1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ** 1. D.B.HABEAS CORPUS PET.NO.6097/2009 (Dr.Hridya Narayan Singh Vs. The State of Rajasthan and anr.) 2. D.B.HABEAS CORPUS PET.NO.6089/2009 (Dr.Girish Agrawal Vs. The State of Rajasthan and anr.) ** Date of Judgment : 26/03/2010 P R E S E N T Hon'ble Mr.Justice Narendra Kumar Jain Hon'ble Mrs.Justice Meena V.Gomber. REPORTABLE Mr.S.R.Bajwa,Sr.Adv. With Mr.V.R.Bajwa, for the petitioners. Mr.Rajendra Yadav, Govt. Advocate, for State. BY THE COURT: (Per Hon’ble Mrs.Gomber,J) These two writ petitions of habeas corpus have been filed by Smt.Sangita Singh and by Dr.Rajan Agarwal for the release of Dr.H.N.Singh and Dr.Girish Agrawal respectively. Since both the petitions challenge common orders (Annex.P/2) passed by A.C.J.M., Hindaun city, Distt. Karauli, 2 in criminal case no.483/09, [now after committal, pending as Sessions case no.59/09 before the Addl. Sessions Judge (Fast Track), Hindaun city], hence are being disposed off together. 2. By way of these petitions, the petitioners have challenged (i) various remand orders passed on 14.6.09 and thereafter from time to time as well as the order dated 18.8.09 taking cognizance by ACJM, Hindaun City, in criminal case no.483/2009 (Annex.P/1) and sessions case no.59/09 pending in the court of ADJ (Fast Track), Hindaun City; and (ii) have sought declaration that the detention of Dr.H.N.Singh, husband of Sangita Singh and Girish Agrawal, father of Rajan Agrawal, in pursuance of remand orders passed by ACJM, Hindaun city and further custody remanded by the trial court is unlawful. Certified copies of order sheets drawn by ACJM court and trial court have been annexed as ANNEXURE-P/1 & P/2 respectively. 3. The facts giving rise to these writ petitions are that a written report, 3 alleging that petitioners who are doctors by profession, running their private Hospitals in Hindaun city, are engaged in illegal trading & sale of human blood of minor innocent children and the same is extracted by enticing and intoxicating them. 4. In nutshell, the report lodged at P.S. Hindaun city by Sh.Bachhu resident of village Mahu and a driver by profession, was that about a fortnight ago, one Rakesh Koli also of Mahu village engaged in this business, brought his son Manoj and Buddha (both minors) to Hindaun, under the pretext of showing them Cinema. He then took them to the petitioners privately run hospitals named “Rajgirish” hospital and “Tirupati” hospital. Manoj was taken to Rajgirish hospital where he was made to meet the petitioner Dr.H.N.Singh, who administered him a tablet so as to sedate him. When Manoj started having the effect of sedation, he was sent by Dr.Girish Agarwal to his old house situated near “Ganda Naala” in Hindaun city and then was taken to the first floor of that house where two 4 bottles of blood were extracted from his body. After he came out of the sedation, he was made to drink juice and was sent away. In the same manner, Buddha minor was taken to Tirupati Hospital by Rakesh Koli where he was made to meet the staff of the hospital namely Sultan, Girdhari & Pawan and two bottles of blood were extracted from his body also. He was also made to drink juice and was sent back. According to Bachhu, on his return from work, Manoj and Buddha narrated the whole incident. Thereafter, he along-with both minors and Buddha’s father made enquiry and then reported that the condition of both the children was bad and their lives were in danger. 5. On the basis of said written report of Bachhu (father of minor victim Manoj), an FIR No.324/09 was initially registered at P.S. Hindaun city, Distt. Karauli for the offences punishable under Secs.336, 308, 328 and 120B IPC and after investigation, prosecution was filed under offences punishable under various sections of Indian Penal Code namely 307, 308, 365, 336,120(b) 5 along with Secs.18(a), 18(C)(vi), 27(b)(d) of the Drugs & Cosmetics Act, 1940 (hereinafter referred to be as “Act of 1940”) read with Rules 122E,A,F,G and schedule Part XII B(H) of the Drugs & Cosmetics Rules and sections 23, 25 and 27 of the Juvenile Justice Act, 2000 (hereinafter referred to be as “Act of 2000”) against the present petitioners along with other four persons i.e. Rakesh, Suraj, Sultan and Raghuveer. 