High Court
Case Details
WP(C) 4551/2013 ‘BEFORE HON’BLE MR. JUSTICE B.K. SHARMA
Legal Reasoning
Heard Mr. A. Goyal, learned counsel for the petitioners and Mr. Z. Kamar , learned Senior Public Prosecutor, Assam, as well as Ms. R. Gogoi, learned Stat e counsel, Assam.
Decision
By means of this writ petition, the 4 accused persons, namely, Dinesh Ko tian, Remish Balan, Denis Rozhkov and Andrei Kilin, have assailed the order date d 26.7.2013 (Annexure-X to the writ petition) passed by the learned Special Judi cial Magistrate, Kamrup in connection with Bangagarh PS Case No 109/13. For a r eady reference, the aforesaid order is reproduced here-in-below: (cid:28)26.7.2013 Ld. Counsel of accused present. In pursuance to order dated 24.7.2013, I/O present and submitted a repor t that further detention of the accused are not necessary for investigation. Pe rusal of C/R reveals that today is the 59th day of custody of the accused in con nection with this case. Accordingly, accused are allowed to go on bail of Rs.10 ,000/- each with a suitable surety of like amount. As the accused are already g iven bail their production before this Court is no longer required at present. Issuing production warrant against the accused at this stage will cause prejudice to them as that will amount to again bringing them in my custody. As such prayer of production warrant sought for vide Pet. No.3601 is rejected. (cid:29) Be it stated herein that the petitioner No.1 represents Dinesh Kotian an d Remish Balan. The accused persons were arrested on 28.5.13 in connection with Bangagarh PS Case No.109/13 registered u/s 120B/406/420 of IPC read with Sectio ns 4 & 5 of the Prize Chit and Money Regulations Scheme Banning Act, 1978. The a ccused persons are also involved in connection with EOW C.B. CID Mumbai C.R. No. 47/13 u/s 406/120(B) of IPC read with Sections 4,5 and 6 of the PCMRSB Act and S ection 3 & 4 of MPID Act. Presently all the accused persons are in judicial custody and lodged in Arthur Road Jail, Mumbai. Earlier, the petitioners had approached this Court by filing a writ petition being WP'No.3908/13, disposed of on 18/7/13. In the sai d writ petition, accused persons had challenged the order of learned Special Jud icial Magistrate passed in connection with the aforesaid Bangagarh PS Case No.10 9/13. By the said order, the learned Court below allowed the accused persons to be released from Central Jail for onward production to the Court of learned Chi ef Metropolitan Magistrate, 47th Court, Esplanade, Mumbai. Dismissing the writ petition by order dated 18.7.13, it was held that if their presence was required in connection with the aforesaid Mumbai case, there was nothing wrong in the order passed by the learned Special Judicial Magistrat e, Kamrup, in permitting the accused persons to be taken to Mumbai. Against the aforesaid order, the accused petitioners have filed a writ appeal being WA No.1 58/13 which was disposed of vide order dated 20.7.13 holding that there was no i nfirmity, legal or factual, in the conclusion reached in the aforesaid order dat ed 18.7.13 passed in WP'No.3908/13. However, it was provided that learned Speci al Judicial Magistrate shall have the power to recall the accused persons as and when their presence becomes necessary either for effective investigation or for their trial at Guwahati. It was further provided that the accused persons shal l have the liberty to apply to the learned Special Judicial Magistrate, Guwahati for appropriate order as regards their judicial custody as their presence may n ot be required in Arthur Road Jail, Mumbai for an indefinite period. The said ob servation was subject to the condition that the accused persons were no longer r equired to be detained in connection with the aforesaid Mumbai case. As to what is the present position in the aforesaid Mumbai case, the lea rned counsel for the petitioners could not apprise this Court today. Admittedly the accused persons are presently lodged in Arthur Road Jail, Mumbai. It is no t known to the learned counsel for the petitioners that whether the accused pers ons have been granted bail in connection with the aforesaid Mumbai case. However , learned counsel for the accused petitioners submitted that in terms of the afo resaid Division Bench order, an appropriate direction is required to be issued t o bring them back to Guwahati. Mr. Z. Kamar, learned Sr. PP submits that there is no infirmity in the i mpugned order dated 26.7.13 passed by the learned Special Judicial Magistrate, K amrup. He further submits that the accused persons being involved in the afores aid Mumbai case, this Court has no jurisdiction to direct the learned Special Ma gistrate to issue a direction to bring them back to Guwahati irrespective of ord er(s) operative in Mumbai proceedings. Mr. Kamar, learned Sr. PP has relied on a decision of the Supreme Court reported in (2002) 2 SCC 210 (Narinderjit Singh Sahni and another v. Union of In dia and others) in which the following observation has been made in reference to Article 21 of the Constitution of India: (cid:28)50. Let us however, try and analyse the grievance of the petitioners and consid er as to whether there is any substance in such a grievance. Shortly put the pet itioners grievance, which stands identical in all the writ petitions, stand out to be that though the petitioners were favoured with an order of bail in ore cas e but is being detained by reason of production warrant in another matter and re sultantly the petitioners are languishing in the jails, being deprived of the or der of grant of bail-this aspect of the matter has been stated to be violative o f Article 21. In our view, however, the situation as noticed above does not ipso facto render it violative of Article 21. Article 21 of the Constitution postula tes deprivation of life or personal liberty except according to the procedure es tablished by law. Admittedly, the protection of personal liberty stands expanded to make the right to life under Article 21 more meaningful, the language of the Article itself records an exception indicating there by that a person may be de prived of his liberty in accordance with procedure established by law and it is in this sphere the courts will scrupulously observe as to whether the same stand s differently and contra as regards the procedure established by law and in the event it is not so done, it would be a plain exercise of judicial power to grant redress to the petitioner, While there is no difficulty in appreciating the gri evance and grant of relief in a given case but facts are too insufficient howeve r, to come to conclusion as regards the infraction of Article 21. Production war rants have been spoken of without any details whatsoever therefore-the reason of fered is that the petitioners, in fact, are not in the know of this being behind the prison bars and it starts pouring inform all parts of the country and in th e factual backdrop, as noticed above it is a well-neigh impossibility t come to a finding as regards the infraction of Article 21 and since in the factual matri x, no infraction can be identified and thus question of sustaining the plea of i nfringement of Article 21 would not arise. In any event the liberty of the petit ioners cannot said to have been trifled within the absence of due process of law . Deprivation, if any cannot claimed to be not in accordance with due process of law. (cid:28) In the impugned order dated 26.7.13 as quoted above, learned Special Mag istrate, Kamrup, has rightly observed that issuing production warrant against th e accused at this stage will cause prejudice to them as that will amount to agai n bringing them to the custody of the Court and accordingly, the production warr ant sought for had been rejected. I see no infirmity in the said order. Consequently, the writ petition is dismissed.