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Arvind Singh Chauhan (advocate)     25 June 2010


Generally it is seen. when the police seeks remand, magistrate grants without looking the legality and without carefully checking the case diary.

                                                            One of my client was caught was with "Jangali Lahsun" (Alium Atrachiyi). He is the resident of high altitude of himaliya and collection and cultivating herbs is their main source of bread. Police sought remand that it was removed from reserve forest. Remand was granted under Section 26 Indian Forest act. At the time of hearing my argument was, police is unable to show that collection of this herb is prohibited illegal under particular law. They only says that it was removed from reserve forest. even police does not know the botanical name of this herb or it's use and unable to say that this area comes under reserve forest. my bail application was rejected.

                                                              My question is that if without any prima facie proof of offence court grants judicial remand. What is the remedy against such baseless remand order and illegal detention specially against officer granting such remand believing on the story of police.


 9 Replies

Adv.Aiyer VLV (Proprietor)     25 June 2010

Writ in High Court


Suchitra. S (Advocate)     26 June 2010

And, we students even after completing 3years of LLB have to prove we are fit to be an advocate to argue in front of judges like this....   :(

adv. rajeev ( rajoo ) (practicing advocate)     26 June 2010

File a writ..

Vijay Kumar (Advocate)     26 June 2010

No righteous thinking professional,howsoever senior he may be, claims himself to be perfect. The concern and the resultant query of Mr. Arvind is a genuine one. Regards.

Dharmesh Manjeshwar (Advocate/Lawyer)     26 June 2010

Problem is we do not have Magistrate's with guts ... 

P.K.Haridasan (Advocate)     26 June 2010

Please take up the matter in writ jurisdiction of High Court.  We cannot blame the Magistrate. He is not supposed to know all facts and legal position. In such condition there should be an elaborate argument. It is easy to give anybody to police custody, as you said .We, advocates expect  only  matured judicial approach from the judiciary but normally not done so.   The question involved  is anything picked or served from Forest area  will come under Forest act. Will all herbs and Shrubs grown can be treated as wood and timber? etc. etc.  


What Mr. Arvind is saying one example.  He is highlighting the routine attitude and mechanical approach of the court of Magistrate, which has got the EXCLUSIVE  power to grant either bail or to send the accused to police custody or judicial custody  at the first instance.  It is not only on the first date of hearing but in subsequent dates also, if the accused could not engage the advocate, the magistrate sends him to judicial custody date after date till the trial is over in a routine manner, without explaining him of his right to get bail.  In some cases, the poor citizens spend more time in jail than the period prescribed for the offence with which they are accused.  Justice Krishna Iyer, while delivering land mark judgment (I cannot remember citation) for granting statutory bail under Section 167 (2) of Cr.P.C. highlighted the attitude of the magistrates, while dealing the matters at the pre stage and during trial stage.


The writ cannot be effective remedy because, once the writ is filed (which is one of the most difficult things for the poor person to approach High Court and engage an advocate there), High Court takes its own time to give its order and the meantime the precious right of liberty of citizen is taken away for a few more days.  the appropriate course is that the magistrates have to take more seriously of the right of liberty of the citizens in proper spirit.  the bar's role cannot be ignored in these issues.   

Vijay Kumar (Advocate)     27 June 2010

The view expressed by Mr.Prabhakar is very much correct and pragmatic.

Arvind Singh Chauhan (advocate)     28 June 2010

Thanks to all LCI members to share my pain and frustration.

It is regretfull that what is going on shows, that one day we have to prove that  "I didnt do this". Burden has shifted from prosecution to defence from the very bigining.

It is also regretfull that lots of valuable herbs and medicinal plants grows in our forest and finished after particular period, forest department or government don't care, but if anybody collect or cultivate, it is called forest produce and put behind the bar, even without showing that it's cultivation or collection barred under such and such law. Courts also seems to be helpless.

                                                                                  Altimately citizens are compelled to adopt  " JAISI DHAPLI WAISA RAG"

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