^ C^f^9 BEFORE THE HON'BLE HIGH COURT OF CHHATISGARH AT BILASPUR W.P.(H.C.)NO. J-fS$3 /2011 PETITIONER ^ ..•'•"">^ ..;'^.-" ^Js' ..Ap"^r .'•-i €/l/ ^ ./" •^- RESPONOENTS Alok Kumar Dwivedi Son of Umesh Chandra Dwivedi, aged y' about 34 years, Through Next friend Umesh Chandra Dwivedi, aged about 60 years, r/o village and post Manapur.p.s. Rampur, district Jaunpur (Uttar Pradesh) VERSUS 1. State of Chhattisgarh, Trough : The Home Secretary, State of Chhattisgarh 2 Director General of Police, Raipur (Chhattisgarh), 3, Inspector General Of Police, Raipur (Chhattisgarh) 4. Superintendent of Police, Raipur (Chhattisgarh) 5. Station Officer Police Station Goie Bajar Raipur (Chhattisgarh) 6. Station Officer Police Station Chakradhar Nagar Raigarh (Chhattisgarh) 7. Judicial Magistrate First Class Raigarh (Chhattisgarh) (3 WRIT PETITION UNDER ARTICLE 226 OF^THE CONSTITUTION OF INDIA 3 -S^^-Wff^,;;^^ A^ HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice Satish K. Aanihotri and Hon'ble Shri Justice Radhe Shvam Sharma Writ Petition (H.C.l No.4353 of 2011 1h^^ Alok Kumar Dwivedi versus State of Chhattisgarh and others ORDER FOR CONSIDERATION Sd/- R.S. Sharma Judge Hon'ble Shri Satish K. Aanihotri. J.: Sd/- Satish K. Agnihotri Judge Postfor 2-11-2011 Sd/- R.S. Sharma Judge 1 1 ^ ftpL HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice Satish K. Aanihotri and Hon'ble Shri Justice Radhe Shyam Sharma Writ Petition (H.C.) No.4353 of 2011 Alok Kumar Dwivedi yersys State of Chhattisgarh and others Petitioner Respondents Present: Shri Ramesh Chandra Shukla with Smt. R.K.Singh, counsel for the petitioner. Shri M.P.S. Bhatia, Deputy Government Advocate for the State/respondents No.1 to 6. Writ Petition underArticle 226 ofthe Constitution of India ORDER (Passed on o2- November, 201 1) Per Radhe Shvam Sharma, J.: By way of the instant petition under Article 226 of the Constitution of India, petitioner Alok Kumar Dwivedi impugns his arrest and seeks relief of setting him at free as also a direction to the respondents/State for payment of compensatory cost to him. •I 4 2. Facts of the case, as projected by the petitioner, in brief, are that the petitioner is a resident of Shiwanand Nagar, P.S. Khamtarai, District Raipur (Chhattisgarh) and originally resident of Village Manapur, District Jaunpur (Uttar Pradesh). On 9-6-2011, at 4 P.M., the petitioner was arrested by the police of Police Station, Gol Bazar, Raipur. On that very date, within an hour of the arrest, at 5 P.M., information of the arrest of the petitioner was given by the father of the petitioner, i.e., next friend, from Mirzapur (Uttar Pradesh) to respondents No.2 to 6 through a telegram (Annexure P-2). From the ,^^:^ ..^'rii;'-l \^^'^e^^.. w ;'1, -^iSJISI^ j' ^.. .„ y/ ^j^y ^~:^K^-^(f^i':' s^ ^ time of arrest of the petitioner till his lodging to jail, he was not disclosed reason, ground or substance of the offence for which he was arrested by arresting police officer/respondent No.5 or even by the Judicial Magistrate, First Class, Raigarh/respondent No.7. Without showing or disclosing any warrant of arrest to the petitioner, the arresting officer arrested the petitioner in open market of Raipur in presence of his friend, Sohan. The petitioner's friend Sohan sought to know about arrest of the petitioner, but he was abused and threatened by the police officials, due to which, he ran away therefrom. After the arrest, the petitioner was brought to the Police Station, Gol Bazar, Raipur, where he was kept in the police lock-up. Even there, the petitioner was not disclosed the reasons or ground for which he was arrested by the arresting officer. The petitioner was kept in the lock-up of Police Station Gol Bazar, Raipur from 9-6- 2011 to 10-6-2011 for about 20 hours. No Court has issued any valid warrant of arrest of the petitioner under Second Schedule, Form No.2 Cr.P.C. -Thus, without there being any valid warrant issued by a Court, the petitioner was arrested on 9-6-2011 in violation of provision of Section 70 Cr.P.C. The petitioner was arrested by the police officer in violation of the provisions of Sections 50 and 50-A Cr.P.C. Provision of Section 50-A Cr.P.C. is in conformity