Allahabad High Court
Naveen Kumar (Detenue) vs State Of U.P. And 4 Ors. on 1 August, 2016
Bench: Ramesh Sinha, Prabhat Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 36
Case :- HABEAS CORPUS WRIT PETITION No. - 49736 of 2015
Petitioner :- Naveen Kumar (Detenue)
Respondent :- State Of U.P. And 4 Ors.
Counsel for Petitioner :- Rajni Ojha,Ravindra Nath Chaubey
Counsel for Respondent :- Govt. Advocate,Sudhir Mehrotra
Hon'ble Ramesh Sinha,J.
Hon'ble Prabhat Chandra Tripathi,J.
(Delivered by Hon'ble Prabhat Chandra Tripathi, J.)
Heard Ms. Rajni Ojha, learned counsel for the petitioner, Sri Sudhir Mehrotra, learned Special Counsel of High Court and Sri Vikas Sahai, learned A.G.A. for the State.
This writ petition has been filed with the prayer to direct the respondents to produce the corpus of detenue namely, Naveen Kumar i.e. petitioner before this Court.
It has been contended by the learned counsel for the petitioner that the petitioner was arrested on 7.8.2015 and thereafter remand was granted on 8.8.2015 by the Magistrate concerned. He submits that the said remand order was a cyclostyle and subsequently, on 21.8.2015 further remand was granted through video conferencing.
Sri Sudhir Mehrotra, learned Special Counsel of High Court states that an affidavit has been filed by Judicial Officer that he has granted the said remand order dated 21.8.2015 through video conferencing which has been disputed by the learned counsel for the petitioner. It has been further pointed out that the detenue has already been released, hence, the present Habeas Corpus petition has become infructuous.
Learned counsel for the petitioner further argued that the said Habeas Corpus petition can be adjudicated by this Court for granting damages to the petitioner to which learned Special Counsel of High Court states that first-of-all petitioner has to make out a case that the detention of detenue of the case is illegal.
Section 167 (2) proviso (b) of The Code of Criminal Procedure, 1973 is quoted below:-
"(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;"
A Magistrate cannot order the detention of any person in custody or extend such detention without the production of the accused before him in violation of the provisions of proviso (b) to S. 167(2) Cr.P.C.
The relevant rulings in this regard are cited below:-
1983 Mad LW (Cri) 121 : 1984 Mad LJ (Cri) 246 ** 1993 (3) Rec Cri R 377 (389) : 1992 (3) Cur Cri R 2793 (Delhi) ** (1991)1 Andh LT 315 : (1991)1 All Cri LR 422 ** (1983) 10 Cri LT 52 (53) (P&H) ** 1981 Luck LJ 78 (81) (DB) ** AIR 1958 Manipur 33 (34) : 1958 Cri LJ 1325.
The remand order sheet of the Court of the learned Remand Magistrate, Ghaziabad in case Crime No. 766 of 2015, under Sections 377, 406, 34 I.P.C., Police Station Vijay Nagar, District Ghaziabad of the accused person Naveen Kumar dated 8.8.2015 reveals that the judicial custody remand order was passed by the learned Remand Duty Magistrate (Additional Civil Judge (Junior Division)/Judicial Magistrate, Court No. 3, Ghaziabad) after perusal of the F.I.R., case diary, extract of the G.D. of the arrest of the accused, memo of arrest and the accused was produced by the police personnel of Police Station Vijay Nagar, District Ghaziabad after arresting the accused person Naveen Kumar. The accused person Naveen Kumar was produced before the learned Remand Duty Magistrate who after passing the judicial order on the remand application of the Investigating Officer, remanded the accused person Naveen Kumar for 14 days of the judicial custody w.e.f. 8.8.2015 to 21.8.2015. This is evident from the signature of the accused person Naveen Kumar appended therein on the remand sheet. This judicial custody remand order dated 8.8.2015 is a detailed and speaking order. There is no legal infirmity or perversity in it.
Now, coming to the judicial custody remand order dated 21.8.2015 of the accused person Naveen Kumar through video conferencing, it is evident from the counter affidavit filed by Sri Ram Karan Yadav, presently posted as Railway Magistrate, Ghaziabad and who has passed the judicial custody remand order dated 21.8.2015 of the accused person Naveen Kumar. It is proved that this order was passed by him when the accused person Naveen Kumar was present before him through video conferencing and on the basis of request made by the Investigating Officer of the aforesaid matter, judicial custody remand of the accused person Naveen Kumar was granted w.e.f. 21.8.2015 to 3.9.2015.
A short counter affidavit of Jainendra Singh Tomar, Sub-Inspector of Police Station Vijay Nagar, District Ghaziabad clearly proves the factum of production of the accused person Naveen Kumar through video conferencing on 21.8.2015 and along with this affidavit has also been filed the letter of the Superintendent, District Jail, Ghaziabad as Annexure-1 in support thereof.
It would not be out of place to mention here that in the letter dated 02.09.2015 of the Superintendent, District Jail, Ghaziabad it has been mentioned that there is no facility of retrieving in the video conferencing.
This letter dated 02.09.2015 of the Superintendent, District Jail, Ghaziabad annihilates and belies the contention of the petitioner-detenue Naveen Kumar in this regard.
After having considered the submissions advanced by learned counsel for the parties, we do not find any good ground for interference in the matter.
The writ petition is accordingly dismissed.
(Prabhat Chandra Tripathi, J.) (Ramesh Sinha, J.)
Order Date :- 1.8.2016
Rmk.
