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Friday, August 1, 2014

Habeas corpus petition - Judicial Custody - Not maintainable - petitioner is an accused in a criminal case and therefore he is in judicial custody by virtue of an order passed by the Judicial Magistrate -no illegal detention as alleged by the petitioner - Instead of applying for bail - came with this Habeas corpus petition - Apex court dismissed the same and directed to petitioner to file bail application before the concerned court = WRIT PETITION (CRL.) NO. 147 OF 2013 SAURABH KUMAR THROUGH HIS FATHER … PETITIONER VERSUS JAILOR, KONEILA JAIL & ANR. … RESPONDENTS = 2014 July. Part – http://judis.nic.in/supremecourt/filename=41780

Habeas corpus petition - Judicial Custody - Not maintainable - petitioner is an accused in a criminal case and therefore he is in  judicial custody by virtue of an order passed by the Judicial  Magistrate -no illegal detention as alleged by the petitioner - Instead of applying for bail - came with this Habeas corpus petition - Apex court dismissed the same and directed to petitioner to file bail application before the concerned court =

On 30.6.2013 the police had called  the
petitioner to  the  Police  Station  for  enquiry  on  his  application  for
passport and after reaching inside the police  station  he  was  locked  up.
Thereafter on 1.7.2013 early  morning,  the  petitioner  was  taken  to  the
residence of one Shri Tripathi, Judicial Magistrate who is  arrayed  as  6th
respondent in this writ petition. There,  the  petitioner  was  beaten  with
lathi by DSP, Manish Kumar Suman, who is arrayed as 9th  respondent  herein,
in the presence of the said Judicial Magistrate and it is also alleged  that
while beating he was told that it is a reward for his parents for  reporting
or complaining against him  to  the  Supreme  Court,  and  insulted  him  by
stating that low caste people should not become malik of  the  land  of  the
upper caste people like mausaji. Thereafter, the petitioner was  taken  from
the house of the Judicial Magistrate to the Koneila jail where  he  is  kept
under detention.  The  petitioner  states  that  he  was  unnecessarily  and
illegally detained by  the  police.  It  is  also  a  further  case  of  the
petitioner  that  the  Judicial  Magistrate,  Shri  Tripathi   also   caused
prejudice as  he  is  out  of  vengeance  against  his  parents.  When  they
approached the local  MLA,  the  MLA  contacted  the  SHO  of  Dalsingsarai,
District Samastipur, and the police  informed  the  MLA  that  there  is  no
complaint against the writ petitioner and they are going to release him  but
in spite of repeated requests they have not released him.     =
  Hence, the petitioner prayed for grant of  a  writ  of  habeas  corpus
u/Art. 32 read with Art.14, 21 & 22 of the Constitution of  India  directing
the Respondents to produce the petitioner Saurabh Kumar before this  Hon’ble
Court=

 We have heard the counsel for the State Government  also  who  made  a
statement that the allegation  made  in  the  affidavit  is  false  and  the
petitioner is an accused in a criminal case and therefore he is in  judicial
custody by virtue of an order passed by the Judicial  Magistrate  and  there
is no illegal detention as alleged by the petitioner.=

whether the petitioner  can  be  said  to  be  in  the  unlawful
custody.  
Our answer to that question is in the negative. 
The  record  which
we have carefully perused shows that the petitioner  is  an  accused  facing
prosecution for offences, cognizance whereof has already been taken  by  the
competent Court.
He is presently  in  custody  pursuant  to  the  order  of remand made by the  said  Court.  
A  writ  of  Habeas  Corpus  is,  in  the circumstances, totally mis-placed.
Having said that, we  are  of  the  view
that the petitioner could and indeed ought to have filed an application  for
grant of bail which prayer could be  allowed  by  the  Court  below,  having
regard to the nature of the offences allegedly committed by  the  petitioner
and the attendant circumstances.
The petitioner has  for  whatever  reasons chosen not to do so.
He, instead, has been  advised  to  file  the  present
petition in this Court which is  no  substitute  for  his  enlargement  from
custody.
We are also of the view  that  the  Magistrate  has  acted  rather
mechanically in remanding the accused petitioner herein to judicial  custody
without so much as making  sure  that  the  remaining  accused  persons  are
quickly served with the process of the  Court  and/or  produced  before  the
Court for an early disposal of the matter.  
The Magistrate appears  to  have
taken the process in a  cavalier  fashion  that  betrays  his  insensitivity
towards denial of personal liberty of a citizen who is languishing  in  jail
because the police have taken no action for the apprehension and  production
of the other accused persons.
This kind of apathy is regrettable to say  the least.

