22 July 2014
Supreme Court
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SAURABH KUMAR Vs JAILOR,KONEILA JAIL & ANR.

Bench: T.S. THAKUR,N.V. RAMANA
Case number: Writ Petition (crl.) 147 of 2013


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REPORTABLE

IN THE SUPREME COURTG OF INDIA CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO. 147 OF 2013

SAURABH KUMAR THROUGH  HIS FATHER    … PETITIONER

VERSUS

JAILOR, KONEILA JAIL & ANR.     … RESPONDENTS

J U D G M E N T

N.V. Ramana, J.

This habeas corpus petition is filed by one Saurabh  

Kumar  who  is  in  Koneila  Jail,  Dalsingsarai,  District  

Samastipur (Bihar).

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2. In brief the case of the petitioner is that he was XII  

pass and wanted to leave the village in search of a decent  

job.  In  that  connection  he  made  an  application  for  

passport.  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 6 th  

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

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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.

3. 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 and also to direct the respondent-State to devise a  

way  to  prevent  malicious  arrest  and  detention  by  the  

police that too without maintaining necessary record and  

further  to  direct  the  State  to  pay  the  petitioner  

compensation considering  that  the  detention  is  a  black  

mark to his career prospects and future.

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4. Initially  there  were  eleven  persons  shown  as  

respondents.  But  later  on,  the petitioner  has withdrawn  

respondent nos. 3 to 11 from the array of parties.

5. After issuing notice two counter affidavits have been  

filed, one by respondent nos. 1, 2, 7 and 8 and the other  

by  the  sixth  respondent,  Tripathi,  the  Additional  Chief  

Judicial Magistrate and Judge In-charge (Administration)  

Dalsingsarai, District Samastipur, Bihar. From these two  

affidavits,  it  appears  that  there  were  land  disputes  

between petitioner’s family and one Rama Kant Singh. A  

Mortgage Suit No. 30/94 was filed against Banwari Roy,  

who is the grand-father of the petitioner and obtained a  

decree  against  him on 28.2.1997 by  the  Munsif  Court.  

Thereafter, the grandfather of the petitioner preferred Title  

Suit bearing T.A. No. 17/99 against the said Rama Kant  

which  was  subsequently  dismissed  by  the  learned  

Additional District  and Sessions Judge-I,  Samastipur by  

order dated 1.6.2013.

6. The said Rama Kant Singh filed an execution case  

for delivery of possession of the land. The Munsif (Civil

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Judge, Jr. Division, Dalsingsarai) ordered for deputing the  

police  force  for  the delivery  of  the  land to  the decree-

holder.  In  view  of  the  said  order,  the  6th respondent-

Tripathi  directed  the  Nazir,  Civil  Court,  Dalsingsarai  to  

execute the decree passed by the learned Munsif and on  

3.3.2013  the  said  decree  was  executed  which  was  

confirmed by the Munsif by his order dated 15.3.2013.

7. Thereafter,  one  Mohan  Kumar  filed  a  complaint  

before  the  Additional  Chief  Judicial  Magistrate  on  

29.4.2013 which was referred to the police on 1.5.2013  

P.S.  No.  72/13 and was registered under  Section 147,  

148, 149, 323, 427, 504, 379 and 386 of the Indian Penal  

Code and under Section 27 of the Arms Act for necessary  

action and investigation under Section 156(3) Cr.P.C. In  

the said complaint it is stated that the complainant Mohan  

Kumar was working in his fields of which possession was  

handed  over  by  execution  of  the  decree.  The  writ  

petitioner Sumit Kumar alias Saurabh Kumar along with  

his  family  members  Banwari  Roy,  Dinesh  Roy,  Rekha  

Devi,  Golu  Kumar,  armed  with  lathis,  pharsa,  pistol

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beaten  Mohan Kumar  and  snatched his  wrist  watch.  It  

was  also  further  alleged  that  at  the  gun  point  the  

petitioner party threatened the complainant therein to put  

his thumb impression on a stamp paper. On his refusal,  

the petitioner party threatened him to kill. The petitioner  

who is shown as accused in the said FIR was arrested in  

the said case on 30.6.2013. Thereafter, he was produced  

in  the court  of  the Additional  Chief  Judicial  Magistrate,  

Dalsingsarai,  Samastipur  on  1.7.20123.  On  orders  

passed  by  him  (Annexures  R.6/2  and  R.6/3),  the  

petitioner  was  remanded  to  judicial  custody  vide  order  

dated 1.7.2013.