6. During investigation of the case, the petitioners were arrested and police custody remand orders were passed from time to time and thereafter vide order dated 18.8.09, cognizance for the offences under the above mentioned sections was taken by ACJM, Hindaun City, Distt. Karauli in cr.case no.483/09 which (after committal) is now pending before ADJ, (Fast Track), Hindaun city as sessions case no.59/09 who also remanded them to further judicial custody from time to time. 7. The grievance of the petitioners, hereinabove, is that the “Act of 1940” is a 6 special statute and according to the said Act, only Drugs Inspectors are given the powers to deal in the provisions of the Act. It is only the Drugs Inspector who was competent to file complaint in the court. The Competent Court of concerned Magistrate could only take cognizance of offences under the Act of 1940 once the authorized Officer namely Drugs Inspector filed the complaint. In the present case, local police ventured to investigate the offence relating to the Act on the premise that the blood had been taken out from the person of victims illegally which attracts infraction of Rules 122 E,A,F,G and Schedule Part XII B(H) of the Drugs & Cosmetics Rules, leading to the commission of offences under Secs.18(a)(vi), 18(c), 27(b)(d) of the Drugs & Cosmetics Act. Such investigation, according to the petitioners, was bereft of legal sanctity. Further that definition of term “complaint” given out in Section 2(d) of the Cr.P.C. does not include police report under Sec.173 Cr.P.C. Further whenever an act or omission is an offence under special statute, then it would rule out the application of general law namely 7 Criminal Procedure Code. In the instant case, two special statues namely Drugs & Cosmetics Act and Juvenile Justice Act have been pressed into service. 8. The contention of learned counsel for the petitioners was that since under the Act of 1940, only the Drugs Inspectors are given the powers, and it is they i.e. Drugs Inspectors only who had jurisdiction to file a complaint in the competent court and since the term “complaint” would not include the police report under Sec.173 Cr.P.C as defined under the criminal procedure code, the Investigating Agency had absolutely no authority to investigate into the matter, much less to submit report under Section 173 Cr.P.C. The trial, therefore, stands vitiated due to patent lack of jurisdiction. The custody of petitioners from the date of arrest in sessions case no.59/09 pending (after committal from the ACJM, Hindaun city, Distt. Karauli in the court of ADJ(Fast Track), Hindaun city, (Distt. Karauli) is wholly illegal and in gross violation of rule of law. 8 9. The custody of the petitioners, since inception is absolutely illegal because no criminal complaint under Secd.200 Cr.P.C. ever came to be filed and no process was ever issued under Section 204 Cr.P.C., the arrest of petitioners was illegal since inception and wholly without jurisdiction. Therefore, the fundamental right of personal liberty of petitioners granted under Article 21 of the Constitution of India, has been continuously invaded without legal authority. As the trial of petitioners in the form of Sessions case no.59/2009 pending in the court of Addl. Sessions Judge (Fast Track), Hindaun city is wholly without jurisdiction and void ab initio as such the custody in jail of petitioners is a nullity in the eye of law. According to the petitioners, they have been left with no other alternative efficacious remedy except to invoke jurisdiction under Art. 226 of the Constitution of India by preferring this writ of habeas corpus. 10. It was prayed that writ of habeas corpus be allowed and the custody of 9 petitioners in sub-jail Hindaun city in sessions case no.59/09 pending in the court of ADJ (FT), Hindaun city, pursuant to remand orders passed from time to time (Annex.P/1 & P/2) be declared as illegal and wholly without jurisdiction and the respondent no.2 be directed to release the petitioners forthwith. 11. Per contra, the respondents, besides the preliminary objections, of maintainability for not impleading the concerned Magistrate taking cognizance, submitted that on the basis of written report of aggrieved person, initially FIR No.324/09 was registered for the offences under Sec. 326, 328, 308 and 120B IPC. But after recording the statement of Drug Control Officer, Sections 18(a)(vi), 18(c) and 27(b)(d) of the Act of 1940 and Sections 23,25 & 27 of the Juvenile Justice Act, 2000 (hereinafter to be referred as “Act of 2000”) were added. Eventually, other offences under Indian Penal Code under Secs.365 and 307 IPC were also added. 