We also find it difficult to accept the contention  that  the  other
accused persons who all belong to one family have absconded.  
The nature  of
the offences alleged to have been committed is also not  so  serious  as  to
probablise the version of  the  respondent  that  the  accused  have  indeed
absconded.  
Suffice it to say  that  the  petitioner  is  free  to  make  an
application for the grant of bail to the Court concerned who shall  consider
the same no sooner the same is filed and  pass  appropriate  orders  thereon
expeditiously.

 2014 July. Part – http://judis.nic.in/supremecourt/filename=41780


                                                          REPORTABLE



                       IN THE SUPREME COURTG OF INDIA
                       CRIMINAL ORIGINAL JURISDICTION



                    WRIT PETITION (CRL.) NO. 147 OF 2013




SAURABH KUMAR THROUGH
HIS FATHER                      … PETITIONER

VERSUS

JAILOR, KONEILA JAIL & ANR.      … RESPONDENTS



                               J U D G M E N T


N.V. Ramana, J.


      This habeas corpus petition is filed by one Saurabh Kumar  who  is  in
Koneila Jail, Dalsingsarai, District Samastipur (Bihar).


2.    In brief the case of the petitioner  is  that  he  was  XII  pass  and
wanted to leave the village in search of a decent job.  In  that  connection
he made an application for passport. On 30.6.2013 the police had called  the
petitioner to  the  Police  Station  for  enquiry  on  his  application  for
passport and after reaching inside the police  station  he  was  locked  up.
Thereafter on 1.7.2013 early  morning,  the  petitioner  was  taken  to  the
residence of one Shri Tripathi, Judicial Magistrate who is  arrayed  as  6th
respondent in this writ petition. There,  the  petitioner  was  beaten  with
lathi by DSP, Manish Kumar Suman, who is arrayed as 9th  respondent  herein,
in the presence of the said Judicial Magistrate and it is also alleged  that
while beating he was told that it is a reward for his parents for  reporting
or complaining against him  to  the  Supreme  Court,  and  insulted  him  by
stating that low caste people should not become malik of  the  land  of  the
upper caste people like mausaji. Thereafter, the petitioner was  taken  from
the house of the Judicial Magistrate to the Koneila jail where  he  is  kept
under detention.  The  petitioner  states  that  he  was  unnecessarily  and
illegally detained by  the  police.  It  is  also  a  further  case  of  the
petitioner  that  the  Judicial  Magistrate,  Shri  Tripathi   also   caused
prejudice as  he  is  out  of  vengeance  against  his  parents.  When  they
approached the local  MLA,  the  MLA  contacted  the  SHO  of  Dalsingsarai,
District Samastipur, and the police  informed  the  MLA  that  there  is  no
complaint against the writ petitioner and they are going to release him  but
in spite of repeated requests they have not released him.
3.    Hence, the petitioner prayed for grant of  a  writ  of  habeas  corpus
u/Art. 32 read with Art.14, 21 & 22 of the Constitution of  India  directing
the Respondents to produce the petitioner Saurabh Kumar before this  Hon’ble
Court and also to direct the respondent-State to devise  a  way  to  prevent
malicious arrest and detention by the police that  too  without  maintaining
necessary record and further to direct  the  State  to  pay  the  petitioner
compensation considering that the detention is a black mark  to  his  career
prospects and future.
4.    Initially there were eleven persons shown as  respondents.  But  later
on, the petitioner has withdrawn respondent nos. 3 to 11 from the  array  of
parties.
5.    After issuing notice two counter affidavits have been  filed,  one  by
respondent nos. 1, 2, 7 and  8  and  the  other  by  the  sixth  respondent,
Tripathi, the Additional  Chief  Judicial  Magistrate  and  Judge  In-charge
(Administration) Dalsingsarai, District Samastipur, Bihar.  From  these  two
affidavits, it appears that there were land  disputes  between  petitioner’s
family and one Rama Kant Singh. A Mortgage Suit No. 30/94 was filed  against
Banwari Roy, who is the  grand-father  of  the  petitioner  and  obtained  a
decree against him  on  28.2.1997  by  the  Munsif  Court.  Thereafter,  the
