HET RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) IN this Habeas Corpus Petition the prayer of the petitioner is to declare his detention as illegal and to set him at liberty forthwith.

(2.) AS per the facts stated in the writ petition the petitioner has been taking active interest in politics of State of Rajasthan and he has been prominent labour leader in district Sri Ganganagar. He has also actively associated with the problem of farmers of Sri Ganganagar in particular and whole of Rajasthan in general. He is one of the prominent members of Communist Party of India (Marxists) and has distinction to represent the ASsembly seat of Sangaria. He has been in the forefront of numerous agitations launched by his party during the last four decades. It is further pleaded that in the recent past, petitioner took-up cudgels against the State Government against the State Government in the matter of chaotic water supply to farmers, whose lands lie under Indira Gandhi Nahar Pariyojna, Phase-I, Many representations were made to the Government to case water supply situation. Since petitioner had been acting as the Spokesman of the farmers he became an eyesore for the government of Rajasthan therefore with a calculated design to keep the petitioner away from the peaceful demonstrations made by the farmers, the Government machinery acting with blatant malice, got him arrested under the pretext of apprehending breach of peace. In this context a criminal complaint under Section 107/116 (3)/117 Cr. P. C. was stage managed. The same was submitted in the court of Additional District Magistrate Suratgarh (for short `adm') on October 7, 2006. The learned Magistrate in disregard of mandatory provisions of the law on point issued directions to arrest the petitioner and to produce in Court on October 8, 2006. The petitioner was produced on October 8, 2006 and after empty formality of reading over show cause notice was gone into the petitioner was directed to submit interim bonds to maintain peace till proposed enquiry under Section 116 Cr. P. C. was completed. The petitioner thereafter was locked in jail. Formal orders extending judicial custody remand have been passed on different dates namely October 21, 2006, November 4, 2006, November 18, 2006, December 1, 2006, December 14, 2006, December 28, 2006, January 10, 2007 and January 24, 2007. Significantly on none of these date the petitioner was produced before the ADM. Mandatory requirement of presenting the petitioner in Court before Extending the remand have continuously flouted. Detention of petitioner is per se illegal and wholly without jurisdiction.

(3.) THERE is a difference between Habeas Corpus Ad Subjiciendum and any other Habeas Corpus. The former is a writ of right against which no privilege of person of place can avail. But although a writ of right, it is not a writ of cause, but can only be issued on probable cause. A writ of Habeas Corpus cannot be granted when a person committed to Jail custody by a competent Court by an order which prima facie does not appear to be without jurisdiction or wholly illegal (Kanu Sanyal vs. Distt. Magistrate Darjeeling (AIR 1974 SC 510 ).