# Ahzam Ahmad & Anr v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 48
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-11
- **Case number:** Habeas Corpus Writ Petition No. 221 of 2023
- **Bench:** Vivek Kumar Birla, Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ahzam-ahmad-anr-v-state-of-u-p-ors-49984
- **Pages:** 10

## Headnote

Civil Law - Constitution of India, 1950 -
Article 21, 22(1), 22(5), 226, - Indian
Penal Code, 1860 Sections 34, 120-B, 147,
148, 149, 302, 307 & 506 - Criminal Law
Amendment Act, 2013 - Section 7 -
Criminal Procedure Code,1973 - Sections
50 & 97 - Juvenile Justice (Care &
Protection
of
Children)
Act,
2015
-
Sections 37, 37(1)(a), 37(1)(b), 37(1)(c),
37(1)(d), 37(1)(e), 37(1)(f), 37(1)(g) &
37(1)(h) - National Security Act,1980 -
Section - 3(2), 4 - Explosive Act, 1884 -
Section - 3 - Writ of Habeas Corpus -
petitioners are in Child Protection Home -
petitioners are minor sons - police forcibly
arrested them in illegal custody - through
natural guardian mother of petitioners seeks
direction in nature of writ of Habeas corpus
commanding respondents to produce corpus
and set them liberty forthwith - preliminary
objection with regards to maintainability of a
writ of Habeas Corpus on the ground of
alternative remedy - they have availed effective
statutory remedy by invoking provisions of
section 97 of Cr.P.C. and thus, have put criminal
administration of justice into motion - Held, as
per the settled law writ of habeas corpus cannot
be issued to set same at knot by simultaneously
invoking extra-ordinary remedy under Article
226 - Moreover, when corpus are in Child
Protection
Home,
petition
would
not
be
maintainable - petition stands dismissed.
(Para - 38, 39, 40)

Writ Petition Dismissed. (E-11)

List of Cases cited:

## Text

48 INDIAN LAW REPORTS ALLAHABAD SERIES
interference by Revisional court - Revision is
dismissed. (Para - 6, 7)

Criminal Revision is dismissed. (E-11)

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

01. None responds for the revisionists.
Learned A.G.A. for the State is present.

02. This criminal revision has been filed
against the order dated 06.09.2022 by which the
application moved under Section 227 Cr.P.C. for
discharging the accused persons for offence under
Section 308 I.P.C. was dismissed and case was
posted for framing of charge.

03. The material facts are as below:-

The F.I.R. against the applicants and
two more has been filed under Section 323 and
324 I.P.C. with the allegations that the accused
persons were raising construction to encroach
upon the land of Gram Samaj. The first informant
and his brother protested. Irked over such
interference accused persons physically assaulted
the first informant Sanjay Tiwari and his brother
causing them injuries. After investigation
chargesheet has been filed under Sections 308,
323, 504 and 506 I.P.C.

04. Perusal of the revision memo shows that
the revisionists are aggrieved by order for framing
charge under Section 308 I.P.C. in addition and
rejection of discharge application. The only
ground taken by the revisionist is that injuries
sustained by the injured persons were not fatal in
nature. There was not a single fracture on vital part
of the person of any of the injured.

05. I went through material on record.
Papers show that there were three injured persons
namely Ramashankar Tiwari who sustained seven
injuries on his person and four out them were
above neck, Chandan Tiwari who sustained five
injuries, with one on the head and the X-ray
showed soft tissues shadow, mildly increased over
vault of skull. The third Umashankar Tiwari
sustained three injuries.

06. It is settled position that number of
injuries or nature of injuries are not the sole factor
to decide upon whether any and if so what offence
affecting human body is made out. The intention
or knowledge as the case may be and even
attending facts and circumstances may be of even
greater significance.

07. In my view, nature of the injuries, seat of
injuries and number thereof may be material but
are not everything to decide upon the fact as to
which charge is made out. However, in this case
from the contents of the F.I.R. coupled with
medical evidence , prima facie offence under
Section 308 I.P.C. is made out. At the stage of
framing of charge no in depth enquiry into
evidence or credibility thereto is required. I do not
find any illegality or impropriety or incorrectness
in the order so as to justify interference by
revisional court.

08. The criminal revision is dismissed at the
stage of admission.
----------
(2023) 4 ILRA 48
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.04.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SURENDRA SINGH-I, J.

