YOGESH Vs. STATE OF M P

JUDGEMENT

(1.) THIS petition seeking writ in the nature of Habeas Corpus has been filed under Article 226 of the Constitution of India by the petitioners, inter alia contending that the detention of petitioners by the police officers with effect from 28-8-2012 without conducting magisterial inquiry in view of the notification Annexure, P/1 F-16/266/license/96/B/(l) (two) dated 11-6-1996 issued by the Home Department is arbitrary and not permissible under the law. Therefore, a direction to release the corpus may be issued.

(2.) THE facts, in brief are that, on 28-8-2012 at about 6.30 A.M., petitioners along with Ranger Virendra Singh Tomar, Dy. Ranger Baburam Adiwasi, Hari Singh Forest Guard and Abhishek Singh decided to go on patrolling and to visit of compartment No. 144 of reserve forest together with the picket of SAF personnels as directed by the Chief Conservator of Forest Gwalior circle Gwalior vide order dated 6-7-2012 to procure law and order situation. In the said picket, Prakash Chand Jhala No. 77, Shakti Singh Sikarwar No. 341 and Umesh Vishwarma No. 810 accompanied them. At about 7.30 A.M., the patrolling party came across with several forest offenders who were 30-40 in number and some of these persons were habitual offenders, as several criminal cases have been registered against them under different sections as per list produced at Annexure P/4. Those offenders want to fetch wood illicitly in forest are of the said compartment. These persons were armed with deadly weapons and they made the attack on the patrolling party. At that time, Dy. Ranger gave command to the SAF personnels to resort to open fire in the air so that the offenders may be dispersed and run away. In the said attack made by the offenders, members of patrolling party Harishankar Sharma and two others unarmed forest guards were injured. In such circumstances, SAF personnels opened fire on the assaulting mob of offenders below the waist, wherein, two offenders namely Jaheer and Ismail received injuries on the thigh and foot region. Injured Ismail was immediately sent to Hospital for treatment where he succumbed due to bullet injuries. Whereupon, PS Sheopur registered a case at Crime No. 441 of 2012 under sections 147, 148, 149 and 307, Indian Penal Code, later on section 302, Indian Penal Code was added against the petitioners as well as two other forest officers. While on the report submitted by Dy. Ranger, offence was also registered at Crime No. 442 of 2012 under sections 353, 186, 147, 148, 149, 427, 294, 332 and 323, Indian Penal Code against the said offenders and when forest officers went to lodge the report, they were detained by the police authorities and produced before the Chief Judicial Magistrate, Sheopur. As per order passed by him petitioners were sent to judicial custody.

(3.) THE respondents by filing their reply have averred that at present, the petitioners are in custody as per the order passed by the Court after registration of the case against them; therefore, writ in the nature of habeas corpus is not maintainable. It is further submitted that in the FIR lodged against the petitioners, specific allegations have been levied against them, therefore, the offence has rightly been registered and they were sent to judicial custody by the order of Chief Judicial Magistrate. It is further submitted that the petitioners have also filed bail applications bearing M.Cr.C. Nos. 6956 of 2012, 6957 of 2012 and 6958 of 2012 which are pending for consideration. In such circumstances, since the petitioners have already taken recourse of law, therefore, release of petitioners in the writ of habeas corpus cannot be directed. It is further contended that as per section 41 of Criminal Procedure Code police officer conferred with the power to make arrest of a person even without order from the Magistrate in a case where cognizable offence has been committed. However, the powers so conferred under the Criminal Procedure Code cannot be taken away by way of notification Annexure P/1 issued by the respondents. Therefore, detention of the petitioners cannot be treated to be illegal detention and the writ in the nature of habeas corpus may be dismissed.