8. When the  matter  came up  before  this  Court,  the  

learned  counsel  appearing  for  the  petitioner  Smt.  Lily  

Isabel Thomas contended that the petitioner is in illegal  

custody and sought a direction for his release. This Court  

has pointed out to the counsel for writ petitioner about the  

counter  affidavits  filed  by  the  respondents  which  show  

that the petitioner is an accused in a criminal case which  

was registered under Sections 147, 148, 149, 323, 427,

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504, 379 and 386 of IPC and under Section 27 of Arms  

Act  and  after  such  registration  he  was  arrested  and  

produced  before  the  Addl.  Chief  Judicial  Magistrate,  

Dalsingsarai, District Samastipur, Bihar and then he was  

detained  in  judicial  custody.  However,  the  counsel  

contended  that  a  direction  be  given  to  the  jailer-

respondent  No.  1  to  produce the remand report  of  the  

petitioner as that itself shows the illegal detention. In spite  

of  this  Court’s  suggestion to the petitioner’s  counsel  to  

approach  the  criminal  court  for  obtaining  bail,  she  

repeatedly  made  request  for  the  production  of  order  

passed  by  the  Judicial  Magistrate  remanding  the  

petitioner to jail.

9. 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.

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10. After  hearing  the  counsel  and  on  perusing  the  

affidavits and the material placed before us, it is evident  

that there are series of cases pertaining to land disputes  

between  the  family  of  the  alleged  detenu  and  other  

villagers.  Civil  cases  were  filed  initially.  During  the  

pendency of a Suit, the father and mother of the petitioner  

filed a Writ Petition No. 197 of 2012 before this Court. In  

the said Writ Petition, this Court has passed the following  

orders:

Order dated 9.5.2013

“Heard Ms. Lily Isabel Thomas, learned  counsel  for  the  petitioners  and  perused  the  record.

The District Judge, Samastipur, Bihar is  directed to pass an appropriate order in  the  pending appeal within a period of two weeks  from the date of receipt/production of copy of  this order.

With  the  above  observation,  the  applications are disposed of.

If  any petition is filed by the applicants  under Section 144 C.P.C., then the same may  be considered on its own merits.”

Order dated 7.6.2013

“List on 10.6.2013.

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In the meantime and until further orders  the petitioners shall  not  be dispossessed as  the  order  dated  9.5.2013  indicates  that  this  Court had already permitted the petitioners to  approach the District court for disposal of their  application.  In  the  meantime,  the  learned  counsel  for  the  petitioners  has  sought  protection  from dispossession,  which  prayer  prima  facie  appears  to  be  reasonable.  Suitable  modification  in  this  regard  in  the  order  may  be  considered  on  the  next  date  when the application is listed. In the meantime  and until 10.6.2013, status quo in the matter  shall be maintained.

The order may be given dasti.”

11. A mortgage Suit No. 13/94 was also filed in which a  

decree  was  obtained  against  the  grandfather  of  the  

petitioner and thereafter the grandfather of the petitioner  

Banwari Roy has also filed a civil Title Suit bearing T.A.  

No. 17/99 which was dismissed by the learned Additional  

District and Sessions Judge-I, Samastipur on 1.6.2013.,  

taking into consideration the orders passed by this Court.  

12. After  obtaining  decree  in  the  Suit  for  delivery  of  

possession  Rama  Kant  Singh  has  filed  Execution  

proceedings on which the Munsif has ordered for police  

force for the delivery of possession which was executed  

on 3.3.2013 and thereafter again an incident had taken

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place on 1.5.2013. A complaint was given by one Mohan  

Kumar which was registered as FIR P.S. No. 72/13 under  

different Sections of the IPC and under Section 27 of the  

Arms  Act.  At  that  point  of  time,  the  petitioner  was  

produced before the Additional Chief Judicial Magistrate.  

