RAJU Vs. STATE OF M P

JUDGEMENT

(1.) THIS is a petition under Article 226 and 227 of the Constitution of India filed by the three petitioners, namely Raju alias Raj Kumar, Santosh and Mahesh for issuance of a writ of Habeas Corpus on the following averment:

(2.) ALL the three petitioners were arrested on 6 -4 -1989 by Gama Police, in crime No. 240/89 for an alleged offence under Section 376/34 of the Indian Penal Code. They were produced before the Chief Judicial Magistrate, Jabalpur, who by a warrant issued on 7 -4 -1989 remanded them to judicial custody till 20 -4 -1989. Thereafter on 20 -4 -1989 as well in on several subsequent dates, the petitioners were produced before the Chief Judicial Magistrate who grant a judicial remands from time to time in the absence of the petitioners and, therefore, it is alleged that their detention is illegal and they are entitled to be set at liberty by issuance of a writ of Habeas Corpus.

(3.) SHRI R.K. Swamkar, learned Counsel for the petitioners, placing his reliance on the provisions contained in Clause (b) of sub -section (2) of Section 167 of the Code of Criminal Procedure (Act No. 2 of 1974), 1974 (for brevity, referred to as the 'Code'), vehemently urged before us that if the Police or judicial remand is granted by any Magistrate authorised to do so, without the accused being physically produced before such Magistrate, the remand and detention of the accused, both will be illegal, and the accused would be entitled to be set at liberty by a writ of habeas corpus. He submitted that in the present case none of the petitioners were produced before the Magistrate on various dates as stated above on which the judicial remands were granted and, therefore, their detention is illegal arid they deserve to be set at liberty. This argument was sought to be supported by two Single Bench decisions of this court rendered in Subhash v. State of M.P.1 and Satish & another v. State of M.P.2. As against this, Shri B.P. Singh, learned Government Advocate, appearing for the respondent/State submitted, that there are occasions when the physical production of the accused becomes impossible on account of the non -availability of the escorts and for that reason the order of remand does not become illegal.