# Abhishek Kumar Singh v. State of U.P. & Ors

- **Citation:** (2022) 1 ILRA 1188
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-14
- **Case number:** Habeas Corpus No. 29158 of 2021
- **Bench:** Rakesh Srivastava, Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhishek-kumar-singh-v-state-of-u-p-ors-47646
- **Pages:** 9

## Headnote

Constitution of India, Article 226 - Habeas
Corpus writ petition - Maintainability - If a
person is in judicial custody and is
confined to jail pursuant to a judicial order
passed by the competent court of law ,
such detention cannot be said to be illegal
-
Habeas
Corpus
writ
petition
not
maintainable (Para 13, 14)

Dismissed. (E-5)

List of Cases cited:

## Text

1188 INDIAN LAW REPORTS ALLAHABAD SERIES
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
JJ Act, the said order cannot be assailed in
a petition seeking a writ of habeas corpus.

24. In the present case, the petitioner
no.1 having been placed under the care of
her father-respondent no.4 pursuant to an
order passed by the CWC exercising
powers under the JJ Act and the Rules
made thereunder, the custody which is
presently with the said respondent cannot
be said to be illegal and a petition for a writ
of
habeas
corpus
would
not
be
entertainable in the facts of the case.

25.

Learned
counsel
for
the
petitioners has not been able to dispute the
aforesaid legal position.

26. No other ground was urged.

27. In view of the aforesaid, this
Court is not inclined to exercise its
extraordinary jurisdiction under Article 226
of the Constitution, so as to entertain the
petition seeking a writ of habeas corpus.

28. The petition thus fails, and is
accordingly dismissed.
----------
(2022)01ILR A1188
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.12.2021

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.
THE HON'BLE SHAMIM AHMED, J.

Habeas Corpus No. 29158 of 2021

Abhishek Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sushil Kumar Singh

Counsel for the Respondents:
G.A.

Constitution of India, Article 226 - Habeas
Corpus writ petition - Maintainability - If a
person is in judicial custody and is
confined to jail pursuant to a judicial order
passed by the competent court of law ,
such detention cannot be said to be illegal
-
Habeas
Corpus
writ
petition
not
maintainable (Para 13, 14)

Dismissed. (E-5)

List of Cases cited:

1. Arnesh Kumar Vs St.of Bihar, (2014) 8 SCC 273

2. D. K. Basu Vs St. of W.B.l, (1997) 1 SCC 416

3. St. of Mah. & ors. Vs Tasneem Rizwan
Siddiquee, (2018) 9 SCC 745

4. Rachna & ors. Vs St.of U.P. & ors., 2021 (3)
ALJ 322

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Shri Jyotindra Mishra,
learned Senior Advocate, assisted by Shri
Sushil Kumar Singh, learned counsel for
the petitioner and Shri Shiv Nath Tilhari,
learned Additional Government Advocate.

2. This habeas corpus petition has
been filed seeking the following reliefs:

(i) issue a writ, order or direction
in the nature of ''Habeas Corpus' declaring
the petitioner's arrest/ detention bad in law,
consequently a writ of Habeas Corpus be
issued and the petitioner be set at liberty
forthwith.
1 All. Abhishek Kumar Singh Vs. State of U.P. & Ors.
1189

(ii) issue any other suitable order
or direction which this Hon'ble Court may
deem fit, just and proper under the
circumstances of the case may also be
passed in favour of the petitioner.

(iii)
allow
the
petition
of
petitioner with cost.

3. Learned counsel for the petitioner
submits that the petitioner is challenging
his arrest and detention by the respondents
on 09.12.2021 at about 05.00 hours, which
was made unlawfully without following the
provisions of Section 41-A of the Criminal
Procedure Code by issuing and giving a
notice under the said provision.

