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2003 DIGILAW 1038 (PAT)

Amit Kumar Singh @ Amit Kumar v. State of Bihar

2003-09-22

body2003
ORDER This writ petition on behalf of the sole petitioner has been filed for his release by writ of habeas corpus. 2. The petitioner is in custody in connection with Phulwarisharif P.S. Case No.533/2002 under Section 302/34 of the Penal Code and Section 27 of the Arms Act. The case of the petitioner is that he was taken into custody in connection with the said case and produced before the CJM Patna on 1.2.2003 when he was remanded to custody and ordered to be produced again on 14.2.2003. However he was not produced on that date or on the subsequent dates, nor his remand was extended. According to the petitioner in the absence of production and order of remand, his custody is not in accordance with law and he is entitled to be released. 3. The respondents had earlier filed affidavit affirmed by the Officer-Incharge of Janipur Police Station, and another affidavit by the Superintendent, Adarash Central Jail, Beur. In the light of facts which came to the notice of this Court in course of hearing of the case, the Senior S.P., Patna also filed an affidavit. The petitioner filed affidavits in reply to the above counter affidavits. 4. In his counter affidavit the Sr.S.P. has stated that on account of shortage of handcuffs and vehicles, all prisoners are not brought from the Jail for their production in the concerned court. In such cases custody warrant with respect to the concerned prisoners are carried by the police party and produced in the concerned court for Court's order. After obtaining orders of the Court, custody warrants are returned to the jail authorities. As regards the petitioner it has been stated that as per the Hazat Register of Patna Sadar Court the petitioner was produced in Court on 28.6.2003, 21.8.2003, 28.8.2003 and 3.9.2003 but in the order-sheet of the concerned case/court, such production was not mentioned. The affidavit states that on enquiry the concerned Peshkar namely Sri Quddus Ahmad Siddique explained that the dates mentioned in the custody warrant are filed without entry in the order sheet. The affidavit further states that on 24.2.2003, 3.4.2003 and 17.4.2003 the petitioner was brought to the court premises from Beur Central Jail but he was not produced from Court Hazat in the concerned Court for which the Hazat Incharge namely ASI Raj Mangal Singh has been placed under suspension vide Patna D.O. no. The affidavit further states that on 24.2.2003, 3.4.2003 and 17.4.2003 the petitioner was brought to the court premises from Beur Central Jail but he was not produced from Court Hazat in the concerned Court for which the Hazat Incharge namely ASI Raj Mangal Singh has been placed under suspension vide Patna D.O. no. 688/2003 and departmental proceeding bearing Patna District Proceeding No.177/2003 has been initiated against him. 5. The question as to validity or otherwise of the petitioner's custody has to be considered on the aforementioned facts. It is true that in terms of relevant provisions of the Criminal Procedure Code an accused should be produced and/or his remand should be extended if not on production at least on the basis of custody warrant, as per the Full Bench decision of this Court in the case of Babu Nandan Mallah, 1971 BLJR 1058. The question is where such non-production or non-mentioning of production of the accused was due to negligence or mistake, which could be deliberate too, on the part of the concerned officials, can the accused claim benefit of such non-production or in case of production, non-mentioning thereof in the order-sheet? 6. Photo copies of the relevant extracts from the Hazat Register have been enclosed as Annexure B series to the counter affidavit of the Senior S.P. Counsel for the petitioner submitted that in the Hazat Register, only names of different accused are mentioned, and therefore, it cannot be said that name 'Amit Kumar' or 'Amit Kumar Singh' refers to the petitioner, nor it can be said that the so-called prisoner was in connection with the particular case. 7. The submission, if we may say, is a cry of desperation. We have no. reason to disbelieve the statement of the Senior S.P. supported by evidence i.e. the Hazat Register that the petitioner was sent to the Court Hazat on different dates, on some of them, also produced in Court which fact however was not mentioned in the ordersheet. This is a serious mistake on the part of the Peshkar Quddus Ahmad Siddique, which could be a deliberate omission on his part. We have no doubt in our mind that if the factum of production is not mentioned in the ordersheet by the Court staff, the accused cannot be entitled to benefit of such mistake or lapse. This is a serious mistake on the part of the Peshkar Quddus Ahmad Siddique, which could be a deliberate omission on his part. We have no doubt in our mind that if the factum of production is not mentioned in the ordersheet by the Court staff, the accused cannot be entitled to benefit of such mistake or lapse. Unfortunately, the practice in the subordinate courts is that the routine orders are drawn by the court staff and thus where the concerned court staff deliberately or otherwise fails to record the accused's presence/production in court, it may be travesty of justice to accord the consequential benefit to him. 8. In fact, we are at a loss to understand the conduct of Quddus Ahmad Siddique. The custody warrant enclosed with the affidavit of the Jail Superintendent shows that the dates were mentioned on its back 'at will' as they do not tally with the dates fixed in the case. In particular, it is difficult to appreciate his so called explanation that the dates mentioned in the custody warrant are filled without entry in the order-sheet. We say no further in this regard except to observe that conduct of Ouddus Ahmad Siddique is required to be examined by the District & Sessions Judge, Patna on administrative side. 9. Similarly, where the accused is sent by the jail authorities for his production in court but not actually produced in court due to negligence or collusion or deliberate mistake, it would not be in the ends of justice to allow the resultant benefit of non-production to the accused. The Criminal Procedure Code envisages a Criminal Justice System in normal circumstances. Unscrupulous functionaries cannot be allowed to subvert the system envisaged therein. We are sorry to say that the Magistrate(s) in seisin of the case also failed to realise what was being done by the persons concerned, and remedy the situation. 10. In the facts and circumstances, we do not think it would be a proper exercise of jurisdiction to give any benefit to the petitioner and order his release. It may be mentioned that the petitioner is alleged to have committed murder in broad day light and it will be failure of justice if he is released on a technical ground. The petitioner may take his chance for regular bail on merit in appropriate proceeding. 11. In the above premises, this writ petition is dismissed. It may be mentioned that the petitioner is alleged to have committed murder in broad day light and it will be failure of justice if he is released on a technical ground. The petitioner may take his chance for regular bail on merit in appropriate proceeding. 11. In the above premises, this writ petition is dismissed. 12. As we are of the view that the conduct of the then CJM and ACJM Patna Sadar has not been upto mark, the records of the case may be placed before us on administrative side for necessary orders.