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2013 DIGILAW 1467 (PAT)

Amar Jyoti v. State of Bihar

2013-12-17

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

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ORDER In this writ application, the prayer has been made to issue the writ of habeas corpus directing the respondents to release the petitioner from the illegal custody. 2. The case of the petitioner is that he in pursuant to the order of the High Court appeared before the learned Additional Session Judge, IV, Naugachia in Session Trial No. 767 of 2012 on 5.9.2013 and he was allowed to remain on previous bail in Sessions Trial No. 767 of 2012. Later on a petition was filed before the said Court that he has apprehension of committing his murder by the co-accused as such the Superintendent of Police Naugachia was directed to give protection to the petitioner within the jurisdiction of Naugachia but on the same date the petitioner was apprehended by the police near the court compound itself. He has also grievance that he was apprehended near the Court campus on 5.9.2013 and he was produced before the additional Chief Judicial Magistrate on 6.9.2013 after 24 hours beyond the mandatory provision. Thus, the fundamental right of the petitioner has been violated by the police concerned. Since the detention of the petitioner in police custody is beyond 24 hours without production before the nearest Magistrate, his detention is illegal and is in violation of the fundamental right of the petitioner. 3. The learned Magistrate has remanded the petitioner to be produced on 19.9.2013 which was also illegal and the order of remand is also vitiated as such the petitioner should be set at liberty forthwith. In support of his contention he has relied upon a decision in the case of Mahesh Kumar Vs. The State of Bihar & Ors., reported in 2008(2) BLJ 135- PHC. 4. Counter affidavit has been filed on behalf of State-respondents. It has been submitted that the petitioner was apprehended by the police in Gopalpur P. S. Case No. 69 of 2013 under Sections 420, 406, 467, 468, 471, 120(B) IPC which was filed against the petitioner and other co-accused. It has further been submitted that the petitioner has also criminal antecedent and is accused in following cases:— (i) Bihpur (Bhawanipur) P. S. Case No. 268 of 2011, dt. 7.8.2011, u/S 395/412, IPC (Charge Sheeted). (ii) Giriyak (Nalanda) P. S. Case No. 116/11, dt. 8.8.11, u/s 414/120(B) IPC (Charge Sheeted). (iii) Akbarpur (Nawada) P. S. Case No. 180 of 2007, dt. 22.12.2007 u/S 379 IPC (Charge Sheeted). 7.8.2011, u/S 395/412, IPC (Charge Sheeted). (ii) Giriyak (Nalanda) P. S. Case No. 116/11, dt. 8.8.11, u/s 414/120(B) IPC (Charge Sheeted). (iii) Akbarpur (Nawada) P. S. Case No. 180 of 2007, dt. 22.12.2007 u/S 379 IPC (Charge Sheeted). (iv) Akbarpur (Nawada) P.S. Case No. 15 of 2008 dated 12.2.2008 under Section 393 IPC (Charge Sheeted). 5. It has further been submitted that from Annexure- 11 it appears that the petitioner was arrested on 5.9.2013 at 15.15 hours near the gate of Sub-divisional Office from NH 31 (Road) and it is apparent from order passed in Gopalpur P. S. Case No. 69 of 2013 as contained in Annexure-12 it appears that the petitioner was apprehended on 6.9.2013 and produced at 3.30 P.M before the learned Magistrate. The petitioner did not made any complaint against the police and he was remanded to the judicial custody till 19.9.2013. Later on the same day i.e. 6.9.2013 learned counsel for the petitioner appeared and filed a petition to produce the petitioner on the date fixed previously i.e. 10.9.2013. The petitioner was produced before the Magistrate on 10.9.2013 and the case was adjourned to 30.9.2013 and the petition filed by the petitioner was not pressed on that date. The case was adjourned on 30.9.2013. 6. It is submitted that there is no violation of Section 57 of Cr.P.C. The petitioner was produced before the learned Magistrate within 24 hours. He has further submitted that even in case where there is violation of Article 22 (2) of the Constitution of India, an accused may be entitled to be set at liberty if it is shown that the accused at that point of time is in illegal detention by the police, such a right is not available after the Magistrate remands the accused to custody. Right under Article 22(2) is available only against illegal detention by police. It is not available against custody in jail of a person pursuant to a judicial order. Article 22(2) does not operate against judicial order. In support of his contention, he has relied upon a decision in the case of Sadhwi Pragyna Singh Thakur Vs. State of Maharashtra, reported in AIR 2011 SC (Supp) 755 : 2010 Cri LJ 3267 (Paragraph 26 & 29). 7. Article 22(2) does not operate against judicial order. In support of his contention, he has relied upon a decision in the case of Sadhwi Pragyna Singh Thakur Vs. State of Maharashtra, reported in AIR 2011 SC (Supp) 755 : 2010 Cri LJ 3267 (Paragraph 26 & 29). 7. Admittedly, the petitioner has not challenged the remand order passed by the learned Additional Chief Judicial Magistrate on 6.9.2013 in Gopalpur P. S. Case No. 69 of 2013. The decision reported in 2008(2) BLJ 135- PHC (supra) does not help the petitioner. 8. Considering the facts and circumstances stated above, it appears that the petitioner has not been able to substantiate its case. This petition has got no merit and it is, accordingly, dismissed. SHYAM KISHORE SHARMA, J.:–I agree. ?