High Court
Case Details
Reserved on 17.02.2022 Delivered on 16.03.2022 Court No. - 47 Case :- HABEAS CORPUS WRIT PETITION No. - 821 of 2021 Petitioner :- Shyoraj Singh And Another Respondent :- State Of U.P Thru Secretary Home Lknw. And 2 Others Counsel for Petitioner :- Ganga Bhushan Mishra Counsel for Respondent :- G.A. Hon'ble Anjani Kumar Mishra,J. Hon'ble Deepak Verma,J. Heard learned counsel for the petitioner No. 1 and learned A.G.A. on behalf of State. Pleadings between the parties have been exchanged. Present habeas corpus writ petition has been filed to issue a writ of habeas corpus directing the respondent no. 2 to produce the petitioner no. 1 Shyoraj Singh (corpus) from district jail Aligarh. Counsel for the petitioner submits that petitioner no. 1, is detained in jail since 20.07.2013 in connection with Sessions Trial No.1087 of 2013
Legal Reasoning
arising out of Case Crime No.235 of 2006 under Sections 147, 148, 149, 307 I.P.C. The trial court awarded sentence vide judgment and order dated 05.04.2021 by which he was sentenced for imprisonment for seven years, five months under Section 307/149 I.P.C. as also awarded punishment less than seven years under different sections. Counsel for the petitioner next submits that petitioner has completed his detention period awarded by the trial court in Sessions Trial No. 1087 of 2013 but jail authorities has not released the petitioner no. 1 on irrelevant consideration, hence the present petition. In brief, the case of the petitioner is that the petitioner no. 1 Shyoraj Singh and other co-accused were involved in three Cases, bearing Case Crime No. 235 of 2006, under Sections 147, 148, 149, 307 I.P.C., Case Crime No.237 of 2006 under Section 25 Arms Act and Case Crime No. Nil/2006 under Section 41/102 Cr.P.C. and Section 411 & 414 I.P.C. These cases were registered at Police Station Tappal, District Aligarh on 11.09.2006. The case was committed to sessions trial and during the trial, two accused persons, namely, Parshuram and Sharif were reported to have died, therefore, proceedings against them were abated and trial was started against the petitioner no. 1 as S.T. No.1087 of 2013 in Case Crime No.235 of 2006, under Sections 147, 148, 149, 307 I.P.C. as the leading case. By a common judgment, the trial court held guilty to the accused-petitioner vide judgment and order dated 05.04.2021. Before commencement of the trial, the petitioner was apprehended by the Police on 11.09.2006. Thereafter, he was released on bail by order dated 11.10.2006. This period of detention was about one month. The petitioner absented himself in proceedings in aforesaid sessions trial. Hence, he was again arrested and sent to district jail, Aligarh and thereafter, he was released between the period from 23.09.2009 to 06.10.2009. This second period of incarceration in jail was about fourteen days. Again, a third time, the petitioner no. 1 was detained in jail, in other case. Since petitioner was not appearing and cooperating in proceedings, as he was in jail, the leaned Magistrate issued non bailable warrant against the petitioner no. 1 on 30.05.2013. Consequently, the petitioner no. 1 moved an application in the aforesaid proceedings for issuing production warrant against him. On this application, he was produced before the Court on 20.07.2013 by the jail authority and he remained present during court proceedings. He put his signature on the order sheet but due to negligence on the part of the concerned court Moharrir, no custody warrant in the aforesaid sessions trial was prepared while sending the petitioner no. 1 to District Jail, Bulandshahr. The third period of detention of the petitioner no. 1 starts from 20.07.2013, the date on which the jail authorities produced the petitioner no. 1 before the Court but due to mistake of the court Moharrir, production warrant was not prepared 2 and petitioner was confined in jail. After the sentence was awarded vide order dated 05.04.2021, the jail authorities are not taking into account the period of detention of the petitioner from 20.07.2013 to 05.04.2021 and are not releasing the petitioner from the jail. Counsel for the petitioner argued that aforesaid three cases were committed to sessions court on 25.11.2013. On that date court Moharrir did not prepare the custody warrant of the petitioner no. 1 in Sessions Trial No.1087 of 2013, though he prepared custody warrant of the petitioner of two other cases, namely, Sessions Trial No.1088 of 2013 and Sessions Trial No.1089 of 2013. The