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2014 DIGILAW 128 (JHR)

Akash Kumar v. State of Jharkhand

2014-01-20

D.N.PATEL, P.P.BHATT

body2014
ORDER Per D.N. Patel, J. The present petition has been preferred as a writ of habeas corpus on the ground that the petitioner, namely, Akash Kumar is in illegal custody by the order of Judicial Magistrate, 1st Class, Ranchi in G.R. No. 2366 of 2013 dated 27th May, 2013 which is at Annexure-5. 2. Learned counsel appearing for the petitioner has argued out the case at much length on the basis of Juvenile Justice Act, 2000 and has submitted that Judicial Magistrate. 1st Class has no power in view of Sections 6, 7 and 14 of the Juvenile Justice Act. The Juvenile Justice Board has exclusive power and also this Court has power and such other things have been argued out. 3. Mr. Prabhat Singh, learned J.C. to A.A.G. vehemently submitted that this writ of habeas corpus is not tenable, at law mainly for the reason that the custody of this petitioner with the State is in pursuance of the order passed by the Judicial Magistrate, 1st Class. Ranchi in G.R No. 2366 of 2013 dated 27th May, 2013 which is at Annexure-5 to the memo of this writ application. The petitioner cannot file a writ of habeas corpus when the State is having legal custody of the petitioner in pursuance of the judicial order. Thus, the very ingredient of the writ of habeas corpus is absent and hence this petition may not be entertained by this Court. 4. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, we see no reason to entertain this writ of habeas corpus mainly for the following facts and reasons : (i) It appears that the custody of this petitioner is with the respondent-State in pursuance of the judicial order passed by the Judicial Magistrate, 1st Class, Ranchi in G.R No. 2366 of 2013 dated 27th May, 2013 which is at Annexure-5 to the memo of this writ application. Once the custody with the State is in pursuance of the judicial order it cannot be said that the State is having illegal custody of the petitioner and, hence, the writ of habeas corpus is not tenable, at law. Once the custody with the State is in pursuance of the judicial order it cannot be said that the State is having illegal custody of the petitioner and, hence, the writ of habeas corpus is not tenable, at law. (ii) Learned counsel for the petitioner has relied upon Sections 6, 7 and 14 of the Juvenile Justice Act, 2000 and submitted that the order passed by the Judicial Magistrate, 1st Class in G.R. No. 2366 of 2013 is de hors the provisions of this Act and, hence, custody with the respondent is illegal. The contention for issuance of prerogative writ of habeas corpus under Article 226 of the Constitution of India, is not accepted by this Court. For issuance of the writ of habeas corpus in exercise of power under Article 226 of the Constitution of India, it must be established by the petitioner that the custody with the State of any person is illegal. Here, there is no illegal custody of the petitioner with the respondents, on the contrary, this is as per the order passed by the Judicial Magistrate, 1st Class, Ranchi in G.R. No. 2366 of 2013 dated 27th May, 2013 (Annexure-5). The order passed by the concerned trial Court may be illegal, but the custody with the respondent-State is absolutely legal. It is one thing that the order passed by the Judicial Magistrate, 1st Class, Ranchi may be illegal and it is altogether another thing so far as custody with Respondent-State is concerned otherwise, in all bail matters, there shall be writ of habeas corpus. If the argument of the counsel for the petitioner is accepted, in bail application also under Section 439 of the Code of Criminal Procedure, where person is in judicial custody by virtue of the order passed by the learned trial Court, writ of habeas corpus should be filed. This is a fallacy in the argument canvassed by the counsel for the petitioner. Until and unless the order passed by the Judicial Magistrate, 1st Class, Ranchi in this case is quashed and set aside by the competent Court in appropriate proceeding, the custody of the petitioner with the respondent-State is legal. 5. This is a fallacy in the argument canvassed by the counsel for the petitioner. Until and unless the order passed by the Judicial Magistrate, 1st Class, Ranchi in this case is quashed and set aside by the competent Court in appropriate proceeding, the custody of the petitioner with the respondent-State is legal. 5. For the aforesaid reasons, we are not inclined to entertain this writ of habeas corpus, but, liberty is reserved with the petitioner to challenge the order passed by the Judicial Magistrate, 1st Class, Ranchi dated 27th May, 2013 in G.R. No. 2366 of 2013 in appropriate proceeding before appropriate forum. Accordingly, this petition is, hereby, dismissed. Petition dismissed.