Abhay Kumar vs State Of Uttarakhand & Another

Raghvendra Singh Chauhan, CJ

The petitioner, Mr. Abhay Kumar, has filed this Habeas Corpus petition, ostensibly, on the ground that one Dr. Pratima Singh had lodged an FIR

on 17.08.2020 against the petitioner, namely FIR No.0198 of 2020, for the offences under Sections 420, 467, 468, 471, 120-B and 506 IPC, with Police

Station Raipur, District Dehradun.

However, on 28.04.2021, this Court had granted regular bail to the petitioner. By order dated 29.04.2021, the Ist Additional Chief Judicial

Magistrate, Dehradun ordered the District Jail Superintendent, Dehradun, the respondent no.3, to release the petitioner. However, despite the said

order, the petitioner was not released from the jail.

Moreover, a criminal case had been registered against the petitioner in 2018, namely Criminal Case No.2300 of 2018, for the offences under

Sections 403, 419 IPC and for the offence under Section 138 of the Negotiable Instruments. The said criminal case was registered at Police Station

Shivan, District Shivan, Bihar.

On 17.03.2021, the learned Judicial Magistrate (Ist Class), Shivan, had issued a production warrant to the police for the production of the petitioner

before the said Court.

However, the respondent no.3 did not take any steps for producing the petitioner before the learned Judicial Magistrate (Ist Class), Shivan.

Therefore, according to the petitioner, his custody in the jail is an illegal one.

Mr. Devang Dobhal, the learned counsel for the petitioner has reiterated the above facts.

However, Mr. J.S. Virk, the learned Deputy Advocate General appearing for the State, submits that the petitioner has been sent to District Shivan

on 15.05.2021. He is due to be presented before the learned Judicial Magistrate (Ist Class), Shivan today, i.e. 17.05.2021. Since the petitioner happens

to be in the police custody, prior to his production before the learned Judicial Magistrate (Ist Class), Shivan, his custody with the police cannot be said

to be an illegal one. Therefore, according the learned Deputy Advocate General, the present Habeas Corpus petition is devoid of any merit.

In rejoinder, Mr. Devang Dobhal, the learned counsel for the petitioner, submits that since the petitioner was directed to be released on bail by order

dated 28.04.2021, yet he was kept in jail till 15.05.2021. His detention in the jail for the said period is an illegal one.

Moreover, while Section 267 of the Code of Criminal Procedure (‘the Cr.P.C.’ for short), deals with a production warrant issued by a Court

during the course of inquiry, trial or other proceeding, Section 270 of the Cr.P.C. directs the Court to return the prisoners to the prison from where he

was brought for his production. Therefore, even now, considering the fact that the petitioner has been granted bail, the petitioner, necessarily, has to be

released on bail.

In reply to the said rejoinder, Mr. J.S. Virk, the learned Deputy Advocate General, submits that Section 270 of the Cr.P.C. also grants

discretionary power to the concerned Court, where the prisoner is being produced under a production warrant, to either send the prisoner back to the

prison, or not to send back, depending on the facts of the case. Therefore, it is not necessary that once the prisoner is produced before the learned

Judicial Magistrate (Ist Class), Shivan, he, necessarily, has to be sent back to the prison at Dehradun.

Heard the learned counsel for the parties and perused the records submitted with the petition.

Admittedly, the petitioner was sent to Shivan on 15.05.2021. He is likely to be produced before the learned Judicial Magistrate (Ist Class), Shivan,

today itself, i.e. 17.05.2021. Therefore, presently, he happens to be in the police custody prior to his production before the learned Judicial Magistrate

(Ist Class), Shivan. Since his custody with the police is in compliance of the production warrant issued under Section 267 of the Cr.P.C., his custody

cannot be said to be an illegal one. In fact, the custody is a legal one.

Hence, this Court does not find any merit in the present Habeas Corpus petition. It is, hereby, dismissed.

No order as to costs.