4. It has been submitted on behalf of
the petitioner that he is a practicing
advocate at Civil Court as well as the High
Court at Lucknow since 2001. In the year
2017, with respect to an incident relating to
Mrs. Sandhya Srivastava, the then Chief
Judicial Magistrate, Lucknow an FIR dated
25.03.2017 was registered bearing FIR No.
149 of 2017, under Sections 147, 149, 504,
506, 186, 353, 354, 341, 228 I.P.C. and
Section 7 of Criminal Law Amendment
Act, P.S. Wazirganj, District Lucknow
against
two
named
accused,
Anurag
Trivedi and Saifi Hasan Mirza and 25 to 30
unknown
advocates/
persons.
It
was
submitted that there is no allegation against
the petitioner in the said FIR and that
serious allegations had been made only
against Anurag Trivedi and Saifi Hasan
Mirza. The contents of the FIR are being
reproduced hereinbelow:

udy rgjhj fgUnh okfnuh Vkbi'kqnk
iszf"kdk] la/;k JhokLro] eq[; U;kf;d eftLVsaV]
y[kuÅ lsok eas] Fkkuk/;{k othjxat y[kuÅ
fo"k;&vf/koDrk vuqjkx f=osnh] lSQh fetkZ ,oa
muds 25&30 lkfFk;ksa }kjk xkyh fn;s tkus
o vHknz O;ogkj fd;s tkus ds dkj.k muds fo:)
izFke lwpuk fjiksVZ ntZ djds dk;Zokgh fd;s tkus
gsrq egksn; fuosnu gS dy fnukad 24-3-2017 dks
eSa U;k;ky; le; ij ekuuh; tuin U;k;k/kh'k]
egksn; ds foJke d{k ls vkt gksus okyh
ekuhVfjax lsy dh ehfVax ij ppkZ djds vius
foJke d{k esa vk jgh Fkh rHkh vius dk;kZy; ,oa
U;k;ky; d{k dk njoktk cUn ns[kdj eSus vius
LVkQ jkds'k ckcw ls iwNk fd ;g njoktk cUn
D;ksa gS rHkh vf/koDrk vuqjkx f=osnh us esjs ikl
vkdj dgk fd eSaus cUn djok;k gS] bl ij eSus
iwNk D;ksa] rHkh vf/koDrk us dgk fd vki us
jtuh'k feJk]1⁄4vij eq[; U;kf;d eftLVsaV] izFke1⁄2
ds ;gk¡ ls Qkby eaxok;h gS D;k eSus dgk fd gk¡
eaxok;h gS] ysfdu vki fdl gd ls eq>ls ;g
iwN jgs gS rc bl ij ogka [kM+s ,d vU;
vf/koDrk lSQh fetkZ us dgk ;s mik/;{k gS] rHkh
vuqjkx f=osnh us lhuk Bksddj dgk fd eSa
vf/koDrk gw¡] vki us ml dksVZ ls Qkby D;ksa
eaxk;h blds ckn yxHkx 25&30 vf/koDrk us eq>s
?ksj fy;k] esjk xuj bj'kkn mu yksxksa dks gVkrk
jgk] ijUrq vuqjkx f=osnh us yxHkx ph[krs gq,
eq>ls dgk eknjpksn lkyh Hkz"Vkpkj dk vM~Mk
cuk j[kk gS eSa rqjar gh okil eqM+dj pSEcj dh
vksj tkus yxh] esjs ihNs&ihNs vuqjkx f=osnh ,oa
lSQh fetkZ rFkk muds lkFk 25&30 vf/koDrk ek¡
cgu dh xkyh nsrs gq, ,oa ;g dgrs gq, fd
j.Mh] lkyh rq>s NksMs+axs ugha ns[krk gw¡ dSls ukSdjh