Then the Magistrate after examining him, directed to send  

him to jail by order dated 1.7.2013 (annexure R.6/3) . The  

said order reads as under:

“Sub Inspector, P.S. Ujiarpur arrested named  accused  of  this  case,  Sumit  Kumar  @  Saurabh  Kumar  aged  22  years  son  of  Shil  Kumar Rai, Village Bhagwanpur Desua, P.S.  Ujiarpur,  District  Samastipur  and  sent  Forwarding  Report  to  the  Court,  seeking  judicial  remand  of  accused  on  the  basis  evidence  indicated  in  the  report  and  arrest  memo along with reasonable escorting force.  Accused  has  no  complaint  against  the  escorting  force.  Nose,  Ear,  Eye  etc.  of  the  accused  is  functional  and  on  query  by  the  Court, accused said he is able to defend his  case. The accused is remanded in this case  and  being  sent  to  Up-Kara  (Sub-Divisional  Jail), Dalsinghsarai. Office clerk is directed to  issue custody warrant.

Fixed  for  15.7.2013  for  production  of  accused from jail.”

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13. It  is clear from the said narration of facts that the  

petitioner  is  in  judicial  custody  by  virtue  of  an  order  

passed by the Judicial Magistrate.  The same is further  

ensured from the Original Record which this Court has, by  

order dated 9th April,  2014, called for from the Court of  

Additional Chief Judicial Magistrate, Dalsingsarai, District  

Samastipur, Bihar.   Hence, the contention of the learned  

counsel for the petitioner that there was illegal detention  

without any case is incorrect. Therefore, the relief sought  

for by the petitioner cannot be granted. Even though there  

are several other issues raised in the Writ Petition, in view  

of the facts narrated above, there is no need for us to go  

into those issues. However, the petitioner is at liberty to  

make an application for his release in Criminal Case No.  

129/13  pending  before  the  Court  of  the  learned  Addl.  

Chief Judicial Magistrate, Dalsingsarai.

14. After  the  conclusion  of  hearing,  when  the  matter  

was  reserved  for  judgment  and  the  pronouncement  of  

judgment is pending, a Crl.M.P. No. 12866 of 2014 has  

been filed by the writ petitioner seeking reliefs which are

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not concerned with the main prayer.  The petitioner has  

also  filed  another  Crl.M.P.  No.  14378 of  2014 seeking  

release of petitioner’s mother and grand father. In view of  

the  foregoing  discussion  and  the  reasons  given  in  the  

judgment,  the reliefs  so sought  by the petitioner  in  the  

said  Crl.M.Ps.   also  cannot  be  granted  in  the  present  

habeas corpus writ petition. However, the petitioner is at  

liberty to avail remedies as available to him in accordance  

with law.

15. Accordingly,  the  writ  petition  as  well  as  the  

Crl.M.Ps. stand dismissed.

……………………………………..J. (T.S. Thakur)

……………………………………..J. (N.V. Ramana)

New Delhi, July 22, 2014.

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                REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (Crl.) 147 OF 2013

Saurabh Kumar …Petitioner Vs.

Jailor, Koneila Jail, & Anr. … Respondents

J U D G M E N T

T.S. Thakur, J.

1. I have had the advantage of going through the order  

proposed by my esteemed brother  N.V.  Ramana,  J.   I  

entirely  agree  with  the  view  taken  by  him  that  the  

petitioner cannot be said to be in illegal custody so as to  

warrant the issue of a writ of Habeas Corpus.  I would all  

the same add a few words of my own to what has already  

been stated by my esteemed and erudite brother.  

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2. Petitioner’s case is that he was called to the police  

station  on  30th June,  2013  in  connection  with  some  

enquiry about the issue of a passport.  When he reached  

the police station, he was unceremoniously locked up only  

to be produced before Shri Tripathi, Judicial Magistrate,  

Respondent  No.6  in  the  writ  petition,  on  the  following  

date  i.e.  1st July,  2013.  He  was,  according  to  the  

averments in the petition, beaten up with lathis by one  

Manish Kumar Suman, DSP arrayed as respondent No.9  

in the writ petition.  The beating is alleged to have taken  

place  in  the  presence  of  the  Judicial  Magistrate  as  a  

reward  for  the  audacity  of  the  petitioner’s  parents  

reporting against the Magistrate to the Supreme Court.  