grandfather of the petitioner preferred Title Suit bearing  T.A.  No.  17/99
against the said Rama Kant which was subsequently dismissed by  the  learned
Additional  District  and  Sessions  Judge-I,  Samastipur  by  order   dated
1.6.2013.
6.    The said Rama Kant Singh filed  an  execution  case  for  delivery  of
possession  of  the  land.  The   Munsif   (Civil   Judge,   Jr.   Division,
Dalsingsarai) ordered for deputing the police force for the delivery of  the
land to the decree-holder. In view of the said order,  the  6th  respondent-
Tripathi directed the  Nazir,  Civil  Court,  Dalsingsarai  to  execute  the
decree passed by the learned Munsif and on  3.3.2013  the  said  decree  was
executed which was confirmed by the Munsif by his order dated 15.3.2013.
7.    Thereafter, one Mohan Kumar filed a complaint  before  the  Additional
Chief Judicial Magistrate on 29.4.2013 which was referred to the  police  on
1.5.2013 P.S. No. 72/13 and was registered  under  Section  147,  148,  149,
323, 427, 504, 379 and 386 of the Indian Penal Code and under Section 27  of
the Arms Act for necessary action and  investigation  under  Section  156(3)
Cr.P.C. In the said complaint it is stated that the complainant Mohan  Kumar
was working in his fields of which possession was handed over  by  execution
of the decree. The writ petitioner Sumit Kumar  alias  Saurabh  Kumar  along
with his family members Banwari Roy, Dinesh Roy,  Rekha  Devi,  Golu  Kumar,
armed with lathis, pharsa, pistol beaten Mohan Kumar and snatched his  wrist
watch. It was also further alleged that at  the  gun  point  the  petitioner
party threatened the complainant therein to put his thumb  impression  on  a
stamp paper. On his refusal, the petitioner party threatened  him  to  kill.
The petitioner who is shown as accused in the said FIR was arrested  in  the
said case on 30.6.2013. Thereafter, he was produced  in  the  court  of  the
Additional  Chief   Judicial   Magistrate,   Dalsingsarai,   Samastipur   on
1.7.20123. On  orders  passed  by  him  (Annexures  R.6/2  and  R.6/3),  the
petitioner was remanded to judicial custody vide order dated 1.7.2013.
8.    When the matter  came  up  before  this  Court,  the  learned  counsel
appearing for the petitioner Smt. Lily  Isabel  Thomas  contended  that  the
petitioner is in illegal custody and sought a  direction  for  his  release.
This Court has pointed out to the counsel  for  writ  petitioner  about  the
counter affidavits filed by the respondents which show that  the  petitioner
is an accused in a criminal case which was registered  under  Sections  147,
148, 149, 323, 427, 504, 379 and 386 of IPC and under  Section  27  of  Arms
Act and after such registration he was  arrested  and  produced  before  the
Addl. Chief Judicial Magistrate, Dalsingsarai,  District  Samastipur,  Bihar
and  then  he  was  detained  in  judicial  custody.  However,  the  counsel
contended that a direction be  given  to  the  jailer-respondent  No.  1  to
produce the remand report  of  the  petitioner  as  that  itself  shows  the
illegal detention. In spite of this Court’s suggestion to  the  petitioner’s
counsel to approach the criminal court for obtaining  bail,  she  repeatedly
made request for the production of order passed by the  Judicial  Magistrate
remanding the petitioner to jail.
9.    We have heard the counsel for the State Government  also  who  made  a
statement that the allegation  made  in  the  affidavit  is  false  and  the
petitioner is an accused in a criminal case and therefore he is in  judicial
custody by virtue of an order passed by the Judicial  Magistrate  and  there
is no illegal detention as alleged by the petitioner.
10.   After hearing the counsel and  on  perusing  the  affidavits  and  the
material placed before us, it is evident that  there  are  series  of  cases
pertaining to land disputes between the family of  the  alleged  detenu  and
other villagers. Civil cases were filed initially. During the pendency of  a
Suit, the father and mother of the petitioner filed a Writ Petition No.  197
of 2012 before this Court. In the said Writ Petition, this Court has  passed
the following orders:
      Order dated 9.5.2013