djrh gS] fdlh eftLVsaV dks dk;Z ugha djus nsaxs
vkx yxk fn;k tk;sxk ns[krk gw¡ gkbZdksVZ vkSj
ftyk tt rFkk rw vf/koDrkvksa dk D;k m[kkM+
ysxk rFkk ftUnk o eqnkZckn ds ukjs yxkrs gq,
lHkh eftLVsaV U;k;ky;ksa ,oa dk;kZy;ksa dks cUn
djk fn;k x;k 'kksj ljkcs] ukjsckth ds dkj.k
U;k;ky;ksa ,oa dk;kZy;ksa esa dk;Z djus dk ekgkSy
Hkh ugha jg x;k esjs pSECkj esa vk tkus ij Hkh
pSEcj ds njokts ij 25&30 vf/koDrk vkdj ukjs
ckth ,oa tksj&tksj ls eknjpksn] j.Mh vkfn
xkyh nsus yxs esjs }kjk rqjar ekuuh; tuin
U;k;k/kh'k] egksn;] o ofj"B iqfyl v/kh{kd]
y[kuÅ dks nwjHkk"k ls lwpuk nh xbZ egksn; vki
dks voxr djkuk gS fd vf/koDrk vuqjkx f=osnh
eq0 v0 la0 349@2016 varxZr /kkjk 395 Hkkjrh;
1190 INDIAN LAW REPORTS ALLAHABAD SERIES
naM fo/kku] Fkkuk dSljckx] y[kuÅ dk oknh gS
rFkk o eqdnek vijk/k la[;k 351@2016]
vUrxZr /kkjk 395@353@504@506 Hkkjrh; naM
fo/kku ,oa yksd lEifRRk {kfr fuokj.k vf/kfu;e]
Fkkuk dSljckx] y[kuÅ ,oa eqdnek vijk/k
la[;k
348@2016
vUrxZr
/kkjk
395@397@332@353 Hkkjrh; naM fo/kku ,oa
yksd lEifRRk {kfr fuokj.k vf/kfu;e ,oa 7 fdz0
ykW0 ,esaMesUV vf/kfu;e] Fkkuk dSljckx] y[kuÅ
rFkk eqdnek vijk/k la[;k 350@2016 vUrxZr
/kkjk 395@397@307@332@353@426 Hkkjrh;
naM fo/kku ,oa yksd lEifRRk {kfr fuokj.k
vf/kfu;e] Fkkuk dSljckx] y[kuÅ esa vfHk;qDr gS
vf/koDrk vuqjkx f=osnh ,oa lSQh fetkZ rFkk
muds lkfFk;ksa }kjk lcls igys rks U;k;ky; d{k
cUn djok;k x;k mlds ckn dk;kZy; cUn
djokdj okndkfj;ksa ds le{k esjs lkFk vHknz
O;ogkj fd;k x;k] ftlls U;k;ky; dh xfjek
izfrdwy :i ls izHkkfor gqbZ vf/koDrkvksa dk mDRk
d`R; vR;Ur ihM+knk;d rFkk U;kf;d xfjek dks
Bsl igqapkus okyk gS] ftlls dy iwjs fnu eSa
ekufld lnes esa jgh] ftlds dkj.k rqjUr izFke
lwpuk fjiksVZ ugh fy[kk ikbZ vf/koDrkvksa dk
mDr d`R; vkijkf/kd izd`fr dk gS] tks fd lEiw.kZ
U;k; O;oLFkk ds fy, ?kkrd gS ftl ij ;Fkk'kh?kz
vadq'k yxk;k tkuk vko';d gS vr% fuosnu gS
fd bl izdj.k ,oa mijksDr vf/koDrkx.k vuqjkx
f=osnh ,oa lSQh fetkZ o muds lk{kh vf/koDRkkvksa
ds }kjk fd;s x;s vijk/k o muds fo:)
vkijkf/kd bfrgkl dks n`f"Vxr j[krs gq, ;Fkksfpr
/kkjkvksa esa eqdnek iathd`r dj dk;Zokgh djsa
lknj Hkonh;k SD vaxszth gLrk{kj viBuh;] 25-317 1⁄4la/;k JhokLro1⁄2 eq[; U;kf;d eftLVsaV]
y[kuÅ fnukad 25-3-2017 uksV& rgjhj dh udy
eq> dk0 29] 'kSYksUnz izrki flag }kjk v{kj'k%
dEI;wVj ls Vkbi fd;k x;k dk;eh dk0 fnus'k
iky flag ds }kjk fd;k x;kA