with Article 22 of the Constitution enabling the person arrested to move a habeas corpus for his release. It confers valuable right, and non-compliance of its mandatory provisions amounts to violation of the procedure established by law. Respondents No.5, 6 and 7 have violated the provisions of Sections 50 and 50-A Cr.P.C., which amounts that detention of the petitioner ^Q INNNI' is illegal as well as it is in violation ofArticle 22 ofthe Constitution of India, therefore, a writ of habeas corpus may be issued in favour of the petitioner for his release. On 10-6-2011, i.e., on next day of the arrest of the petitioner, Sohan got an application moved before the Chief Judicial Magistrate, Raipur for calling a report from the Police Station, Gol Bazar, Raipur regarding arrest of the petitioner and on that very date, the learned Chief Judicial Magistrate, Raipur ordered for submission of a report about the arrest of the petitioner on 13-6- 2011. On 13-6-2011, respondent No.5 did not submit any report about the arrest of the petitioner. The learned Chief Judicial Magistrate, Raipur, thereafter, summoned respondent No.5 to appear in his Court in person on 14-6-2011 (Annexure P-3). On 14- 6-2011, respondent No.5 appeared before the learned Chief Judicial Magistrate, Raipur in person and informed him that the petitioner was arrested by Head Constable No.216 of Police Station Chakradhar Nagar, Raigarh under a warrant of arrest. It is clear that the petitioner was arrested at Raipur and he was kept in the lock-up of P.S. Gol Bazar, Raipur. Respondent No.5 suppressed the truth of the arrest of the petitioner as also the date, time and place of his arrest. From the order-sheet recorded by the learned CJM, Raipur on 14-6-2011, it appears that there is violation of provision of Section 78 Cr.P.C. The petitioner was wanted by Raigarh Police but he was arrested by Raipur Police at Raipur without following the mandatory provisions of the Code of Criminal Procedure, 1973, therefore, his arrest is illegal. The Head Constable was not authorized to arrest the petitioner under any law as he had no authority or empowered legally to come Raipur from Raigarh and ^^^^]^,.., '-. /!^\ f^o arrest the petitioner at Raipur. No warrant can be directed even to a police officer to be executed beyond the local jurisdiction of the Court. The Court shall ordinarily take it for endorsement either to an Executive Magistrate or to a police officer not below the rank of an officer-in-charge of a police station within the local limits of whose jurisdiction warrant is to be executed. There is violation of provisions of Sections 80 and 81 Cr.P.C. The action and procedure of arrest is unfair and mala fide. The petitioner was kept in the lock-up of P.S. Chakradhar Nagar, Raigarh from 10-6-2011 to 11-6-2011. On 11-6- 2011, at about 2 P.M., the petitioner was produced before Judicial Magistrate First Class, Raigarh. The learned Judicial Magistrate First Class, Raigarh did not disclose substance of the offence for which the petitioner was arrested. The arresting police officer and the learned Judicial Magistrate First Class, Raigarh violated the mandatory provisions of the Code of Criminal Procedure, 1973, therefore, the detention of the petitioner is illegal and a writ in the nature of habeas corpus requires to be issued against respondents No.1 to6. 3. Shri Ramesh Chandra Shukla with Smt. R.K.Singh, learned counsel for the petitioner argued that the arrest of the petitioner is illegal and in contravention of provisions of Sections 41, 41A,41B, 41 C, 41 D, 46, 50, 50A, 54, 56, 57, 60A, 70, 74, 75, 78, 79, 80 and 81 of the Code of Criminal Procedure, 1973 and, therefore, the petitioner may be set at free. The cause of arrest has not been disclosed to the petitioner till date. Learned counsel has reiterated the grounds taken by him in the petition as arguments. Learned ;:-u-'^ '^. 1 -Ks^. j ^ ^.....// ^,. "y^' /o/ "^s ^,^^ counsel placed reliance on Joginder Kumar vs. State of U.P. and others. AIR 1994 SC 1349, Lallubhai Jogibhai Patel vs. Union of India and others, AIR 1981 SC 728, Ashok and others vs. The State, 1987 Cri.L.J. 1750 (M.P.), Govind Prasad vs. The State of West Bengal, 1975 Cri.L.J. 1249 (Cal.), In the matter of IVIadhu Limaye and others, AIR 1969 SC 1014 and Buddha Singh vs. State of U.P., 1997(35) ACC 110 (All.). 