10 12. A preliminary objection was raised by Sh.Rajendra Yadav, Govt. Advocate that in the case in hand, S.B.Cr.Misc. Pet. No.1854/2009 under Sec. 482 Cr.P.C. was filed by the petitioners jointly on 4.9.09 and same was pending and since the petitioners have already availed the alternative remedy under Sec.482 Cr.P.C., writs of habeas corpus, filed by wife Smt.Sangita Singh and the son Dr.Rajan Agrawal for Dr.H.N.Singh and Dr.Girish Agrawal respectively are not maintainable. It was contended that the petitioners are at liberty to get the said S.B.Cr.Misc. petition under Sec.482 Cr.P.C disposed of so as to get the prosecution quashed if it was not in accordance with law. It was further argued that the jurisdiction was never challenged by the petitioners in S.B.Cr.Bail Appl. No.7225/2009 filed on 2.9.09 which was dismissed on 14.10.09. They also did not raise this issue that SHO was never authorized by the State Government to institute prosecution for offences under the Act of 1940, hence the present petition was not maintainable. 11 13. Learned Government Advocate further argued that even if the availability of alternative remedy is no bar to the filing of writ petition under Article 226, when fundamental right is violated, but according to him, so far as the present case is concerned, the question is whether detention pursuant to an order of remand under Sec.309 Cr.P.C. can be challenged by way of writ of habeas corpus. He placed reliance on the judgment of Hon'ble Apex Court passed in the matter of A.Lakshmanrao Vs. Judicial Magistrate, Ist Class, Vatipuram and ors., reported in AIR 1971 SC, 186. In this case, the issue was whether the personal presence of an accused person was necessary for the purpose of his remand under Sec.344 Cr.P.C. (corresponding section 309 Cr.P.C) and whether the provisions gave unfettered and arbitrary power to the Magistrate. In para no.12 of this pronouncement, while dealing with the issue in question, Full Bench of Hon'ble Apex Court held as under: “Detention pursuant to an order of remand which appropriately falls within the terms of Sec.344 12 is accordingly not open to challenge in habeas corpus.” 14. Heard the learned counsels for the parties, and considered their respective arguments. 15. As per Sh.Bajwa, the learned Sr.Advocate appearing for the petitioners, in the case in hand, besides the offences under Secs.326,308, 328 and 120B of the Indian Penal Code for which matter was initially registered, the offences punishable under the provisions of the “Act of 1940” and “Act of 2000” were also added during investigation and since the “Act of 1940” is a special statue, therefore, as per Sec.32(1) of the said Act, only complaint could be filed by Drugs Inspector and not a report under Sec.173(2) Cr.P.C. by the S.H.O. He further drew our attention to Section 32(1) of the Drugs & Cosmetics Act, 1940 and submitted that Section 32(1) specifically provides that no prosecution shall be instituted under this Chapter except by an Inspector and, therefore, the cognizance has been taken by the ACJM 13 Hindaun city without there being any complaint by the authorized person in accordance with Sec.32(1) of the Act of 1940 and, as such, there is no valid and lawful cognizance and consequently the orders by which Dr.H.N.Singh and Dr.Girish Agrawal were remanded to the judicial custody since 14.6.09 are unlawful and therefore the custody of both the petitioners and their detention in jail since 14.6.09 to 22.8.09 and thereafter upto 5.11.09 is unlawful. 16. Learned Govt. Advocate, emphatically opposed the petitioners' contentions raising a preliminary objection that since the petitioners have already availed alternative remedy under Sec.482 Cr.P.C., therefore, the writ petitions of habeas corpus filed by the wife and son for the release of Dr.H.N.Singh and Dr.Girish Agrawal were not maintainable. It was also pointed out that amongst other grounds, the grounds on which the writ petitions of habeas corpus were founded, were also there in S.B.Cr.Misc.Pet. No.1854/09 dt. 4.9.09 under Sec.482 Cr.P.C. and in view of the 14 fact that the remedy under Sec.482 Cr.P.C. has already been availed which is a statutory remedy, these writ petitions deserve to be dismissed on the ground of alternative remedy available alone. According to him, even otherwise, the detention of accused pursuant to an order under sec 309 Cr.P.C can not be challenged by way of writ of Habeas Corpus. 17. With regard to this preliminary objection, learned counsel for the petitioners contended that so far as the provisions of Sec.482 Cr.P.C. are concerned, these provisions contain inherent powers of the High Court under the Criminal Procedure Code and it only provides that nothing in the Cr.P.C. shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. His contention is that invoking such inherent powers under Sec.482 Cr.P.C. cannot be termed as adequate and an equally 15 efficacious alternative remedy. May be that petitions under Sec.482 Cr.P.C. filed by petitioners are pending, they are still within their rights to move this Court to avail the remedy of habeas corpus provided in the Constitution of