9911796707
TMI Blog2020 (8) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... emedy cannot be invoked as a bar for entertainment of the writ application and the court would adjudicate the dispute raised by the parties. Issuance of writ of mandamus in the shape of habeaus corpus giving direction to the court below to release from the judicial custody - HELD THAT:- The habeas corpus is a latin word which means to provide the body . A writ of habeas corpus is used to bring a prisoner or other detainee (e.g. institutionalized mental patient) before the court to determine, if the person's imprisonment or detention is lawful. A habeas corpus petition proceeds as a civil action against the State agent who holds the defendant in custody. It can be exercised pertaining extradition processes used - the extension of benefit would be granted to the accused during the period of investigation, enquiry and trial with respect to other cases but, in the event, the accused has been found guilty and has been awarded sentence, till the expiry of the period of sentence, he will not be granted relief of set off with respect to other criminal cases. Admittedly, the petitioner is not only in custody with respect to present case rather with respect to other cases also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the PML Act after adjusting the period of provisional bail. It has further been claimed that this Court should declare the detention of the petitioner in connection with the aforesaid case is against the provision of Section 20(1) of the Constitution of India and second proviso to Section 436A of the Code of Criminal Procedure. The short fact involved in this case is that on 20.3.2013, the Deputy Director, Directorate Enforcement (Prevention of Money Laundering Act), Government of India filed a Complaint Case No. 1 of 2013 in the court of Sessions Judge cum Special Judge for offence punishable under Section 3 and 4 of the PML Act alleging therein that he received a communication that the petitioner has been charge-sheeted in 17 cases of the IPC, Arms Act and Explosive Substance Act and out of them, 7 relates to scheduled offences under the PML Act. It has further been alleged that he along with co-accused Rinku Devi have accumulated huge quantity of money amounting ₹ 1,06,62,022/- as well as acquired movable/immovable properties from the returns of the crime, thereby they have committed offence under the PML Act. From the complaint petition, it appears that the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vable property (agriculture land) value of the same shown to be ₹ 3,22,000/- 5. Immovable property (Non-agricultural land) value being ₹ 26,97,695/- and ₹ 39,24,195, both situated at Saguna, Danapur. When the enquiry was conducted, it was found that the property given in the affidavit is completely wrong and false as the petitioner has acquired huge property in the shape of money as well as immovable property. It has also been found that to keep the property under cover, he purchased the same applying deceptive method, some time as Ritlal Yadav and some time, adding Prasad Ritlal Rai. As per the petitioner, cognizance has been taken under Section of the PML Act and, accordingly, the petitioner has been taken into custody since 17.2.2013 and continuing under the judicial custody except the period from 25.1.2020 to 9.2.2020 as by way of provisional bail which was allowed on account of marriage of his daughter but, he surrender on 10.2.2020 fully complying the provisional bail order. It has been stated in the petition that as per Section 4 of the Money Laundering Act, maximum sentence has been prescribed, 7 years but, if the proceeds of crime involved in m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d outer limit of punishment which could in any circumstances be awarded and, as such, keeping the petitioner in jail custody beyond maximum period of sentence violates the protection given to every citizen of India provided under Article 20 and 21 of the Constitution of India as well as Section 436A of the Cr.P.C. Hence, he should be released forthwith honorably. In support of his submission, the petitioner has placed reliance on the judgments; Harbanslal Sahnia and Anr. Vs. Indian Oil Corpn. Ltd. and Ors. reported in AIR 2003 SC 2120, Himmatlal Harilal Mehtav Vs. The State of Madhya Pradesh and Ors. reported in AIR 1954 SC 403, Hussainara Khatoon Ors. Vs. Home Secretary, State of Bihar, reported in AIR 1979 SC 1819, Hussain Anr. Vs. Union of India reported in AIR 2017 SC 1362. Mr. S.D. Sanjay, learned Additional Solicitor General, appearing on behalf of the Union of India submits that the present application at the threshold requires to be dismissed as in past, the petitioner had moved for bail before this Court in Cr. Misc. No. 1458 of 2018 which was rejected vide order dated 25.4.2018 whereafter again he has moved before this Court for bail vide Cr. Misc. No. 2764 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the fact and circumstances of the case that the petitioner is facing criminal trial under the different cases and, in some of them, death or the life imprisonment may be awarded to the petitioner. Section 4 of the PML Act being relevant is quoted herein below:- 4. Punishment for money-laundering.- Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words which may extend to seven years , the words which may extend to ten years had been substituted. Section 3 of the Prevention of Money-Laundering Act stipulates that whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing some exception in the circumstances, namely, firstly where the writ application seeks enforcement of any fundamental right, secondly where there is a failure of principles of natural justice, thirdly where the orders of the proceeding are wholly without jurisdiction or the vires of an Act is under challenge, in such circumstances, the plea of alternative remedy cannot be invoked for non-suiting the person who has approached the court with any of the aforesaid plea to substantiate his claims, reliance can be placed on the judgment of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai Ors. reported in (1998) 8 SCC 1. In that case, the Hon ble Apex Court explained the circumstances where in the plea of alternative will not be a ground to refuse to entertain the writ application. So, if this Court would find that the present writ application falls under any of the exceptions, in such circumstances, the present writ application will be maintainable, otherwise not and the Court will deal with the matter on merit. Paragraph no.7 being relevant is quoted hereinbelow:- 7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersonal liberty must be strictly followed. The history of personal liberty, as is well known, is a history of insistence on procedural safeguards. Following the said principle, we find that delay in these cases is for a much longer period and there is hardly any explanation. We, therefore, have no hesitation in quashing the orders of detention on the ground of delay on the part of the Central Government in disposing of the representation of the detenus. 13. Taking up the second objection first, we find that the question of delay was urged before the High Court as it appears from pp. 6 and 7 of the impugned judgment. But, insofar as the question of technical plea which has been raised by the learned counsel on the question of prayer in the habeas corpus petition is concerned, we are constrained to observe that in dealing with writs of habeas corpus, such technical objections cannot be entertained by this Court. 14. Reference in this connection may be made to the Law of Habeas Corpus by James A. Scott and Charles C. Roe of the Chicago Bar (T.H. Flood Company, Publishers, Chicago, Illinois, 1923) where the learned authors have dealt with this aspect in a manner which we sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 19(1)(g) and it was clearly entitled to relief under Article 226 of the Constitution of India. So, in that case, the provision has been declared ultra vires, the Court has mandated the maintainability of the writ application which has been dealt with in paragraph no.9 of the said judgment. In view of the aforesaid judgments, it is very much clear that there is no absolute bar to entertain the writ application in the event of availability of alternative remedy subject to the condition mentioned herein above. If the issue falls under the aforesaid heading then the alternative remedy cannot be invoked as a bar for entertainment of the writ application and the court would adjudicate the dispute raised by the parties. As all the questions framed herein above are interconnected to each other, this Court would like to deal with the aforesaid questions in an integrated manner. For arriving to a right conclusion, it will be appropriate to consider different provisions of the PML Act, Section 31 and 428 of the Cr.P.C. as well as Articles 20 21 of the Constitution of India. It is relevant to quote Article 20 and 21 of the Constitution of India for giving proper answer to the questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho is restrained of his liberty by other authorities. Deeply rooted in the Anglo-American jurisprudence, the law of habeas corpus was adopted in the U.S. as well, by the early Founding Fathers. James Madison, in 1789, argued for the adoption of the Bill of Rights, including Habeas Corpus. The fourth Chief Justice of the U.S. Supreme Court, Chief Justice Marshall, emphasized the importance of habeas corpus, writing in his decision in 1830, that the great object of the writ of habeas corpus is the liberation of those who may be imprisoned without sufficient cause. The U.S. Supreme Court has recognized that the writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action and must be administered with the initiative and flexibility essential to ensure that miscarriages of justice within its reach are surfaced and corrected. Article 20 of the Constitution of India talks that no person shall be convicted for the offence except for violation of law in force at the time of commission of