Habeas Corpus Writ Petition No. 221 of 2023

Ahzam Ahmad & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
4 All. Ahzam Ahmad & Anr. Vs. State of U.P. & Ors.
49
Sri Sri Abhishek Kumar Mishra, Sri Khan
Saulat Hanif, Sri Ravindra Sharma, Sri
Shadab Ali, Sri Vijay Mishra, Sri D.S. Mishra
(Sr. Advocate).

Counsel for the Respondents:
G.A.

Civil Law - Constitution of India, 1950 -
Article 21, 22(1), 22(5), 226, - Indian
Penal Code, 1860 Sections 34, 120-B, 147,
148, 149, 302, 307 & 506 - Criminal Law
Amendment Act, 2013 - Section 7 -
Criminal Procedure Code,1973 - Sections
50 & 97 - Juvenile Justice (Care &
Protection
of
Children)
Act,
2015
-
Sections 37, 37(1)(a), 37(1)(b), 37(1)(c),
37(1)(d), 37(1)(e), 37(1)(f), 37(1)(g) &
37(1)(h) - National Security Act,1980 -
Section - 3(2), 4 - Explosive Act, 1884 -
Section - 3 - Writ of Habeas Corpus -
petitioners are in Child Protection Home -
petitioners are minor sons - police forcibly
arrested them in illegal custody - through
natural guardian mother of petitioners seeks
direction in nature of writ of Habeas corpus
commanding respondents to produce corpus
and set them liberty forthwith - preliminary
objection with regards to maintainability of a
writ of Habeas Corpus on the ground of
alternative remedy - they have availed effective
statutory remedy by invoking provisions of
section 97 of Cr.P.C. and thus, have put criminal
administration of justice into motion - Held, as
per the settled law writ of habeas corpus cannot
be issued to set same at knot by simultaneously
invoking extra-ordinary remedy under Article
226 - Moreover, when corpus are in Child
Protection
Home,
petition
would
not
be
maintainable - petition stands dismissed.
(Para - 38, 39, 40)

Writ Petition Dismissed. (E-11)

List of Cases cited:

1. Rachna & anr. Vs St. of UP & ors., AIR 2021
ACR 109 (FB),

2. Smt. Icchu Devi Choralia Vs U.O.I. & ors.,
(1980) 4 SCC 531,
3. Ayya @ Ayub Vs St. of U.P. & ors., (1989) 1 SCC 374

4. Bhim Sen Tyagi Vs St. of U.P. through D.M.
Mahamaya Nagar, 1999 (2) JIC (All) (FB),

5. Chairman Railway Board & ors. Vs Chandrima
Das (Mrs) & ors., (2000) 2 SCC 465,

6. Whirlpool Corp. Vs Registrar of Trade Marks,
Mumbai & ors., (1998) 8 SCC 1,

7. In the matter of Mdhu Limaye & ors. (1969
(1) SCC 292),

8. Sunil Batra (II) Vs Delhi Administration,
(1980) 3 SCC 488),

9. Dushyant Somal Goyal Vs Smt. Sushma
Somal & anr. (1981 vol. 2 SCC 277),

10. Vinayak Goyal Vs Prem Prakash Goyal & ors.,
1981 AWC 457

11. Ram Manohar Lohia Vs Superintendent,
Central
Prison,
Fatehgarh,
1954
(0)
Supreme(All) 149

12. Munshi Singh Gautam (D) & ors. Vs St. of
M.P., 2004 (0) Supreme(SC) 1416

13. Prabhu Dayal Deorah etc. Vs District
Magistrate,
Kamrup
&
ors.,
1973
(0)
Supreme(SC) 320

14. Raman Lal Rathi Vs Commissioner of Police
1951 o Supreme (Cal) 209,

(Delivered by Hon'ble 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:-
50 INDIAN LAW REPORTS ALLAHABAD SERIES

]

"(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."

