Allahabad High Court
Ruab Uddin @ Bhole And Another vs State Of U.P. And 2 Others on 22 July, 2019
Bench: Manoj Misra, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 42 AFR Case :- HABEAS CORPUS WRIT PETITION No. - 623 of 2019 Petitioner :- Ruab Uddin @ Bhole And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ram Raj Prajapati Counsel for Respondent :- G.A. Hon'ble Manoj Misra,J.
Hon'ble Virendra Kumar Srivastava,J.
This habeas corpus has been filed by Ruab Uddin for production of his son Kaleem (corpus-petitioner no.2) by claiming that his son, the corpus, is being illegally detained without any authority of law.
Upon consideration of the averments made in the petition and on perusal of the written instructions provided to the learned AGA, on 04.07.2019, we had passed following order:-
"In this habeas corpus petition, which has been filed by the petitioner no.1, who is father of the corpus-Kaleem (petitioner no.2), a prayer has been made for a direction upon the respondents to produce the corpus Kaleem (petitioner no.2) before the court.
In paragraphs 5, 6, 7 and 8 of the petition it has been stated that the corpus Kaleem was arrested from his house on 7th March, 2019 and a false police encounter was shown. It is stated that the corpus sustained injuries and he was hospitalized at S.R.N. Medical College, Prayagraj by the police. It is alleged that the police neither produced the corpus before the Magistrate concerned nor obtained any order of remand and had been continuously keeping the corpus in illegal detention since 9th March, 2019 under the pretext of providing medical aid. It has also been stated that the petitioner had moved an application before the ACJM, Court no.17, Allahabad for surrender on 3rd June, 2019 but the police did not submit any report in the court, till date.
On the above submissions, on 1st July, 2019, learned AGA, who had accepted notice on behalf of respondents 1, 2 and 3, was directed to seek instruction from the police station concerned whether the corpus (Kaleem) is in police custody or not and if he is not in police custody, then whether he has been produced before the court or was ever arrested.
Pursuant to the order dated 1st July, 2019, learned AGA has obtained written instruction from Sushil Kumar, Sub-Inspector, police station Soraon, district Prayagraj.
A perusal of the written instruction would reveal that on 9th March, 2019, the corpus was arrested and in the process, as there had been exchange of fire, he had sustained injuries on his leg and, therefore, had to be admitted in S.R.N. Medical College, Prayagraj on 9th March, 2019. In paragraph 4 it is stated that a remand application was moved before the remand Magistrate. It has, however, not been disclosed whether any order of remand was passed by the remand Magistrate on the said application. In paragraph 8 it has been stated that the alleged corpus is still under treatment in S.R.N. hospital in police custody.
It has not been disclosed as to under which order the corpus is continuing in police custody since 9th March, 2019 and whether any order of remand was passed or not.
In view of the above, we deem it appropriate to direct the Station House Officer, police station Soraon, district Prayagraj to produce the corpus (Kaleem) before the Court on Monday along with all the papers concerned, if any, in respect of his remand.
List/Put up this matter on Monday i.e. 8th July, 2019.
Let a copy of this order be supplied to the learned AGA today itself for compliance."
On 08th July, 2019, the matter was adjourned to 09.07.2019 and, thereafter, again, adjourned to 10th July, 2019. On 10th July, 2019, following order was passed:-
"Pursuant to our order dated 04.07.2019, Sri Susheel Kumar, Sub-Inspector, P.S. Soraon, District Prayagraj is present and has produced the corpus along with certain papers to show that on 09.03.2019 the remand order was obtained from the remand Magistrate, Allahabad (Prayagraj).
The papers are incomplete in the sense that they do not disclose whether this remand was extended from time to time and whether the detenue was produced for the purpose of obtaining remand.
Let a detailed affidavit be filed bringing on record all the relevant papers and facts.
List this matter on 15.07.2019 by which date affidavit as above may be filed."
Pursuant to the order dated 10th July, 2019, the matter was put up on 15th July, 2019 and was adjourned to 16th July, 2019. On 16th July, 2019, an affidavit of compliance, dated 12th July, 2019, was filed. As the learned counsel for the petitioner prayed for opportunity to study the affidavit and prepare the matter, the matter was adjourned for today.
The affidavit of compliance/ return filed by the Station House Officer, P.S. Soraon, District Prayagraj discloses that the corpus had been an accused in case crime no.199 of 2019, P. S. Soraon, District Prayagraj and, later, made accused in two other cases, namely, case crime no.204 of 2019 and 205 of 2019 both concerning P.S. Soraon, District Prayagraj. It is stated that during the course of his arrest in a police encounter he sustained firearm injuries. Consequently, the police party admitted him in S.R.N. Hospital, Prayagraj on 9.3.2019. It is stated that the Investigating officer took remand of the corpus in all the aforesaid three cases with effect from 9.3.2019 to 23.3.2019. It is stated that the corpus remained under treatment at S.R.N. Hospital since 09.03.2019 till 08.07.2019. Copy of the discharge certificate has been placed on record as Annexure 1 to the affidavit. It is stated in paragraph 9 of the affidavit that, as from the Jail concerned, information had come that the petitioner has been released from the Jail, his remand was not got extended after 23.03.2019. In paragraph 10 of the affidavit it is stated that in all the three cases against the corpus, charge sheet has been submitted after investigation. Further, from the photocopy of the remand warrants, annexed with the counter affidavit, it appears, after submission of charge sheet in the two cases, namely, Case Crime Nos.199 of 2019 and 204 of 2019, fresh remand/custody warrants, under Section 209 Cr.P.C., were obtained from the Magistrate concerned on 08.07.2019.
