Andhra HC (Pre-Telangana)
S. Sarat Babu Chowdary vs Inspector Of Police, Crime ... on 9 September, 1992
Equivalent citations: 1992(3)ALT454
ORDER Immaneni Panduranga Rao, J.
1. The writ petitioner is a journalist. It is alleged in the affidavit filed in support of the writ petition that the 3rd respondent bore grudge against the petitioner for the reason that he was instrumental in getting anticipatory bail to his younger brother, by name Durgarajababu Chowdhary; that on 24-1-1991 during the early hours, the 1st respondent along with staff came to his house at Gudivada and forcibly took him by car to Vijayawada; that he was paraded in the streets of Vijayawada with handcuffs; that the 1st respondent did not follow the mandatory procedure prescribed by Section 50 of Criminal Procedure Code; that he was produced before the learned II Metropolitan Magistrate, Vijayawada, who has remanded him to Judicial custody till 31-1-1991 with a direction that he should be produced before the Magistrate at Bhivani and that subsequently the learned Magistrate was pleased to grant bail to him in Crl. M.P. No. 6 of 1991 with a condition that he should appear before the Court at Bhivani on 11-2-1991. Basing on those allegations the petitioner urged that his liberty and freedom are made subject to his appearance on 11-2-1991 at Bhivani, that his liberty was ensured only till 11-2-1991 and, therefore/he should be deemed to be in detention.
2. During the course of arguments, the learned Counsel for the petitioner however submitted, that the petitioner was produced before the Asst. Sessions Judge, Vijayawada who has granted conditional bail in Crl.M.P. No. 6 of 1991.
3. The above writ petition was filed on 6-2-1991. The facts alleged in paragraphs 3 and 4 of the affidavit as modified during the course of arguments show that having been apprehended at Gudivada, the petitioner was taken to Vijayawada and was produced before the Asst. Sessions Judge, Vijayawada who has initially remanded the petitioner to judicial custody till 31-1-1991 and later on granted bail with a condition that the petitioner should appear before the concerned Magistrate at Bhivani on 11-2-1991. It cannot, therefore, be said that on the date of filing of the writ petition the petitioner was in illegal custody of the 1st respondent. It cannot even be said that there was any illegal arrest, because the 1st respondent has produced the petitioner before the Asst. Sessions Court for remand.
4. There is no averment in the affidavit filed in support of the writ petition that the 1st respondent did not have the warrant issued by the competent court to arrest the petitioner. Therefore it cannot be said that the arrest of the petitioner at Gudivada on 23-1-1991 is illegal. At any rate the earliest point of time when this objection could have been raised is when the petitioner was produced before the learned Asst. Sessions Judge. There is no allegation that the petitioner has done so. On the other hand he has submitted to the jurisdiction of the Asst. Sessions Judge, moved for bail and obtained orders of bail. We, therefore, hold that the belated contention raised by the petitioner that he was illegally arrested by the 1st respondent cannot be accepted.
5. The scope of a writ of habeas corpus is mentioned in words and phrases in volume 19 at page 6 in the following terms:
"The writ of 'habeas corpus' is the remedy which the law gives for the enforcement of the Civil Right of personal liberty.....The writ of habeas corpus is a writ of liberty, and its original purpose was for the release of persons illegally or focibly imprisoned, but when it was made to appear that such detention was by virtue of the process of a Court, the writ was not granted, unless the proceeding or judgment supporting the process was absolutely void...."
6. In this case there is no material to hold that the proceedings pending before the Chief Judicial Magistrate at Bhivani, are illegal and are absolutely void because the translated copy of the First Information Report furnished by the petitioner shows that the 2nd respondent to the knowledge of the petitioner has left a brief case containing jewellery, cash and the wearing apparel of the 2nd respondent stating that he would go to his house and bring his personal diary and that by the time he returned from his house with the diary, the petitioner and others who were in the car left the place with his brief case containing jewellery and cash worth Rs. 44,700/- whether those allegations are sufficient to convict the petitioner and his alleged associates is a matter for decision by the court. At this stage the above allegations prima facie establish entrustment of the brief case containing jewellery and cash to the petitioner and others and that they have escaped with that brief case during the absence of the 2nd respondent. We, therefore, hold that there is prima facie case for proceeding against the petitioner under Sections 406 and 420 of Indian Penal Code.
7. Under the above circumstances we are unable to agree with the submission made by the learned counsel for the petitioner that on the date of filing of the writ petition the petitioner is deemed to be in detention and as such this court has jurisdiction to entertain the writ petition.
8. The learned counsel for the petitioner relying upon the additional affidavit of the petitioner and the affidavit filed by one Sri A.V. Srinivasa Raju, Advocate, argued that under the circumstances explained in those affidavits, it is not safe for the petitioner to appear before the learned magistrate at Bhivani who has taken congnizance of Crime No. 13 of 1991. The affidavit of the advocate does not show that after the alleged incident dt. 13-2-1991 he went to the Chief Judl. Magistrate, Bhivani and reported to him either orally or in writing about what had transpired when he went to the court for purpose of filing a copy application.
9. Even otherwise it is not for this Court to set at naught the Criminal proceedings which are properly instituted in a competent court of criminal Jurisdiction by passing any order in this writ petition. It is for the petitioner to appear before the criminal court and to put forth the defence of alibi which he has indicated in his affidavit.
10. The Privy Council in Emperor v. Nazir Ahmad, AIR 1945 P.C. 18 in a case arising under Criminal Procedure Code (1898) held as follows:-
"Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India there is a statutory right on the part of the police under Sections 154 and 156, to investigate the circumstances of an alleged cognizable Crime without requiring any authority from the judicial authorities, and it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court under Section 561-A."
11. The Supreme Court has endorsed the same view in Kurukshetra University v. State of Haryana, holding that the inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice, that the statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases, and that the High Court in exercise of inherent powers under Section 482, Criminal Procedure Code cannot quash a First Information Report.
12. In the light of the above legal position it cannot be said that this court exercising jurisdiction under Article 226 can do what the High Court is not expected to do in exercise of powers under Section 482 of Criminal Procedure Code.
13. By virtue of the orders granted by this court he has successfully stalled the criminal proceedings for more than 1 1/2 years. The petitioner is unable to show how the arrest is illegal. The mere allegation of the petitioner that he was arrested illegally is not sufficient in the light of the facts that the petitioner was produced before the Assistant Sessions Judge, Vijayawada where the petitioner was remanded to the Judicial custody and thereafter granted bail, of course with a condition. It cannot, therefore, be said that either the arrest is illegal or that the petitioner was in illegal custody of the respondents.
14. For these reasons, we do not find any grounds to issue a writ of habeas corpus. The writ petitioner is however granted two months time for surrendering before the Chief Judl. Magistrate, Bhivani, before whom Crime No. 13 of 1991 is said to be pending.