Hari Shanker vs State of U.P. and Others

V.M. Sahai and S.P. Mehrotra, JJ.—The present writ petition has been filed, inter alia, praying for issuance of writ, order or direction in the nature of habeas corpus to the Respondents to produce the Petitioner before this Court alongwith record of criminal case, if any, registered against the Petitioner.

It is, inter alia, averred in the writ petition that on 20.6.2008 police personnel came to the shop of the Petitioner at about 1.30 p.m. and enquired about Mukesh, brother of the Petitioner ; and that the Petitioner informed the police personnel that Mukesh had gone for his lunch but the police personnel forcibly took the Petitioner in a vehicle and moved alongwith other persons for Hapur Road ; and that when they reached near Hapur City, the police personnel told the Petitioner to inform his family members that he was in the custody of Rajasthan police ; and that at about 2.30 p.m. the Petitioner informed his father on mobile phone that he had been arrested by the police of Laxmangarh, District Alwar (Rajasthan) and they were going to Laxmangarh. It is, inter alia, further alleged in the writ petition that the father of the Petitioner thereafter repeatedly enquired about the whereabouts of the Petitioner but he could not succeed.

By the order dated 17.7.2008 notices were directed to be issued on the habeas corpus petition.

In response to the notices issued on the habeas corpus petition, counter-affidavit has been filed on behalf of the Respondent No. 4. Another counter-affidavit has been filed by the Respondent No. 5, namely, Mannu Singh, Station House Officer, Police Station Laxmangarh, District Alwar (Rajasthan).

In the counter-affidavit filed by the Respondent No. 5, it is, inter alia, averred that a first information report was lodged at police station Laxmangarh on 31.3.2008 and the same was registered as Case Crime No. 98 of 2008 u/s 380/457, I.P.C. and that in connection with the said first information report, the Investigating Officer went to Meerut on 13.6.2008 and then on 20.6.2008, and made efforts for arrest of the accused persons namely, Mukesh and Hari Shankar (Petitioner) for the offence u/s 412 I.P.C. ; and that during course of his visit to Meerut City, the Investigating Officer went to the shop of the Petitioner and co-accused Mukesh where the shop was found closed and that as such, the Investigating Officer reached the residence of the Petitioner where he met with the father of the Petitioner ; and that the father of the Petitioner informed that the Petitioner, namely, Hari Shankar had gone to Delhi and his other son Mukesh had also gone for holidays with his wife ; and that the Petitioner was arrested for the offence u/s 412, I.P.C. on 25.7.2008 from Inter State Central Bus Stand, Delhi and certain stolen properties were recovered ; and that the Petitioner Hari Shankar was produced before the Magistrate on 26.7.2008 who granted him in police custody upto 30th July, 2008 and thereafter sent him in judicial custody on 30.7.2008 ; and that presently the Petitioner is in judicial custody in connection with Case Crime No. 98 of 2008 registered at Police Station Laxmangarh, District Alwar (Rajasthan) and is confined in District Jail, Alwar.

Alongwith the said counter-affidavit, copy of the first information report has been filed as Annexure-CA1 and copy of the arrest memo in respect of the Petitioner Hari Shankar showing his arrest on 25.7.2008 in Delhi has been filed as Annexure-CA2 to the counter-affidavit. Copy of the recovery memo showing the articles recovered from the custody of the Petitioner at the time of his arrest on 25.7.2008 has been filed as Annexure-CA3 to the counter-affidavit. Copy of the document showing that the information regarding the arrest of the Petitioner was given to the father of the Petitioner on 26.7.2008, has been filed as Annexure-CA4 to the counter-affidavit.

A rejoinder-affidavit has been filed on behalf of the Petitioner. Alongwith the rejoinder-affidavit, copy of a letter dated 18.7.2008 has been filed as Annexure-RA3. By the said letter dated 18.7.2008, Ram Kumar, father of the Petitioner, asked the Superintendent of Police, Alwar (Rajasthan) to supply information to him on various points mentioned in the said letter. A perusal of Annexure-RA3 shows that the said letter was sent from Meerut by speed post.

Copy of a communication dated 25.7.2008 has been filed as Annexure-RA4 to the rejoinder-affidavit whereby the Inspector General of Police (Administration) Rajasthan, Jaipur and Public Information Officer, Police Headquarters, Rajasthan, Jaipur required the Additional Superintendent of Police (Headquarters) and Public Information Officer, District Alwar to do the needful in regard to the information sought by the said Ram Kumar, i.e., father of the Petitioner, in his said letter.

A supplementary counter-affidavit has been filed today by the Respondent No. 5 annexing thereto copies of the entries of various dates in the General Diary.

We have heard Sri Vinod Kumar Rai, learned Counsel for the Petitioner, Shri Sudhir Mehrotra, learned Additional Government Advocate appearing for the Respondents No. 1 to 4 and Sri Vimlendu Tripathi, learned Counsel for the Respondent No. 5 and perused the record.

It is submitted by Sri Vinod Kumar Rai that when the letter dated 18.7.2008 of the father of the Petitioner seeking information regarding the whereabouts of the Petitioner was sent by the Inspector General of Police to Alwar on 25.7.2008, the police showed the arrest of the Petitioner on the same day, i.e., 25.7.2008.

Shri Vimlendu Tripathi, learned Counsel appearing for Respondent No. 5 submits that various documents filed alongwith the counter-affidavit fully establish that the Petitioner was arrested in Delhi on 25.7.2008. It is submitted that general diary entries on 24.7.2008 and 25.7.2008, annexed to the supplementary counter-affidavit filed today, shows that the Respondent No. 5 started from Alwar on 24.7.2008 and arrested the Petitioner on 25.7.2008 in Delhi. The Petitioner is presently in judicial custody pursuant to the arrest made in Delhi on 25.7.2008 and the habeas corpus petition is not maintainable.

We have considered the submissions made by the learned Counsel for the parties.

Various documents filed alongwith the counter-affidavit and the entries in the general diary filed alongwith the supplementary counter-affidavit show that the Petitioner was arrested in Delhi on 25.7.2008 and various articles were also recovered from the custody of the Petitioner. The Petitioner was subsequently produced before the Magistrate on 26.7.2008 at Laxmangarh, District Alwar, Rajasthan, and the Magistrate granted police custody upto 30.7.2008 and thereafter sent him in judicial custody on 30.7.2008. It is further clear from the record that the Petitioner is presently in judicial custody in District Jail, Alwar, Rajasthan in connection with the criminal case mentioned above.

As the Petitioner was arrested in Delhi and was produced before the Magistrate at Laxmangarh, District Alwar, Rajasthan, and he is presently in judicial custody in District Jail, Alwar, Rajasthan, we are of the opinion that the present habeas corpus petition is not maintainable before this Court and is liable to be dismissed on this ground.

The habeas corpus petition is accordingly dismissed as not maintainable. It is, however, left open to the Petitioner to seek remedy before the appropriate forum in Delhi or in Rajasthan.