HARASA GHADEI Vs. STATE OF ORISSA

JUDGEMENT

(1.) DOES an order of commitment with a direction to the Superintendent of jail to produce the accused before the Court of Session as and when required by the Sessions Court, amounts to illegal detention, only on the ground that the learned Magistrate had not remanded the accused to custody, is the question which needs to be answered in this case.

(2.) THIS petition for issuance of a Writ of Habeas Corpus is filed by one Haras Ghadai on behalf of her son Mukunda @ Babaji with a prayer to declare the detention of her son as illegal and not in accordance with law and to direct his release. Mukunda @ Babaji was arrested in G.R. Case No. 366 of 2008 of the court of learned JMFC, Pipili, for alleged commission of offences under Sections 341, 376, 294, 506/34, IPC. He was produced before the learned SDJM on 5.11.2008 along with the forwarding report and other relevant documents like statements recorded under Section 161, Code of Criminal Procedure, seizure list etc. The petition filed on behalf of the accused to release him on bail was rejected mainly on the ground that the offences alleged against the accused were triable by the Court of Session. Learned Magistrate after ascertaining that he had not been ill -treated by the police while in custody remanded him to jail till 8.11.2008. Thereafter, the accused was produced on several dates and was also remanded to custody with a direction to produce him before the court on a given date. The police after completion of investigation submitted it charge -sheet on 3.3.2009 and the learned Magistrate after perusing the materials on record and on being prima facie satisfied that offence under Section 366, 376, 342, IPC has been made out and that there are materials to proceed against the accused, took cognizance of the said offence.

(3.) ACCORDING to Mr. Sarangi, learned Counsel for the Petitioner, as the learned JMFC, after committing the accused to the Court of Session has sent him to jail without an order of remand, the custody becomes illegal and contrary to law and as such, the petition for habeas corpus should be allowed and the accused should be released forthwith. In support of such contentions, Mr. Sarangi relies upon the decision reported in the case of Durel Behera and Ors. v. Suratha Behera and Anr., 1987 Cri.L.J. 1462.