5. The learned counsel for the
petitioner submitted that Anurag Trivedi
and Saifi Hasan Mirza were arrested with
respect to the aforesaid FIR No. 149 of
2017. After investigation, the Investigating
Officer
submitted
charge
sheet
on
24.05.2017 and the learned Magistrate also
took cognizance on the charge sheet and
the trial of the case is pending in the court
of Additional Chief Judicial Magistrate,
C.B.I.,
(Ayodhya
Matter),
Lucknow.
Furthermore, statements of Smt. Sandhya
Srivastava, informant and the witnesses,
namely, Shri Ram Kripal (Clerk of C.J.M.
Office, Lucknow), Shri Sarju Prasad
(Junior
Assistant
of
C.J.M.
Office,
Lucknow), Constable Shri Irshad Ullah
Khan (Gunner/ Security Personnel of
C.J.M., Lucknow), Shri Rakesh Kumar
(Case Clerk of C.J.M. Court, Lucknow)
and Ms. Deepali Srivastava (Junior Clerk
of the Court of C.J.M., Lucknow) were also
recorded under Section 161 Cr.P.C. on
29.03.2017.

6. The learned counsel submitted that
on 30.10.2021, when the trial was in
progress against the named accused Anurag
Trivedi and Saifi Hasan Mirza in the court
of Special Chief Judicial Magistrate/CBI
(Ayodhya Prakaran), Lucknow, an incident
took place between Piyush Srivastava,
Advocate, and his colleagues with another
group of Advocates. Due to the clashes and
tussle which ensued, Piyush Srivastava,
Advocate and his colleagues sustained
injuries. An FIR with respect to this
incident was registered on 30.10.2021 vide
Case Crime No. 368 of 2021, under
Sections 147, 323, 504, 506 I.P.C. Shri
Piyush Srivastava filed a writ petition
before this Court bearing Writ Petition No.
25848 (MB) of 2021. In the said writ
petition this Court passed orders on
15.11.2021, 17.11.2021, 23.11.2021 and
30.11.2021. The orders dated 17.11.2021
and 23.11.2021, being relevant, are being
reproduced hereinbelow:

Order dated 17.11.2021

In pursuance of the order passed
by this Court Sri Somen Verma, Deputy
1 All. Abhishek Kumar Singh Vs. State of U.P. & Ors.
1191
Commissioner of Police, West Zone,
Lucknow, Sri Raj Kishore Pandey, Station
House Officer, Police Station Wazirganj
and
Sri
Tej
Prakash
Singh,
the
Investigating Officer are present in person.

Supplementary affidavit dated
15.11.2021 as well as the supplementary
affidavit filed today are taken on record.

The petitioner, Piyush Srivastava,
Shailendra Kumar Misra and Ms Suchita
Singh have filed this writ petition praying
inter alia the following relief:

i) Issue a writ, order or direction
in the nature of mandamus commanding
any responsible administrative or judicial
officer to be appointed by the Hon'ble
Court to conduct a thorough inquiry into
the incident dated 30.10.2021 at about 4.30
p.m. adjacent to Gate No. 6, old High
Court, Kaiserbagh, Lucknow and punish
the culprits and pass other appropriate
orders, in the interest of justice.

The petitioners are advocates
practicing at Lucknow. On 30.10.2021 they
filed a bail application in connection to FIR
No. 581 of 2018 in the court of Special
Additional
Chief
Judicial
Magistrate,
Central Bureau of Investigation (Ayodhya
Prakaran), Lucknow. The said application
was taken up at 1 pm and was allowed and
the accused persons were ordered to be
enlarged on bail.

It is alleged that at about 1.30 pm
Satish Kumar Verma, the complainant in the
case, claiming himself to be an advocate
practicing at Collectorate, Lucknow accosted
the petitioners and asked them not to file bail
bonds of the accused persons. At about 3 pm
Shailendra Kumar Misra verified the bail
bonds as well as the sureties and about 4 pm
the accused persons were released on bail.

It is alleged that at about 4.40 pm
the same day, 30 to 40 advocates
surrounded the petitioners near Gate No. 6,
Old High Court Building and hurled
abusive language and badly assaulted the
petitioners. A first information report was
also lodged with the Wazirganj police
station. In support of their allegation the
petitioners have brought on record some
photographs and a video CD recording of
the incident.

