//
you're reading...
legal issues

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

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,729,165 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,854 other followers

Follow advocatemmmohan on WordPress.com