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2016 DIGILAW 239 (UTT)

Joginder Kumar v. State of Uttarakhand

2016-06-03

K.M.JOSEPH, V.K.BIST

body2016
JUDGMENT : K.M. Joseph, J. 1. This is a writ petition seeking a writ of habeas corpus commanding the respondents to produce the body of the petitioner in the Court and to set him at liberty. 2. The brief facts leading to filing of this petition appear to be as follows:- Three separate cases were lodged against the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act) by three different persons. Petitioner was convicted under Section 138 of the Act and was directed to undergo rigorous imprisonment for a period of one year along with fine of Rs. 5000/-. In default of payment of fine, the petitioner was directed to further undergo simple imprisonment for three months. Three different amounts were directed to be paid by the petitioner as compensation also in all the three cases. In total, a sum of Rs. 49,10,000/- was directed to be paid. The Appeals filed by the petitioner before the Additional Sessions Judge, Roorkee were successful and the petitioner was acquitted. Three different Criminal Appeals were filed before this Court by the complainants. Learned Single Judge of this Court allowed the Appeals, set aside the order of acquittal passed by the learned Additional Sessions Judge, Roorkee, Haridwar and restored the order passed by the trial Court. The said judgment has become final as the SLPs have been rejected. Petitioner surrendered before the Judicial Magistrate Roorkee, Haridwar. Three conviction warrants were prepared and they were sent to the Jailor and the petitioner began incarceration. Petitioner moved an Application before the Judicial Magistrate, Roorkee with a prayer that all the three sentences awarded to the petitioner be directed to run concurrently. The same was dismissed. Against the said order, petitioner approached this Court under Section 482 of the Code of Criminal Procedure. The learned Single Judge on 17.12.2015, disposed of the petition filed under Section 482 of Code of Criminal Procedure. We extract the following portion of the order passed by the learned Single Judge: “Had the application not been given by the applicant on 24.01.2015, probably such confusion would not have arisen, for in that case, the jailor would have computed one year’s R.I. from the day he surrendered in each case. It cannot, therefore, be said that the intention of the trial court was to direct the accused to undergo imprisonment consecutively (in three separate cases). It cannot, therefore, be said that the intention of the trial court was to direct the accused to undergo imprisonment consecutively (in three separate cases). Had it been in one criminal case and the convict been convicted for different penal sections, the accused would have been directed to undergo rigorous imprisonment consecutively. It is, therefore, clarified that all the sentences shall begin to run from 19.12.2014. If the accused has not paid the fine, further imprisonment awarded to him in default of the same will have to be undergone by the accused-convict. Needless to say that the convict has to pay the amount of compensation to each of the complainants, as has been directed by the trial court, before his final release from the jail. 8. Application under Section 482 Cr.P.C. stands disposed of accordingly.” 3. According to the petitioner, petitioner has already served the sentence for a period more than what is required to be served as he has served sentence of one year and five months. According to him, therefore, his continuous detention is illegal and, therefore, he is before us. 4. We heard learned Senior Counsel for the petitioner Sri Arvind Vashisth assisted by Sri Gaurav Singh, Advocate and Sri A.S. Gill, learned Deputy Advocate General on behalf of the State. 5. We will proceed on the basis that the order passed under Section 482 of the Code of Criminal Procedure is binding on the State and the fact remains that admittedly the petitioner has not paid the amount of compensation ordered to be paid by the learned Judicial Magistrate and which was affirmed by this Court. Therefore, the learned Deputy Advocate General would submit that in terms of the said order, the detention cannot be termed as illegal. 6. Per contra, Sri Arvind Vashisth would submit that the order to the extent it provides that the petitioner shall not be released except after payment of compensation will result in a situation, where the petitioner will be languishing in jail for rest of his life. He would draw our attention to Sections 421 and 431 of the Code of Criminal Procedure, which read as under:- “421. He would draw our attention to Sections 421 and 431 of the Code of Criminal Procedure, which read as under:- “421. Warrant for levy of fine.—(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may:— (a) issue a warrant for the levy of the amount by attachment and sale of any moveable property belonging to the offender; (b) issue a warrant to the Collector of the district, authorizing him to realize the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357. (2) The State Government may make rule regulating the manner in which warrants under clause (a) of sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the Court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate under such law: Provided that no such warrant shall be executed by the arrest of detention in prison of the offender. 431. 431. Money ordered to be paid recoverable as a fine - Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine: Provided that section 421 shall, in its application to an order under section 359, by virtue of this section, be construed as if in the proviso to sub-section (1) of section 421, after the words and figures "under section 357" the words and figures "or an order for payment of costs under section 359" had been inserted.” 7. He would submit that the position emanating from the faithful adherence to the terms of the order under Section 482 would result in the petitioner undergoing imprisonment for a period far greater than what is contemplated in law. 8. The jurisdiction of habeas corpus is to scrutinize, whether a person is in illegal detention. In one sense, the law is what the Court says the law is. The Courts may err when they discharge their duties. An erroneous decision between the parties binds the parties. Continued detention of the petitioner is quite clearly premised on the petitioner not having complied with the terms of the judgment rendered in petition under Section 482 of the Code of Criminal Procedure. We cannot possibly, in the habeas corpus jurisdiction, sit over the judgment of the learned Single Judge rendered in a petition under Section 482 of the Code of Criminal Procedure. For the same, the petitioner may have, if he is so advised, to work out the remedies before the competent forum, namely, the Hon’ble Apex Court. In fact, we stand informed today that the attempt to get the order modified by the learned Single Judge was unsuccessful. We cannot possibly hold that the detention is illegal. In fact, the direction of the learned Single Judge is that the petitioner shall not be released without the compensation being paid. If we cannot sit in judgment over the same, it will certainly not be open for us to invoke the habeas corpus jurisdiction directing release of the petitioner. The detention of the petitioner is legal in terms of the judgment rendered in petition under Section 482 of the Code of Criminal Procedure. If we cannot sit in judgment over the same, it will certainly not be open for us to invoke the habeas corpus jurisdiction directing release of the petitioner. The detention of the petitioner is legal in terms of the judgment rendered in petition under Section 482 of the Code of Criminal Procedure. We do not wish to probe further the arguments of the petitioner based on the provisions of the Code of Criminal Procedure to see, whether the detention is illegal, as having courted the judgment under Section 482 of the Code of Criminal Procedure in the manner, which we have already adverted to, the claim of the petitioner is merit-less. The Habeas Corpus petition will stand dismissed. No order as to costs.