Upon filing of the return, the petitioner's counsel took adjournment. Today, he himself produced a certified copy of the order dated 08.7.2019, which suggests that the learned Magistrate on 8.7.2019 passed an order of remand authorising confinement of the corpus in Central Jail Naini. Thus, at present, the corpus is in Naini Jail, pursuant to a judicial order of remand.
The learned counsel for the petitioner has urged that, admittedly, on the date of filing of habeas corpus petition, there was no order of remand in operation therefore the corpus is entitled to be released as legality of his detention is to be tested with reference to the date of filing the petition.
Learned A.G.A. has submitted that on the date of filing of the return, that is, 16.07.2019, there was a judicial order of remand passed under Section 209 Cr.P.C. and, therefore, the habeas corpus petition is liable to be dismissed, because, in case the corpus is aggrieved by the order of remand, he has to take recourse to other judicial remedies, as he cannot question the veracity of the order of remand in an application for a writ of habeas corpus. He has placed reliance on decisions of the Apex Court in the case of Manubhai Ratilal Patel through Ushaben Vs. State of Gujarat and others: 2013 (1) SCC 313 and Serious Fraud Investigation Office versus Rahul Modi and Another, (2019) 5 SCC 266.
We have considered the rival submissions and have perused the record. From the return filed by the state respondents we find that initially an order of remand was obtained from the Magistrate concerned for the period starting from 09.03.2019 up to 23.03.2019. This remand period was not extended. Though, during this period, the accused remained under treatment at the Hospital. This petition was filed on 25.05.2019. On 01.07.2019 Court called upon State counsel to seek instructions. On 04.07.2019, the Court not being fully satisfied with the instructions provided to the State counsel directed production of the corpus on 08th July, 2019. On 08.07.2019, before production of the corpus, remand was obtained from the concerned Magistrate after submitting charge sheet. After obtaining remand from the Magistrate concerned, the corpus was sent to Naini Central Jail and was produced, in these proceedings, on 10.07.2019. Thereafter, pursuant to order dated 10.07.2019, return affidavit was filed on 16.07.2019, annexing therewith the remand/custody warrant. Thus, on the date of filing the return, there existed a judicial order of remand.
The Apex Court in Manubhai's case (supra), after going through the earlier decisions in Kanu Sanyal Vs. District Magistrate 1974 (4) SC SCC 141; A.K. Gopalan Vs. Government of India AIR 1966 SC 816; Sanjay Dutt (2) v. State (1994) 5 SCC 410 and other cases, in paragraph 31 of the judgment, as reported, observed as follows:
"It is well-accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. ...... Unless the court is satisfied that a person has been committed to jail custody by virtue of an order that suffers from the vice of lack of jurisdiction or absolute illegality, a writ of habeas corpus cannot be granted."
In Serious Fraud Investigation case (supra), in paragraph 21 of the judgment, as reported, it was held that the act of directing remand of an accused is a judicial function and a challenge to an order of remand is not to be entertained in a habeas corpus petition.
In Kanu Sanyal's case (supra) the apex court had the occasion to consider the issue concerning the stage at which the legality of the detention is to be seen for issuance of a writ of habeas corpus, particularly, when an application for its issuance is filed. That is, whether the legality of the detention is to be seen on the date of filing the petition or on the date of filing of the return or on the date of hearing the matter. Dealing with the said issue, in paragraphs 3 and 4 of the judgment, as reported, the apex court observed /held as follows:
3. The learned Counsel appearing on behalf of the petitioner put forward three grounds challenging the legality of the detention of the petitioner and they may be briefly summarised as follows:
"A. The initial detention of the petitioner in the District Jail, Darjeeling was illegal because he was detained without being informed of the grounds for his arrest as required by clause (1) of Article 22 of the Constitution.
B. The Sub-Divisional Magistrate, Darjeeling had no jurisdiction to try the two Phansidewa, P.S. Cases against the petitioner and he could not, therefore, authorise the detention of the petitioner under Section 167 of the Code of Criminal Procedure for a term exceeding fifteen days in the whole. It was only the Sub-Divisional Magistrate, Siliguri who had jurisdiction to try the two Phansidewa P.S. Cases and he alone could remand the petitioner to custody after the expiration of the initial period of fifteen days under Section 344 of the Code of Criminal Procedure. The orders of remand under which the petitioner was detained in the District Jail, Darjeeling were, however, made by the Sub-Divisional Magistrate, Darjeeling and the detention of the petitioner in the District Court, Darjeeling was, therefore, illegal.
