IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.1083 of 2008 Guddu Kumar s/o Raju Sao, resident of Bengalitola Samastipur, P.S. Samastipur Town, P.S. & District – Samastipur, at present resident of Mohalla – Musallahpur, Tenant of Binod Gupta, P.S. Kadamkuan, District – Patna ……….. Petitioner Versus 1 State Of Bihar through the District Magistrate, Patna 2. The Superintendent of Police, Patna 3. The Officer-incharge of Kadamkuan Police Station, Patna 4. The Sub Inspector of Police (IO) Kadamkuan Police Station, Patna 5. Manoj kumar Singh son of Ganesh Singh, Director of Coaching Institute Rajendra Nagar, Road No.5, Patna -1 … Respondents ----------- For the petitioner: Mr. Arvind Kumar Sinha Mr. Rudradeo, Advocates For the respondents 1 to 4 : Mr. Kumar Udai Bhanu Rai, GA - IV --- P R E S E N T Hon'ble the Acting Chief Justice And Hon'ble Mr. Justice Dr. Ravi Ranjan 12.01.2009 In this writ application prayer of the petitioner is to issue writ in the nature of habeas corpus for release of the petitioner, who is in detention in connection with Kadamkuan P.S. Case no.136 of 2008 registered under section 392 of the Indian Penal Code. 2. The facts, which are not in dispute, are that the petitioner is an accused in Kadamkuan P.S. Case no.136 of 2008 registered under section 392 of the Indian Penal Code. It pertains to robbery of a motorcycle and mobile phone. The petitioner was arrested in the case on 14th April, 2008 at 2.30 P.M. and, according to the investigating agency, looted mobile phone and motorcycle 2 were recovered from his possession. He was produced before the learned Chief Judicial Magistrate on 16th April, 2008, who remanded him to judicial custody. Respondents attempted to explain the non- production of the petitioner within twenty four hours on the ground that when the petitioner was produced, the court sitting was over as it was a morning court. Be that as it may, fact remains that the petitioner was arrested on 14th April, 2008 and remanded to the judicial custody by the learned Magistrate on 16th April, 2008. 3. Mr. Arvind Kumar Sinha, counsel appearing on behalf of the petitioner submits that arrest of the petitioner beyond twenty four hours from the time of his arrest is illegal, so also the order of remand and, therefore, it is a fit case in which the writ in the nature of habeas corpus deserves to be issued. Reliance has been placed on a Division Bench judgment of this court in the case of Mahesh Kumar vs. The State of Bihar & Ors., 2008 (2) BBCJ 642. In the said case it has been observed as follows: “That being the position, despite honest efforts made by a Police Officer arresting a person, if he cannot produce the arrested person before the Magistrate within the time as mentioned in sub-article (2) of Article 22 of the Constitution of India, the detention of the person in police custody beyond the time mentioned in sub-article (2) of Article 22 of the Constitution of India, as repeated in Section 57 of the Code of Criminal Procedure, 1973, becomes illegal, being violative of fundamental right of a citizen.” 4. The Government Advocate – IV appearing on behalf 3 of respondents submits that the petitioner has chosen to file the writ application on 26th November, 2008 and on that date it cannot be said that he is under illegal detention and, in that view of the matter, prayer for issuing of writ in the nature of habeas corpus is absolutely mis-conceived. He submits that the petitioner is in judicial custody by virtue of a judicial order passed by the Magistrate. 5. Having appreciated the rival submissions, we find substance in the submission of the Government Advocate. It is well - settled that in a petition for habeas corpus the court has to see as to whether the detention of the person who had made the application or on whose behalf the application is made is legal on the day when the prayer for habeas corpus is made. Reference in this connection can be made to a Constitution Bench judgment of the Supreme Court in the case of A.K.Gopalan v. Government of India, AIR 1966 SC 816, in which it has been held as follows: “(5) 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. In the present case the applications were made to this Court after the orders dated March 4, 1965 had been passed. It is therefore unnecessary to consider the validity of the detention orders made on December 29, 1964, for those orders are no longer in force and the petitioners are detained by orders passed on March 4, 1965. We shall therefore consider only the grounds urged against the validity of the orders passed on March 4, 1965.” 4 6. Undisputedly, on the day when the application was filed and till date the petitioner is in judicial custody by an order passed by the learned Magistrate. In that view of the matter, we are of the opinion that the application filed by the petitioner is absolutely mis-conceived. 7. Now referring to the decision of the Division Bench of this court in the case of Mahesh Kumar, it is relevant to state here that this aspect of the matter at all was neither pointed out nor considered by the Division Bench. Therefore, the said judgment cannot be said to be laying down a proposition that a person in legal custody shall be set free by issuing a writ in the nature of habeas corpus only on the ground that at one point of time for few days his detention was illegal. 8. In the result, we do not find any merit in the writ petition and it is dismissed accordingly. C. K. Prasad, ACJ. Dr. Ravi Ranjan, J. Neyaz/-