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2009 DIGILAW 154 (MP)

Ramesh v. State of M. P.

2009-01-30

MANJUSHA P.NAMJOSHI, SUBHASH SAMVATSAR

body2009
JUDGMENT Samvatsar, J. -- 1. This writ appeal is preferred by the present appellant, being aggrieved by the order dated 23rd day of January, 2007, passed by the learned Single Judge of this Court in WP No. 6503/2006, whereby the writ petition filed by the present appellant for seeking a direction to set the petitioner at liberty and for paying adequate compensation was dismissed. 2. The facts of the case, briefly stated, are that the present appellant-petitioner was prosecuted and eventually convicted for the offences punishable under sections 302, 148 and 149 of IPC for committing murder of one Arjun Singh on 12.7.1990. The learned Sessions Judge by his order dated 31st July 1996 (Annexure P-1) in Sessions Trial No. 78/93 convicted the present appellant for commission of offence under section 302 read with section 149 of IPC and sentenced him to undergo imprisonment for life. The other co-accused Dilip Singh was acquitted from the charges levied against him. 3. This judgment was challenged by the present appellant by filing an appeal before this Court which has been registered as Criminal Appeal No. 644/1996. This Court decided the said appeal on 14th Day of February, 2006 and held that even though the offence against the present appellant under section 302 of IPC is not made out, but he was found guilty for commission of offence under section 304 Part - I of IPC and was sentenced to suffer rigorous imprisonment for seven years. This order has attained finality and the present appellant-petitioner is undergoing imprisonment. 4. The appellant-petitioner filed writ petition before this Court seeking direction to set the petitioner at liberty and paying him adequate compensation on the ground that Arjun Singh who was alleged to have been killed by the present appellant in criminal trial, is still alive. Said writ petition was dismissed by the learned Single Judge of this Court vide order, dated 23.1.2007. 5. The order dismissing the writ petition was challenged by the present appellant by filing an appeal. Initially, the appeal was dismissed by this Court on 2.4.2007 on the ground that the appellant-petitioner has failed to surrender himself in terms of judgment dated 14.2.2006. 6. This order was challenged by the present appellant-petitioner by filing Special Leave Petition before the apex Court which was registered as SLP (Criminal) No. 3265/2008. Initially, the appeal was dismissed by this Court on 2.4.2007 on the ground that the appellant-petitioner has failed to surrender himself in terms of judgment dated 14.2.2006. 6. This order was challenged by the present appellant-petitioner by filing Special Leave Petition before the apex Court which was registered as SLP (Criminal) No. 3265/2008. The apex Court allowed the appeal and set-aside the order passed by this Court dated 2.4.2007 on the ground that this Court has dismissed the appeal without considering the merits of the case since the appellant-petitioner has not complied with the order dated 23.2.2007 in terms of order dated 14.2.2006 and remanded the matter back to this Court. 7. Shri Sunil Jain, learned counsel appearing on behalf of the appellant, could not dispute the fact that the judgment dated 14.2.2006 rendered by this Court in Criminal Appeal No. 644/1996 has attained finality. The writ petition was filed on the ground that Arjun Singh who is alleged to have been murdered by this appellant in the said Sessions Trial No. 78/93 is still alive and, therefore, his conviction under section 304 Part-II of IPC cannot be maintained. Hence, he be set free from the detention. 8. Learned counsel for the appellant contended that the detention of appellant is in violation of Article 21 of the Constitution. In support of his argument, he has relied on a judgment of the apex Court in the case of A.K. Gopalan v. State of Madras, AIR (37) 1950 Supreme Court 27 and in the case of Vasanthi v. Ch. Jaya Prakash Rao and others, 1996 CriLJ 4243. 9. After hearing Shri Jain, learned counsel for the appellant, we find that his arguments are entirely misconceived. The apex Court in the case of A.K. Gopalan (supra) while dealing with the case of detention under the Preventive Detention Act, 1950 and considering the variance of section 1 (12) and 14 of the said Act, has held that section 14 of the said Act is ultra vires. The directions given to release the appellant-petitioner was on the ground that the period of detention is already over. The directions given to release the appellant-petitioner was on the ground that the period of detention is already over. Another judgment relied by the learned counsel for the appellant is in the case of Vasanthi (supra) wherein the petitioner was kept under the detention by Inspector of Police without complying with due requirements of law and without any trial; and in such a situation, the Division Bench of Andhra Pradesh High Court has held that it is a case of violation of Article 21 of the Constitution. 10. In the present case, the appellant is under detention under the order of a Competent Criminal Court. 11. Article 21 of the Constitution provides as under: "21. Protection of life and personal liberty -- No person shall be deprived of his life or personal liberty except according to the procedure established by law." 12. From bare reading of the said Article, it is clear that no person can be deprived of his life except according to the procedure established by law. In the present case, the appellant-petitioner is kept under the custody after following the procedure established by law and, therefore, it cannot be said that his rights guaranteed by Article 21 of the Constitution are violated. 13. Apart from that, Shri Sunil Jain, learned counsel for the appellant could not point out any provision of law which empowers this Court to exercise powers under Articles 226 and 227 of the Constitution of India for setting aside the judgment passed by the Competent Court which has attained finality between the parties. 14. Moreover, if the prayer for setting the petitioner-appellant at liberty is granted by this Court in a writ petition under Articles 226 and 227 of the Constitution of India, then it will amount to setting aside the judgment of a Competent Criminal Court which has been affirmed by the High Court in an appeal, which is not permissible under the hierarchy of judicial system. 15. In such circumstances, we find this appeal to be devoid of any merit, hence, we dismiss the same.