4. Shri M.P.S. Bhatia, learned Deputy Government Advocate for the State/respondents No.1 to 6 argued that Crime No.401/2009 under Sections 408 and 420 read with Section 34 IPC was registered against the petitioner in the Police Station, Chakradhar Nagar, Raigarh, in which the petitioner was absconding. A challan was filed before the Judicial Magistrate, First Class, Raigarh mentioning the petitioner as absconding. The Judicial Magistrate, First Class, Raigarh issued a warrant of arrest against the petitioner. The said warrant was executed at Raipur on 10-6-2011. The petitioner was arrested in execution of the warrant of arrest, therefore, there was no need of production of the petitioner before the local Magistrate. The petitioner had also filed an application under Section 57 Cr.P.C. before the Chief Judicial Magistrate, Raipur. The learned Chief Judicial Magistrate, Raipur had rejected the application, having become infructuous. The arrest of the petitioner is not illegal but was lawful as it was in execution of the warrant of arrest issued by the competent Court. He further argued that the petitioner had approached this Court earlier also and filed Writ Petition (H.C.) No.3141/2011, which was dismissed by this /^^. 6 Court vide order dated 27-6-201 1. The petitioner has been legally < arrested under the order of the competent Court. The petitioner has alternative remedy under Sections 437, 439 Cr.P.C. as also under Section 482 Cr.P.C., therefore, the instant petition seeking a writ in the nature of habeas corpus is not maintainable and liable to be dismissed. 5. We have heard learned counsel appearing for the parties and have perused the pleadings as also the record of Criminal Case No.8/2011, State vs. Alok Dwivedi, under Sections 406, 420 I.P.C. 6. From perusal of the record of Criminal Case No.8/2011, it appears that an offence under Sections 408 and 420 I.P.C. was registered by the Police Station, Chakradhar Nagar, District Raigarh against the petitioner and a challan was filed against him before the Chief Judicial Magistrate, Raigarh in absence of the petitioner as having been absconded on 29-11-2010, which was registered as Criminal Case No.1670/2010, upon which a warrant of arrest was ordered by the Chief Judicial Magistrate, Raigarh against the petitioner and thereafter the criminal case was transferred to the Court of Judicial Magistrate First Class, Raigarh (Shri Shailendra Chouhan) where Criminal Case No.8/2011 was registered. Warrant of arrest was again issued against the petitioner on 24-2-201 1, 17-3- 2011, 19-4-2011 and 16-5-2011. 7. The petitioner was produced before the Judicial Magistrate First Class, Raigarh during his remand duty in pursuance of execution of the warrant of arrest on 11-6-2011 and thereafter the f£"^^^ I tl£3S^ J I. ^-^i!s^ 1 Y ^^y ^lNN^ / 03 petitioner was sent to jail. The order-sheet recorded by the learned Magistrate on remand duty on 11-6-2011 reads as under— "The accused Alok Dwivedi (the petitioner) was arrested and produced along with the warrant of arrest by Constable No.461, Santosh Sidar of Police Station Chakradhar Nagar before the Magistrate on remand duty. The accused was taken into judicial custody. No application for grant of bail was preferred on behalf of the accused. The accused was lodged in jail after preparation ofjail-warrant." 8. Learned counsel for the petitioner argued that the warrant of arrestagainst the petitioner was not issued in accordance with law. The warrant of arrest is issued under Second Schedule Form No.2 of the Cr.P.C. He further argued that the Head Constable was not empowered to arrest the petitioner in execution of the warrant. This argument ofthe learned counsel is unacceptable. 9. Officer-in-Charge of a police station is defined in Section 2(o) ofthe Code ofCriminal Procedure, 1973, which reads thus: "2. Definitions.