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2004 DIGILAW 390 (MP)

Shankar Lal Soni v. State of M. P.

2004-04-22

A.K.SHRIVASTAVA, S.P.KHARE

body2004
Judgment ( 1. ) THOUGH this petition was listed for hearing on the question of admission, however, on the consent of learned Counsel for the parties, they were heard finally. ( 2. ) BY this writ petition filed under Article 226/227 of the Constitution of India, in the nature of habeas-corpus, mandamus and certiorari, the petitioner has sought the following reliefs:- (i) Direct the respondents to release the petitioner from their illegal detention forthwith. (ii) As stated earlier in the facts above, the petitioner is in the apprehension of his murder in jail by the jail authority including respondents in one way or the other. There-fore, his life may kindly be saved in the interest of justice and he may kindly be called by issuing a writ of habeas-corpus. (iii) Start criminal proceedings against the respondents by making an order for investigation on the allegations made by the petitioner in this petition. (iv) Award a compensation of Rs. 5,00,000)/- (say Rupees Five lakhs only) for suffering humiliation and illegal detention of long three years and more. (v) Award cost of instant litigation. Any other relief/order, which this Honble Court deems fit in the interest of justice may also please be given. Indeed, the main ground of attack of the petitioner is his illegal detention. According to him, a case under Sections 294, 323, 352, 353 and 506, IPC was registered against him by the police and he was sent to jail on 1-2-1999 in case No. 606/1998, in which he was later on acquitted. According to him, on 4-2-1999 on the basis of a forged warrant the petitioner was sent to jail since 1-2-1999 and 4-2-1999. It has been proponed that the action of respondent Nos. 2, 3 and 4 is highly objectionable as they have detained him illegally and sent him to jail and, therefore, a case under Sections 107, 108, 420, 467, 471 read with Section 120-B of IPC is required to be registered against them and they are also liable to be prosecuted under Section 344 of the Code of Criminal Procedure, since they do not enjoy any jurisdiction to detain the petitioner and they have abused the judicial power. ( 3. ) IN the return filed by respondent Nos. 1 to 3 it has been categorically pleaded that the petitioner is presently serving life sentence in Central Jail, Satna. ( 3. ) IN the return filed by respondent Nos. 1 to 3 it has been categorically pleaded that the petitioner is presently serving life sentence in Central Jail, Satna. The petitioner has not come with clean hands and has concealed the reality. According to the respondents, the petitioner was convicted for the offence under Section 302/34, IPC and was sentenced to undergo life imprisonment in Sessions Trial No. 8/1976 vide judgment dated 27-3-1976 passed by Sessions Judge, Satna. A copy of which is placed on record as Annexure R-1. He was sent to Central Jail, Rewa on 28-3-1976 and at that time 8 cases against him were pending. Annexure R-2 is the relevant page of the convict admission register maintained by the Central Jail, Rewa. As the petitioner was bailed out in all the cases he was released from jail on 3-10-1977. The petitioner was again admitted in Central Jail, Rewa on 19-12-1978 for serving life sentence. One Criminal Case No. 693/78 for offences under Sections 294, 323 and 324, IPC was pending against him in the Court of Chief Judicial Magistrate, Satna when he was readmitted in Central Jail, on 19-12-1978. Later on, the petitioner was released on parole for 12 days on 19-8-1979 by the order of the District Magistrate, Satna and he was required to report back for readmission in jail on 6- 9-1979, but, he did not turn back and an entry to that effect was made in the jail register Annexure R-3. For ready reference we would like to rewrite the noting in regard to the petitioner rkjh[k 6and9and1979 canh vlfkkbz eqf ls vhkh rd okilugha vk;k** Below this noting the Superintendent, Central Jail put his signature with his official seal. There is note dated 24-8-1979 on the said register which reads thus:-"released on Parole for 10 days + 2 days (13 days) Due Back on 6-9-79" Below this note the Superintendent, Central Jail put his signature and official seal. It has been submitted by Shri R. S. Patel, learned Additional Advocate General that after he was released on parole, the petitioner did not turn back and he was absconding. The petitioner was arrested by Police, Satna on 1-2-1999 in Criminal Case No. 606/98 for the offences under Sections 353, 323, 294, 352/34, IPC of Judicial Magistrate First Class, Satna. It has been submitted by Shri R. S. Patel, learned Additional Advocate General that after he was released on parole, the petitioner did not turn back and he was absconding. The petitioner was arrested by Police, Satna on 1-2-1999 in Criminal Case No. 606/98 for the offences under Sections 353, 323, 294, 352/34, IPC of Judicial Magistrate First Class, Satna. The Town