Delhi High Court
Hazi Ghulam Muhiddin Dar @ Zahid ... vs Union Of India (Uoi) Through Its ... on 21 August, 2007
Author: V Gupta
Bench: V Gupta
JUDGMENT
V.B. Gupta, J.
1. Initially the petitioner filed this petition under Article 226 of the Constitution of India read with Article 21 for issuance of writ of habeas corpus or other appropriate writ.
2. On 18th July, 2007 when the matter came up for hearing before a Division Bench of this Court, counsel for the petitioner was asked as to how this petition lie directly to a Division Bench, on which the counsel stated that this petition be treated as a petition under Section 482 Cr. PC. Accordingly the Division Bench of this Court ordered that this petition be treated as a petition under Section 482 Cr. PC.
3. The allegations of petitioner are that on 14th June, 2005 he arrived in Delhi in connection with some business and political affair and stayed in a hotel. On 15th June, 2005 Ravinder Kumar Tyagi, I.O. of case FIR No. 146/05, P.S. Kapashera came to his room and told him that he has come for verification of the hotel occupants and searched his belongings, but nothing objectionable was recovered. However, the I.O. suspected that petitioner to be a terrorist and detained him illegally for next 15 days.
4. On 2nd July, 2005, the petitioner was produced before the Court of Magistrate where he narrated the Police atrocities and the Magistrate remanded the petitioner to Police custody till 15th July, 2005 and thereafter since till date he is languishing in judicial custody without committing any unlawful act and hence the present petition praying to this Court for ordering inquiry with appropriate agency like CBI in the matter and for quashing the orders/proceedings pending against him before the trial court.
5. I have heard the learned Counsel for the petitioner and have perused the record.
6. Vide order dated 2nd July, 2005 the present petitioner was remanded to Police custody at the request of the Police. Now after two years, the petitioner is challenging the impugned order of Police custody and orders for judicial custody passed by the Magistrate.
7. The scope of powers of the High Court under Section 482 Cr. PC. has been discussed by the Apex Court in case State of Andhra Pradesh v. Golconda Linga Swamy and Anr. 2004 III AD (Cr.) SC 301. It has been laid down that-
when exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly.
8. Here in the present case, now after two years since the Police custody order was passed, the petitioner is challenging his detention. All these pleas which the petitioner has taken in the present petition, he could have taken during the course of trial before the Magistrate. If he had any grievance against the order dated 2nd July, 2005, passed by the learned Magistrate, he should have availed of equally efficacious remedy under the law by way of filing appeal or revision and for two years, the petitioner remained quiet and now all of a sudden, he has filed the present petition.
9. It is well settled that benefit of Section 482 Cr. PC. should not be extended to persons who do not approach the court at the earliest possible opportunity. So, keeping in view the facts and circumstances of the present case, the present petition is legally not maintainable before this Court and the same is hereby dismissed.