—In this Code, unless the context otherwise requires, - xxxxx xxxxx xxxxx (o) "officer-in-charge of a police station" includes, when the officer-in-charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constabte or, when the State •^M.. WSi^ | •-^M'w \^iy '•%s;&^ i^ 8 Government so directs, any other police officer so present;" lll^^ 10. Sections 50-A, 70 and 74 of the Code of Criminal Procedure, 1973runthus: "50-A. Obligation of person making arrest to inform about the arrest, etc., to a nominated person.—(1) Every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information. (2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station. (3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as may be prescribed in this behalf by the State Government. (4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and sub- section (3) have been complied with in respect of such arrested person. 70. Form of warrant of arrest and duration.—(1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court. (2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed. ^ ^ ^\^\ /y\"\ 1 Q2 9 74. Warrant directed to police officer.—Awarrant directed to any police officer may also be executed by any other police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed." ^HI^ 11. A bare perusal of Sections 2(o) and 74 of the Code of Criminal Procedure, 1973 reveals that a Head Constable is competent to arrest any person in pursuance of execution of a warrant of arrest. In the instant case, Annexure R-1 is a report dated 13-6-2011 submitted by Station House Officer, Police Station, Gol Bazar, Raipur to the Chief Judicial Magistrate, Raipur and copy of the warrant of arrest issued against the petitioner is part thereof. Original warrant of arrest is placed in the record of Criminal Case No.8/2011. The warrant of arrest was issued on 17-5-2011 and was endorsed to Head Constable No.216 on 18-5-2011 for its execution. 12. The warrant ofarrest is not issued in accordance with Second Schedule Form No.2 ofthe Code of Criminal Procedure, 1973 but is issued in the proforma under Sections 75, 76 of the old Code of Criminal Procedure, 1898 corresponding to Sections 70, 71 of the Code of Criminal Procedure, 1973. However, particulars ofthe said warrant are in accordance with the Code of Criminal Procedure, 1973. Mere mentioning of sections of the old Code of Criminal Procedure, 1898 in the warrant of arrest does not render it illegal or bad in law. /^^ "^,: t:?3Site. 1 y'^y^'^^'i >' /o^ ^.^s-^y •^?"' 1,^^ 10 13. Now, we shall examine whether a writ in the nature of habeas corpus can be issued in the instant case. 14. In A.K.Gopalan and another vs. Government of India and another, AIR 1966 SC 816, the Hon'ble Supreme Court observed that it is well settled that in dealing with a petition for habeas corpus the Court has to see whether the detention on the date on which the application is made to the Court is legal, if nothing more has intervened between the date of the application and the date of hearing. 15. A person was committed to jail custody by competent Court by an order which prima facie does not appear to be without jurisdiction. This means that doubt cannot be casted per se on the power of the Court to detain the person in such cases. The legality of the detention has to be tested with respect to the time of return and not at the time of institution of the proceedings. An order of detention which was not valid'earlier, that is to say, at the time when the person was detained, by any further cause has in fact become valid the person still cannot be released. In other words, even when the order of detention is illegal if subsequently, it does become legal the detained person cannot be released by issuing habeas corpus. 16. In Naranjan Singh Nathawan and others vs. State of Punjab, AIR 1952 SC 106, the Hon'ble Supreme Court held that as in habeas corpus proceedings the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the date of the institution of the proceedings, in the r ^ ;^.^:^^^ %...¥]^ '"-^.•.•^^^' ^v^ /^7 11 absence of proof of bad faith, the detaining authority can supersede an earlier order of detention challenged as illegal and make a fresh order wherever possible which is free from defects and duly complies with the requirements of the law in that behalf. The question of bad faith, if raised, would certainly have to be decided with reference to the circumstances of each case but the observations in one case cannot be regarded as a precedent in dealing with other cases. 