HIGH COURT OF CHHATTISGARH AT BILASPUR W. P. (Habeas Corpus) No.5596 of 2010 PETITIONER: Afroz @ Tanviruddin Khwaza, through Shri Naziruddin Khawza, S/o Amiruddin, aged about 61 years, R/o Janta Coldny, Shankar Nagar, Raipur (CG) Versus RESPONDENTS: 2. 3. 4. The State of Chhattisgarh, through Secretary Department of Home Affairs, DKS Bhawan, Mantralaya, Raipur, (CG) Director General of Police (Jail) Police Headquarter (PHQ) Raipur District Magistrate, Raipur, District Raipur (CG) Jail Superintendent, Central Jail, Raipur (CG) Present: , Shri Manish Sharma, counselfor the petitioner. Shri U.N.S. Deo, Govt. Advocate forthe respondents. Divjsion^ench: Hon. Shri Dhirendra Mishra & Hon.Shri R.N. Chandrakar. JJ. ORAL ORDER (6-1-2011) 1. The petitioner was kept in judicial custody in connection with Crime No.74/2010 at Central Jail, Raipur. Hewas granted bail by the learned Judicial Magistrate 1 Class, Raipur and release order was issued on 23-9-2010 (Annexure-P/1). However, when the petitioner wasnot released from jail, the petitioner has filed this petition and prayed for a direction to the respondents for immediate release of the petitioner from illegal confinement of respondentNo.4. The petitioner has also prayed for adequate compensation for his illegal confinement; Ayt,. "-"li, i lrB-;;";K&i l -^iB'Sw-^ ip: :•' i^ y '"'/ 'l. •^•^' ^ ^•aaaEttsf' 2. The respondents in their counter affidavit have averred that the petitioner was confined in the judicial Gustody as per the order of the Judicial Magistrate 1st Class dated 23-7-2010 (Annexure-R/1). The Court of Metropolitan Magistrate, 32" Court, Bandra, Mumbai issued warrant for production of the petitioner in its Court on 28-8-2010 (Annexure-R/2). Thereafter another warrant dated 18-9-2010 for production of the petitioner in the Court ofAdditional Chief Metropolitan Magistrate, 24 Court, Borivali, Mumbai was issued and the same was received by respondent No.4 on 20' September, 2010 (Annexure-R/3). Since the case of the petitioner was pending in the local Court, information of production warrant was sent to the Courtof Judicial Magistrate 1 Class, Raipur. The petitioner was released from jail in eompliance of the release order dated 23-9-2010. However, since the petitioner was to be produced before the Court at Mumbai on 1 October, 2010, the petitioner was detained in the Central Jail, Raipur and a memo was sent to the Reserve Inspector, DistrictReserve Police Line, Raipur on 23-9-2010 itself for arranging police force for compliance ofthe production warrant issued by the Court at Mumbai (Annexure-R/6). An applicationwas also filed in the Court of Judicial Magistrate 1 Class, Raipur on 27-9-2010 for issuance of transit remand to produce the petitioner before the Court at Mumbai in compliance of the production warrant (Annexure-R/7). Thereafter the petitioner was sent to theCourtat Mumbai on 27-9-2010 along with the Reserve Inspector, Raipur in compliance of the production warrant (Annexure-R/8). The petitioner and the other accused were produced before the Court ofAddl. C.M.M. at Mumbai on 29-9-2010 (Annexure-R/9). 11i,..,ll,£L /^waist ^&^ '•'•"'ss&sws'sg.^'' 3 Shri Manish Sharma, learned counsel for the petitioner submitted that production warrant of Annexure-R/3 under Section 267 Cr.P.C. was issued to the In-Charge of the Central Jail, Raipur on 18-9-2010 for his production before the Court on 1 October, 2010. As per the provisions of Section 269 (c) of the Cr.P.C.,respondent No.4 ought to have abstained from carrying out the Court's order andsenta statement of reasons for so abstaining, as the period for which the petitioner was detained had expired on 23-9-2010 before 1st October, 2010 when he was to be produced at Mumbai Court, however, the jail authorities illegally detained the petitioner beyond 23 September2010, the date on which the petitioner was directed to be released by the Judicial Magistrate 1 Class, Raipur It is a clear case of illegal detention of the petitioner by the jail authorities and forwarding him to the Mumbai Court on 27-9-201j0 in the police custody. Reliance is placed in the matter of Dharampal and another Vs. State of U.P.and another1. Further relying upon a decision of the Supreme Court in the matter of Smt. Nilabati Behera alias Lalita Behera Vs. State of Orissa and others, it was argued that the petitioner is entitled for monetary compensation for contravention of his fundamental rights guaranteed by the Constitution as the petitioner was illegally detained by the jail authorities. 4 On the other hand, learned counsel forthe State/respondents would argue that the petitioner was bonafidely detained with an intenuon to comply with the order and was produced before the Court ofACMM, Borivali, Mumbai. Thus the purpose of detentionwas to implemenf the productionwarrant ' 1982 AII.L.J. 130 2AIR 1993 SUPREME COURT 1960 ^.^-ss.