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REPORTABLE

IN THE SUPREME COURTG OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO. 147 OF 2013

SAURABH KUMAR THROUGH

HIS FATHER … PETITIONER

VERSUS

JAILOR, KONEILA JAIL & ANR. … RESPONDENTS

J U D G M E N T

N.V. Ramana, J.

This habeas corpus petition is filed by one Saurabh

Kumar who is in Koneila Jail, Dalsingsarai, District

Samastipur (Bihar).

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2.In brief the case of the petitioner is that he was XII

pass and wanted to leave the village in search of a decent

job. In that connection he made an application for

passport. On 30.6.2013 the police had called the

petitioner to the Police Station for enquiry on his

application for passport and after reaching inside the

police station he was locked up. Thereafter on 1.7.2013

early morning, the petitioner was taken to the residence of

one Shri Tripathi, Judicial Magistrate who is arrayed as 6

th

respondent in this writ petition. There, the petitioner was

beaten with lathi by DSP, Manish Kumar Suman, who is

arrayed as 9

th

respondent herein, in the presence of the

said Judicial Magistrate and it is also alleged that while

beating he was told that it is a reward for his parents for

reporting or complaining against him to the Supreme

Court, and insulted him by stating that low caste people

should not become malik of the land of the upper caste

people like mausaji. Thereafter, the petitioner was taken

from the house of the Judicial Magistrate to the Koneila

jail where he is kept under detention. The petitioner states

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that he was unnecessarily and illegally detained by the

police. It is also a further case of the petitioner that the

Judicial Magistrate, Shri Tripathi also caused prejudice as

he is out of vengeance against his parents. When they

approached the local MLA, the MLA contacted the SHO

of Dalsingsarai, District Samastipur, and the police

informed the MLA that there is no complaint against the

writ petitioner and they are going to release him but in

spite of repeated requests they have not released him.

3.Hence, the petitioner prayed for grant of a writ of

habeas corpus u/Art. 32 read with Art.14, 21 & 22 of the

Constitution of India directing the Respondents to

produce the petitioner Saurabh Kumar before this Hon’ble

Court and also to direct the respondent-State to devise a

way to prevent malicious arrest and detention by the

police that too without maintaining necessary record and

further to direct the State to pay the petitioner

compensation considering that the detention is a black

mark to his career prospects and future.

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4.Initially there were eleven persons shown as

respondents. But later on, the petitioner has withdrawn

respondent nos. 3 to 11 from the array of parties.

5.After issuing notice two counter affidavits have been

filed, one by respondent nos. 1, 2, 7 and 8 and the other

by the sixth respondent, Tripathi, the Additional Chief

Judicial Magistrate and Judge In-charge (Administration)

Dalsingsarai, District Samastipur, Bihar. From these two

affidavits, it appears that there were land disputes

between petitioner’s family and one Rama Kant Singh. A

Mortgage Suit No. 30/94 was filed against Banwari Roy,

who is the grand-father of the petitioner and obtained a

decree against him on 28.2.1997 by the Munsif Court.

Thereafter, the grandfather of the petitioner preferred Title

Suit bearing T.A. No. 17/99 against the said Rama Kant

which was subsequently dismissed by the learned

Additional District and Sessions Judge-I, Samastipur by

order dated 1.6.2013.

6.The said Rama Kant Singh filed an execution case

for delivery of possession of the land. The Munsif (Civil

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Judge, Jr. Division, Dalsingsarai) ordered for deputing the

police force for the delivery of the land to the decree-

holder. In view of the said order, the 6

th

respondent-

Tripathi directed the Nazir, Civil Court, Dalsingsarai to

execute the decree passed by the learned Munsif and on

3.3.2013 the said decree was executed which was

confirmed by the Munsif by his order dated 15.3.2013.

