Arindam Sinha, J.
1. Mr. Rayaguru, learned advocate appears on behalf of applicant/petiitioner, who is in custody. He submits, though his client has appplied for change of nomenclature puursuant to report made by thee Stamp Reporter that the writ pettition should be registered as CRLMP but, this Bench under assignnment entry no.1 should deal with the writ petition. The entry is reprooduced below.
“1. Writ Petitions relating to Habeaas Corpus, Prevenntive Detention and parole.”
He relies on judgment dated 9th February, 2023 of a co-ordinate Bench in WPCRL no.93 of 2022 (D. Anita Majjhi @ Mila and others v. State of Odisha and others) for his conteention.
2. Mr. Sharma, learned advocate, Additionnal Government Advocate appears on behalf of State and submits, the application for change of nomenclature be allowed and petitioner referred to the Bench havingg assignment. He draws attention to obbservations made in this writ petition on 5th December, 2023 by anoother co-ordinate Bench. The observations made in order dated 5th December, 2023 are reproduceed below.
“Learned counsel for the petitioner needs some time to file an interim application for converrsion of this WPCRL to CRLMP.
Put up this matter immediately after the interim applicaation filed. In the meantime, copy of the WPCRL and the interim application be served on the learned counsel for the State.”
He submits further, prayer made by applicant in his writ petition also indicatees subject matter of it to fall undeer nomenclature CRLMP.
3. We have perused, inter alia, paragraphs 11 too 13 of D. Anita Majhi (supra). The co-ordinate Bench had relied on, inter alia, judgment of the Supreme Court in Manubhai Ratilal Patel Tr. Ushaben vs. State of Gujarat, reported in (2013)) 1 SCC 314 for declaration thhat unless the writ Court is satisfied a person has been committed too jail custody by virtue of an order that suffers from vice of lack of jurisdiction or absolute illegality,, writ of habeas corpus cannoot be issued. Having done so, the co-ordinate Bench was of considdered view that the case before it was not one where a writ of habeas corpus could be issued but petitiooners being poor tribal ladies caused said Bench to exercise extra ordinary power of discretion under article 226 in the Constitution.
4. On query from Court Mr. Rayaguru submitts, his client has been in custoody for long 9 years as an under trial in 131 cases. Of them, he has been acquitted in 89 cases. These are the circumstances of violation of his client’s fundameental right to life and liberty, bringing his case within four corners of view taken in D. Anita Majhi (supra).
5. Applicant continues to be an undertrial in thhe cases pending against him. On query we ascertained, an appeal haas been preferred against his coonviction and sentence of life imprisoonment in one of the cases. Thhe appeal is pending before the Bencch of this Court having assignnment. Where petitioner is in custody as an undertrial and a convictt, it cannot be said that thereby his funddamental right to life and libeerty has been infringed, to persuade us to exercise discretion in directing his production for purppose of release. D. Anita Maajhi (supra) is of no aid to petitioner. Facts in this case prevent exerccise of extra ordinary writ power of discretion within the roster asssignment as will also create multipllicity of judicial proceedings.
6. For reasons aforesaid Registry will take steps to forthwith cause change of nomenclature and place the writ peetition before the Bench havingg assignment.
7. The application is disposed of.
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