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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
C. PRAVEEN KUMAR, M. SATYANARAYANA MURTHY, JJ.
Ahamed Riswan - Appellant
Vs.
State of Andhra Pradesh and Ors. - Respondents
WP No. 45762 of 2018
Decided On : 29-03-2019
Constitution of India, 1950 – Article 226 – Appeal against Conviction – Seeking directions to produce detenue – Whether detention order is illegal – Seeking Issuance of writ of habeaus corpus – Held, Petitioner involved in number of crimes relating to theft and illegal transportation of red sander logs cut in Simhachalam Forest – Though he was detained under preventive detention laws, his detention order was set aside on technical ground – Fact remains that he is shown as an accused in number of crimes in different police stations of State – Steps are being taken for his production in almost all police stations through PT warrant before Concerned Courts – He sought for issuance of habeas corpus holding that remand is illegal no order is placed on record evidencing remand under Section 267 Cr.P.C – It is also to be noted that petitioner questioning his detention without remand, as illegal, was dismissed, holding that when prisoner is detained pursuant to judicial order passed by Magistrate, one cannot term such detention, as illegal, as there is distinction between illegal custody and custody made in pursuance of judicial orders – Unless judicial orders are set aside, petitioner cannot be released holding his detention as illegal and improper – Therefore, issuance of writ of habeas corpus would not arise when remands are made pursuant to a judicial order – Writ petition dismissed (Para 24, 26 and 27)
Facts of the Case:
Present writ petition came to be filed seeking issuance of writ of habeas corpus, directing respondents to produce A.T. Maideen (hereinafter called 'detenue') before this Court and set him at liberty as his continued incarceration is not authorized by law.
Findings of the Case:
Petitioner involved in number of crimes relating to theft and illegal transportation of red sander logs cut in Simhachalam Forest – Though he was detained under preventive detention laws, his detention order was set aside on technical ground – Fact remains that he is shown as an accused in number of crimes in different police stations of State – Steps are being taken for his production in almost all police stations through PT warrant before Concerned Courts – He sought for issuance of habeas corpus holding that remand is illegal no order is placed on record evidencing remand under Section 267 Cr.P.C – It is also to be noted that petitioner questioning his detention without remand, as illegal, was dismissed, holding that when prisoner is detained pursuant to judicial order passed by Magistrate, one cannot term such detention, as illegal, as there is distinction between illegal custody and custody made in pursuance of judicial orders – Unless judicial orders are set aside, petitioner cannot be released holding his detention as illegal and improper – Therefore, issuance of writ of habeas corpus would not arise when remands are made pursuant to a judicial order
Result: Writ petition dismissed
C. Praveen Kumar, J.
1. The present writ petition came to be filed seeking issuance of writ of habeas corpus, directing the respondents to produce A.T. Maideen (hereinafter called 'detenue') before this Court and set him at liberty as his continued incarceration is not authorized by law.
2. The contents of the affidavit, filed in support of the writ petition by the son of the alleged detenue, are as under:
(a) The detenue, who is a resident of Chennai, was arrested by the 6th respondent/Station House Officer, Mydukur Police Station, Kadapa District on 24.8.2017 in Crime No. 452 of 2017 registered for the offences punishable under Sections 147, 148, 379, 307, 353, 332, 120-B, 417, 468, 471, 109 read with Section 149 IPC and Section 20(1)(c), (ii), (iii), (iv), (vi), (x) of A.P. Forest (Amendment) Act, 1967, Section 20(d), (i), (a), (b), (ii), (a), (b) of A.P. Forest (Amendment) Act, 2016, Rule 3 of A.P. Sandal Wood & Red Sanders Wood Transit Rules, 1969, Section 29(2)(b) of A.P. Forest (Amendment) Act, 2016 and Section 3 of PDPP Act, 1984. Later he was granted bail on 5.3.2018 vide Crl. MP No. 645 of 2018. It is stated that the detenue was remanded to custody in two other cases i.e., Cr. No. 432 of 2015 of Mydukur Police Station and Cr. No. 32 of 2016 of Railway Kodur Police Station. When the detenue was a remand prisoner, the District Magistrate, Kadapa District passed an order of detention in CI/170/M/2018 dated 19.3.2018 under Act 1 of 1986. But the said order was set-aside by the Hon'ble High Court on 17.7.2018 vide WP No. 14693 of 2018. Subsequent to the quashing of the detention order, the detenue furnished sureties as he became entitled to set at liberty in Cr. No. 452 of 2017. It is stated that the detenue also applied for bail in the remaining two crimes i.e., Cr. Nos. 432 of 2015 and 32 of 2016 and got bail vide Crl. MP No. 2262 of 2018 and Crl. MP No. 1290 of 2018 respectively. The detenue is said to have been in custody though it is alleged that no arrest was shown in any other case. While so, the detenue was shown as an accused in number of cases in Kadapa District but without showing arrest was produced before the respective Magistrate Courts under PT warrants. Questioning the said act, the petitioner filed a writ of habeas corpus before the erstwhile common High Court vide WP No. 29887 of 2018 which was disposed on 27.9.2018 giving liberty to question such orders in appropriate proceedings.
(b) Pursuant to the said order, the detenue filed a petition to recall PT warrant vide Crl. MP No. 4418 of 2018 and the same was dismissed by the learned Magistrate, stating that it is not maintainable as he became “functus officio” and has no power to recall the PT warrant already issued. It is stated that when the accused is produced pursuant to a PT warrant, the learned Magistrate remanded him to judicial custody, which act was done despite a written objection, stating that he has no such right or there is no formal arrest in the crime. After getting bail in Crime No. 96 of 2017, the respondent again applied for PT warrant stating that he was in remand in Cr. No. 168 of 2017. Despite written objection, the learned Magistrate ordered production of the detenue under PT warrant in a new case i.e., Cr. No. 149 of 2017 stating that he is under judicial custody in Cr. No. 168 of 2017.
(c) The contents of the petition affidavit further show that the police appeared to have registered about 60 crimes against the detenue alongwith several persons as accused and there are about 50 to 100 accused in each case. It is also stated that the detenue was shown as an accused without attributing any specific role except making vague allegations stating that he is a kingpin or at his instigation red sanders trees were cut. Hence, the petitioner contends that if the police are allowed to adopt this tactics, the detenue will not be in a position to come out of the Jail.
3. It is urged that the PT warrant under Section 267 is not and cannot b
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