7.Thereafter, one Mohan Kumar filed a complaint

before the Additional Chief Judicial Magistrate on

29.4.2013 which was referred to the police on 1.5.2013

P.S. No. 72/13 and was registered under Section 147,

148, 149, 323, 427, 504, 379 and 386 of the Indian Penal

Code and under Section 27 of the Arms Act for necessary

action and investigation under Section 156(3) Cr.P.C. In

the said complaint it is stated that the complainant Mohan

Kumar was working in his fields of which possession was

handed over by execution of the decree. The writ

petitioner Sumit Kumar alias Saurabh Kumar along with

his family members Banwari Roy, Dinesh Roy, Rekha

Devi, Golu Kumar, armed with lathis, pharsa, pistol

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beaten Mohan Kumar and snatched his wrist watch. It

was also further alleged that at the gun point the

petitioner party threatened the complainant therein to put

his thumb impression on a stamp paper. On his refusal,

the petitioner party threatened him to kill. The petitioner

who is shown as accused in the said FIR was arrested in

the said case on 30.6.2013. Thereafter, he was produced

in the court of the Additional Chief Judicial Magistrate,

Dalsingsarai, Samastipur on 1.7.20123. On orders

passed by him (Annexures R.6/2 and R.6/3), the

petitioner was remanded to judicial custody vide order

dated 1.7.2013.

8.When the matter came up before this Court, the

learned counsel appearing for the petitioner Smt. Lily

Isabel Thomas contended that the petitioner is in illegal

custody and sought a direction for his release. This Court

has pointed out to the counsel for writ petitioner about the

counter affidavits filed by the respondents which show

that the petitioner is an accused in a criminal case which

was registered under Sections 147, 148, 149, 323, 427,

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504, 379 and 386 of IPC and under Section 27 of Arms

Act and after such registration he was arrested and

produced before the Addl. Chief Judicial Magistrate,

Dalsingsarai, District Samastipur, Bihar and then he was

detained in judicial custody. However, the counsel

contended that a direction be given to the jailer-

respondent No. 1 to produce the remand report of the

petitioner as that itself shows the illegal detention. In spite

of this Court’s suggestion to the petitioner’s counsel to

approach the criminal court for obtaining bail, she

repeatedly made request for the production of order

passed by the Judicial Magistrate remanding the

petitioner to jail.

9.We have heard the counsel for the State

Government also who made a statement that the

allegation made in the affidavit is false and the petitioner

is an accused in a criminal case and therefore he is in

judicial custody by virtue of an order passed by the

Judicial Magistrate and there is no illegal detention as

alleged by the petitioner.

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10.After hearing the counsel and on perusing the

affidavits and the material placed before us, it is evident

that there are series of cases pertaining to land disputes

between the family of the alleged detenu and other

villagers. Civil cases were filed initially. During the

pendency of a Suit, the father and mother of the petitioner

filed a Writ Petition No. 197 of 2012 before this Court. In

the said Writ Petition, this Court has passed the following

orders:

Order dated 9.5.2013

“Heard Ms. Lily Isabel Thomas, learned

counsel for the petitioners and perused the

record.

The District Judge, Samastipur, Bihar is

directed to pass an appropriate order in the

pending appeal within a period of two weeks

from the date of receipt/production of copy of

this order.

With the above observation, the

applications are disposed of.

If any petition is filed by the applicants

under Section 144 C.P.C., then the same may

be considered on its own merits.”

Order dated 7.6.2013

“List on 10.6.2013.

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In the meantime and until further orders

the petitioners shall not be dispossessed as

the order dated 9.5.2013 indicates that this

Court had already permitted the petitioners to

approach the District court for disposal of their

application. In the meantime, the learned

counsel for the petitioners has sought

protection from dispossession, which prayer

prima facie appears to be reasonable.

Suitable modification in this regard in the

order may be considered on the next date

when the application is listed. In the meantime

and until 10.6.2013, status quo in the matter

shall be maintained.

The order may be given dasti.”

11.A mortgage Suit No. 13/94 was also filed in which a

decree was obtained against the grandfather of the

petitioner and thereafter the grandfather of the petitioner

Banwari Roy has also filed a civil Title Suit bearing T.A.

No. 17/99 which was dismissed by the learned Additional

District and Sessions Judge-I, Samastipur on 1.6.2013.,

taking into consideration the orders passed by this Court.

12.After obtaining decree in the Suit for delivery of

possession Rama Kant Singh has filed Execution

proceedings on which the Munsif has ordered for police

force for the delivery of possession which was executed

on 3.3.2013 and thereafter again an incident had taken

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place on 1.5.2013. A complaint was given by one Mohan

Kumar which was registered as FIR P.S. No. 72/13 under

different Sections of the IPC and under Section 27 of the

Arms Act. At that point of time, the petitioner was

produced before the Additional Chief Judicial Magistrate.