the act charged as on offence, nor the subjected to the penalty greater than that which might have been inflicted under the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant by the Sub Divisional Officer, Bhubaneshwar and was produced before the Magistrate, 1st Class on the day of arrival. As the S.D.O. concerned was absent, he was remanded to judicial custody from time to time. The Court has opined in the following terms:- This Court does not, as a general rule, go into such controversies in proceedings for a writ of habeas corpus. Such a writ is not granted where a person is committed to jail custody by a competent Court by an order which prima facie does not appear to be without jurisdiction or wholly illegal and we are not satisfied that the present is not such a case. The Court has further observed in the following terms:- We need only add that in case the petitioner is undergoing the sentence of imprisonment imposed on him by competent Court then too writ of habeas corpus cannot be granted. This position is well settled. In the case of Kanu Sanyal Vs. District Magistrate, Darjeeling Ors. reported in AIR 1974 SC 510 , it has been held that when a person is committed to jail custody by a competent court by an order which prima facie does not appear to be without jurisdiction or wholly illegal, writ of mandamus will not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the above backdrop is whether the petitioner can be said to be in the unlawful custody. Our answer to that question is in the negative. The record which we have carefully perused shows that the petitioner is an accused facing prosecution for the 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 misplaced. 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. So, the view of the Hon ble Apex Court is that if a person is under judicial custody by an order of the competent jurisdiction, in such circumstances, the plea of habeas corpus per se is not maintainable. The another judgment has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agraph 15 of its Order. Before considering the matter from the perspective of said two questions, an issue which was stressed by the learned Solicitor General may be addressed first. It was submitted by him that the date with reference to which the legality of detention can be challenged in a Habeas Corpus proceeding is the date on which the return is filed in such proceedings and not with reference to the initiation of the proceedings. He relied upon the decision of the Federal Court in Basanta Chandra Ghose vs. King Emperor1 , which had concluded: If at any time before the Court directs the release of the detenue, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention . 18. Similar questions arose for consideration in Naranjan Singh Nathawan vs. State of Punjab, Ram Narayan Singh vs. State of Delhi, A.K. Gopalan vs. Govt. of India, Pranab Chatterjee vs. State of Bihar, Talib Hussain vs. State of J K, B. Ramachandra Rao vs. State of Orissa. These decisions were considered in Kanu Sanyal vs. District Magistrate, Darjeeling , as under: Re: Gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th reference to which the legality of detention may be examined is the date of filing of the application for habeas corpus and the Court is not, to quote the words of Mr Justice Dua in B.R. Rao v. State of Orissa , concerned with a date prior to the initiation of the proceedings for a writ of habeas corpus . Now the writ petition in the present case was filed on January 6, 1973 and on that date the petitioner was in detention in the Central Jail, Vizakhapatnam. The initial detention of the petitioner in the District Jail, Darjeeling had come to an end long before the date of the filing of the writ petition. It is, therefore, unnecessary to examine the legality or otherwise of the detention of the petitioner in the District Jail, Darjeeling. The only question that calls for consideration is whether the detention of the petitioner in the Central Jail, Vizakhapatnam is legal or not. Even if we assume that grounds A and B are well founded and there was infirmity in the detention of the petitioner in the District Jail, Darjeeling, that cannot invalidate the subsequent detention of the petitioner in the Central Jail, Vizakhapatnam. (See para 7 of the judgment of this Court in B.R. Rao ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted to jail custody by a competent court by an order which prima facie does not appear to be without jurisdiction or wholly illegal . 21. The principle laid down in Kanu Sanyal, thus, is that any infirmity in the detention of the petitioner at the initial stage cannot invalidate the subsequent detention and the same has to be judged on its own merits. 22. At this juncture, we may profitably refer to the Constitution Bench decision in Sanjay Dutt v. State through CBI, Bombay (II) 10 wherein it has been opined thus: (SCC p. 442, para 48) 48. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. 