Inspector, Kotwali, Satna, intimated the fact of arrest of petitioner to Superintendent, Central Jail, Rewa by radio message a copy of which is placed on record as Annexurc R-6. Thereafter Superintendent, Central Jail, Rewa made an application before the District and Sessions Judge, Satna for issuing duplicate warrant which was issued in Sessions Trial No. 8/76. A copy of letter in that regard dated 2-2-1999 has been placed as Annexure R-7 on record. In response to the said application Incharge Sessions Judge, Satna registered M. J. C. No. 4/99 and after due enquiry and by calling the Original File of Sessions Trial No. 8/76, Police City Kotwali v. Nand Kishore and Ors. , decided on 28-3-1976, Incharge Sessions Judge, Satna thereafter passed an order to issue duplicate warrant. Copy of the proceedings of Sessions Judge, Satna in that regard is Annexure R-8. In this manner a duplicate warrant Annexure P-1 was issued which according to the petitioner, is a forged document. ( 4. ) THE petitioner thereafter moved an application before the Sessions Judge, Satna that he has been wrongly detained on the strength of duplicate warrant and it was prayed that the same may be cancelled and he be released. The Sessions Judge registered that application as Misc. Criminal Case No. 25/2000. The learned Sessions Judge after holding enquiry dismissed the said application vide order dated 27-6-2000 which is Annexure R- 9. In the order, it has been held by learned Sessions Judge in Para 8 that the petitioner was released on parole and he was absconding since 6-9-79 to 31-1-99, i. e. , for near about 20 years and the case in that regard is pending before the Judicial Magistrate First Class, Rewa under Section 224, IPC (Criminal Case No. 1789/99 ). Later on in that case (1789/99) after holding a trial, the learned J. M. F. C. , Rewa on 24-4-2004 came to hold that the petitioner committed the offence punishable under Section 224, IPC as he was absconding after obtaining the facilities of parole and did not turn back to serve the sentences which was passed against him in Sessions Trial No. 8/76 in which he was sentenced to undergo life imprisonment. The order of learned J. M. F. C. , Rewa is placed on record as Annexure R-10. ( 5. ) IN the rejoinder it has been submitted by the petitioner that he was convicted in Sessions Trial No. 8/76 by Court of Session, Satna on 27-3-1976 and he preferred Criminal Appeal No. 321/76 before this Court in which an order to release him on bail was passed and, thereafter, he was released from jail custody on 1-10-1976 in pursuance of the bail order, but the appeal was dismissed as a result of which he surrendered and was sent to jail on 18-12-1978 to suffer the remaining part of his jail sentence. According to him, he suffered the entire jail sentence and he was released in the year 1993. An affidavit of a prisoner Sarafat Khan Annexure R-J-1 has been filed along with rejoinder, in support of his contention. On the basis of these averments, it has been contended by learned Counsel that the petitioner served the entire sentence. ( 6. ) AFTER having heard the learned Counsel for the parties we are of the view that this petition deserves to be dismissed. ( 7. ) THIS is an admitted fact that the petitioner was convicted in a case under Section 302/34, IPC and learned Sessions Judge, Satna vide its order dated 27-3-1976 directed him to suffer rigorous imprisonment for life. The appeal which was preferred by him was also dismissed by, this Court. On bare perusal of Annexure R-3 which is a copy of the relevant page of convict admission register of Central Jail, Rewa, it is perceivable that the petitioner was released on parole on 24-8-1979 and he was required to come back on 6-9-1979 but he did not turn back to serve the remaining part of the sentence. On bare perusal of Annexure R-3 which is a copy of the relevant page of convict admission register of Central Jail, Rewa, it is perceivable that the petitioner was released on parole on 24-8-1979 and he was required to come back on 6-9-1979 but he did not turn back to serve the remaining part of the sentence. On going through the documents and the pleadings, it is crystal clear that the petitioner was absconding and in one case, on 1 -2-1999, when he was arrested, he was again sent to jail to serve the remaining part of his sentence for the offence under Section 302/34, IPC. ( 8. ) AT the threshold the petitioner ought to have averred all these facts that he was convicted for the offence under Section 302/34, IPC. According to us, he has deliberately concealed all these facts and did not come with clean hands. The averments made by the petitioner in the rejoinder that he had already suffered the entire sentence, can not be allowed to stand and those pleadings are after thought. The detailed enquiry as discussed hereinahove, was made against the petitioner in that behalf in a case registered against him under Section 224, IPC and it was categorically held that the petitioner committed the offence under Section 224, IPC as he was absconding. ( 