Then the Magistrate after examining him, directed to send

him to jail by order dated 1.7.2013 (annexure R.6/3) . The

said order reads as under:

“Sub Inspector, P.S. Ujiarpur arrested named

accused of this case, Sumit Kumar @

Saurabh Kumar aged 22 years son of Shil

Kumar Rai, Village Bhagwanpur Desua, P.S.

Ujiarpur, District Samastipur and sent

Forwarding Report to the Court, seeking

judicial remand of accused on the basis

evidence indicated in the report and arrest

memo along with reasonable escorting force.

Accused has no complaint against the

escorting force. Nose, Ear, Eye etc. of the

accused is functional and on query by the

Court, accused said he is able to defend his

case. The accused is remanded in this case

and being sent to Up-Kara (Sub-Divisional

Jail), Dalsinghsarai. Office clerk is directed to

issue custody warrant.

Fixed for 15.7.2013 for production of

accused from jail.”

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13.It is clear from the said narration of facts that the

petitioner is in judicial custody by virtue of an order

passed by the Judicial Magistrate. The same is further

ensured from the Original Record which this Court has, by

order dated 9

th

April, 2014, called for from the Court of

Additional Chief Judicial Magistrate, Dalsingsarai, District

Samastipur, Bihar. Hence, the contention of the learned

counsel for the petitioner that there was illegal detention

without any case is incorrect. Therefore, the relief sought

for by the petitioner cannot be granted. Even though there

are several other issues raised in the Writ Petition, in view

of the facts narrated above, there is no need for us to go

into those issues. However, the petitioner is at liberty to

make an application for his release in Criminal Case No.

129/13 pending before the Court of the learned Addl.

Chief Judicial Magistrate, Dalsingsarai.

14.After the conclusion of hearing, when the matter

was reserved for judgment and the pronouncement of

judgment is pending, a Crl.M.P. No. 12866 of 2014 has

been filed by the writ petitioner seeking reliefs which are

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not concerned with the main prayer. The petitioner has

also filed another Crl.M.P. No. 14378 of 2014 seeking

release of petitioner’s mother and grand father. In view of

the foregoing discussion and the reasons given in the

judgment, the reliefs so sought by the petitioner in the

said Crl.M.Ps. also cannot be granted in the present

habeas corpus writ petition. However, the petitioner is at

liberty to avail remedies as available to him in accordance

with law.

15.Accordingly, the writ petition as well as the

Crl.M.Ps. stand dismissed.

…………………………………… ..J.

(T.S. Thakur)

…………………………………… ..J.

(N.V. Ramana)

New Delhi,

July 22, 2014.

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (Crl.) 147 OF 2013

Saurabh Kumar …Petitioner

Vs.

Jailor, Koneila Jail, & Anr. …

Respondents

J U D G M E N T

T.S. Thakur, J.

1. I have had the advantage of going through the order

proposed by my esteemed brother N.V. Ramana, J. I

entirely agree with the view taken by him that the

petitioner cannot be said to be in illegal custody so as to

warrant the issue of a writ of Habeas Corpus. I would all

the same add a few words of my own to what has already

been stated by my esteemed and erudite brother.

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2.Petitioner’s case is that he was called to the police

station on 30

th

June, 2013 in connection with some

enquiry about the issue of a passport. When he reached

the police station, he was unceremoniously locked up only

to be produced before Shri Tripathi, Judicial Magistrate,

Respondent No.6 in the writ petition, on the following

date i.e. 1

st

July, 2013. He was, according to the

averments in the petition, beaten up with lathis by one

Manish Kumar Suman, DSP arrayed as respondent No.9

in the writ petition. The beating is alleged to have taken

place in the presence of the Judicial Magistrate as a

reward for the audacity of the petitioner’s parents

reporting against the Magistrate to the Supreme Court.

The petitioner alleges that when his parents approached

the local MLA for help, they were told that there was no

complaint against the petitioner and that he will be

released shortly. The detention of the petitioner, in the

above circumstances, it is asserted, was without any

lawful justification, whatsoever hence illegal.