trial court by order dated 26.03.2021 directed the authority to prepare custody warrant of the petitioner in Sessions Trial No.1087 of 2013 w.e.f. 25.11.2013 but the jail authorities are treating the custody warrant of the petitioner to be from 31.03.2021 and are not releasing the petitioner. It is clear from the order of sessions trial that petitioner was produced before the court on the date fixed i.e. 25.11.2013 and he put his signature on the order sheet. Counsel for the petitioner has argued that prior to committal of case to sessions court, petitioner moved an application for summoning himself from custody of Bulandshahr jail where he was detained in some other crime. He was produced before the court on 20.07.2013 but on that date custody warrant was not prepared by court Moharrir and without custody warrant, petitioner was sent back to jail. Due to fault and carelessness of court Moharrir, petitioner was in detention without any cause. Petitioner should be released from jail treating him to be under detention from 20.07.2013 and not 25.11.2013. It is submitted that it is clear from the order dated 05.04.2021 that the sentences were run concurrently. In this situation if petitioner is treated to be in custody since 25.11.2013, he has served out the sentence awarded to him. 3 Two sets of counter affidavits have been filed by respondent-state. In para 16 of the counter affidavit, it has been stated that due to non receipt of custody warrant in S.T. No. 1087 of 2013, arising out of Case Crime No.235 of 2006 under Sections 147, 148, 149, 307 I.P.C., the benefit of period of under trial could not be provided to the petitioner. Further, it is stated in para-20 of the earlier affidavit that custody warrant of the petitioner in S.T. No.1087 of 2013, arising out of Case Crime No. 235 of 2006 has not been sent by the learned trial court. We have perused the entire record and considered the arguments of counsel for the parties. It is clear from the record that petitioner was detained in jail on account of aforesaid case. Petitioner was released from custody in three phases from 11.09.2006 to 19.12.2006, from 23.09.2009 to 06.10.2009 and from 31.03.2021 to 04.04.2021. It is
Decision
clear from the order dated 26.03.2021 which is part of the writ petition that custody warrant of the petitioner in S.T. No.1087 of 2013 arising out of Case Crime No.235 of 2006, was erroneously not prepared by the court Moharrir though he prepared custody warrants in two other cases. In fact, this omission was on account of negligence by the court moharrir, and the petitioner should not be made to suffer, especially when there is no fault on his part. It is also clear from the order dated 26.03.2021 wherein the Additional Sessions Judge had directed that petitioner’s custody warrant be prepared and same would be considered to be effective from 25.11.2013. The order dated 26.03.2021 has not been challenged further and has attained finality. In pursuance of order dated 26.03.2021, the petitioner should be considered in judicial custody since 25.11.2013 and respondents should calculate the petitioner’s period of detention, therefrom and if it is found that petitioner has completed period of punishment in jail awarded by judgment and order dated 05.04.2021, jail authority should treat this detention period as pre- conviction detention and petitioner should be released. 4 While considering the argument raised by the counsel for the petitioner pertaining to release the petitioner no. 1 from 20.07.2013, we have gone through the record but found no evidence in this regard. As such, this plea of petitioner is, hereby, rejected. We are of the considered opinion that petitioner was in custody of other cases and on his application, he was produced before the sessions court on 25.11.2013 as had been held by trial court in its order dated 26.03.2021 but due to mistake of court Moharrir, his custody warrant was not prepared. Therefore, he is liable to be released from jail after serving out his sentence calculating his detention w.e.f. 25.11.2013. The habeas corpus petition is allowed. The jail authorities are directed to calculate petitioner’s incarceration from 25.11.2013. If after such calculation, it is found that petitioner has served out the sentence awarded by trial court vide judgment and order dated 05.04.2021, he shall be released from jail. Order Date :- 16.03.2022 Meenu 5 Digitally signed by MEENU SINGH Date: 2022.03.16 13:45:31 IST Reason: Location: High Court of Judicature at Allahabad