Mithelesh vs The State Of Tamil Nadu on 14 October, 2022

[Cites 11, Cited by 0]

Madras High Court

Mithelesh vs The State Of Tamil Nadu on 14 October, 2022

Alleging that her father viz., Jagadesh, an undertrial prisoner, has been in prison for the last 17 years, the petitioner has filed the instant habeas corpus petition, for his release on the ground that his further detention in the prison is illegal.

2. Since the Registry entertained doubts with regard to the very maintainability of the petition, the matter was posted before us under the caption “for maintainability“.

3. Heard Mr.R.Sankarasubbu, learned counsel for the petitioner and perused the materials placed on record.

4. Before adverting to the submissions of Mr.R.Sankaraubbu, it may be relevant to extract the allegations in the affidavit dated 27.06.2022, sworn to by the petitioner in support of her prayer for the issuance of a writ of habeas corpus for setting at liberty, her father Jagadesh:

https://www.mhc.tn.gov.in/judis 2/7 H.C.P.No.SR 29299 of 2022 “2. I submit that my father Jagadesh, son of Ranjit Singh now confined in Central Prison, Puzhal-I, Chennai 600 066 since 21.05.2005 as undertrial prisoner. The trial commenced and several directions were issued. Though he is charged for an offence under Section 120-B, 396 IPC and the prosecution witnesses did not implicated him in murder. Taking totality of the evidence placed before the trial Court the only offence alleged Section 397 IPC and the punishment is ten years. He is in jail over 17 years. Hence the prolonged custody is illegal and violative of Article 21 of the Constitution of India. The trial Court is engine of oppression. Hence it is just and necessary to set him at liberty forthwith as held by Supreme Court of India in AIR 1980 SC 1360.“

5. Mr.Sankarasubbu placed reliance on Section 491 of the Code of Criminal Procedure, 1898, and submitted that the detention of Jagadesh is illegal and therefore, he should be immediately released. Further, garnering support from paragraph 5 of the judgment in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar [(1980) 1 SCC 81], he submitted that a writ of habeas corpus is maintainable in a case of this nature.

6. This Court gave its anxious consideration to the aforesaid submissions.

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7. In paragraph 2 of the petitioner's affidavit which has been extracted ad verbum above, the petitioner has stated that her father is an undertrial prisoner and is charged under Sections 120-B and 396 IPC. It is also stated that the trial in that case has commenced, which means that Jagadesh is being remanded under Section 309 Cr.P.C. by the trial Court from time to time.

8. Mr.Sankarasubbu also placed on record the orders passed by this Court dismissing the bail applications of Jagadesh on various dates. On a perusal of one such order dated 27.03.2018 passed in Crl.O.P.No.2478 of 2018, it is seen that there are nine cases pending trial against Jagadesh in various Courts for various offences viz., murder, dacoity and robbery. Strangely, the petitioner has not disclosed, even the number of any case in paragraph 2 of her affidavit. Thus, it is apparent that Jagadesh is being remanded in judicial custody in the various pending trials under Section 309 Cr.P.C. as stated by us above and therefore, his continued custody in prison is under valid orders of remand passed by Courts of competent jurisdiction. In such view of the matter, a habeas corpus petition for his release cannot be maintained. https://www.mhc.tn.gov.in/judis 4/7 H.C.P.No.SR 29299 of 2022

9. Section 491 of the Code of Criminal Procedure, 1898, stood repealed, after the coming into force of the Constitution of India in 1950 and the Code of Criminal Procedure in 1973. In Hussainara Khatoon (supra), the Supreme Court was concerned with a large number of people languishing in various prisons in the State of Bihar. In that context, the Supreme Court entertained a writ of habeas corpus.

10. Mr.Sankarasubbu placed very strong reliance on paragraph 5 of Hussainara Khatoon (supra), which reads as under :

“if a person is deprived of his liberty under a procedure which is not 'reasonable, fair or just', such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release.“ A reading of the above line shows that the right under Article 21 would stand offended, only if the procedure under which a person has been detained is not reasonable, fair or just.

11. In this case, even going by the typed set of papers submitted by Mr.Sankarasubbu, Jagadesh is facing prosecutions in as many as nine cases and is being remanded under Section 309 Cr.P.C., which is a procedure under law. Therefore, on the facts of this case, a writ of https://www.mhc.tn.gov.in/judis 5/7 H.C.P.No.SR 29299 of 2022 habeas corpus cannot be maintained, especially in the light of the authoritative pronouncement of the Supreme Court in Home Secretary (Prison) and Others Vs. H.Nilofer Nisha [(2020) 14 SCC 161] :

“22. In Manubhai Ratilal Patel v. State of Gujarat [(2013) 1 SCC 314], an order of remand was challenged before this Court. After referring to a large number of judgments (Ranjit Singh v. State of PEPSU (AIR 1959 SC 843); Ummu Sabeena v.State of Kerala [(2011) 10 SCC 781]; Madhu Limaye, In re [(1969) 1 SCC 292]; Talib Hussain v. State of J&K [(1971) 3 SCC 118]; Sanjay Dutt v. State [(1994) 5 SCC 410]), which we are not referring in detail since they have all been considered in this judgment, this Court held as follows:

“31. … 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.” In fine, the objection raised by the Registry is upheld and as a sequitur, this habeas corpus petition is dismissed at the SR stage itself as not maintainable.

                                                                                (P.N.P., J.)         (TKR, J.)
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                                       H.C.P.No.SR 29299 of 2022



                                        P.N.PRAKASH, J.
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                                  RMT.TEEKAA RAMAN, J.
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                                  H.C.P.No.SR 29299 of 2022




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