17. In A. Lakshmana Rao vs. Judicial Magistrate, First Class, Parvatipuram and others, AIR 1971 SC 186, while dealing with the powef of the trial Court to remand the accused when adjourning the case under Section 344 of the old Criminal Procedure Code corresponding to Section 309 of the present Code, the Hon'ble Supreme Court held that when a case was postponed or adjourned and the accused was in custody the Court had to exercise its judicial discretion whether or not to continue him in custody by making a remand order and that the Court was neither bound to make an order of remand nor was it bound to release the accused person. The Hon'ble Supreme Court proceeded further to observe that such orders of remand were subject to judicial discretion and were also subject to review by the Supreme Court in accordance with the law and the detention pursuant to an order of remand which appropriately fell within the terms of Section 344 of the old Code was accordingly not open to challenge in habeas corpus. 18. In Sanjay Dutt vs. State thro' CBI, Mumbai, 1994 SCC Cri 1426, the Hon'ble Supreme Court has made an observation that /c^a 12 when there is a valid order of remand or detention of the accused, as on thedate of return of rule, the petition seeking the issuance of a writ of Habeas Corpus on the ground of absence of a valid order of remand or detention when the rule was issued, should be dismissed as custody or detention was on the basis of a valid order. In Kanu Sanyal vs. Dist. Magistrate, Darjeeling and others, AIR 1974 SC 510, the Hon'ble Supreme Court has held that a writ of Habeas Corpus cannot be granted 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. 19. In the instant case, perusal of order-sheet dated 29-6-2011 of Criminal Case No.8/2011 reveals that the accused showed his inability to engage any Advocate to defend him. Shri R.K.Sharma, Advocate was engaged by the District Legal Aid Authority for defending the petitioner. Shri R.K.Sharma, Advocate appeared and filed memo of appearance on behalf of the petitioner. On 26-7-2011, the petitioner filed an application before the Judicial Magistrate First Class, Raigarh for granting permission for execution of power of attorney. 20. A bare perusal of the record of Criminal Case No.8/2011 makes it clear that the petitioner was arrested under the warrant of arrest which was issued against him by the competent Court. It also makes clear that the petitioner was very well aware of the offence for which he was arrested. Therefore, it cannot be said that arrest of the petitioner was in violation of provisions of Sections 50, 50A, 78, 80 and 81 Cr.P.C. and Article 22 of the Constitution of India. The /o^ 13 facts of the case also reveal that the petitioner never moved an application for grant of bail before the competent Court. 21. The petitioner could have very well moved an application for grant of bail before the trial Court or before the Court of Session. When an effective and efficacious alternative remedy is available to him, invocation of writ jurisdiction ofthe High Court underArticle 226 of the Constitution for issuance of writ of habeas corpus against valid order of remand shall not be proper. Therefore, this Court comes to the conclusion that the contention raised by learned counsel for the petitioner is unsustainable and a writ of habeas corpus cannot be issued in favour of the petitioner and against the respondents. 22. We have perused all the judgments cited by the learned counsel appearing for the petitioner, however, we found that the same are not relevant to the facts involved in the instant petition. 23. For the reasons stated above and in view of the principles laid down in the judgments relied on, this Court comes to the conclusion that there is no merit in the present habeas corpus petition, therefore, it deserves to be and is accordingly dismissed. Record of Criminal Case No.8/2011 be sent back forthwith. No order as to costs. Gopal Sd/- Satish K. Agnihotri Judge Sd/- R.S. Sharma Judge