23. Keeping in view the aforesaid concepts with regard to the writ of habeas corpus, especially pertaining to an order passed by the learned Magistrate at the time of production of the accused, it is necessary to advert to the schematic postulates under the Code relating to remand. There are two provisions in the Code which prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. As has been stated in B. Ramachandra Rao and Kanu Sanyal9, the court is required to scrutinise the legality or otherwise of the order of detention which has been passed. Unless the court is satisfied that a person has been committed to jail custody by virtue of an order that suffers from the vice of lack of jurisdiction or absolute illegality, a writ of habeas corpus cannot be granted. It is apposite to note that the investigation, as has been dealt with in various authorities of this Court, is neither an inquiry nor trial. It is within the exclusive domain of the police to investigate and is independent of any control by the Magistrate. The sphere of activity is clear cut and well demarcated. Thus viewed, we do not perceive any error in the order passed by the High Court refusing to grant a writ of habeas corpus as the detention by virtue of the judicial order passed by the Magistrate rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 A Bench of three learned Judges of this Court in State of Maharashtra and Others vs. Tasneem Rizwan Siddiquee concluded as under: (SCC pp. 751-52, paras 1012) 10. The question as to whether a writ of habeas corpus could be maintained in respect of a person who is in police 12 (2018) 9 SCC 745 custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with the offence under investigation, this issue has been considered in Saurabh Kumar v. Jailor, Koneila Jail and Manubhai Ratilal Patel v. State of Gujarat . It is no more res integra. In the present case, admittedly, when the writ petition for issuance of a writ of habeas corpus was filed by the respondent on 18-3-2018/19-3-2018 and decided by the High Court on 21-3-2018 her husband Rizwan Alam Siddiquee was in police custody pursuant to an order passed by the Magistrate granting his police custody in connection with FIR No. I-31 vide order dated 17-3-2018 and which police remand was to enure till 23-3-2018. Further, without challenging the stated order of the Magistrate, a writ petition was filed limited to the relief of habeas corpus. In that view of the matter, it was not a case of continued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the investigating officer and about the investigation done by them. Accordingly, we have no hesitation in expunging the observations made in paras 4 to 6 of the impugned judgment against the police officials concerned in the facts of the present case. 21. The act of directing remand of an accused is thus held to be a judicial function and the challenge to the order of remand is not to be entertained in a habeas corpus petition. The first question posed by the High Court, thus, stands answered. In the present case, as on the date when the matter was considered by the High Court and the Order was passed by it, not only were there orders of remand passed by the Judicial Magistrate as well as the Special Court, Gurugram but there was also an order of extension passed by the Central Government on 14.12.2018. The legality, validity and correctness of the order or remand could have been challenged by the original Writ Petitioners by filing appropriate proceedings. However, they did not raise such challenge before the competent Appellate or Revisional Forum. The orders of remand passed by the Judicial Magistrate and the Special Court, Gurugram had dealt with merits of the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73 . In this case, the respondent was life convict, made a prayer for remission and release as per the notification of the State Government. The High Court has passed the order for release but, the Hon ble Apex Court set aside and held that habeas corpus is not maintainable, direction was given to file application before the Government which will look into the matter and pass the order. While dealing with the matter, the Hon ble Apex Court has held that the writ of habeas corpus is available as a remedy in all cases where a person is deprived of his personal liberty. It is the processual writ to secure liberty of the citizen from unlawful and unjust detention whether a person is detained by State or is in private detention. As per Justice Hidayatullah (as he then was), held; the writ of habeas corpus issues not only for release from the detention of the State but also for release from the private bodies. If the confinement or detention is without authority of law, in that event, the writ of habeas corpus could be issued. Habeas corpus means to produce the body, the corollary is that the legality and illegality of the detention to be decided by the High Court or the Supreme Court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty . 