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2000 DIGILAW 542 (RAJ)

Chandra Prakash Mehra v. State Of Rajasthan

2000-04-28

G.L.GUPTA, J.C.VERMA

body2000
JUDGMENT 1. - This is a habeas corpus petition under Article 226 of the Constitution of India. From the petition which runs into 30 pages and the rejoinder of 10 pages the facts emerge are these. 2. Sunita daughter of Shri Badri Narain, aged 15 died, on 4.11.1999 in S.M.S. Hospital, Jaipur, due to poisoning. An enquiry under Section 174, Cr.P.C. was held by the police. On a report lodged by Badri Nara in, father of Sunita, on 10.11.1999, FIR No. 144/ 99 under Sections 306 and 376, 1 PC was registered at P.S. Mahesh Nagar. The police arrested the petitioner on 11.11.1999. He was produced before the Magistrate, who rejected his bail application and remanded him to the judicial custody. An application for bail under Section 439, Cr.P.C. was moved on behalf of the petitioner, which was rejected by the Sessions Judge, Jaipur City, Jaipur, vide order dated 17.11.1999. His application for bail registered at No. 5897/99, in this Court, was also dismissed vide order dated 13.1.2000. A miscellaneous petition filed under Section 482, Cr.P.C. was also dismissed by the Court on 6.12.1999. Thereupon, a challan was filed against the petitioner on 2.2.2000. During the course of arguments, it was informed that the case has already been committed to the Court of Sessions. 3. In this petition, it has been averred that a false report has been lodged by Badri Narain and that the petitioner has filed a private complaint against Badri Narain and others which is pending enquiry before the Magistrate. It has been stated that the arrest and detention of the petitioner is without jurisdiction and illegal, for the reasons that no case is made out against the petitioner; the Magistrate granted the remand application of the prosecution without the presence of the petitioner; and that on the date, the challan was filed, the petitioner was not present in the Court. 4. In the reply, the factual position as to the registration of the case, the arrest of the petitioner, orders passed on his bail applications and the miscellaneous petition, have not been disputed. It has been denied that the arrest of the petitioner was illegal or that his detention in custody has become illegal because of his non-production before the Magistrate on certain dates. 5. In the rejoinder, the facts stated in the writ petition have been reiterated. 6. Mr. It has been denied that the arrest of the petitioner was illegal or that his detention in custody has become illegal because of his non-production before the Magistrate on certain dates. 5. In the rejoinder, the facts stated in the writ petition have been reiterated. 6. Mr. Sharma, learned Counsel for the petitioner, contended that totally false report had been lodged against the petitioner and that the Magistrate had no powers to remand the petitioner in judicial custody without his production before him. According to him, there is infringement of fundamental right of the petitioner enshrined under Article 20(3) of the Constitution and there was breach of Sections 167(2)(b) and 170 of the Code of Criminal Procedure as he was not produced before the Magistrate. His further contention was that the subsequent order of the Magistrate authorising the detention of the petitioner on his production before him would not regularise the earlier illegal detention. He cited the cases of Nazir Ahmad v. King Emperor, AIR 1936 Privy Council 253(2) ; Charan Lal Sahu v. Shri Neelam Sanjeeva Reddy, AIR 1978 SC 499 ; State of Uttar Pradesh v. Singhara Singh and Others, AIR 1964 SC 358 ; and Baradakanta Mishra v. High Court of Orissa and Another, AIR 1976 SC 1899 , in support of his contentions. 7. The learned Additional Advocate General, on the other hand, contended that in a habeas corpus petition, this Court cannot be justified in considering the matter of registration of the case by the police or the defect in the investigation. He submitted that merely because the petitioner was not produced before the Magistrate while seeking judicial remand, the custody of the petitioner does not be come illegal. He pointed out the circumstances under which it was not possible for the jail Authorities to produce the petitioner before the Magistrate. He canvassed that the non-production of the petitioner does not render the order of remand invalid. He relied on the cases of M. Sambasiva Rao v. The Union of India and Others, AIR 1973 SC 850 ; Gauri Shankar Jha v. State of Bihar and Others, AIR 1972 SC 711 ; Raj Narain v. Superintendent, Central, Jail, New Delhi and Another, AIR 1971 SC 178 ; and Manohari v. The State of Rajasthan, 1983 RCC 63 . 8. We have given the matter our thoughtful consideration. 8. We have given the matter our thoughtful consideration. At the out set, it may be stated that the controversy that the case ought not to have been registered under Sections 376 and 306, Indian Penal Code on the FIR lodged by Badri Narain or the investigation is liable to be quashed on the ground of insufficiency of the material against the petitioner, cannot be considered in the petition for habeas corpus. They are foreign to the scope of the subject matter of habeas corpus petition. 9. The habeas corpus lies only when it is alleged that the person named in the petition is illegally detained by some authority or some person. Since the petitioner has been arrested and detained in pursuance of a case registered against him under Sections 376 and 306, IPC, it cannot be said that his arrest and detention is illegal. It may be pointed out that the petitioner has already challenged the investigation of the case before this Court by filing Criminal Misc. Petition No. 1076/99 which has been dismissed by this Court on 6.12.1999 by a detailed order. There is, therefore, hardly any scope to argue that the detention of the petitioner is illegal for insufficiency of the material against him. 10. The serious contention canvassed by Mr. Sharma was that since the petitioner was not produced before the Magistrate on 22.12.1999, 5.1.2000, 19.1.2000 and 2.2.2000, his detention has become illegal. In this connection, an affidavit has been filed in support of the reply. In the affidavit, Maruti Joshi, Circle Officer, Mansarowar, Jaipur, states that there was strike of the subordinate staff of the State of Rajasthan from 15.12.1999 to 16.2.2000 and there was extraordinary situation in which the petitioner could not be produced before the Magistrate on certain dates. During the course of arguments, Mr. Sharma was unable to dispute the correctness of the fact of strike of the employees from 15.12.1999 to 16.2.2000. 