Allegations Of Custodial Torture Levelled By An Undertrial Not Ground To Assume Similar Treatment Meted Out To Related Accused: Calcutta High Court

The Calcutta High Court on Monday refused to issue a writ of Habeas Corpus at the instance of the petitioner by opining that the allegation of custodial torture against another accused in a different case cannot ipso facto raise presumption in the mind of the Court that custodial torture is being meted out to the petitioner as well.

A Bench comprising Justice Sabyasachi Bhattacharyya and Justice Ajoy Kumar Mukherjee was apprised by the counsel for the petitioner that he has been in custody since 2008 however subsequent cases have been lodged against the petitioner. The Bench was further informed that one of the accused persons in another case, in connection with which the petitioner was taken in custody as well, suffered from custodial torture. Thus, it is anticipated that the petitioner might also be undergoing custodial torture.

On the contrary, the counsel appearing for the State submitted that the petitioner has fled from custody while being taken to the police remand as per direction of the concerned Court.

Pursuant to the rival submissions, the Court opined that there is no material on record to support the apprehension of custodial torture being meted out to the petitioner and accordingly held, 

"..we do not find from the materials on record any scope of presumption or apprehension of custodial torture against the petitioner. In fact, the mere incident of alleged custodial torture against another person who has been in custody, being the accused in a different case (a near relative of the petitioner, namely Md. Ali @ Subrata Byne), cannot ipso facto raise presumption in the mind of the court regarding the custodial torture of the petitioner as well."

The Bench further observed that since there is specific allegation of the petitioner having fled from police custody, it would not be prudent to issue a Writ of Habeas Corpus, which is a prerogative writ, at the instance of the petitioner.

It was also noted that since the petitioner was already in custody at the juncture when he fled, thus there arises no question of illegal detention of the petitioner. It was also observed that it is evident that the trial court directed remand of the petitioner to police custody, which negates the scope of the petitioner having been illegally taken in custody.

Accordingly, the plea was dismissed. 

Case Title: Hafija Laskar v. The State of West Bengal and others

Case Citation: 2022 LiveLaw (Cal) 217

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