgency or the sitllation so deniands
or issuing of a n~tice of motion was likely to result in defeat pf justice. Further,
the court wilt be reluctant to issue a writ of habeas corpus ex parte where the D
facts.of detention may bi;: contr9verted. and it may becon1e necessary to investi-
gate the facts. The norn1al 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 respon-
dents with a vje~ to affording the respondents to file. evidence in reply. If the
facts aJleged in the petition are controverted by the responde~ts appearing in
response to the notice . by filing its evidenCe, the court would proceed to
investigate the facts· to determine whether there is substance in th·e petition ·for
E
a writ of habeas corpus. tf on investigation of facts. the court rejects ·the
co1,1tention of the ·respondents and is satisfied· that the respondent was
responsible for unauthorised and 'illegal detCntion of the person or persons in
respect of whom the writ is sought, the Court would issue a writ of habeas ""
corpus which would make it obligatory for the respondents to file a return.
[923 A·D]

Halsb11ry'sLaws of Eng/an!f, 4th Edn., Vol. 11, para. 1482 referre<) to.

Even if upon a notice .of motion, it is co"ntended by the person against
whom the writ is sought that the person alleged to be in the custody Of the
respolldents has long sinCe left the custody, a writ can be issued <:tnd return
insisted upon .. [923 .EJ · · · G
Thotnas John Barnardo v. Mliry Ford r1892] A.C. 326 and Reg. v.
Barnardo Tye, 23 Q.B.D. 305 referred to.

In the instant case, when the petition was moved before this Court, rule
nisi was issued.calling· upon the respondents to submit their ~v·ersion about the II
detention of C. Daniel and C. Paul. The respondents 1, 2 and 4 in their various
· affidavits adopted a positive stand that C. Dailiel and C. Paul were taken by
th_e army jawans on March 10, 1982, though not under arrest, to the armY
:
SilPRBMll cii\nl.t REPOilts (1984) I s.c.k.
camp for the purpose of jdentifying Rashiq,g and that they spent the night at
A the army camp and that they left the army carnp·on March 11, 1982 in com~
pany of H.L. Machihan and C. Shangnam, The petitioner and those filing
affidavits in support including H.L. Machihan, C. Shangnam and Smt.
Ti1ingkhuil wife of C. Daniel and Smt. Vangamla wife of C. Paul denied that
C. Daniel and C. Paul left army camp on March 11, 1982 anc.l returned to the
village, therefore, an issue squarely arose to ascertain whether the positive stand
of iespondents was boine out -by the facts alleged and proof offi.:red. The
B burden obviously-was on the respondents to mak~ goot!i the defence. In view .~
of the direct evidence furnished by the affidaVit of H.L~ Machihan and
C. Shaninam, coupled 'with the suspicious cir~umstances discuss.ed in the
judgment <ind effort made to bolster up the stand by entries. of dubious charac-
ter in the register kept at the gate of Phungrei Camp els also the eloquent silence
maintained by the respondents in the earlier stage of the proceedings .about
c existence of any record leave the Court with no· alternative but to hold that the
respondents have failed to prove that C. Daniel and C. Paul left the army
camp on March 11, 1982 around 10.00 A.M. Now that the facts are clearly ·r
establisl~ed 'which led to the rejection of the contention of the respondents that
C.-Daniel and C. Paul ever left the army caffip On March 11, 1982 around .
10 00 A.!\.f., the necessary~corollary being that they We're last seen alive under
tl}.e surveillance, control and command of the .army authority at Phungrei
D Camp, it would be necessary not only to issue a writ of habeas corpus. thireby
calling \1pon the respondents l, 2, and 4 but to file the return.
• [924 D-H; 918 H; 919 A; 925 A).J
·(
ORIGINAL JURISDJCT!ON: Writ Petition (Criminal) No. 148 of
1983.
E
(Under article 32 of the Constitution of Inclia)

C.S. Vaidyanat"':n and Ms., Nandita Haksar for the Petitioner.
.. K.G. Bhagqt, Addi. Solicitter General, P.P. Singh and Ms.
A: Su{Jhashini for the Responden_t.
F
V.C. Mahajan, Ba/bir Singh Shani, S.K. Mehta and Mrs. Urmiltf
Kapur for the State of Manipur.
•
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
F 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
G 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
H 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 G
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 H
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

I
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
A 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
B 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
F
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,
G 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 E
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 F
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 G
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 H
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 D
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
E
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
A their improper actions which were questioned by the village people.

