9911796707
TMI Blog1995 (1) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... ention is illegal and he is entitled to be set at liberty. Rule nisi was issued by this Court and a counter-affidavit has been filed by Senior Sub-Inspector of PS Nazirabad. He has stated that he arrested the petitioner on I 7-94 and at the time of his arrest he was informed of the grounds of arrest as required under Law. It is further stated that in parcha No. 1 of the G. D. of the same day, it is clearly mentioned that Karan Bata Kar Bajata Hirasat Mein Liya Gaya . Another counter-affidavit has been filed by Dy. Jailor wherein it is stated that the petitioner was lodged in the District Jail on 2-7-94 in pursuance of an order of remand passed by VIth Metropolitan Magistrate under Section 167, Cr. P. C. and thereafter fresh remand orders were passed from time to time. Subsequently, the Chief Metropolitan Magistrate committed the case to the Court of Sessions and passed an order under Section 209(b), Cr. P. C. remanding the petitioner to custody during and until the conclusion of the trial. After receipt of the record in the Court of Sessions, learned Sessions Judge, Kanpur Nagar, assigned the case to the Court of Special Judge who passed an order under Section 309 Cr. P. C. on 20- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 465, Majid v. State 1992 LLJ 84 and Ram Iqbal v. State 1992 LLJ 144. 5. The submission made by learned counsel has to be examined in the light of the object for which sub-clause (1) of Article 22 was enacted. This was explained by a Division Bench of our Court nearly four decades back in Vimal v. State of U.P. AIR1956All56 in the following words :- The object underlying the provision in Article 22(1) that the ground for arrest should be communicated to the person arrested appears to be this. On learning about the ground for arrest, the man will be in a position to make an application to the appropriate Court for bail, or move the High Court for a writ of habeas corpus. Further, the information will enable him U\prepare his defence in time for purposes of his trial. Article 22 requires that the person who is arrested must be informed of the grounds of arrest as soon as may be . It does not say that the grounds of arrest must be communicated to the person concerned, immediately at the time of arrest. Of course, the grounds must be brought to his knowledge with the greatest despatch and as soon as possible. Sub-section (1) of Section 50, Cr. P. C. also leads to the same in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Having considered the material on record, we are satisfied on facts that the grounds of arrest were communicated to the petitioner at the time of his arrest. In the case of Sanjai Bahal, the affidavit has been filed by Jivan Lal who has described himself as Pairokar of the petitioner. The relevant para-5 wherein, it is averred that the petitioner was not told about the reasons of his arrest, has been sworn on the basis of record. Counter-affidavit has been filed by Ramji Misra, Inspector of Police of PS Raipur at the relevant time and he has stated that he had arrested the petitioner and the grounds of arrest were communicated to him. This para has been sworn on personal knowledge. Jivan Lal, deponent of the affidavit filed in support of the petition, has not stated that either lie was present at the time of arrest of the petitioner or that the petitioner had personally informed him that the grounds of arrest were, not communicated to him. Having considered the entire material on record, we are satisfied oh facts that the grounds of arrest were communicated to the petitioner-Sanjai Bahal at the time of his arrest and the assertion to the contrary made in the petition cannot be acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings. However, in A.K. Gopalan v. Govt. of India 1966CriLJ602 , it was held as follows:- It is well settled that in dealing with the petition for Habeas Corpus the Court is to see whether the detention on the date On which the application is made to Court is legal, if nothing more has intervened between the date of application and the date of hearing. In Talib Hussain v. J K AIR1971SC62 , it was held that in Habeas Corpus petition the Court has to consider the legality of the detention on the date of hearing. This seems to be in consonance with the view expressed by Federal Court in Basanta Chandra Ghosh v. Emperor, wherein the ultimate part of the judgment reads as follows :- This contention proceeds on a misapprehension of the nature of habeas corpus proceedings. The analogy of civil proceedings in which the rights of parties have .ordinarily to be ascertained as on the date of the institution of the proceedings cannot be . invoked here. 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 valid cause for d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar view has been taken by another Division Bench in Hazari Lal v. State 1991 LLJ 230. With profound respect, we are unable to share the view taken in the aforesaid cases. The habeas corpus petitions were allowed therein only on the ground that there was violation of Section 50(1), Cr. P. C. and Article 22(1) of the Constitution without considering the basic question namely that in a Habeas Corpus petition, the point for consideration is legality or validity of the detention either on the date of filing of the petition or on the date of hearing and that if on the aforesaid dates there is a valid order authorising detention of the petitioner, no order for release can be passed. Even the law laid down by the Supreme Court in the cases referred to above, which is binding under Article 141 of the Constitution, was not at all considered. As held in A.R. Antuley v. R.S. Naik 1988CriLJ1661 decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, are per incuriam and are not binding on this Bench. 