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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