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3.The respondents have appeared to file two separate

counter affidavits from which it appears that not only are

there disputes between the family members of the

petitioner, on the one hand, and one Rama Kant Singh,

on the other, but on the complaint of one Mohan Kumar,

filed before the Additional Chief Judicial Magistrate, the

later had passed an order on 29

th

April, 2013, referring

the matter to the police for investigation. Criminal Case

No.72 of 2013 was on that basis registered in the police

station against the petitioner for offences punishable

under Sections 147, 148, 149, 323, 427, 504, 379 and

386 of the Indian Penal Code read with Section 27 of the

Arms Act. The affidavits further reveal that the petitioner

was, in connection with the said case, arrested on 30

th

June, 2013 and produced before the Additional Chief

Judicial Magistrate, Dalsingsarai, Samastipur on 1

st

July,

2013 who remanded him to judicial custody by an order

dated 1

st

July, 2013. From the original record summoned

by us for perusal we find that the petitioner had been

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remanded to judicial custody from time to time by the

Court concerned. In the meantime, a charge sheet was

filed against the petitioner on 27

th

August, 2013 followed

by a subsequent charge-sheet filed against the remaining

accused persons on 3

rd

December, 2013. It is also

manifest from the record that on a perusal of the FIR,

charge sheets and the case diaries, the Magistrate has

taken cognizance of the offences punishable under

Sections 147, 148, 149, 323, 447, 504, 379 and 386 of

the Indian Penal Code read with Section 27 of the Arms

Act against the petitioner-Saurabh Kumar, Banwari Rai,

Dinesh Rai, Rekhad Devi and Golu Kumar in terms of his

Order dated 19

th

December, 2013. The Order passed by

the Magistrate reads:

“Accused produced from Jail.

Perused the FIR charge sheets and case diary.

After perusal prima facie case is made out

against the accused (1) Sumit Kumar @ Saurav

Kumar, (2) Banwari Rai (3) Dinesh Rai, (4)

Rekha Devi and (5) Golu Kumar U/s 147, 148,

149, 323, 447, 504, 379, 386 IPC with Section

27 of the Arms Act

Hence cognizance taken against the accused

persons in above sections. The case record is

kept in personal file for trial and disposal (sic)

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issue summon to the unappeared against

persons.

Produce on 2-01-2014 for production and

appearance. “

4.Subsequent orders passed in the case show that the

accused has been produced before the Magistrate

concerned from time to time and remanded to custody,

awaiting service of summons upon the remaining accused

persons who are, according to the affidavits filed by the

respondents, absconding.

5.Two things are evident from the record. Firstly, the

accused is involved in a criminal case for which he has

been arrested and produced before the Magistrate and

remanded to judicial custody, Secondly, the petitioner

does not appear to have made any application for grant

of bail, even when the remaining accused persons alleged

to be absconding and remain to be served. The net result

is that the petitioner continues to languish in jail.

6.The only question with which we are concerned

within the above backdrop is whether the petitioner can

be said to be in the unlawful custody. Our answer to that

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question is in the negative. The record which we have

carefully perused shows that the petitioner is an accused

facing prosecution for offences, cognizance whereof has

already been taken by the competent Court. He is

presently in custody pursuant to the order of remand

made by the said Court. A writ of Habeas Corpus is, in

the circumstances, totally mis-placed. Having said that,

we are of the view that the petitioner could and indeed

ought to have filed an application for grant of bail which

prayer could be allowed by the Court below, having

regard to the nature of the offences allegedly committed

by the petitioner and the attendant circumstances. The

petitioner has for whatever reasons chosen not to do so.

He, instead, has been advised to file the present petition

in this Court which is no substitute for his enlargement

from custody. We are also of the view that the

Magistrate has acted rather mechanically in remanding

the accused petitioner herein to judicial custody without

so much as making sure that the remaining accused

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persons are quickly served with the process of the Court

and/or produced before the Court for an early disposal of

the matter. The Magistrate appears to have taken the

process in a cavalier fashion that betrays his insensitivity

towards denial of personal liberty of a citizen who is

languishing in jail because the police have taken no

action for the apprehension and production of the other

accused persons. This kind of apathy is regrettable to say

the least. We also find it difficult to accept the contention

that the other accused persons who all belong to one

family have absconded. The nature of the offences

alleged to have been committed is also not so serious as

to probablise the version of the respondent that the

accused have indeed absconded. Suffice it to say that

the petitioner is free to make an application for the grant

of bail to the Court concerned who shall consider the

same no sooner the same is filed and pass appropriate

orders thereon expeditiously.

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7.With the above observations I agree with the order

proposed by my esteemed brother N.V. Ramana, J.

……………….……….…..…J.

(T.S. Thakur)

New Delhi

July 22, 2014

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