India and in no case, these habeas corpus petitions can be thrown out on the ground of alternative remedy under Sec.482 Cr.P.C. more particularly when they are agitating for their fundamental rights under Art. 21 of the Constitution of India, through these writ petitions. Merely because one of the grounds is common in the petition under Sec.482 Cr.P.C. and in these habeas corpus petitions, it cannot be said that these habeas corpus petitions are not maintainable on account of pendency of petitions under Sec.482 Cr.P.C. According to the learned counsel for the petitioners, the scope of the petition and powers under Sec.482 Cr.P.C. are entirely different than the scope of a habeas corpus petition and once the question of personal liberty is involved, the writ petition of habeas corpus cannot be thrown out on account of the pendency of the petition under Sec.482 16 Cr.P.C. It was also submitted by learned counsel for the petitioners that availability and even availing of an alternative remedy is no bar to the maintainability of the petition under Art. 226 of the Constitution of India and it is only a self imposed discipline by the High Court that in appropriate cases, it may refuse to entertain the writ petition when alternative remedy is available or it has been availed and otherwise, it is only the rule of convenience and not a rule of law and such a valuable constitutional remedy cannot be denied at the alter of technical and jejune objections. In support of his submissions, Sh.Bajwa has placed reliance on Ram and Shyam Company Vs. State of Haryana and ors. (AIR 1985 SC 1147). 18. The submissions of both the sides on the preliminary objection raised by the learned Govt. Advocate were considered and record was minutely scanned. 19. Hon'ble the Apex Court laying the principle of law in this regard in the matter of Ram and Shyam Company (supra), held as under: 17 “9. .......Ordinarily it is true that the court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Art.226 where the party invoking the jurisdiction has an effective, adequate alternative remedy. More often, it has been expressly stated that the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than rule of law. At any rate it does not oust the jurisdiction of the court. Where the order complained against, is alleged to be illegal or invalid as being contrary to law, a petition at the instance of person adversely affected by it, would lie to the High Court under Art. 226 and such a petition cannot be rejected on the ground that an appeal lies to the higher officer or the State Government. An appeal in all cases cannot be said to provide in all situations an alternative effective remedy keeping aside the nice distinction between jurisdiction and merits.” 20. Division Bench of this court in the matter of Smt.Usha Khurana Vs. The State 18 of Rajasthan reported in RCC Apr.1994,169 in para no.19 has held as under: “Be that as it may, the objection that the remedy of filing a petition under Sec.482 Cr.P.C. for quashing the proceedings in the main case, had already been availed of and, therefore, this writ petition should not be entertained, does not detain us from proceeding further with the hearing of this petition of habeas corpus on merits, for two reasons- (i) Section 482 Cr.P.C. is a provision contained in the Code of Criminal Procedure saving inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of the court or otherwise to secure the ends of justice and filing of a petition to invoke the inherent powers of the High Court under this Section cannot be a substitute of the constitutional remedy of filing a writ of habeas corpus as case for quashing proceedings in a pending criminal case is not comparable with the case of seeking directions for restoration of liberty under Art. 226 of the 19 Constitution of India, by way of writ of habeas corpus; and (ii) whenever the complaint about the breach of the fundamental rights with regard to the right of life and security, the bar of alternative remedy, whether available or availed, under the statute, cannot be allowed to frustrate and defeat the constitutional remedy under Article 226 of the Constitution of India. We, therefore, reject the preliminary objection raised by the learned Govt. Advocate and hold that this writ petition of habeas corpus filed for the release of Sh.Harbans Lal Khurana cannot be thrown out because a petition under Sec.482 Cr.P.C. is pending in the High Court, for the quashing of the criminal proceedings along with an application for bail- SBCr.Misc.Bail Application No.937/1993 under Section 439 Cr.P.C.” 21.Similarly in the case of State of Bombay and another Vs. The United Motors (India) Ltd. and ors. (AIR 1953 SC 252), it has been observed in para no.9 and held as under: 20 “There it was held that the principle that a court will not issue a prerogative writ when an adequate alternative remedy was available could not apply where a party came to the court with an allegation that his fundamental right had been infringed and sought relief under Article 226.” 