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. 1Ahzam Ahmad and the petitioner no. 2Aaban 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
4 All. Ahzam Ahmad & Anr. Vs. State of U.P. & Ors.
51
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
mother of the petitioners Shaishta Parveen
before the Chief Judicial Magistrate,
Allahabad
regarding
alleged
illegal
detention of the petitioners, namely, Ahzam
Ahmad and Aaban Ahmad and prayed that
a report be summoned from the Police
Station Dhoomanganj in respect of the
petitioners as to whether the petitioners are
named in any crime so that necessary legal
action may be taken. Annexure-2 to the
supplementary affidavit is the report dated
2.3.2023 submitted by the Police Station
Dhoomanganj that there is no GD entry in
respect of the petitioners in the said police
station and the alleged first information
report being Case Crime No. 0114 of 2023
is being investigated by In-charge Inspector
Dhoomanganj, who is out of the police
station. Annexure-3 to the supplementary
affidavit is a copy of the orders dated
28.2.2023, 3.3.2023 and report dated
4.3.2023 submitted by the In-charge
Inspector Police Station Dhoomanganj to
the effect that the applicant Shaishta
Parveen is named in the first information
report dated 25.2.2023 in a triple 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.

6. Perusal of Annexure-1 to the
petition reflects that the mother of the
petitioners, namely, Shaishta Parveen, who
has filed present petition as natural
guardian and real mother of the petitioners,
is also one of the accused along with father
and uncle of the petitioners named above. It
is further reflected that contrary to the
statement made in the petition at Sl. Nos. 6
and 7 sons of Ateeq Ahmad have also been
arrayed as accused. Specifically, at Sl. No.
6 accused is "Ateek Ahmad ka Putra" (i.e.
son of Ateek Ahmad) whereas at Sl. No. 7
accused specified are "Ateek Ahmad ke
anya Putra". Therefore, clearly, even
without giving specific names other sons of
Ateek Ahmad have also been arrayed as
accused in the above mentioned FIR.

7. During course of arguments it also
transpired that Shaishta Parveen, mother
of the petitioners, through whom this
petition had been filed, is absconding and
is also carrying award of Rs. 25,000/- on
her head.

8. It is alleged in the petition that the
police
authorities
have
arrested
the
petitioners without any warrant and are
being detained illegally without there being
any order of competent court / Magistrate
and there is a clear violation of Section 50
Cr.P.C. in the present case. Crux of
submission of learned counsel for the
petitioners is that the detention of the
52 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners is clear violation of their
constitutional as well as statutory rights.

9. A preliminary objection was raised
by Sri Manish Goyal, learned Additional
Advocate General assisted by Sri A.K.
Sand, learned A.G.A.-I that the present
petition
is
not
maintainable
as
the
petitioners have already invoked provisions
of Section 97 Cr.P.C. and have approached
the competent court i.e. the court of Chief
Judicial Magistrate, Allahabad and the
corpus are in Child Protection Home.
Submission, therefore, is that as the
petitioners have already invoked the
alternative effective statutory remedy, and
moreso, when the stand taken by the police
authorities that the petitioners are in Child
Protection Home, therefore, on the ground
of already invoked effective statutory
remedy and also in view of Full Bench
decision in the case of Rachna and
another vs. State of UP and others, AIR
2021 ACR 109 (FB), the present Habeas
Corpus petition is not maintainable.

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.

11. Learned counsel for the petitioners
has placed reliance on judgments of Smt.
Icchu Devi Choralia vs. Union of India
and others (1980) 4 SCC 531 (paragraph
4), Ayya @ Ayub vs. State of U.P. and
others (1989) 1 SCC 374 (paragraph 11),
Bhim Sen Tyagi vs. State of U.P. through
D.M. Mahamaya Nagar 1999 (2) JIC
(All) (FB) (paragraph 21), Chairman
Railway
Board
and
others
vs.
Chandrima Das (Mrs) and others (2000)
2 SCC 465 (paragraphs 7 to 11),
Whirlpool Corporation vs. Registrar of
Trade Marks, Mumbai and others (1998)
8 SCC 1 (paragraphs 14 to 20), In the
matter of Madhu Limaye and others
1969 (1) SCC 292 (paragraphs 10 to 14),
Sunil Batra (II) vs. Delhi Administration
(1980) 3 SCC 488 (paragraphs 20, 21, 26,
27, 30, 31, 40, 42), Capt. Dushyant Somal
vs. Smt. Sushma Somal and another
(1981) 2 SCC 277 (paragraphs 5 and 7),
Vinayak Goyal vs. Prem Prakash Goyal
and others 1981 AWC 457 (paragraphs 8
to
11),
Ram
Manohar
Lohia
vs.
Superintendent,
Central
Prison,
Fatehgarh 1954 0 Supreme (All) 149,
Munshi Singh Gautam (D) and others vs.
State of M.P. 2004 0 (Supreme (SC) 1416,
Prabhu Dayal Deorah etc. vs. District
Magistrate, Kamrup and others 1973 0
Supreme(SC) 320 and Raman Lal Rathi
vs. Commissioner of Police 1951 0
Supreme (Cal) 209.

