Disposed

Mokhtar Ansari v. State of U.P. and Another

Allahabad HC11 Jan 2022HABC/717/2021

Case brief

AI extract

What is this about?

This judgment dismissed two habeas corpus petitions challenging the illegal detention of a petitioner under the U.P. Gangsters Act. The Court observed that the petitioner had not approached the trial court earlier. It directed the petitioner to approach the trial court within two weeks to prove the period served, which would allow the court to order release if the maximum term was exhausted. Both

What did the court decide?

Petitioner directed to approach concerned trial court within two weeks with applications and copy of order; trial court to act expeditiously.

Mokhtar Ansari Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2022)

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Court No. - 46

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Case :- HABEAS CORPUS WRIT PETITION No. - 717 of 2021

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Petitioner :- Mokhtar Ansari Respondent :- State of U.P. and Another Counsel for Petitioner :- Upendra Upadhyay Counsel for Respondent :- G.A.

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AND

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Case :- HABEAS CORPUS WRIT PETITION No. - 727 of 2021

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Petitioner :- Mokhtar Ansari @ Mukhtar Ansari Respondent :- State of U.P. and Another Counsel for Petitioner :- Upendra Upadhyay Counsel for Respondent :- G.A.

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Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Mrs. Sadhna Rani (Thakur),J.

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As the issue raised in the above noted Habeas Corpus Writ Petitions is one and the same, we have heard them together and they are being decided by this common judgement.

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Heard Sri Upendra Upadhyay, learned Advocate for the petitioner in both the connected Habeas Corpus Writ Petition and Sri M.C. Chaturvedi, learned Additional Advocate General assisted by Sri Rishi Chaddha, learned Additional Government Advocate for the respondents.

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The Habeas Corpus Writ Petition No. 717 of 2021 has been filed to seek declaration that the present detention and remand of the petitioner in Case Crime No. 1051 of 2007 under Section 3 (1) of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 registered at Police Station Muhammadabad, District Ghazipur is illegal and further that the Jail Superintendent, District Jail, Banda be directed not to treat the petitioner under custody in the aforesaid case crime number. Similar prayer has been made in the connected Habeas Corpus Writ Petition No. 727 of 2021 with respect to Case Crime No. 891 of 2010 under Section 3 (1) U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 registered at Police Station Dakshin Tola, District Mau.

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It is argued by the learned counsel for the petitioner that the petitioner has been lodged in jail as undertrial in Case Crime

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No. 1051 of 2007 on 27.05.2009 and since then he is continuously in jail. The total period of sentence under U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 is maximum ten years. The further detention of the petitioner in the aforesaid criminal case in prison beyond the period of maximum sentence is illegal. Similarly, in Case Crime No. 891 of 2010, it is contended that the petitioner has been detained on 09.09.2011 and the period of sentence being ten years under U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, in the said criminal case also, the petitioner had served the maximum period of sentence as undertrial. The contention, thus, is that the custody warrant issued under Section 309 Cr.P.C. by the concerned Court has become a routine exercise without taking note of the above fact. In any case, the petitioner cannot be detained in the above noted two criminal cases lodged under U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986. A direction, thus, may be given to the Superintendent, District Jail, Banda to take note of this fact and the concerned trial court be directed to take remedial measures.

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Learned counsel for the petitioner has placed the provisions of Sections 428 and 436A Cr.P.C. to substantiate his argument that the period of undergone, i.e. imprisonment during trial is to be counted in the total period of sentence and the accused after conviction can be detained in jail only for the remainder of the period. The reference to para - '439' of the Jail Manual has also been made to assert that it is the duty of the Jail Superintendent to report to the trial court in case an undertrial remains in jail for unduly long period.

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Learned A.G.A., on the other hand, made submission regarding maintainability of the habeas corpus petition with the contention that since the petitioner is in detention under judicial orders, his detention cannot be said to be illegal and the habeas corpus petition cannot be maintained. It is contended that the petitioner has been lodged in District Jail, Banda on account of various criminal cases (14 in number) lodged against him. The contention is, thus, that the custody warrant issued for detention of the petitioner in jail cannot be said to be invalid.

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Considering the submissions of the learned counsel for the petitioner and the contention of learned A.G.A., we may note that the issue as to whether the petitioner has served the maximum period of sentence in Case Crime No. 1051 of 2007 and Case Crime No. 891 of 2010 under U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 is required to be brought to the notice of the concerned trial court, who will be in a better position to appreciate the arguments of the petitioner after making the factual enquiry with regard to date of his

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detention in the above noted criminal cases. It is admitted fact that before filing of the present habeas corpus petition the petitioner has not approached the trial court by writing any application himself or through the Jail Superintendent, Banda.

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For the aforesaid, we propose to dispose of both the habeas corpus petitions with the only observation that the petitioner may approach the concerned trial court(s) by moving proper applications bringing to their notice all the facts stated in the instant habeas corpus petitions.

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In case, such applications are moved within a period of two weeks along with copy of this order, the concerned trial court(s) shall take necessary action and pass appropriate order(s) in accordance with law, as expeditiously as possible, preferably within a period of six weeks from the date of the said applications.

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With the above observations and directions, both the habeas corpus writ petitions are disposed of .

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Order Date :- 11.1.2022 gp

Mokhtar Ansari v. State of U.P. and Another

Case brief

What is this about?

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Mokhtar Ansari v. State of U.P. and Another

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