Allahabad High Court
Dr. Vijay Kumar Sharma And Another vs State Of U.P. And 6 Others on 23 June, 2021
Bench: Munishwar Nath Bhandari, Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 48
Case :- HABEAS CORPUS WRIT PETITION No. - 187 of 2021
Petitioner :- Dr. Vijay Kumar Sharma And Another
Respondent :- State Of U.P. And 6 Others
Counsel for Petitioner :- Vijay Kumar Dixit
Counsel for Respondent :- G.A.
Hon'ble Munishwar Nath Bhandari,J.
Hon'ble Shamim Ahmed,J.
In re : Criminal Misc. Review Application No. 107 of 2021
This review application has been filed against the judgment dated 15.03.2021 alleging that remand order was passed in mechanical manner, thus habeas corpus petition was maintainable. It is further submitted that judgment of the Larger Bench in the case of Km. Rachna and another Versus State of U.P. and 4 others in Habeas Corpus Writ Petition No. 362 of 2020 decided on 08.03.2020 was not applicable. In view of the above, the prayer is to recall the judgment by acceptance of the review application and a direction be issued on the respondents to release the petitioner immediately.
We have considered the submissions of learned counsel for the petitioner and perused the record.
A perusal of the judgment sought to be reviewed shows that argument about passing of the remand order in the mechanical manner was taken and considered. It proceeded with a question as to whether remand order is under challenge so as to adjudicate the issue, learned counsel was fair enough to state that challenge to the remand order was not made.
In the review application, what has been stated that there was no need to challenge the remand order. Para 10 of the review application can be referred for the aforesaid. Without challenge to the remand order, how it can be said to have been passed in a mechanical manner, could not be explained.
The writ petition of the petitioner was dismissed finding it to be not maintainable in the light of the judgment of the Larger Bench in the case of Km. Rachna and another (supra), therein it is held that if the custody is under a judicial order, the habeas corpus petition would not be maintainable. In the instant case, the petitioner was knowing about passing of the remand order yet without challenging it, filed the habeas corpus petition. The detention of the petitioner cannot be said to be illegal unless the remand order is set aside.
Taking aforesaid into consideration, we do not find any substance in the review application where even incorrect statement of facts has been made. The petitioner did not cite any judgment to support his argument yet in para 4, the averments have been made contrary to the aforesaid. The conduct of the petitioner is thus writ large. We further find that the bail application submitted by the petitioner was also dismissed, however, now learned counsel for the petitioner submits that it is pending before the High Court. If that is so, then the decision in this case would not affect the pending bail application in any manner but finding no case for review, the same is dismissed. It is more so when no error in the order apparent on the face of record is shown, the review application cannot be accepted by re-appreciation of the same argument already discussed in the writ, thus taking into consideration aforesaid aspect also and finding no merit, the review application is dismissed.
Order Date :- 23.6.2021
Shubham