C. The officer in charge of the District Jail, Darjeeling was bound to abstain from complying with the warrant for production issued by the Special Judge, Vizakhapatnam by reason of Section 6 of the Prisoners (Attendance in Courts) Act, 1955 and the production of the petitioner before the Special Judge, Vizakhapatnam pursuant to such warrant for production and his detention in the Central Jail, Vizakhapatnam were consequently without the authority of law."
Re: Grounds A and B.
4. These two grounds relate exclusively to the legality of the initial detention of the petitioner in the District Jail, Darjeeling. We think it unnecessary to decide them. It is now well settled that the earliest date with reference to which the legality of detention challenged in a habeas corpus proceeding may be examined is the date on which the application for habeas corpus is made to the Court. This Court speaking through Wanchoo, J., (as he then was) said in A.K. Gopalan v. Government of India:
"It is well settled that in dealing with the petition for habeas corpus the Court is to see whether the detention on the date on which the application is made to the Court is legal, if nothing more has intervened between the date of the application and the date of the hearing."
In two early decisions of this Court, however, namely, Naranjan Singh v. State of Punjab and Ram Narayan Singh v. State of Delhi a slightly different view was expressed and that view was reiterated by this Court in B.R. Rao v. State of Orissa where it was said (at p. 259, para 7):
"in habeas corpus proceedings the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings".
and yet in another decision of this Court in Talib Hussain v. State of Jammu & Kashmir Mr Justice Dua, sitting as a Single Judge, presumably in the vacation, observed that (at p. 121, para 6):
"in habeas corpus proceedings the Court has to consider the legality of the detention on the date of the hearing."
Of these three views taken by the Court at different times, the second appears to be more in consonance with the law and practice in England and may be taken as having received the largest measure of approval in India, though the third view also cannot be discarded as incorrect, because an inquiry whether the detention is legal or not at the date of hearing of the application for habeas corpus would be quite relevant, for the simple reason that if on that date the detention is legal, the Court cannot order release of the person detained by issuing a writ of habeas corpus. But, for the purpose of the present case, it is immaterial which of these three views is accepted as correct, for it is clear that, whichever be the correct view, the earliest date with reference to which the legality of detention may be examined is the date of filing of the application for habeas corpus and the Court is not, to quote the words of Mr Justice Dua in B.R. Rao v. State of Orissa, "concerned with a date prior to the initiation of the proceedings for a writ of habeas corpus". Now the writ petition in the present case was filed on January 6, 1973 and on that date the petitioner was in detention in the Central Jail, Vizakhapatnam. The initial detention of the petitioner in the District Jail, Darjeeling had come to an end long before the date of the filing of the writ petition. It is, therefore, unnecessary to examine the legality or otherwise of the detention of the petitioner in the District Jail, Darjeeling. The only question that calls for consideration is whether the detention of the petitioner in the Central Jail, Vizakhapatnam is legal or not. Even if we assume that grounds A and B are well founded and there was infirmity in the detention of the petitioner in the District Jail, Darjeeling, that cannot invalidate the subsequent detention of the petitioner in the Central Jail, Vizakhapatnam. See para 7 of the judgment of this Court in B.R. Rao v. State of Orissa. The legality of the detention of the petitioner in the Central Jail, Vizakhapatnam would have to be judged on its own merits. We, therefore, consider it unnecessary to embark on a discussion of grounds A and B and decline to decide them."
(Emphasis Supplied) In Sanjay Dutt's case (supra), which has been decided by a Constitution Bench of the apex court, in paragraph 48 of the judgment, as reported, the apex court observed:
...............It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (See Naranjan Singh Nathawan v. State of Punjab; Ram Narayan Singh v. State of Delhi and A.K. Gopalan v. Government of India)"
A conspectus of the authorities noticed above would indicate that the settled legal position is that if on the date of filing the return, the corpus is legally detained pursuant to a judicial order of remand, which is not ex facie illegal or without jurisdiction, an application for a writ of habeas corpus must fail. A fortiori, if on the date of filing of the return, there is a judicial order of remand which authorizes judicial/police custody, then a writ of habeas corpus is not to be issued. In such a situation, the appropriate course for an aggrieved person is to take recourse to other appropriate remedies.
In the instant case, on the date of filing of the return, that is, on 16.7.2019, there came into existence a judicial order of remand, which has not been demonstrated to be ex facie illegal or wholly without jurisdiction. Under the circumstances, the writ of habeas is not to be issued. The petition fails and is accordingly dismissed without prejudice to the right of the petitioner to take recourse to other remedies as may be advised to him. There is no order as to costs.
Order Date :- 22.7.2019 AKShukla/-