      “Heard Ms. Lily Isabel Thomas, learned  counsel  for  the  petitioners
and perused the record.
       The  District  Judge,  Samastipur,  Bihar  is  directed  to  pass  an
appropriate order in the pending appeal within a period of  two  weeks  from
the date of receipt/production of copy of this order.

      With the above observation, the applications are disposed of.

      If any petition is filed by the applicants under Section  144  C.P.C.,
then the same may be considered on its own merits.”

      Order dated 7.6.2013

      “List on 10.6.2013.

      In the meantime and until further orders the petitioners shall not  be
dispossessed as the order dated  9.5.2013  indicates  that  this  Court  had
already permitted  the  petitioners  to  approach  the  District  court  for
disposal of their application. In the meantime, the learned counsel for  the
petitioners has sought protection from  dispossession,  which  prayer  prima
facie appears to be reasonable. Suitable modification in this regard in  the
order may be considered on the next date when the application is listed.  In
the meantime and  until  10.6.2013,  status  quo  in  the  matter  shall  be
maintained.

      The order may be given dasti.”

11.   A mortgage Suit No. 13/94  was  also  filed  in  which  a  decree  was
obtained against the  grandfather  of  the  petitioner  and  thereafter  the
grandfather of the petitioner Banwari Roy has also filed a civil Title  Suit
bearing T.A. No.  17/99  which  was  dismissed  by  the  learned  Additional
District  and  Sessions  Judge-I,  Samastipur  on  1.6.2013.,  taking   into
consideration the orders passed by this Court.
12.   After obtaining decree in the Suit for  delivery  of  possession  Rama
Kant Singh has filed Execution proceedings on which the Munsif  has  ordered
for police force for the  delivery  of  possession  which  was  executed  on
3.3.2013 and thereafter again an incident had taken  place  on  1.5.2013.  A
complaint was given by one Mohan Kumar which was registered as FIR P.S.  No.
72/13 under different Sections of the IPC and under Section 27 of  the  Arms
Act. At  that  point  of  time,  the  petitioner  was  produced  before  the
Additional Chief Judicial Magistrate. Then the  Magistrate  after  examining
him, directed to send him to jail by order dated 1.7.2013  (annexure  R.6/3)
. The said order reads as under:
“Sub Inspector, P.S. Ujiarpur arrested named accused  of  this  case,  Sumit
Kumar @ Saurabh  Kumar  aged  22  years  son  of  Shil  Kumar  Rai,  Village
Bhagwanpur Desua, P.S. Ujiarpur, District  Samastipur  and  sent  Forwarding
Report to the Court,  seeking  judicial  remand  of  accused  on  the  basis
evidence indicated in the report  and  arrest  memo  along  with  reasonable
escorting force. Accused has  no  complaint  against  the  escorting  force.
Nose, Ear, Eye etc. of the accused is functional and on query by the  Court,
accused said he is able to defend his case. The accused is remanded in  this
case and being sent to Up-Kara (Sub-Divisional Jail), Dalsinghsarai.  Office
clerk is directed to issue custody warrant.

      Fixed for 15.7.2013 for production of accused from jail.”

