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IN THE HIGH COURT OF ALLAHABAD
VIVEK KUMAR BIRLA, SURENDRA SINGH-I, JJ.
Ahzam Ahmad (Minor) and Another - Petitioners
Versus
State of U.P. and Others - Respondents
Habeas Corpus Writ Petition No. 221 of 2023
Decided On : 11-04-2023
Constitution of India, 1950 - Article 21, 22(1), 226 – Indian Penal Code, 1860 - Sections 147, 148, 149, 302, 307, 506, 34 and 120-B - Explosive Act, 1884 - Section 3 - Criminal Law Amendment Act, 2013 - Section 7, 50, 97 - Juvenile Justice (Care and Protection of Children) Act, 2015 - Habeas Corpus - Minor sons - Forcibly and illegally entered in house - Issue direction in nature of writ of Habeas Corpus commanding and directing respondents to produce corpus before Hon'ble Court and set them at liberty forthwith – They have availed effective statutory remedy and thus, have put criminal administration of justice into motion and as per settled law writ of habeas corpus cannot be issued to set same at knot. [Para 38]
Finding of the Court: Stand taken by State while raising preliminary objection to petition was that petitioners are in Child Protection Home, therefore, even if at this stage, it is not clear as to how petitioners have reached Child Protection Home, one thing is clear that administration of criminal justice is operating, which is procedure established by law - It is clearly reflected from record that petitioners have already invoked provisions of Section 97 Cr.P.C. before competent court of law having jurisdiction over matters - Thus, they have availed effective statutory remedy and thus, have put criminal administration of justice into motion and as per settled law writ of habeas corpus cannot be issued to set same at knot - To sum up, it can be said that petitioners have already invoked provisions of Section 97 Cr.P.C., hence administration of criminal justice has already come into play and same cannot be set at knot by simultaneously invoking extra-ordinary remedy under Article 226 of 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, petition would not be maintainable.
Result: Petition dismissed,
JUDGMENT :
Vivek Kumar Birla, J.
1. Heard Sri D.S. Mishra, learned Senior Counsel assisted by S/Sri Ravindra Sharma, Shadab Ali and Abhishek Kumar Mishra, learned counsel for the petitioners and Sri Manish Goyal, learned Additional Advocate General assisted by Sri A.K. Sand, learned A.G.A. appearing for the State respondents.
2. Present petition has been filed with the following prayers:-
(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."
3. The petition has been filed by minor sons (corpus) of Ateek Ahmad, Ex. MP under the guardianship of their natural guardian and real mother Shaishta Parveen. It is claimed that the petitioner no. 1-Ahzam Ahmad and the petitioner no. 2-Aaban Ahmad are student of Class-XII and Class-IX respectively and at present both the petitioners are minor. It has been disclosed in the petition that father of the petitioners, namely, Ateek Ahmad is in jail since 2017 and real uncle of the petitioners, namely, Khalid Azeem @ Ashraf is also in district jail Bareilly since 2020. The minor sons (corpus) are living with their mother. It is alleged that on 24.2.2023 at about 06:00 P.M. police of Police Station Khuldabad, Dhoomanganj and Puramufti came to the house of the petitioners without lady police and forcibly and illegally entered in the house of the petitioners by breaking the doors arrested the petitioners without showing any summon, warrant or any other document and police personnels also misbehaved with the petitioners as well as with their mother. The allegation is that the police personnels of Police Station Dhoomanganj, Puramufti and Khuldabad forcibly arrested the petitioners and have taken them in their illegal custody without disclosing any reason for their arrest and that the petitioners are innocent and are not wanted in any criminal case. The allegation is that the police authorities have illegally detained the petitioners without any authority since 24.2.2023. It is also alleged that the petitioners are in detention till today i.e. 3.3.2023 (till the date of filing of the present petition). It is alleged that the petitioners are being kept in some undisclosed location by the police and are being mentally and physically tortured without any authority of law or any other reason and thus, the petitioners are being deprived of their personal life and liberty provided under Article 21 of the Constitution of India, which clearly provides that the same cannot be affected except in accordance with the procedure established by law.
4. Fact regarding lodging of the first information report dated 25.2.2023 being Case Crime No. 0114 of 2023, under Sections 147, 148, 149, 302, 307, 506, 34 and 120-B IPC, Section 3 of Explosive Act and Section 7 of Criminal Law Amendment Act, Police Station Dhoomanganj, District Prayagraj regarding incident 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.
5. A supplementary affidavit was filed on 23.3.2023 annexing therewith several documents. It has been stated that the police authorities have arrested the petitioners without any warrant in the night of 1.3.2023, however, we find that in paragraph 9 of the petition it has been stated that the petitioners were arrested on 24.2.2023 at 06:00 P.M. Annexure-1 to the supplementary affidavit is a copy of the application dated 27.2.2023 filed by the
Sec. 437 of Code makes a provision for persons who have been arrested in a non-bailable offence and have been produced before a Magistrate.
On basis of a habeas corpus petition the power under art.226 is not to be exercised for tracing a missing person engaging an investigating agency empowered to investigate a case under the Code of Cri....
Point of law : Where the custody of the petitioner corpus as been handed over as per a judicial order passed a Judicial Magistrate or a court of competent jurisdiction or a CWC constituted under the ....
The welfare of the child is the paramount consideration in determining custody, and the writ of habeas corpus is maintainable in child custody matters where the detention of a minor child by a parent....
Point of Law : It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.
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