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.
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
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