13.   It is clear from the said narration of facts that  the  petitioner  is
in  judicial  custody  by  virtue  of  an  order  passed  by  the   Judicial
Magistrate.  The same is further ensured  from  the  Original  Record  which
this Court has, by order dated 9th April, 2014, called for  from  the  Court
of Additional Chief Judicial Magistrate, Dalsingsarai, District  Samastipur,
Bihar.   Hence, the contention of the learned  counsel  for  the  petitioner
that there was illegal detention without any case is  incorrect.  Therefore,
the relief sought for by the  petitioner  cannot  be  granted.  Even  though
there are several other issues raised in the Writ Petition, in view  of  the
facts narrated above, there is no need for  us  to  go  into  those  issues.
However, the petitioner is  at  liberty  to  make  an  application  for  his
release in Criminal Case No. 129/13 pending before the Court of the  learned
Addl. Chief Judicial Magistrate, Dalsingsarai.
14.   After the conclusion of hearing, when  the  matter  was  reserved  for
judgment and the pronouncement of judgment is pending, a Crl.M.P. No.  12866
of 2014 has been filed by the writ petitioner seeking reliefs which are  not
concerned with the main  prayer.  The  petitioner  has  also  filed  another
Crl.M.P. No. 14378 of 2014 seeking release of petitioner’s mother and  grand
father. In view of the foregoing discussion and the  reasons  given  in  the
judgment, the reliefs so sought by the  petitioner  in  the  said  Crl.M.Ps.
also cannot be granted in the present habeas corpus writ petition.  However,
the petitioner is at liberty to  avail  remedies  as  available  to  him  in
accordance with law.
15.   Accordingly,  the  writ  petition  as  well  as  the  Crl.M.Ps.  stand
dismissed.

……………………………………..J.
(T.S. Thakur)


……………………………………..J.
(N.V. Ramana)

New Delhi,
July 22, 2014.


                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL ORIGINAL JURISDICTION


                      WRIT PETITION (Crl.) 147 OF 2013


Saurabh Kumar                                …Petitioner
Vs.
Jailor, Koneila Jail, & Anr.                 …Respondents

                               J U D G M E N T
T.S. Thakur, J.
1.    I have had the advantage of going through the  order  proposed  by  my
esteemed brother N.V. Ramana, J.  I entirely agree with the  view  taken  by
him that the petitioner cannot be said to be in illegal  custody  so  as  to
warrant the issue of a writ of Habeas Corpus.  I would all the  same  add  a
few words of my own to what has already  been  stated  by  my  esteemed  and
erudite brother.
2.    Petitioner’s case is that he was called to the police station on  30th
June, 2013 in connection with some enquiry about the issue  of  a  passport.
When he reached the police station, he was unceremoniously  locked  up  only
to be produced before Shri Tripathi, Judicial  Magistrate,  Respondent  No.6
in the writ petition, on the following date i.e. 1st  July,  2013.  He  was,
according to the averments in the petition, beaten up  with  lathis  by  one
Manish Kumar Suman, DSP arrayed as respondent No.9  in  the  writ  petition.
The beating is alleged to have taken place in the presence of  the  Judicial
Magistrate as  a  reward  for  the  audacity  of  the  petitioner’s  parents
reporting against the  Magistrate  to  the  Supreme  Court.  The  petitioner
alleges that when his parents approached the local MLA for help,  they  were
told that there was no complaint against the petitioner and that he will  be
released  shortly.  The  detention  of  the   petitioner,   in   the   above
circumstances,  it  is  asserted,  was  without  any  lawful  justification,
whatsoever hence illegal.
3.    The respondents have appeared to file two separate counter  affidavits
from which it appears that not only are there disputes  between  the  family
members of the petitioner, on the one hand, and one Rama Kant Singh, on  the
other, but on the complaint of one Mohan Kumar, filed before the  Additional
Chief Judicial Magistrate, the later had passed  an  order  on  29th  April,
2013, referring the matter to the police for  investigation.  Criminal  Case
No.72 of 2013 was on that basis registered in  the  police  station  against
the petitioner for offences punishable under Sections 147,  148,  149,  323,
427, 504, 379 and 386 of the Indian Penal Code read with Section 27  of  the
Arms Act.  The  affidavits  further  reveal  that  the  petitioner  was,  in
connection with the said case, arrested on  30th  June,  2013  and  produced
before the Additional Chief Judicial  Magistrate,  Dalsingsarai,  Samastipur
on 1st July, 2013 who remanded him to judicial custody  by  an  order  dated
1st July, 2013.  From the original record summoned  by  us  for  perusal  we
find that the petitioner had been remanded to judicial custody from time  to
time by the Court concerned.  In the meantime,  a  charge  sheet  was  filed
against the petitioner on 27th August, 2013 followed by a subsequent charge-
sheet filed against the remaining accused persons  on  3rd  December,  2013.
It is also manifest from the record that on a perusal  of  the  FIR,  charge
sheets and the case diaries, the Magistrate  has  taken  cognizance  of  the
offences punishable under Sections 147, 148, 149, 323,  447,  504,  379  and
386 of the Indian Penal Code read with Section 27 of the  Arms  Act  against
the petitioner-Saurabh Kumar, Banwari Rai, Dinesh Rai, Rekhad Devi and  Golu
Kumar in terms of his Order dated 19th December, 2013.  The Order passed  by
the Magistrate reads:
 “Accused produced from Jail.
Perused the FIR charge sheets and case diary.
After perusal prima facie case is made out against  the  accused  (1)  Sumit
Kumar @ Saurav Kumar, (2) Banwari Rai (3) Dinesh Rai,  (4)  Rekha  Devi  and
(5) Golu Kumar U/s 147, 148, 149, 323, 447, 504, 379, 386 IPC  with  Section
27 of the Arms Act
Hence cognizance taken against the accused persons in above  sections.   The
case record is kept in personal file for  trial  and  disposal  (sic)  issue
summon to the unappeared against persons.
Produce on 2-01-2014 for production and appearance. “