^ •^ ,^"us^i ^:^ •wf'y^ Vl'^^' ....L^-^" ' issued by the competent Court at Mumbai. The petitioner is involved in inter-state vehicle theft gang, which is engaged in inter-state theft of vehicles. It was further argued that the lapses, if any, committed by respondent No.4 are unintentional and bonafide and the same deserve to becondoned. 5. Heard learned counsel for the parties. 6. Indisputably, the production warrant issued by the Court of ACMM at Mumbai for production ofthe petitioneron 1-10-2010 was received in the Central Jail, Raipur on 20-9-2010 whereas the petitioner was released by the learned Judicial Magistrate 1 Class, Raipur vide release order dated 23-9-2010, however, instead of releasing the petitioner, he was detained in the jail and he was sent with one Inspector of Reserve Police on 27-9- 2010 for being produced before the Court at Mumbai and accordingly, he was produced before the Mumbai Court on 29-9-2010. 7 Chapter XXII of the Cr.P.C. deals with attendance of persons confined or detained in prisons. Section 267 empowers the criminal Court to issue warrant for production requiring officer in charge of the prison to produce such person before the Courtwhereas Section 269 reads as under:- "269. Officer in charge of prison to abstain from carryingout order in certain contingencies.- Where the person in respectof whom an orderis made under section 267,- (a) xxx xxx xxx (b) xxx xxx xxx (c) is in custody for a period which would expire before the expiration ofthetime required for complying with the order and for taking him back to the prison in which he is confined or detained; or \'i :?- (d) xxx xxx xxx the officer incharge of the prison shall abstain from carrying out the Court's order and shalt send to the Court a statement of reasons for so abstaining." 8. In the matter ofDharampaland another (Supra), the Division Bench of the Allahabad High Court held that the accused.who are committed to the jail custody by criminal Coyrt and subsequently obtaining bail from the Court, cannot be refused to be released on bail by the jail authoritieson the ground that they received requisition issued by other criminal Court to produce the accused particularly, when the date in requisition for producing the accused has already expired. 9. From bare reading of Section 269 (c) of the Cr.P.C., it is manifestly clear that whereperiod of custody expires before expiration ofthe time required for complying with the orderand for taking him back to the prison in which he is confined or detained, theofficer in charge ofthe prison shall abstain from carrying out the Court's order and shall send to the Court a statement of reasons for so abstaining. 10. Thus in the instant case also, the petitioner was to be producedon 1 October, 2010, however, his period of custody expired on 23-9-2010 and in these circumstances, the jail authorities, instead of detaining the petitioner beyond 23rdSeptember, 2010 for complianceof the production warrant issued by the Mumbai Court, ought to have sent a statement of reasons for not being able to Comply with the warrant so issued by the CourtofACMM Mumbai. 11. Forthe aforesaid reasons, detention ofthe petitioner in prison beyond 23 September, 2010 is admittedly illegal detention and without any authority of law. 12. In the matterofSmt. Nilabati Behera (Supra), the petitioner's son Suman Behera was taken into police custody on 1-12-1987 at 8 am ahd he was found dead next day on the railway track near police outpost Jaraikela, without being released from the custody and his death was unnatural. The Supreme Court, treating the letter of the petitioner as a Writ Petition under Article 32 of the Constitution for determining claim of compensation for the death of the petitioner's son allowed the compensation after due enquiry through District Judge, Sundergarh inOrissa and held thus:- "A claim in public law for compensation for contravention of human rights ^nd fundamental freedoms, the protection of which is guaranteed in the Constitution is an acknowledged - remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the C'onstitution, when that is the only practicable mode of redress available for thecontravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Arts.32 and 226 of the Constitution." 13 However, considering the peculiar facts and circumstances of this case, we are of the opinion that actual compensation for which the petitioner is entitled cannot be determined in this writ petition, as the same would require recording of evidence and the petitioner can claim the same by filing appropriate proceedings before the competent forum. 14 The petitioner has already been entrusted in thecustody of Malad Police on 29-9-2010 by the Court of ACMM, Mumbai (Annexure-R/9), in these cJrcumstances, the other reliefs claimed by the petitioner to release him from illegal confinement of respondent No.4 has become infructuous. 15. In the result, we dispose of thiswrit petition by imposing cost of Rs.5,000/- on the respondents payable to the petitioner within a period of 4 weeks from today. *-# Sd/- DhirendraMishra \ Judge Sd/- R.N. Chandrakar Judge