9. It is noteworthy that this very precise submission was also raised in Kanu Sanyal 1974CriLJ465 and the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings or orders passed by a competent Court. In this connection, it will be useful to refer to the following observations made by the Supreme Court in Mubarak Ali Ahmad v. State of Bombay 1957CriLJ1346 of the reports wherein ground of illegality and arrest was raised for assailing the conviction : We are unable to accede to that contention. It may also be mentioned that even if his arrest in India for the purposes of a trial in respect of a fresh offence is considered not to be justified, this by itself cannot vitiate the conviction following upon his trial. This is now well settled by a series of cases. See Prabhu v. Emperor, , Lmbharadar Zutshi v. King, 1950 All LJ 120 : AIR 1950 PC 25 and P. N. Risbud v. State of Delhi 1955CriLJ526 . This contention must accordingly be overruled. A fortiori , any illegality at the time of arrest cannot render subsequent remand orders passed by competent Courts as invalid. 11. Shri Sunil Kumarhas urged that after the case of the petitioner Vimal Kumar Sharma was committed to the Court of Session, no valid orders of remand were passed by the learned Sessions Judge conducting the trial under Section 309, Cr. P. C. and as such after t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case even though all further proceedings are to take place before the Court of Session and no proceedings are to take place before the Magistrate the detention of the accused in jail custody can be authorised by the Magistrate who commits the accused to Sessions. Similar view has been taken by two Division Benches in Pushpendra Singh v. Supdt. District Jail 1984 ACC 245 and Abudul Jabbar v. Supdt. District Jail We are, therefore, clearly of the opinion that the view taken by learned single Judge in Rajesh Misra (supra) is not correct and we accordingly overrule the same. 12. The question whether a writ of habeas corpus can be issued on account of some technical breach where a person is accused of having committed a serious offence and is in custody in pursuance of an order of remand passed by a competent Magistrate either under Section 167 or 209(b), Cr. P. C. or by a Sessions Judge under Section 309, Cr. P. C. also needs examination. Article 226 of the Constitution confers power upon the High Courts to issue a writ in the nature of habeas corpus for enforcement of any of rights conferred by part III. The circumstances and the situations when such a writ may be issued has, ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ... This is so far the reason that errors and irregularities which do not go to the jurisdiction of the Court may thus be inquired into on motion, appeal or writ of error........... Again in para 23 : If it appears from the face of the indictment, information or complaint that it tails to state a crime, relief may be had by habeas corpus on the ground of jurisdiction.......It must be shown that the statute under which the charge is made is invalid or that the charge as made is not merely defective in its allegations, but defective in a matter of a substance required by law rendering it void, and wholly fails to state any offence under the law, or that, although in proper form, the mandate is issued in a case not allowed by law........ Para 54 deals with illegality in arrest in these words:- ..............However, if sufficient grounds for, detention are shown, petitioner will not be discharged for defects in the original arrest or commitment, as within the limits of its jurisdiction the Court may make such orders or judgment as is just and proper and is required by the particular case. The position in U.S.A. appears to be similar. In Corpus Juris Secondum, Vol. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11). It is not designed to interrupt the orderly administration of the criminal laws by a competent Court acting within its jurisdiction of a trial Court (para 16). It has to be an exceptional case for the writ of habeas corpus to be available to an accused before trial (para 35). Regarding arrest it has been stated as follows in para 36: When it appears that a petition is restrained under a charge of having committed an offence, it has been repeatedly held that he cannot be discharged in habeas corpus merely because jurisdiction of his person was acquired by the trial Court in an irregular matter. Thus the writ does not lie to discharge a person on the ground that he was forcibly abducted from another State..... And regarding commitment in para 38 : The jurisdiction of a committing Magistrate ,, may be put in issue by proceedings in habeas corpus, and the petitioner may be discharged if it appears that the Magistrate had no Authority to issue the commitment, or that the commitment is fatally defective. The Court, however, is limited to a review of such proceedings before the Magistrate as relate to jurisdiction, and the writ does not lie for mere error that may be cor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