It is stated that it is not safe to
perform lawful duties in the District Courts
of Lucknow as violence with litigants,
police personnel and lawyers has become
the rule of the day. In order to demonstrate
the rising violence in court campus, the
petitioners have brought on record a first
information report dated 25.3.2017 lodged
by the then Chief Judicial Magistrate,
Lucknow against Anurag Trivedi, Saifi
Mirza and others complaining about the
violent behaviour of the lawyers.

We have heard the petitioners
who have appeared in person and Sri H.P.
Srivastava
learned
Additional
Chief
Standing Counsel at some length.

This court cannot sit and watch
the unprofessional and unruly behaviour of
the lawyers as a mute spectator and is duty
bound to ensure that the citizens do not
face any difficulty in accessing justice. Any
effort to obstruct the rule of law has to be
curbed with a heavy hand.

In this background, the Deputy
Commissioner of Police is directed to hold
an inquiry and identify the persons who are
involved in the incident. While doing so it
would be open to him to take help of the
averments made in the writ petition as well
as the photographs and CD annexed with
the writ petition. The District Judge,
Lucknow, the President of Lucknow Bar
Association and Central Bar Association
are directed to extend all help to the Deputy
Commissioner of Police in identifying the
culprits.
1192 INDIAN LAW REPORTS ALLAHABAD SERIES

The Deputy Commissioner of
Police shall submit a comprehensive report
regarding the unfortunate incident and also
the details of the action taken in connection
with the first information report dated
25.03.2017 in a sealed cover to this Court
by the next date fixed.

It is strange that on the report of
the Chief Judicial Magistrate, no arrest has
been made although the charge-sheet is
alleged to have been filed.

The District Judge, Lucknow is
directed to send a comprehensive report
regarding the incident of 30.10.2021
wherein he shall also state the action taken
on the reference made by the Chief Judicial
Magistrate

In the affidavit filed by the
petitioners today the petitioners have stated
that they are being extended threat by the
advocates involved in this case.

In the circumstances, the Deputy
Commissioner of Police is directed to
provide armed security to the petitioners,
namely, Piyush Srivastava, Shailendra
Kumar Mishra and Ms. Suchita Singh.

All the officers who are present
today shall appear again on the date fixed.

Let
the
case
be
listed
on
23.11.2021.

The Senior Registrar is directed
to communicate this order to the District
Judge, Lucknow.

And then

Order dt. 23.11.2021

In pursuance of the order passed
by this Court Sri Somen Barma, Deputy
Commissioner of Police, West Zone,
Lucknow, Sri Raj Kishore Pandey, Station
House Officer, Police Station Wazirganj
and
Sri
Tej
Prakash
Singh,
the
Investigating Officer are present in person.

The petitioners Piyush Srivastava,
Shailendra Kumar Mishra and Ms. Suchita
Singh are present.

Sri Arvind Kumar, Advocate has
filed his vakalatnama along with counter
affidavit on behalf of respondent no. 6. The
same is taken on record.

A copy of the said counter
affidavit has been served upon the counsel
for the petitioners as well as Sri H.P.
Srivastava,
learned
Additional
Chief
Standing Counsel appearing on behalf of
State-respondents and Sri Subhash Chandra
Pandey, learned counsel representing Bar
Council of Uttar Pradesh.

Report dated 18.11.2021 along
with photographs (32 in number) filed by
Sri Somen Barma as well as the report
dated 26.11.2021 submitted by the Incharge District Judge, Lucknow are taken
on record.

Sri Somen Barma at the outset
prays for a week's further time to complete
the
investigation
and
submit
a
comprehensive report in terms of the order
passed by this Court earlier.

Let that be done.

As prayed, list on 30.11.2021.

The officers, who are present
today, shall appear again on the date fixed.