12. During course of argument, Sri
D.S. Mishra, learned Senior Counsel
submitted that the provisions of Section 97
Cr.P.C. would not be applicable in the
present case.

13. On a pointed query by this Court
that if this argument is to be raised, he must
specify under which provision the mother
of the petitioners Shaishta Parveen has
moved an application before the Chief
Judicial Magistrate, Allahabad, which is
being pursued, wherein several orders have
already been passed, if the said application
has not been filed under Section 97
Cr.P.C.? We specifically note that no reply
to the said question was given by the
learned Senior Counsel.

14. In any case, we find that it is a
settled law that mention of incorrect
provision
or
non-mentioning
of
the
4 All. Ahzam Ahmad & Anr. Vs. State of U.P. & Ors.
53
provision by itself does not render the
proceedings
invalid
and
therefore,
preliminary objection that the petitioners
have already approached the competent
court under Section 97 Cr.P.C. by filing
effective statutory remedy is upheld.

15. Before proceeding further it would
be relevant to take note of Article 21 of the
Constitution of India, which is quoted as
under:-

"21. Protection of life and
personal liberty.- No person shall be
deprived of his life or personal liberty
except according to procedure established
by law."

(emphasis supplied)

16. Article 21 clearly provides that no
person shall be deprived of his life or
personal liberty except "according to
procedure established by law".

17. It is also relevant to take note of
meaning of ''habeas corpus' as provided
under Law of Writs by V.G. Ramachandran
Seventh Edition at page 5, which is quoted
as under:-

"Habeas Corpus Meaning

"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.

According
to
the
dictionary
meaning, "habeas corpus" means "have the
body", "bring the body-person-before us".
Habeas corpus is a writ requiring a person
to be brought before a judge or a court for
investigation of a restraint of the person's
liberty, used as a protection against illegal
imprisonment.

It is a writ to a jailer to produce a
prisoner in person, and to state the reasons
of detention.

Habeas corpus is a writ requiring
a person to be brought before a judge or
court for investigation of a restraint of the
person's liberty, used as a protection against
illegal imprisonment.

Habeas corpus is a writ requiring
a person under arrest to be brought before a
judge or into court to secure the person's
release unless lawful grounds are shown for
his or her detention.

18. For ready reference, Section 97
Cr.P.C., which provides effective statutory
remedy, is also quoted as under:-

"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."

19. We have carefully gone through
the judgments cited by learned counsel for
the petitioners and we find that none of the
54 INDIAN LAW REPORTS ALLAHABAD SERIES
judgments so cited support the submission
of learned counsel for the petitioners made
in reply to the preliminary objection.

20. In Smt. Ichhu Devi Choralia
(supra) order of detention passed under the
provisions of Conversation of Foreign
Exchange and Prevention of Smuggling
Activities Act, 1974 was under challenge
and also on the ground of violation of
Article 22(5) of the Constitution of India.
In paragraph 4 as relied on by learned
counsel for the petitioners it has been laid
down that the practice evolved by this
Court is not to follow strict rules of
pleading nor place undue emphasis on the
question as to on whom the burden of proof
lies. Such questions are not involved in the
present case, and aforesaid case also does
not deal with preliminary objection as
raised in the present case therefore, the case
is not relevant for the purpose of dealing
with preliminary objection involved herein.

21. Reliance on paragraph 7 of the
Ayya @ Ayub (supra) has been placed to
assert that the personal liberty protected
under Article 21 of the Constitution of
India is sacrosanct and high in the scale of
constitutional values. There is no quarrel
about this proposition of law. However, it
may be noted that in this case also the order
of detention of the petitioner under Section
3(2) of the National Securities Act, 1980
was under challenge and therefore, this
case is also not relevant for the purpose of
disposal of issue of preliminary objection.

22. There can be no dispute that the
question of interpretation of Article 21 of the
Constitution of India and its applicability is
not before this Court at this stage.

