Wa0089.
Wa0089.
Wa0089.
Reserved
Court No. - 45
“(i) Issue a writ, order or direction in the nature of writ of Habeas Corpus
commanding and directing the respondents to produce the corpus before this
Hon’ble Court and set them at liberty forthwith.
(ii) Issue a writ, order or direction in the nature of writ of Habeas Corpus
commanding and directing the respondents may also be directed to satisfy
this Hon’ble Court for the illegal detention of the petitioners.”
of murder of one Umesh Pal, who was eye witness in the murder
case of Raju Pal, wherein father of the petitioners Ateek Ahmad
and real uncle Khalid Azeem @ Ashraf are main accused has also
been disclosed with a categorical statement that the petitioners
are not accused in the aforesaid crime and copy of the first
information report has been annexed as Annexure-1 to the
petition.
murder case and her sons petitioner nos. 1 and 2 herein were
found in Chakia Kasari Masari area and they have been sent to
Child Protection Home on 2.3.2023. Annexure-4 to the
supplementary affidavit is a copy of the application moved by
Shaishta Parveen on 6.3.2023, wherein prayer was made that
Police Station Dhoomanganj be directed to inform about the report
from the Child Protection Home. A copy of the order-sheet of the
court of Chief Judicial Magistrate, Allahabad from 28.2.2023 to
20.3.2023 has been annexed as Annexure-5 to the supplementary
affidavit. A copy of the order dated 21.3.2023 passed by this Court
in Criminal Misc Writ Petition No. 4003 of 2023 (Khalid Azeem @
Ashraf vs. State of U.P. and others) is also annexed, which to our
mind, is not relevant for the purpose of considering present
petition in hand as the same relates to the relief that were being
claimed by the petitioner-Khalid Azeem @ Ashraf (real uncle of the
petitioners) exclusively for himself only.
10. Replying to the same, learned counsel for the petitioners Sri
D.S. Mishra, learned Senior Counsel submitted that as there is a
violation of Article 21 of the Constitution of India, therefore,
existence of alternative remedy would not be a bar.
“Habeas corpus” is a Latin term. It means “have the body”, “have his body”
or “bring the body”. By the writ of habeas corpus, the court directs the person
(or authority) who has arrested, detained or imprisoned another to produce
the latter before it (court) in order to let the court know on what ground he
has been arrested, detained, imprisoned or confined and to set him free if
there is no legal justification for the arrest, detention, imprisonment or
confinement.
“97. Search for persons wrongfully confined.- If any District Magistrate, Sub-
divisional Magistrate or Magistrate of the first class has reason to believe that
any person is confined under such circumstances that the confinement
amounts to an offence, he may issue a search-warrant, and the person to
whom such warrant is directed may search for the person so confined; and
such search shall be made in accordance therewith, and the person, if found,
shall be immediately taken before a Magistrate, who shall make such order as
in the circumstances of the case seems proper.”
35. We further find that a clear stand taken by the State is that
the petitioners have been lodged in Child Protection Home,
therefore, prima facie, a genuine presumption can be raised that
the machinery under the provisions of the Juvenile Justice (Care
and Protection of Children) Act, 2015 has been put into motion.
Therefore, present petition would not be maintainable in view of
the judgment of Full Bench of this Court in the case of Rachna
(supra). The questions referred to the Full Court and the answers
thereto as given in para 79 of the said judgement are quoted as
under:
38. In the present case, the stand taken by the State while
raising preliminary objection to the present petition was that the
petitioners are in Child Protection Home, therefore, even if at this
stage, it is not clear as to how the petitioners have reached Child
Protection Home, one thing is clear that administration of criminal
justice is operating, which is the procedure established by law
(although with this stand of the State, Full Bench decision in
Rachna (supra) would cover the issue involved, including
preliminary objection). It is clearly reflected from the record that
the petitioners have already invoked provisions of Section 97
Cr.P.C. before the competent court of law i.e. Chief Judicial
Magistrate having jurisdiction over the matters. Thus, they have
availed the effective statutory remedy and thus, have put the
criminal administration of justice into motion and as per settled
law writ of habeas corpus cannot be issued to set the same at
15
knot.
39. To sum up, it can be said that the petitioners have already
invoked provisions of Section 97 Cr.P.C., hence administration of
criminal justice has already come into play and the same cannot
be set at knot by simultaneously invoking extra-ordinary remedy
under Article 226 of the Constitution of India, which may be a
remedy of right but as per settled law cannot be issued as a
matter of course. Moreover, when corpus are in Child Protection
Home, the present writ petition would not be maintainable as per
the law settled by Full Bench decision in Rachna (supra).
Digitally signed by :-
ABHISHEK AGRAHARI
High Court of Judicature at Allahabad