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.
advocatemmmohan 
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