SUNIL RATANBHAI BHURIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition is filed by one Sunil Ratanbhai Bhuriya claiming that his father Ratan Savabhai Bhuriya is detained in jail by the learned Sessions Judge pursuant to a mistaken identity, and therefore, this writ of habeas corpus is filed by Sunil Ratanbhai Bhuriya requesting the Court to direct respondent no.2 - Odhav Police Station to produce the corpus before the Court and release the corpus forthwith.

(2.) Though at the time of first hearing, petition was not filed alongwith necessary documents and only case status of Sessions Case No.286 of 2022 was produced, on inquiry by the Court, Mr. Joshi, learned advocate for the petitioner submitted that pursuant to a bailable warrant in the said case, he presented himself and orally raised grievance that he is not the accused in this very case or any other case and he is not Ratan Bapubhai Bhuriya, who is facing that case. Pursuant to our query, he produced certain documents alongwith additional affidavit dtd. 12/7/2023 filed by Pankaj Ramchand Singadiya, who has claimed that he is brother-in-law of Sunil Ratanbhai Bhuriya. Alongwith the said additional affidavit, newspaper cutting of Ahmedabad Mirror dtd. 9/7/2023 carrying story about mistaken identity leading to arrest of 'Ratan Savabhai Bhuriya' was annexed with the affidavit. Though copy of the Aadhar Card was produced with the petition, it has been again produced at Annexure 'C' in the additional affidavit. Alongwith the additional affidavit, an application Exh.5 praying for cancellation of warrant having thumb impression and stated to be that of Ratan Bapubhai Bhuriya (Adivasi) dtd. 4/7/2023 in Sessions Case No.286 of 2022 is produced as also the order passed below that application is also produced. He has further submitted that therefore it is the case of illegal detention requiring this Court to entertain the petition.

(3.) After hearing the learned advocate for the petitioner and going through the averments made in the petition as also of the additional affidavit, detailed scrutiny as regards to the averments made in the petition as also additional affidavit is required. As averred in the petition, on 3/7/2023 Pankaj Ramchand Singadiya, who has filed additional affidavit, claims to be son-in-law of the corpus 'Ratan Savabhai Bhuriya', who received a phone call from Odhav Police Station requiring the corpus to remain present before the Court. It is further averred in the petition that on the same date i.e. 3/7/2023 the corpus 'Ratan Savabhai Bhuriya', who was at Uchavariya, Dahod for cultivating his crops, fearing police action left for Ahmedabad. It is further averred that on 4/7/2023 'Ratan Savabhai Bhuriya' remained present before the Court. It is further averred that "it appears that Mr. Bhuriya clarified that he is not Ratan Bapu Bhuriya, who is named as an accused in Sessions Case No.286 of 2022". This averment of the petition appears to be without any basis or support of contemporaneous record. Though corpus 'Ratan Savabhai Bhuriya' claims to be tribal and illiterate, remained present before the Court but did not inquire as to for what purpose he had to come before the Court whereas he filed printed application praying for cancellation of warrant vide Exh.5. Not only that, it bears thumb impression in the name of Ratanbhai Bapu Bhuriya (Adivasi) and reason praying for cancellation of warrant shows that though adjourned dates were informed by the Court and since the summons for appearance was washed off and coming from Dahod while his wife was sick assuring further to remain present on each occasion, he requested for cancellation of bailable warrant. This part of reasons are handwritten in a printed application for cancellation of warrant containing five paragraphs. The claim made in the petition filed by the son of the corpus 'Ratan Savabhai Bhuriya' is that he clarified that he is not Ratan Bapubhai Bhuriya, who is named as an accused, that too, without any contemporaneous record. Not only that, the printed application, Exh.5 praying for cancellation of warrant also does not reflect the same. That application is also not accompanied by any of his photo identity card as it is annexed with this additional affidavit filed by Pankaj Ramchand Singadiya (Adivasi). If application Exh.5 is by corpus i.e. 'Ratan Savabhai Bhuriya', he appears to have misled the Court that he is the accused 'Ratan Bapu Bhuriya' so as to commit him to the custody on his failure even to furnish surety as it was a bailable warrant and in absence thereof, there was no option with the Sessions Judge but to commit him to jail. Even the jail warrant was also issued in the name of 'Ratan Bapu Bhuriya' the accused. At no stage, he ever raised any issue with regard to his own identity to be 'Ratan Savabhai Bhuriya' and not the accused 'Ratan Bapu Bhuriya' as he put thumb impression and that thumb impression is also showing name of Ratan Bapu Bhuriya. The learned Judge is also not enemy of any person, much less, an innocent person so as to send him to jail instead of any other accused despite he disclosed that he is not an accused, who is required in this case. But in absence of any disclosure by a person that he is not the very same person, who is required by the Court pursuant to even a bailable warrant, in absence of fact finding inquiry and conclusion by the competent Court that one who presented himself pursuant to bailable warrant was 'Ratan Savabhai Bhuriya' and not 'Ratan Bapu Bhuriya'. In absence of such disclosure to the Court as he signed the application putting thumb impression on printed application Exh.5 mentioning explanation for not remaining present and issuance of bailable warrant and in absence of production of surety towards the bailable warrant, he is to be committed to the prison, and therefore, there is no illegality in sending him in jail. It is for him to state clearly before the Court, if he can state it before this Court he could have stated it before the Sessions Court when he presented himself on the say of Police as claimed. If he can come out with a plea of mistaken identity, it should have been raised before the Sessions Court. If he claims that he is not the person who is required by the Court as accused, he has to show and prove it. Even according to his averments in petition he appeared before the Court on a phone call from Odhav Police. There is no case pleaded that he ever asked even Police for what he is required at Ahmedabad Court. If he can give printed application Exh.5 filling blanks he can certainly state in it that he is not 'Ratan Bapu Bhuriya' producing his Aadhar card as he has produced it here. On the contrary, he made Court believe that he is accused 'Ratan Bapu Bhuriya' as he put thumb impression in that name. If he is illiterate, he could not have filed printed application with hand written filling blanks as aforesaid. If he has got it filled up through help of some one, he would immediately tell him that he is not having any case against him, requiring to get cancel the warrant. Even he could produce the Aadhar card, as he has produced it before the Court, that he is not the person as required by the Court against whom Court issued bailable warrant.