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2013 DIGILAW 533 (CAL)

Anil Halder v. STATE OF WEST BENGAL

2013-08-01

ASIM KUMAR RAY, JAYANTA KUMAR BISWAS

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JUDGMENT Jayanta Kumar Biswas, J. The petitioner in this WP under art.226 of the Constitution of India dated July 17, 2013 is seeking a habeas corpus setting his son at liberty. His allegation is that his son is in illegal detention of the respondents. On the basis of a written information of one Shikha Mondal (Priyangvada Devi) the officer in charge of Bowbazar police station registered an FIR No.204 on April 14, 2013 under ss.328/376/506 IPC. One Bivash Mondal was named as the sole accused in the FIR. On April 15, 2013 the petitioner’s son Bivash Halder was arrested and produced before the Chief Metropolitan Magistrate, Calcutta, who passed several orders authorising Bivash’s custody upto June 21, 2013. The State has filed an opposition. Mr. Public Prosecutor has submitted that on May 24, 2013 the investigating officer already arriving at a conclusion that the crime had not been committed within the jurisdiction of Bowbazar police station, initiated a process for permission of his higher authority to transfer the case to the court of the Additional Chief Metropolitan Magistrate, Diamond Harbour. On June 10, 2013 the investigating officer applied to the CMM for transferring the case to the court of the ACJM, Diamond Harbour. Mr. Public Prosecutor has submitted that on June 12, 2013 the CMM passed an order directing transfer of the case to the court of the ACJM, Diamond Harbour. Under the circumstances, the investigating officer has neither produced Bivash before the CMM on June 21, 2013, nor produced him before the ACJM, Diamond Harbour. On July 14, 2013 Bivash applied to the CMM seeking statutory bail. The CMM refused to entertain the application on the grounds that he did not have jurisdiction over the matter. Faced with the situation, Bivash moved a CRM before this court seeking bail under s.439 CrPC. When the question of its maintainability arose (because there was no bail refusal by court below and question of legality of the custody was not to be decided under s.439), he prayed for leave to withdraw the CRM, and the prayer was allowed on July 16, 2013. Mr. Kabir appearing for the petitioner has submitted that since Bivash is in illegal detention of the respondents, it is necessary to issue a habeas corpus setting him at liberty. Mr. Shekhar Basu, an eminent senior counsel and present in court, has helped Mr. Mr. Kabir appearing for the petitioner has submitted that since Bivash is in illegal detention of the respondents, it is necessary to issue a habeas corpus setting him at liberty. Mr. Shekhar Basu, an eminent senior counsel and present in court, has helped Mr. Kabir giving him the decision in Ram Narayan Singh v. The State of Delhi & Ors., AIR 1953 SC 277 . Mr. Public Prosecutor has submitted that on the facts steps were rightly taken for transferring the case to the court of the ACJM, Diamond Harbour; and that since for reasons beyond control Bivash could not be produced before any court on June 21, 2013 or thereafter, it cannot be said that his detention authorised from the date of arrest till June 21, 2013 is illegal after June 21, 2013. He has relied on Satvinder Kaur v. State (Govt. of NCT of Delhi) & Anr., 1999 SCC (Cri) 1503 and Rasiklal Dalpatram Thakkar v. State of Gujarat & Ors., 2009 AIR SCW 7253. The question in this habeas corpus petition is whether the petitioner’s son Bivash is in illegal detention of the respondents. It is not necessary for us to examine whether transfer of the case permitted by the CMM is lawful, or what step the investigating officer having no jurisdiction to investigate ought to have taken. Mr. Public Prosecutor has cited the two decisions in connection with these issues. The admitted position is that after June 21, 2013 till date no court has authorised Bivash’s detention is jail where he was lodged at the instance of the investigating officer in question. Remand period ordered by the CMM expired on June 21, 2013. It is, therefore, evident that from June 22, 2013 Bivash is in illegal custody. Our this opinion gets full support from the decision in Ram Narayan Singh. Hence the petitioner is entitled to a habeas corpus setting his son at liberty. For these reasons, we allow the WP and issue a habeas corpus directing the respondents to set the petitioner’s son at liberty at once. No costs. Certified xerox.