23. Madhu Limaye (supra) is also
not on the issue of availability of
alternative remedy and thus, does not
address the preliminary objection raised by
the State, where Madhu Limaye, Ex-MP
and several other persons were arrested and
question in relation to the compliance of
Article 22(1) of the Constitution of India
was raised. This case also does not provide
any reply to the issue of preliminary
objection.

24. In Sunil Batra (supra) right of a
detenue in jail was under consideration,
therefore, the same is also not relevant for
the purpose of preliminary objection issue.

25. Similarly, in Re Keshav Singh
1964 0 Supreme (SC) 238 the paragraph
relied on by learned counsel for the
petitioners are on the question of grant of
bail in habeas corpus matter, which again is
not relevant for replying the issue of
preliminary objection.

26. The judgments of Capt. Dushyant
Somal (supra) and Vinayak Goyal
(supra) are on the child custody and they
are also not relevant on preliminary
objection.

27. Munshi Singh Gautam (supra) is
also not relevant as it is on the custodial
death and thus, is not relevant in the present
case on preliminary objection.

28. In Prabhu Dayal Deorah (supra)
the detention order under the Maintenance
of Internal Security Act, 1971 was under
challenge and therefore, this case also does
not address the preliminary objection issue.

29. Similarly, in Raman Lal Rathi
(supra) the detention order under the
Preventive Detention Act, 1950 was under
challenge and is also not relevant. In the
said case also the question of Article 22(5)
4 All. Ahzam Ahmad & Anr. Vs. State of U.P. & Ors.
55
of the Constitution of India was involved,
which is not so in the present case.

30. In Ram Manohar Lohia (supra)
the petitioner was arrested and scope of
habeas corpus petition was considered and
challenge to the constitutionality of the Act
was also raised, however, we find that the
same also does not provide any specific
reply to the preliminary objection.

31. We find that in Whirlpool
Corporation (supra) the question of
maintainability of the writ petition under
Article 226 of the Constitution of India was
considered and it was held that power to
issue alternative writs under Article 226 of
the Constitution of India is plenary in
nature and is not limited by any other
provision of Constitution and this power
can be exercised by the High Court not
only for issuing writs for the enforcement
of any of the fundamental rights contained
in Part-III of the Constitution but also for
''any other purpose'. It was held that under
Article 226 of the Constitution of India, the
High Court, having regard to the facts of
the case, has a discretion to entertain or not
to entertain a writ petition but the High
Court
imposed
upon
itself
certain
restrictions one of which is that if an
alternative effective remedy is available, the
High Court would not normally exercise its
jurisdiction but the alternative remedy has
been consistently held by this Court not to
operate as a bar. However, in three
contingencies, namely, for enforcement of any
fundamental rights or in violation of principles
of natural justice or where the order
proceedings are wholly without jurisdiction or
the vires of an Act is under challenge it was
held that alternative remedy would not operate
as an absolute bar. The said judgment is being
consistently relied on till now.

32. In The Chairman, Railway
Board (supra) while the question of
invoking jurisdiction under Article 226 of
the Constitution on India was whether the
same can be invoked to get relief otherwise
available under the private law.

33. In Bhim Sain Tyagi (supra) the
question of challenge to notice issued under
U.P. Control of Goondas Act, 1970 was
involved and in this case judgment of
Whirlpool
Corporation
(supra)
on
alternative remedy was relied on, which has
already been discussed above.

34. We find that there is no quarrel
with the law regarding invoking the
jurisdiction of High Court under Article
226 of the Constitution of India that
availability of alternative remedy is not an
absolute bar. However, equally settled is
the law that Courts ought to be extremely
slow
in
exercising
its
extraordinary
jurisdiction if effective alternative statutory
remedy is available. In the present case, we
find that the petitioners have already
invoked the provisions of Section 97
Cr.P.C., which is an effective statutory
remedy, therefore, it is not the question
where preliminary objection is being raised
solely on the ground that effective statutory
remedy is available. In fact, preliminary
objection is that admittedly, the effective
alternative statutory remedy has already
been availed of by the petitioners, which is
still pending and is being pursued by the
petitioners.
Therefore,
reply
to
the
preliminary
objection
that
effective
statutory remedy has already been availed
of, merely by asserting that the alternative
remedy is not an absolute bar, in our
opinion, is of no help to the petitioners as
admittedly the same has already been
availed of. On this admitted fact, the
56 INDIAN LAW REPORTS ALLAHABAD SERIES
preliminary objection is liable to be
sustained.