7. In pursuance of the orders passed
by this Court in Writ Petition No. 25848
(MB) of 2021, further investigation was
started in Case Crime No. 149 of 2017, by
the orders of the learned Magistrate. The
submission of the petitioner is that it was
only thereafter, that the statement of the
victim-informant, Smt. Sandhya Srivastava,
the
then
Chief
Judicial
Magistrate,
Lucknow was recorded under Section 164
Cr.P.C., wherein she named five accused
including namely, Abhishek Singh (present
petitioner), Idrisi @ Atmad Husain Idrisi,
Advocate,
Sharad
Yadav,
Rajkumar
Sharma and Saurabh Singh. Based upon the
statement made by the victim-informant,
the petitioner was taken into custody by the
1 All. Abhishek Kumar Singh Vs. State of U.P. & Ors.
1193
police on 09.12.2021 and thereafter the
learned Magistrate also gave judicial
remand of fourteen days vide order dated
10.12.2021. Since then, the petitioner has
been confined to jail. The other advocate,
Idrisi @ Atmad Husain Idrisi, was also in
custody.

8. It was argued on behalf of the
petitioner that the petitioner was illegally
arrested in connection with the FIR No.
149 of 2017 as Section 41 and 41-A of the
Cr.P.C. have not been complied with.
Reliance has been placed on the judgments
of the Hon'ble Apex Court in the case of
Arnesh Kumar v. State of Bihar, (2014) 8
SCC 273 and D. K. Basu v. State of West
Bengal, (1997) 1 SCC 416. It was further
argued that the remand order dated
10.12.2021 passed by the learned Judicial
Magistrate is also illegal, as the same has
been passed without due application of
mind. Violation of fundamental rights
guaranteed under Article 21 of the
Constitution of India has also been alleged
by the petitioner, and a prayer for the
release of the petitioner has been made.

9. Per contra, learned Additional
Government Advocate has submitted that
the present Habeas Corpus petition is not
maintainable and the same is liable to be
dismissed as the petitioner is a hardcore
criminal and is already in custody in
pursuance of the judicial order dated
10.12.2021 passed by the learned Judicial
Magistrate. It was argued that therefore the
petitioner's confinement cannot be said to
be illegal. It was also submitted that the
allegations made by the then Chief Judicial
Magistrate against the accused persons, in
the FIR No. 149 of 2017 dated 25.03.2017,
are very serious in nature and the conduct
of
the
petitioner
and
his
other
associates are condemnable in the eyes of
law. Reference was made to another FIR
No. 368 of 2021, under Sections 147, 148,
149, 323, 504, 506, 341, 352, 355, 419
I.P.C., Police Station Wazirganj, District
Lucknow which was alleged to have been
lodged against the petitioner. The learned
counsel argued that the petitioner has other
remedy for redressal of his grievance, but
as the detention is not illegal and the same
is in accordance with law, the petitioner
cannot take benefit of Section 41 and 41-A
Cr.P.C. In view of the above, it was
submitted that the present Habeas Corpus
petition is liable to be dismissed.

10. In support of his submissions, the
learned Additional Government Advocate
relied upon the judgment of the Hon'ble
Apex Court in the case of State of
Maharashtra and others v. Tasneem
Rizwan Siddiquee, (2018) 9 SCC 745, to
argue that a writ of habeas corpus cannot
be issued in the present matter, since the
petitioner is in police custody in connection
with a criminal case under investigation,
and the said custody is pursuant to an order
of remand passed by a court of competent
jurisdiction. It was further contended that
the order of remand passed by the
competent court has not been challenged,
which implies that the detention cannot be
said to be illegal. In this regard reliance has
been placed on paragraphs 3 and 9 of the
aforesaid judgment, which are being
reproduced hereinbelow:

"3. The decision of the High
Court is assailed essentially on two counts.
First, that no writ of habeas corpus could be
issued in respect of a person who was in
police custody in connection with a
1194 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal case under investigation, pursuant
to an order of remand passed by the court
of competent jurisdiction. Second, in any
case, the High Court should have refrained
from making scathing observations against
the concerned police officials and the said
remarks should be expunged.