25. In Manubhai Ratilal Patel v. State of Gujarat , an order of remand was challenged before this Court. After referring to a large number of judgments, which we are not referring in detail since they have all been considered in this judgment, this Court held as follows: 31 .It is well-accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal . 26. In Saurabh Kumar v. Jailor, Koneila Jail, this Court came to the conclusion that the petitioner was in judicial custody by virtue of an order passed by the judicial magistrate and, hence, could not be said to be in illegal detention. Justice T.S. Thakur, as he then was, in his concurring judgment held as follows: 22. The only question with which we are concerned within the above backdrop is whether the petitioner can be said to be in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the party aggrieved to apply to the Court for necessary relief, either for grant of bail or for getting directions for a speedy trial. The Section 16 of the Act of 1985 (Section 19 of the Act of 1987) specifically mentions that no appeal or revision shall lie to any Court from any judgment, sentence or order of a Designated Court except to the Supreme Court The provision in this self contained Act, when there is especially a decision of the Supreme Court (Usman's case, supra), prohibiting any revision or appeal before the High Court under Section 439 or Section 482 of the Criminal Procedure Code, cannot be circumvented by invoking the jurisdiction of this Court under Article 226 of the Constitution of India alleging as if there is a violation of Article 21 of the Constitution of India. Looking into the Roznama and the facts of this case, we are of the view that the orders of adjournments and also the orders of remand are within the powers of the Designated Court and its Officers as such, there is absolutely no illegality in such remand orders and the adjournments granted by the Court. The Full Bench judgment of this Court passed in the case of Shikha Kumari Vs. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat under Section 483 Cr.P.C., the High Court would not be justified in issuing a general direction to all Magistrate and Judicial Magistrate of the State for release of such women and permitting them to go along with the person of their choice who are minor and brought before the Magistrate with a statement of having married somebody of their own volition. It is relevant to quote paragraph nos. 76, 77 and 78 of the aforesaid judgment which reads as follows:- 76. A three-judge Bench of the Supreme Court in TGN Kumar vs. State of Kerala Ors.(supra) while answering the question posed by the two-judge Bench, in paras 13, 21 and 22 held as follows : 13. Similarly, while it is true that the power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. In any event, the power of superintendence cannot be exercised to influence the subordinate judiciary to pass any order or judgment in a particular manner. 21. Thus, in the instant case, we have n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercised to influence the subordinate judiciary to pass any order or judgment in a particular manner. The power of superintendence exercised over the courts of judicial Magistrates does confer jurisdiction upon the High Court to intervene in functions of the subordinate judiciary, whose independence is of paramount importance in the discharge of its judicial functions. 78. In Dharmeshbhai Vasudevbhai Ors. vs. State of Gujarat Ors., [(2009) 6 SCC 576], the Supreme Court has held that the High Court, apart from exercising its supervisory jurisdiction under Article 227 of the Constitution of India, has a duty to exercise continuous superintendence over the Judicial Magistrates in terms of Section 483 of the C r.P.C. The judgment which has been cited in the case of Hussain Anr. Vs. Union of India reported in AIR 2017 SC 1362 is on the issue of speedy trial wherein the Hon ble Apex Court has adumbrated that if it is necessary, the trial should be expedited but, the Court has refused to fix any time for completion of the investigation, enquiry or trial and the same view has also been taken in the case of P Ramachandra Rao Vs. State of Karnataka reported in (2002) 4 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. We, therefore, direct that these under trial prisoners be released forthwith. Though the Hon ble Apex Court has not granted relief to the petitioner as it was found that she has not suffered the jail custody more than the sentence which could have been awarded in different cases but, the principle has been delineated that the person cannot be detained in jail custody beyond the maximum period of sentence could be awarded in multiple cases. If he has remained for maximum period in jail custody, he cannot be kept confinement even for a single day, beyond the maximum limited he could have been put to jail custody. So, Article 21 of the Constitution of India comes into full play which requires to be released from jail forthwith without any delay. As the plea has been taken in this that he has already remained in jail custody for optimum period, hence, the right has accrued to be released from jail custody. For giving answer to the question raised, it