11. It is thus undisputed fact that the employees of the State Government were on strike during the relevant period and even the case files could not be placed before the Magistrate and the learned Public Prosecutor was also not in a position to produce the relevant papers. In these circumstances, even if the petitioner had been produced before the Magistrate while requesting for remand, it would not have made any difference. 12. In these circumstances, even if the petitioner had been produced before the Magistrate while requesting for remand, it would not have made any difference. 12. No authority, laying down the proposition that the remand order passed by a Magistrate in the absence of the accused is invalid, has been cited before us. On the contrary, the rulings which have been relied upon by the learned Additional Advocate General lay down the legal position that even if the accused is not produced at the time of remand before the Magistrate, the remand does not become invalid and the detention does not become illegal. In the case of Mr. Sambasiva Rao (supra) which is based on the Full Bench decision of seven Judges in the case of Raj Narain (supra), it has been clearly held that the remand cannot be considered to be invalid merely because an accused has not been produced before the Magistrate. In the case of Gauri Shankar Ilia (supra) also, the Apex Court has observed that the order of remand can be passed in the absence of accused if his presence at the time could not be secured. This Court also in the case of Manohari (supra) held that a remand can be given even in the absence of the accused. That being the legal position, there is hardly merit in the contention that from the date 22.12.1999, the custody of the petitioner has become illegal. 13. Admittedly on 2.2.2000, when the challan was filed the accused (petitioner) was not produced before the Magistrate. In our opinion there is no legal impediment in filing challan against the accused in his absence. Section 170, Cr.P.C., on which reliance has been placed by Mr. Sharma, only lays down that after the investigation, if it appears to the Police Officer that there is sufficient evidence, he shall forward the accused under custody to the Magistrate. In the instant case, the accused had already been arrested and had been produced before the Magistrate. The accused was in judicial custody on the date the challan was filed. There is, therefore, no merit in the contention that there was breach of provisions of Section 170, Cr.P.C. when the petitioner was not forwarded before the Magistrate while submitting the challan. 14. So also, there is no merit in the contention that provisions of Section 167(2)(b), Cr.P.C. have been violated. There is, therefore, no merit in the contention that there was breach of provisions of Section 170, Cr.P.C. when the petitioner was not forwarded before the Magistrate while submitting the challan. 14. So also, there is no merit in the contention that provisions of Section 167(2)(b), Cr.P.C. have been violated. Certainly, the provision requires the production of an accused before the Magistrate while making an application for remand. But, as already stated, the Apex Court in various cases has held that the non-production of the accused before the Magistrate for remand does not render his custody illegal. In the instant case, there was extraordinary situation, therefore, the custody under the remand order passed without production of the petitioner, cannot be held to be illegal. In any case when the subsequent remand orders were passed, the petitioner had been produced before the Magistrate. Since the present custody of the petitioner is in pursuance of the valid orders of the Magistrate, his detention cannot be held to be illegal. 15. The cases relied upon by Mr. Sharma do not lay down the proposition that if there was defect in the earlier order of Magistrate as to the custody, his detention becomes illegal, inspite of the fact that he is in custody under the subsequent valid order of the Magistrate. The case of Nazir Ahnwd (supra) is with regard to the confession recorded under Section 164, Cr.P.C. It has been observed that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. -Their Lordships had observed that the evidence of confession under Section 164, Cr.P.C. could be proved under Sections 74 and 80 of the Indian Evidence Act. It is not understood that how these observations help the petitioner in the instant case. So also, the controversy involved in the case of Charan Lal Sahu (supra) is poles apart the controversy involved in the instant case. The case of State of Uttar Pradesh v. Singhara Singh and Others (supra), is also with regard to the powers of Magistrate under Section 164, Cr.P.C. to record the confessional statement. The case of Baradakanta Mishra (supra) pertains to the disciplinary action taken against a Judicial Officer. The Apex Court has considered the scope of Article 235 of the Constitution of India. The case of Baradakanta Mishra (supra) pertains to the disciplinary action taken against a Judicial Officer. The Apex Court has considered the scope of Article 235 of the Constitution of India. In our opinion, the observations made in that case are not relevant to decide the controversy involved in this case. 16. We have already observed that other grounds stated in the petition, are not relevant to the habeas corpus petition and therefore, we do not think it necessary to go into those facts. 17. Consequently, this petition being devoid of merit is hereby dismissed.Before parting with the case, we record our displeasure to the Advocates who have drafted and signed the petition. No care has been taken to see whether the allegations/facts may amount to Contempt of Court. During the course of arguments, when we invited the attention of Mr. Sharma towards certain paragraphs, he was unable to justify the recording of such averments in the petition and he requested the Court by making an application to permit him to withdraw certain facts from the petition. He was permitted to delete those facts. We have not proceeded to take action against the Advocates concerned for contempt, obviously for the reason that Mr. Sharma has felt sorry for what has been averred in certain paragraphs of the petition.Petition dismissed. *******