We may here briefly refer to the various ceriificates Appendix.
'O', annexures to the counter·affidavit by Mr. J.C. Sachdeva in Writ
1
' Petition No. 550 of 1982 to show that the very language used in the
B certificates obtained by the personnel of the security forces would be
a give away showing how the army people were trying to cover, their
illegitimate actions. These certificates provide· tell-tale evidence of
how a very spurious attempt was made to white-wash some of the
actions of the ja~ans of the army. We may specifically ref~r to
· certificates produced at Appendix 'L' in which it is stated that the
c Deputy Commissioner o( Ukhrul Mr. JP. Joshi visited village
Ruining on March 7,1982 from 7 A.M, to 11 AM. and ,instigated the
villagers against the security forces. The village residents of Huining
were so co-operative with·the security forces that they refused to be
instigated by him and on other hand they praised the security forces
D • for the good treatment meted out to the. villagers •by the security
• forces. The attempt to blemish the good name of Mr. Joshi when
the village headman and others had approached to ventillate their
grievance against the army personnel, we refrain from using strong
term, is crude, if not counter-productive' On the contrary; it would - · ,,.\
be legitimate to infer that there was something very despicable in the
E conduct of the army jawans, and therefore to forestall any action
they procured certificates which inevitably must be under threat,
' .. duress or coercion. Therefore, these certificates leave us cold. ·

In the meantime, certain events occurred of which notice
should be taken. The fir,;t search was carried out by the. army
F
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
G 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 E
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 F
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
G
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
H
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
A 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
B 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
H 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 A
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 B
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
D
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 E
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.
9i4 SUPREME COliRT REPORTS [1984) i s.c.R..
Norton of Canada on November 16, 1888 long before the respondent
A mother coveyed a desire to' transfer the boy to the Catholic home.
It was further contended on behalf of the appellant that Harry
Gossage was no.I with him since November 16, 1888 when he trans-
ferred him into the care of Mr. Norton and at the time of the service
· of the summons, he was not in his custody or power. In a proceed-
B ing before Methew, J. after c~oss-e11amination of the appellant the
learned Judge refused to c;irder the writ to be issued. In the mean-
time, the case in Reg. v. Barnardo Tye's(') case was decided by the
Court of Appealin which it was laid down that it was not an excuse
for non-compliance with a writ that the defendant bad , parted with
the custody of the child to another person if he had done so wrong·
fully, find accordingly~ fresh application was made for a writ of
habeas corpus. After hearing the arguments, the Judges of the
Queens Bench Division ma'de absolute the order for the issue of the
writ. The a\Jpellant approache<\ ihe House of Lords. It is iu this
·context tha.t 'the Court held that the respondent was·entitled to a
return of the writ. To .some exte'nt, the position before us is identical,
D if not wholly similar. When the petition in the 'present case was
inov~d before this Cdurt, nl),e nisi. was. issued calling upon the
respondents to submit their version about the detention of C. Daniel
··and C. Paul. The respondents I, 2 and 4 in their various affidavits
adopted a positive stand that C. Daniel. and C. Paul were taken by
E the army jaw ans on March I 0, 1982, though not under arrest, to the
army camp for the purpose of identifying Rashing and that they
spent the night at the army camp and that they left the army camp
on March 11, J 982 in company of H.L. Machihan and C. Shangnam.
The petitioner and those fiiing affidavits in support including
, H.L. Machihan, C. Shangna'm a~d Smt. Thingkliuila, wife of C. •
F Daniel and.Smt. Vangamla, wife of Shri C. Paul denied that C.
Daniel and C. Paul left army camp on March 11, 1982 .'and returned
to the village, therefore an issue squarely arose to ascertain whether
the positive stand qf the respondents was borne oufby the facts
alleged and proof offered. The burden obviously was on the
G respondents to make good the defence. Now that the .facts ·are
clearly established which led to the ·rejection oft.he contention of the
respondents that C. Daniel' and C. P~~l ever left the army camp on
March 11 J982 around IO.OD A. M.; the necessary corrollary being
that they' were lasf seen alive under. the surveillance, control and
H
(1) 23 QcB D. 305.
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 D
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 E
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.