22. Learned counsel for the petitioners further placed reliance on the judicial pronouncement of Hon'ble Supreme Court in the case of Kharak Singh Vs. State of U.P. And ors.-AIR 1963 SC 1295. This was a matter wherein regulation 236, Cl.(b) of U.P. Police Regulations authorising “domiciliary visits” was held to be violative of Art.21 of the Constitution of India. In para no.16, Hon'ble Apex Court, while dealing with the writ of mandamus under Art.32 of the Constitution, held as under: “16. ...... The fact that an act by the State executive or by a State functionary acting under a pretended authority gives rise to an action at common law or even under a statute and that the injured citizen or person may 21 have redress in the ordinary courts is wholly immaterial and, we would add, irrelevant for considering whether such action is an invasion of a fundamental right. An act of the State executive infringes a guaranteed liberty only when it is not authorized by a valid law or by any law as in this case, and every such illegal act would obviously give rise to a cause of action-civil or criminal at the instance of the injured person for redress. It is wholly erroneous to assume that before the jurisdiction of this court under Art.32 could be invoked the applicant must either establish that he has no other remedy adequate or otherwise or that he has exhausted such remedy as the law affords and has yet not obtained proper redress, for when once it is proved to the satisfaction of this court that by State action the fundamental right of a petitioner under Art. 32 has been infringed, it is not only the right but the duty of this court to afford relief to him by passing appropriate orders in that behalf.” 23. The five Judges Bench of Hon'ble Apex 22 Court in the matter of Himmatlal Harilal Mehta Vs. State of Madhya Pradesh and ors.-AIR 1954 Sc 403 , while dealing with the validity of Sec.2(g) Explanation 2 of C.P. And Berar Sales Tax Act (2 of 1947) as amended by Act (15 of 1949), held that new Explanation II to Sec.2(g) was ultra vires. 24. The writ petition of mandamus was challenged by the petitioner praying that explanation II to Section 2(g) of the Act having been declared “ultra vires”, any imposition of sales tax on the appellant in Madhya Pradesh is without the authority of law, and that being so a threat by the State by using the coercive machinery of the impugned Act to realize it from the appellant, is a sufficient infringement of his fundamental right under Art.19(1)(g) and it was clearly entitled to relief under Art.226 of the Constitution. The Hon'ble Apex Court referring to its own decision in State of Bombay Vs. The United Motors (India) Ltd. (supra) held as under: “9. ....... the principle that a court will not issue a prerogative writ when an adequate 23 alternative remedy was available does not apply where a party has come to the court with an allegation that his fundamental right had been infringed and sought relief under Art.226. Moreover, since the remedy provided by the C.P. And Berar Sales Tax Act is of an onerous and burdensome character and before the assessee can avail of it he has to deposit the whole amount of the tax, such a provision can hardly be described as an adequate alternative remedy.” 25. Further reliance was placed by the learned counsel for the petitioners on the pronouncement in the matter of R v Governor of Pentonville Prison, ex parte Azam reported in All England Law Reports [1973]2 All ER,741. It was argued that writ of habeas corpus is a right whereby the court in three cases, mentioned herein above, raised questions i.e. (i) importance; (ii) many young citizens who were living in that country, were treated as illegal entrants and (iii) found to have entered the country clandestinely without reporting to the immigration authorities. 24 In those three cases, illegal entrants were arrested and detained in the prison without trial and were removed under the direction of Home Secretary and each of them in the writ of habeas corpus claimed that the detention was unlawful. In that case, Stephenson LJ at page 759 observed as under: “...... Where a person is detained in custody pursuant to the sentence of a court of law, I agree with counsel for the respondents that he must challenge the legality of his detention by the prescribed procedure for