The petitioner alleges that when his parents approached  

the local MLA for help, they were told that there was no  

complaint  against  the  petitioner  and  that  he  will  be  

released shortly. The detention of the petitioner, in the  

above  circumstances,  it  is  asserted,  was  without  any  

lawful justification, whatsoever hence illegal.  

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3. The respondents have appeared to file two separate  

counter affidavits from which it appears that not only are  

there  disputes  between  the  family  members  of  the  

petitioner, on the one hand, and one Rama Kant Singh,  

on the other, but on the complaint of one Mohan Kumar,  

filed before the Additional  Chief Judicial  Magistrate, the  

later had passed an order on 29th April, 2013, referring  

the matter to the police for investigation. Criminal Case  

No.72 of 2013 was on that basis registered in the police  

station  against  the  petitioner  for  offences  punishable  

under Sections 147, 148, 149, 323, 427, 504, 379 and  

386 of the Indian Penal Code read with Section 27 of the  

Arms Act.  The affidavits further reveal that the petitioner  

was, in connection with the said case, arrested on 30th  

June,  2013  and  produced  before  the  Additional  Chief  

Judicial Magistrate, Dalsingsarai, Samastipur on 1st July,  

2013 who remanded him to judicial custody by an order  

dated 1st July, 2013.  From the original record summoned  

by us for  perusal  we find that the petitioner  had been

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remanded to judicial  custody from time to time by the  

Court concerned.  In the meantime, a charge sheet was  

filed against the petitioner on 27th August, 2013 followed  

by a subsequent charge-sheet filed against the remaining  

accused  persons  on  3rd December,  2013.   It  is  also  

manifest from the record that on a perusal of the FIR,  

charge sheets and the case diaries,  the Magistrate has  

taken  cognizance  of  the  offences  punishable  under  

Sections 147, 148, 149, 323, 447, 504, 379 and 386 of  

the Indian Penal Code read with Section 27 of the Arms  

Act against the petitioner-Saurabh Kumar, Banwari Rai,  

Dinesh Rai, Rekhad Devi and Golu Kumar in terms of his  

Order dated 19th December, 2013.  The Order passed by  

the Magistrate reads:  

“Accused produced from Jail. Perused the FIR charge sheets and case diary. After  perusal  prima  facie  case  is  made  out  against the accused (1) Sumit Kumar @ Saurav   Kumar,  (2)  Banwari  Rai  (3)  Dinesh  Rai,  (4)   Rekha Devi and (5) Golu Kumar U/s 147, 148,   149, 323, 447, 504, 379, 386 IPC with Section  27 of the Arms Act Hence  cognizance  taken  against  the  accused  persons in above sections.   The case record is   kept  in personal  file  for  trial  and disposal  (sic)  

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issue  summon  to  the  unappeared  against   persons. Produce  on  2-01-2014  for  production  and  appearance. “

4. Subsequent orders passed in the case show that the  

accused  has  been  produced  before  the  Magistrate  

concerned from time to time and remanded to custody,  

awaiting service of summons upon the remaining accused  

persons who are, according to the affidavits filed by the  

respondents, absconding.   

5. Two things are evident from the record.  Firstly, the  

accused is involved in a criminal case for which he has  

been arrested and produced before the Magistrate  and  

remanded to  judicial  custody,  Secondly, the petitioner  

does not appear to have made any application for grant  

of bail, even when the remaining accused persons alleged  

to be absconding and remain to be served.  The net result  

is that the petitioner continues to languish in jail.

6. The  only  question  with  which  we  are  concerned  

within the above backdrop is whether the petitioner can  

be said to be in the unlawful custody.  Our answer to that

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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

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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.

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7. With the above observations I agree with the order  

proposed by my esteemed brother N.V. Ramana, J.  

  

……………….……….…..…J.       (T.S. Thakur)

New Delhi July  22, 2014

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