4.    Subsequent orders passed in the case show that the  accused  has  been
produced before the Magistrate concerned from time to time and  remanded  to
custody, awaiting service of summons upon the remaining accused persons  who
are, according to the affidavits filed by the respondents, absconding.
5.    Two things are evident from  the  record.   Firstly,  the  accused  is
involved in a criminal case for which he  has  been  arrested  and  produced
before the Magistrate  and  remanded  to  judicial  custody,  Secondly,  the
petitioner does not appear to have made any application for grant  of  bail,
even when the remaining accused persons alleged to be absconding and  remain
to be served.  The net result is that the petitioner continues  to  languish
in jail.
6.    The only question  with  which  we  are  concerned  within  the  above
backdrop is whether the petitioner  can  be  said  to  be  in  the  unlawful
custody.  Our answer to that question is in the negative. The  record  which
we have carefully perused shows that the petitioner  is  an  accused  facing
prosecution for offences, cognizance whereof has already been taken  by  the
competent Court.  He is presently  in  custody  pursuant  to  the  order  of
remand made by the  said  Court.   A  writ  of  Habeas  Corpus  is,  in  the
circumstances, totally mis-placed.  Having said that, we  are  of  the  view
that the petitioner could and indeed ought to have filed an application  for
grant of bail which prayer could be  allowed  by  the  Court  below,  having
regard to the nature of the offences allegedly committed by  the  petitioner
and the attendant circumstances.  The petitioner has  for  whatever  reasons
chosen not to do so.  He, instead, has been  advised  to  file  the  present
petition in this Court which is  no  substitute  for  his  enlargement  from
custody.  We are also of the view  that  the  Magistrate  has  acted  rather
mechanically in remanding the accused petitioner herein to judicial  custody
without so much as making  sure  that  the  remaining  accused  persons  are
quickly served with the process of the  Court  and/or  produced  before  the
Court for an early disposal of the matter.  The Magistrate appears  to  have
taken the process in a  cavalier  fashion  that  betrays  his  insensitivity
towards denial of personal liberty of a citizen who is languishing  in  jail
because the police have taken no action for the apprehension and  production
of the other accused persons. This kind of apathy is regrettable to say  the
least.  We also find it difficult to accept the contention  that  the  other
accused persons who all belong to one family have absconded.  The nature  of
the offences alleged to have been committed is also not  so  serious  as  to
probablise the version of  the  respondent  that  the  accused  have  indeed
absconded.  Suffice it to say  that  the  petitioner  is  free  to  make  an
application for the grant of bail to the Court concerned who shall  consider
the same no sooner the same is filed and  pass  appropriate  orders  thereon
expeditiously.



7.    With the above observations I agree with  the  order  proposed  by  my
esteemed brother N.V. Ramana, J.


                                                           ……………….……….…..…J.
         (T.S. Thakur)
New Delhi
July  22, 2014







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