9. ) IF we see the scope of writ of habeas-corpus, we may say that a writ of habeas corpus is in the nature of an order calling upon the person who has been detained without any authority of law and a writ is issued against that person who has illegally detained the said person. If the detention of the detenue is found to be in violation of any law, this Court has no option but to allow the detenue to be released. But, on the other hand, if it is found that the detention is not illegal, then a writ of this nature can not be issued. ( 10. ) THE habeas-corpus is the remedy by which enquiry is made into the cause of restraint of a person. The writ of this nature is essentially a writ of enquiry to ascertain whether a person is restrained of his liberty by due process of law, and not to determine guilt or innocence. It would undoubtedly immediate remedy for every illegal detention or imprisonment. The writ of this nature is essentially a writ of enquiry to ascertain whether a person is restrained of his liberty by due process of law, and not to determine guilt or innocence. It would undoubtedly immediate remedy for every illegal detention or imprisonment. The writ of habeas-corpus ad subjiciendum is the ancient and most celebrated and most efficacious procedural instrument of the common law to test the legality of the detention in custody of one person by another. It provides an immediate, expeditious and effective machinery for vindicating and securing the liberty of the subject by a Court order releasing him from any manner of unlawful or unjustifiable detention or restraint. It is the constitutional guarantee of the fundamental human right of the freedom of the person, since it is a prerogative writ of right and is granted ex debito justitiae, although not as a matter of course. (See Halsburys Laws of England, Fourth Edition Volume 37 Para 584 ). ( 11. ) THE Corpus Juri Secundum, has defined the expression "habeas corpus" as under :- "habeas corpus is a prerogative common-law writ of ancient origin directed to a person detaining another, commanding him to produce the body of the prisoner at a designated time and place, to do, submit to, and receive whatever the Court shall consider in that behalf. " Thus, if a person, on enquiry, is held to be detained illegally, the writ of habeas corpus would be issued directing the person detaining another, commanding him to produce the body of the prisoner at a designated time and place. The writ is the process of testing the authority of one who deprives another of his liberty, and it is designed to give a person whose liberty is restrained an immediate hearing to inquire into and determine the legality of the detention. Habeas corpus is a legal and not an equitable remedy. It is in the nature of a writ of error to examine the legality of the commitment, or, as otherwise stated, it is essentially a writ of inquiry on matters concerning which the state itself is concerned, in aid of right and liberty. The writ of habeas corpus is a writ of right when reasonable cause is shown but not a writ of course. It is issued in exercise of judicial discretion. The writ of habeas corpus is a writ of right when reasonable cause is shown but not a writ of course. It is issued in exercise of judicial discretion. The sole function of the writ of habeas corpus is to relieve from unlawful restrained or imprisonment and ordinarily it can not properly be used for any other purpose (See Corpus Juris Secundum ). ( 12. ) THE return to a writ of habeas corpus ad subjiciendum must be indorsed on or annexed to the writ and must state all the causes of the detainer of the person restrained. The Court has power to examine and to inquire into the truth of the facts stated in the return. If the return to the writ on its face shows a valid, lawful authority for the detention, the burden is on the applicant to challenge the validity of the detention and to show that it is illegal or unlawful. (See Halsburys Laws of England, Fourth Edition Volume 37 para 588 ). ( 13. ) THE Supreme Court in the case of Janardan Reddy v. Stale of Hyderabad, AIR 1951 SC 217 , has thrown sufficient light on the point in hand that if it appears on the face of the return that a person is in detention in execution of sentence of indictment on a criminal charge that would be a sufficient answer to application for habeas corpus. ( 14. ) IF the aforesaid principles of law is tested on the touch stone of the facts and circumstances of the present case in hand, it would become luminously clear that the petitioner has been detained and has been sent to jail to serve the remaining part of the sentence of the offence which he committed under Section 302/34, IPC and thus his detention can not be said to be an illegal detention. We have discussed hereinabove in detail that the detention of the petitioner is in execution of sentence against him and this is a sufficient ground to dismiss this petition. ( 15. ) RESULTANTLY, the petition is bereft of any substance and ground and the same is hereby dismissed.