ANASUYA GANAPATI HEGDE Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS Writ Petition of (Habeas Corpus) is filed by the petitioner who is the mother of detenue for issuing a writ of Habeas Corpus to the respondents to produce her son Atmendra and set him at liberty forthwith.

(2.) THE brief facts of the pase are that the accused is the son of the petitioner herein. A case in Crime No. 190/1986 was registered against the accused under Section 302 r/w Section 34 I. P. C. and under Section 27 of the Indian Arms Act, by the Sirsi Police Station. The said case was registered as CC No. 197/1987 on the file of the i Addl. JMFC, Sirsi. After committal, it was registered as S. C. No. 5/ 1987 on the file of the Sessions Judge, at Karwar. The Sessions court, after trial, acquitted him and another by its Judgment dated

(3.) 9. 1987. The State filed Criminal Appeal No. 17/1988 before this Court against the Judgment of the Sessions Court, Karwar. This court, after hearing the parties, reversed the judgment of the sessions Court and convicted the accused of the offence for which he was charged and sentenced him to undergo imprisonment for life for the offence under Section 302 IPC and further sentenced him to Rl for one year and to pay a fine of Rs. 200/- and in default to suffer further R. I. for two months for the offence under Section 27 of the Arms Act, by Judgment dated 23. 4. 1992. Assailing that, judgment, the accused filed an Appeal before the Supreme Court. In the meanwhile, he surrendered before the third respondent on 26. 5. 1992, in pursuance of the judgment of this Court convicting him for the offences and sentencing him to undergo life imprisonment and other sentences. Thereafter, he filed bail petition before the supreme Court. The Hon'ble Supreme Court, vide its order dated 27. 8. 1992 granted him bail and he was enlarged on bail. Thereafter, the Supreme Court dismissed the appeal confirming the judgment of this Court dated 23. 4. 1992. Against that judgment, the review petition was filed by the accused, which was also dismissed. Thereafter the Registrar of the Hon'ble Supreme Court, sent a certified copy of the formal order dated 31. 3. 98 of the Supreme Court and after receipt of the same by the Sessions Court, Karwar the arrest warrant was issued against the accused and he was arrested and now he is in jail undergoing imprisonment in pursuant to the judgment of this Court passed in the State Appeal. 2. This Habeas Corpus petition is fi. led by the mother of the accused contending therein that the arrest warrant is not issued as contemplated under Section 418 of the Cr. P. C. by the convicting and sentencing Court. Therefore, the arrest warrant issued by the sessions Judge, arresting him and putting him in the custody is illegal and therefore it has violated the liberty and life of the accused as envisaged in Article 21 of the Constitution of India. Therefore, it is contended that the accused is entitled to be set at liberty forthwith. 3. The learned Counsel Mr. C. V. Nagesh for the petitioner has contended that as provided under Section 418 Cr. P. C. , the convicting and sentencing Court, namely this Court can only issue the arrest warrant and nc other Court can issue the same for arresting the accused and detaining him in the Jail to undergo the sentence as awarded by this Court in its Judgment. Therefore, the arrest warrant now issued by the Sessions Judge, Karwar in pursuant to the communication received from the Registrar of the Supreme Court after dismissal of the Appeal filed by the accused is illegal and void. He has secondly contended that while the Hon'ble Supreme Court of India has disposed of the appeal, neither in the operative portion of the Judgment nor in the course of the judgment, has observed that the bail granted to the accused is cancelled by the Apex Court as required under Section 441 of the Cr. P. C and he was further directed to surrender or be taken to the custody by the third respondent to undergo the sentence awarded in the Appeal by this court. When there is no specific order passed to that effect by the hon'ble Supreme Court, the same cannot be now substituted by the sessions Judge, in the Judgment, which amounts to altering the judgment of the Supreme Court, which is not within the purview of the sessions Court and therefore the action of the Sessions Judge in issuing the arrest warrant against the accused and detaining him in the jail to undergo imprisonment is without jurisdiction. Since the hon'ble Supreme Court of India has not cancelled the bail bonds and directed the accused to surrender to the Court for undergoing the sentence awarded against him, there is no other provision in the Cr. P. C. providing that the accused should be taken into custody or put him in jail by the Sessions Court, to undergo the sentence awarded, as such, he is entitled to be set at liberty immediately, as the arrest of the accused and detaining him in the fourth respondent jail is illegal and unlawful. Therefore the learned Counsel for the petitioner would submit that the lacuna in the judgment of the supreme Court cannot be filled either by the Registry of. the Supreme court or the Sessions Court. Therefore, the learned Counsel for the petitioner has prayed for allowing the Writ Petition by granting the reliefs as prayed.