xxxx xxxx xxxx

9. The question as to whether a
writ of habeas corpus could be maintained in
respect of a person who is in police custody
pursuant to a remand order passed by the
jurisdictional Magistrate in connection with
the offence under investigation, this issue has
been considered in the case of Saurabh
Kumar through his father Vs. Jailor, Koneila
Jail and Anr., (2014) 13 SCC 436 and
Manubhai Ratilal Patel Vs. State of Gujarat
and Ors., (2013) 1 SCC 314. It is no more res
integra. In the present case, admittedly, when
the writ petition for issuance of a writ of
habeas corpus was filed by the respondent on
18th/19th March, 2018 and decided by the
High Court on 21st March, 2018 her husband
Rizwan Alam Siddique was in police custody
pursuant to an order passed by the Magistrate
granting his police custody in connection
with FIR No.I-31 vide order dated 17th
March, 2018 and which police remand was to
enure till 23rd March, 2018. Further, without
challenging the stated order of the Magistrate,
a writ petition was filed limited to the relief
of habeas corpus. In that view of the matter, it
was not a case of continued illegal detention
but the incumbent was in judicial custody by
virtue of an order passed by the jurisdictional
Magistrate, which was in force, granting
police remand during investigation of a
criminal case. Resultantly, no writ of habeas
corpus could be issued."

11. Learned Additional Government
Advocate further placed reliance on the
judgment of Full Bench of this Court in the
case of Rachna and others v. State of U.P.
and others, 2021 (3) ALJ 322, wherein it
has been held that a writ of habeas corpus
would not be maintainable if accused is in
custody by the order passed by a competent
court. He has placed reliance on paragraphs
38 to 41 of the aforesaid judgment which
are being reproduced herein below:

"38.
In
Greene
vs.
Home
Secretary, (1941) 3 All ER 388, it has been
observed:

"Habeas corpus is a writ in the
nature of an order calling upon the person
who has Patna High Court CR. WJC
No.1355 of 2019 dt. 05-03-2020 detained
another to produce the later before the
court, in order to let the court know on
what ground he has been confined and to
set him free if there is no legal jurisdiction
of imprisonment."

39. In India, by Articles 32 and
226 of Constitution of India, the Supreme
Court and all the High Courts got
jurisdiction to issue writ of habeas corpus
throughout
their
respective
territorial
jurisdiction when the Constitution came
into force. Article 21 of the Constitution of
India provides that no person shall be
deprived of his life or personal liberty
except according to procedure established
by law.

40. In Smt. Maneka Gandhi vs.
Union of India & Anr., AIR 1978 SC 597,
it has been held by the Apex Court that the
procedure
established
by
law
as
contemplated under Article 21 should be
just, fair and reasonable and any unjust,
unfair and unreasonable procedure by
which liberty of a person is taken away
shall destroy such freedom. There is also
difference between a writ of Habeas
Corpus maintained under Article 32 and
under Article 226 of Constitution of India.
A writ of habeas corpus under Article 32 of
the Constitution of India in the Supreme
1 All. Abhishek Kumar Singh Vs. State of U.P. & Ors.
1195
Court is available in case of violation of
fundamental
rights
guaranteed
under
Article 21 but it does not relate to
interference with the personal liberty by a
private citizen. However, the High Court
has jurisdiction to issue writ of habeas
corpus
under
Article
226
of
the
Constitution of India not only for violation
of fundamental rights of freedom but also
for other purposes. The High Court can
issue such writ against a private person
also.

41. The nature and scope of the
writ
of
habeas
corpus
has
been
considered by the Constitution Bench of
the Hon'ble Apex Court in the case of
Kanu Sanyal vs. District Magistrate,
Darjeeling & Ors., (1973) 2 SCC 674,
and it was held:-

"It will be seen from this brief
history of the writ of habeas corpus that it
is essentially a procedural writ. It deals
with the machinery of justice, not the
substantive law. The object of the writ is
to secure release of a person who is
illegally restrained of his liberty. The writ
is, no doubt, a command addressed to a
person who is alleged to have another
person
unlawfully
in
his
custody
requiring him to bring the body of such
person
before
the
Court,
but
the
production of the body of the person
detained is directed in order that the
circumstances of his detention may be
inquired into, or to put it differently, "in
order
that
appropriate
judgment
be
rendered on judicial enquiry into the
alleged unlawful restraint". The form of
the writ employed is "We command you
that you have in the King's Bench
Division of our High Court of Justice --
immediately after the receipt of this our
writ, the body of A.B. being taken and
detained under your custody -- together
with the day and cause of his being
taken and detained -- to undergo and
receive all and singular such matters and
things as our court shall then and there
consider of concerning him in this
behalf". The italicized words show that
the writ is primarily designed to give a
person restrained of his liberty a speedy
and effective remedy Patna High Court
CR. WJC No.1355 of 2019 dt. 05-032020 for having the legality of his
detention enquired into and determined
and if the detention is found to be
unlawful, having himself discharged and
freed from such restraint. The most
characteristic element of the writ is its
peremptoriness and, as pointed out by
Lord Halsbury, L.C., in Cox v. Hakes
(supra), "the essential and leading theory
of the whole procedure is the immediate
determination
of
the
right
to
the
applicant's freedom" and his release, if
the detention is found to be unlawful.
That is the primary purpose of the writ;
that is its substance and end. ..."