will be required to deal with question in what manner the period of detention would be construed to deal with the issue to have spent maximum jail custody, which attracts examination of Section 31 and 428 of the Cr.P.C. which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l punishments prescribed therefore which such Court is competent to inflict; such punishment when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently. So this provision makes it clear that while passing the order in different penal provision, different punishment is provided, it will run consecutively subject to the order passed by the court concerned to run concurrently. Section 428 deals with in what manner the accused will be granted benefit of set off in the event he has been made accused of several criminal cases which prescribes different nature of punishments. In nutshell, the extension of benefit would be granted to the accused during the period of investigation, enquiry and trial with respect to other cases but, in the event, the accused has been found guilty and has been awarded sentence, till the expiry of the period of sentence, he will not be granted relief of set off with respect to other criminal cases. The principle of set off has been considered and interpreted in the following cases. In the case of Atul Manubhai Parekh Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of detention is greater than the sentence in the subsequent case, the accused will not have to undergo imprisonment at all in connection with the latter case, which could not have been the intention of the legislature while introducing Section 428 in the Code in 1973. The issue of calculation of period of sentence and set off came for consideration in the case of Prabhu Sah Vs. State of Bihar Ors. reported in 2011 (4) PLJR 641. Section 428 of the Cr.P.C. has been interpreted in the manner that the principle of set off will be applicable, the period spent in investigation, enquiry and trial as it will run concurrently for all multiple cases but, the moment conviction recorded and awarded sentence, the period spent in incarceration in that case will not be added in other case which are at the stage of investigation, enquiry or trial, otherwise it will premium to accused as he will not remain in custody with respect to other cases. Paragraph no. 29 to 33 being relevant are quoted herein below:- 29. From the aforesaid judgments what we find the true interpretation of Section-428 of the Code of Criminal Procedure is that the period of set off as contemplated under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shambhu Nath Singh (supra) and in the case of Hari Shankar Sah (supra) which followed the judgment in Najakat Alia Mubarak Ali (supra), which has been considered by the Apex Court in the recent decision namely Atul Manubhai Parekh (supra) aforesaid. 33. In that view of the matter, the contention of the petitioner for an early release merits no consideration. On conspectus of the aforesaid judgments, this Court has to decide in the present case as to whether the petitioner is essential to be released from jail custody as the petitioner has claimed in the present writ application of habeas corpus that he has been proceeded under the Prevention of Money Laundering case where the maximum punishment could have been awarded is seven years and, thus, he has already completed seven years, therefore, his stay beyond seven years is nothing but an unlawful custody and he should be set free from the judicial custody but, the present petitioner has too long criminal history as he has been made accused in several cases. The list has been provided by the petitioner himself which shows that he has been made accused in 33 cases and, out of that, the petitioner has been acquitted in Danap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion of India has brought the fact to the notice of this Court. Though the petitioner has already suffered maximum punishment of seven years, so in the present case lodged under the PML Act, he cannot be kept in judicial custody but, because in two cases in which he is still in jail with respect to valid order of remand, in such circumstances, he cannot be released from jail custody exercising the power of habeas corpus but, this Court observes that after calculating the period of sentence in terms of Section 31 and 428 of the Cr.P.C., if the petitioner has completed seven years of jail custody, which is the maximum period he can be sentenced in this case, in such situation, he cannot be kept in jail custody with respect to the present case but, he cannot be set free from the jail on account of valid judicial order of remand with respect to two other cases as mentioned herein above. In view of the aforesaid discussions, it will not be appropriate for this Court to straightway give direction for release of the petitioner from the jail custody rather he should take proper steps in accordance with law. Accordingly, with the aforementioned observation, this application is d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