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:

"79. We accordingly come on our
conclusions in respect of question nos. 1, 2
and 3 for determination as follows:

Question No. 1: "(1) Whether a
writ of habeas corpus is maintainable
against the judicial order passed by the
Magistrate or by the Child Welfare
Committee appointed under Section 27 of
the Act, sending the victim to Women
Protection
Home/Nari
Niketan/Juvenile
Home/Child Care Home?

Answer: If the petitioner corpus
is in custody as per judicial orders passed
by a Judicial Magistrate or a Court of
Competent Jurisdiction or a Child Welfare
Committee
under
the
J.J.
Act.
Consequently, such an order passed by the
Magistrate or by the Committee cannot be
challenged/assailed or set aside in a writ of
habeas corpus.

Question
No.
2:
"Whether
detention of a corpus in Women Protection
Home/Nari Niketan/Juvenile Home/Child
Care Home pursuant to an order (may be
improper) can be termed/viewed as an
illegal detention?

Answer: An illegal or irregular
exercise of jurisdiction by a Magistrate or
by the Child Welfare Committee appointed
under Section 27 of the J.J. Act, sending the
victim to Women Protection Home/Nari
Niketan/Juvenile Home/Child Care Home
cannot be treated an illegal detention.

Question No. 3: Under the
Scheme of the Juvenile Justice (Care and
Protection of Children) Act, 2015 the
welfare and safety of child in need of care
and protection is the legal responsibility of
the Board/Child Welfare Committee and as
such, the proposition that even a minor
cannot be sent to Women Protection
Home/Nari Niketan/Juvenile Home/Child
Care Home against his/her wishes, is
legally valid or it requires a modified
approach in consonance with the object of
the Act?"

Answer: Under the J.J. Act, the
welfare and safety of child in need of care
and protection is the legal responsibility of
the Board/Child Welfare Committee and the
Magistrate/Committee must give credence
to her wishes. As per Section 37 of the J.J.
Act the Committee, on being satisfied
through the inquiry that the child before the
Committee is a child in need of care and
protection, may, on consideration of Social
Investigation Report submitted by Child
Welfare Officer and taking into account the
child's wishes in case the child is
sufficiently mature to take a view, pass one
or more of the orders mentioned in Section
37(1)(a) to (h)."

36. Much emphasis was given by
learned counsel for the petitioners while
replying to the preliminary objection
regarding violation of Article 21 of the
Constitution of India.

37. At the cost of repetition it is
reiterated that Article 21 clearly provides
4 All. Vivan & Anr. Vs. State of U.P. & Ors.
57
protection of life and personal liberty,
however, it has clearly provided that no
person shall be deprived of his life or
personal liberty "except according to
procedure established by law".

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 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).

40. Consequently, in view of the
discussions made hereinabove preliminary
objection raised by the State that the
present petition is not maintainable as the
petitioners have already invoked provisions
of Section 97 Cr.P.C. and have approached
the competent court is upheld.

41.
Present
petition,
accordingly,
stands dismissed as not maintainable.
----------
(2023) 4 ILRA 57
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.02.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Habeas Corpus Writ Petition No. 919 of 2022

Vivan & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Manoj Kumar Keshari, Sri Beerendra
Singh Pal

Counsel for the Respondents:
G.A., Sri Shri Krishan Yadav

Civil Law - Constitution of India - Article
226, - Indian Penal Code, 1860 - Sections
304-B, 306, 498-A, 323, 504 & 506 -
Guardianship and Wards Act, 1890 -
Section - 4, 4(1), 4(2), 4)3), 7, 17(1),
17(2),
17(3),
-
Hindu
Minority
and
Guardianship Act, 1956 - Sections 2, 4, 6
& 13 - Hindu Marriage Act, 1955 - Section
- 26, - The Dowry Prohibition Act, 1961 -
Section - 3/4, - Domestic Violence Act,
2005- Section 12 - Writ of Habeas Corpus -
father seeking custody of his Children being
natural Guardian - Corpus are minor are aged
about 8 years and 3 years lying in custody of
their maternal grandparents - elder of them has