12. After considering the arguments
advanced by the learned counsel for the
parties and after perusal of the record, we
find that the petitioner, who is in judicial
custody and is confined to jail since
10.12.2021, pursuant to a judicial order
passed by the competent court of Judicial
Magistrate, the detention of the petitioner
cannot be said to be illegal.

13. A writ of habeas corpus is
essentially a procedural writ. It deals with
the machinery of justice and not the
substantive law. The object of the writ is to
secure release of a person, who is illegally
restrained of his/ her liberty. Further, the
present writ petition cannot be entertained
1196 INDIAN LAW REPORTS ALLAHABAD SERIES
as the petitioner is in jail in furtherance of
the judicial order passed by the competent
court of law. Prima facie, the said judicial
order does not appear to be without
jurisdiction and has been passed in a legal
manner. Since the petitioner is in custody
by virtue of a judicial order passed by a
Judicial Magistrate, hence it cannot be said
to be an illegal detention.

14. In view of the judgment of
Hon'ble Apex Court in the case of Tasneem
Rizwan Siddiquee (supra) and the judgment
of this Court in the case of Rachna and
others (supra), the present habeas corpus
petition is not maintainable.

15. Accordingly, in view of the
discussions and observations made above,
the present habeas corpus petition is not
maintainable and the same is dismissed.

16. No order as to costs.
----------
(2022)01ILR A1196
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ B No. 47744 of 2016

Om Pal ...Petitioner
Versus
Deputy Director of Consolidation & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Suyigya Kumar Sharma, Sri Sudhir
Kumar Pandey, Sri Madan Ji Pandey, Sri
Suvigya Kumar Mishra

Counsel for the Respondents:
C.S.C., Sri Rahul Kumar Tyagi, Sri Mazhar
Abbas Zaidi

Civil
Law
-
U.P.
Consolidation
of
Holdings Act, 1953 - Sections 19(1)(e) &
48 - Allotment of chak - Validity -
petitioner original tenure holder of plot
No 217 & 218 which are roadside plot -
Petitioner's road side plot has not been
disturbed till the S.O.C. stage but at the
revisional stage without considering the
hardship of the petitioner, roadside plot
of the petitioner has been taken away at
the revisional stage, in order to make
the holding of both parties compact -
Comparative hardship not considered -
comparative hardship of both parties are
to be considered specially when the
chak of the tenure holder is going to be
disturbed - Reading of S.19(1)(e) shows
that consolidation authorities cannot
pass arbitrary order in order to make
chak compact without any reasons -
original holding situated adjacent to
public road should not be allotted to any
one except the original tenure holder or
to
be
excluded
from
consolidation
operation - Allotment of chak, illegal and
set aside - tenure holder may not be
deprived from his original road side plot
in the name of compactness of the chak
(Para 5, 6, 9, 10, 11)

Allowed. (E-5)

List of Cases cited:

1. Baid Urrahman @ Obedurrahman Vs Deputy
Director of Consolidation 2018 (138) R.D. 558

2.
Mahabeer
Vs
Deputy
Director
of
Consolidation, Jaunpur & ors. 2005 (99) RD 65

3. Ram Chandar Vs Deputy Director of
Consolidation, Varanasi 2006 (100) RD 212

4.
Ram
Badan
Vs
Deputy
Director
of
Consolidation, Azamgarh & ors. 2020 (147) R.D.
219

(Delivered by Hon'ble Chandra Kumar Rai, J.)