IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2019 PRESENT :
THE HON’BLE MR.JUSTICE K.N. PHANEENDRA AND THE HON’BLE DR.JUSTICE H.B. PRABHAKARA SASTRY WRIT PETITION (HC) No.36 OF 2019 BETWEEN:
Hassan Aziz Aamir S/o. Mohammed Lukman Khomani, Aged 49 years, R/o. Barh Samaila Village, Lalganj Post, Darbhanga District, Bihar State – 847131. …Petitioner (By Sri. Mohammed Tahir, Advocate) AND:
1. State of Karnataka By Cubban Park Police, Bangalore-560001.
2. Chief Superintendent Bangalore Central Jail Prapannagrahara, Bangalore.
Respondent No.1 & 2 Rep. by State Public Prosecutor, Advocate General Office, High Court Complex, Bangalore-560001.
…Respondents (By Sri. Sandesh J. Chouta, Addl. Advocate General a/w Sri. S.V.Giri Kumar, HCGP) **** This Writ Petition (Habeas Corpus) is filed under Articles 226 and 227 of the Constitution of India praying to issue a writ in the nature of Habeas Corpus directing the respondent No.2 to immediately release the petitioner’s brother i.e. Gauher Aziz Khomani in Crime No.92/2010 (SC No.871/2013), Crime No.93/2010 (SC No.869/2010), Crime No.94/2010 (SC No.870/2010), Crime No.95/2010 (SC No.872/2013), Crime No.96/2010 (SC No.868/2013) and such other direction as this Court deems fit to issue, in the interest of justice and equity.
This Writ Petition (Habeas Corpus), coming on for Hearing this day, K.N. PHANEENDRA, J., made the following:
O R D E R This writ petition is filed by the brother of the detenue by name Gauhar Aziz Khomani (Accused No.5 in S.C.No.871/2013 and other connected matters) for issue of a writ in the nature of Habeas Corpus directing the Respondent No.2 to immediately release the petitioner’s brother, Gauhar Aziz Khomani in Crime No.92/2010 (S.C.No.871/2013), Crime No.93/2010 (S.C.No.869/2010), Crime No.94/2010 (S.C.No.870/ 2010), Crime No.95/2010 (S.C.No.872/ 2013), Crime No.96/2010 (S.C.No.868/ 2013) and to issue such other direction as this Court deems fit to pass in the circumstances of the case.
2. The learned counsel for the petitioner has produced a copy of the judgment of conviction and sentence passed by Court of XLIX Additional City Civil and Sessions Judge [Special Court for trial of NIA Cases] in S.C.No.871/2013 and other connected cases, convicting and sentencing the accused No.5 (present detenue) for various offences.
3. In those cases noted above, the learned Special Judge while giving a finding of concurrent running of the sentences passed against the accused No.5, has observed that, in all the cases, substantive sentence in respect of accused Nos.5, 12 and 13 passed in this case and also in connected cases shall run concurrently, however, they shall be entitled to set-off from the date of their custody as under-trial prisoners in all the cases on hand. Subsequently, another clarification was sought by the Jail authorities with regard to the computation of the period undergone, in order to give set-off from the date of their custody as under-trial prisoners in the said cases. The Court has again by way of clarification wrote a letter dated 02-03- 2019 and also passed an order dated 11-03-2019 as per Annexure F in S.C.No.871/2013.
4. In none of these subsequent orders passed by the Trial Judge, there is absolutely no computation of the period and it once again without there being any specific clarification, thrown the burden on the Jail authorities to follow the provisions of the Jail Manual while giving the set-off.
5. The urge of the petitioner is that, the Jail authorities have not properly computed the period of sentence undergone by the petitioner’s brother in accordance with the Jail Manual. Therefore, they have sought for clarification from the Trial Court.
6. Be that as it may, the above said orders and communication of the clarification on the administrative side by the Trial Court as well as the earlier order of sentence passed in S.C.No.871/2013, the operative portion of which are all virtually called upon before this Court in this Habeas Corpus petition for their interpretation without challenging the said orders and also for computation of the period undergone by the accused by this Court itself. In our opinion, that cannot be done in the Habeas Corpus petition. In fact, the Trial Court ought to have undertaken that particular aspect by issuing specific clarification sought by the petitioner and Jail authorities.
7. Under the above said circumstances, though we are dismissing the Habeas Corpus petition as not maintainable, because this Court requires to consider some of the judicial orders which are not being challenged in the proper form, we direct the petitioner to approach the Trial Court once again with necessary application for specific clarification. In that eventuality, the Trial Court is directed to secure the computation by both parties and pass appropriate orders after computing the period in accordance with the order passed by it in S.C.NO.871/2013 dated 09-07-2018 and in other cases also.
The said application, if any filed, shall be disposed of as expeditiously as possible.
With the above observations, the writ petition stands dismissed.
Sd/- JUDGE Sd/- JUDGE BMV*