# Golu @ Arun Patel v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 1074
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-06
- **Case number:** Habeas Corpus Writ Petition No. 655 of 2023
- **Bench:** Rahul Chaturvedi, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/golu-arun-patel-v-state-of-u-p-ors-50732
- **Pages:** 10

## Headnote

Criminal Law-Constitution of India, 1950-
Article
226---Habeas
Corpus
writ---Only
prayer is sought is a direction to the respondent
to produce the corpus of petitioner Golu @ Arun
Patel before this Court and thereafter to set free
the corpus Golu @ Arun Patel at his own liberty,
who is in judicial confinement pursuant to the
FIR in case crime no. 41 of 2023 and facing the
trial in S.T. No. 385 of 2023 under Sections 4, 5
and 6 of the Immoral Traffic (Prevention) Act
1956---Writ of Habeas Corpus is not to be
entertained when a person committed to the
judicial custody or the police custody by a
competent court by an order, which prima facie
does not appear without jurisdiction or passed in
absolutely mechanical manner or wholly illegal---
Where there is no prayer with regard to the
alleged judicial remand is ex-facie defective or
illegal, instant Habeas Corpus writ petition in
favour of the petitioner cannot be allowed---Prayer
rejected with a cost of Rs50,000/.(Para 21 & 24)

Petition dismissed. (E-15)

List of Cases cited:

## Text

1074 INDIAN LAW REPORTS ALLAHABAD SERIES
on the designated portal with due regard to
the confidentiality and privacy of the child.

(22) When a parent or guardian,
wishes to surrender a child under subsection (1) of section 35 of the Act, such
parent
or
guardian
shall
make
an
application to the Committee in Form 23.
Where such parent or guardian is unable to
make an application due to illiteracy or any
other reason, the Committee shall facilitate
the same through the Legal Aid Counsel
provided by the Legal Services Authority,
the deed of surrender shall be executed as
per Form 24.

(23) The inquiry under subsection 3 of section 35 of the Act shall be
concluded by the Committee expeditiously
and the Committee shall declare the
surrendered child as legally free for
adoption after the expiry of sixty days from
the date of surrender

(24) In case of orphan or
abandoned child, the Committee shall make
all efforts for tracing the parents or
guardians of the child and on completion of
such inquiry, if it is established that the
child is either an orphan having no one to
take care, or abandoned, the Committee
shall declare the child legally free for
adoption.

(25) In case an abandoned or
orphan child is received by a Child Care
Institution
including
a
Specialised
Adoption Agency, such a child shall be
produced before the Committee within
twenty-four hours (excluding the time
necessary for the journey) along with a
report in Form 17 containing the particulars
and photograph of the child as well as the
circumstances in which the child was
received by it and a copy of such report
shall also be submitted by the Child Care
Institution or a Specialised Adoption
Agency to the local police station within
the same period.

(26) The Committee shall issue
an order in Form 18 for short term
placement and interim care of the child,
pending inquiry under section 36 of the
Act.

(27) The Committee shall use the
designated portal to ascertain whether the
abandoned child or orphan child is a
missing child while causing the details of
the orphan or the abandoned child to be
uploaded. (28) The Committee, after taking
into account the risk factors, and in the best
interest of the child, may direct the
publication
of
the
particulars
and
photograph of an orphan or abandoned
child in national newspapers with wide
circulation within seventy two hours from
the time of receiving the child for the
purposes of tracing out the biological
parents or the legal guardian(s).

(29)
The
Committee,
after
making inquiry as per the provisions of the
Act, shall issue an order in Form 25
declaring the abandoned or orphan child as
legally free for adoption and send the same
information to the Authority.

(30) Where the parents of the
child
are
traced,
the
procedure
for
restoration of the child shall be as per rule
82 of these rules."
----------
(2023) 9 ILRA 1074
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.09.2023

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Habeas Corpus Writ Petition No. 655 of 2023

Golu @ Arun Patel ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
9 All. Golu @ Arun Patel Vs. State of U.P. & Ors.
1075
Counsel for the Petitioner:
Sri Chandra Prakash Tiwari, Sri Mahesh Kumar,
Sri Yogendra Singh

Counsel for the Respondents:
G.A.

Criminal Law-Constitution of India, 1950-
Article
226---Habeas
Corpus
writ---Only
prayer is sought is a direction to the respondent
to produce the corpus of petitioner Golu @ Arun
Patel before this Court and thereafter to set free
the corpus Golu @ Arun Patel at his own liberty,
who is in judicial confinement pursuant to the
FIR in case crime no. 41 of 2023 and facing the
trial in S.T. No. 385 of 2023 under Sections 4, 5
and 6 of the Immoral Traffic (Prevention) Act
1956---Writ of Habeas Corpus is not to be
entertained when a person committed to the
judicial custody or the police custody by a
competent court by an order, which prima facie
does not appear without jurisdiction or passed in
absolutely mechanical manner or wholly illegal---
Where there is no prayer with regard to the
alleged judicial remand is ex-facie defective or
illegal, instant Habeas Corpus writ petition in
favour of the petitioner cannot be allowed---Prayer
rejected with a cost of Rs50,000/.(Para 21 & 24)

Petition dismissed. (E-15)

List of Cases cited:

1. Serious Fraud Investigation Office & ors.Vs
Rahul Modi & ors.2019 (5)SCC 266

2. Manubhai Ratilal Patel through Ushaben Vs
St. of Guj. & ors.(2013) 1 SCC 314

3. Secretary of Home Affairs Vs O Brien 1923 AC
603

4. Kanu Sanyal Vs District Magistrate, Darjeeling
1976(2) SCC 674

5. Sanjay Dutt (2) Vs State 1994 (5)SCC 410

6. St. of Mah. Vs Tanseem Rizwan Siddiquee
(2018) 9 SCC 745

7. VS Senthil Bala Ji Vs The St. of represented
by Deputy Director & Others in Crl. Appeal no.
2288- 2289 of 2023
(Delivered by Hon'ble Rahul Chaturvedi, J.
& Hon'ble Mohd. Azhar Husain Idrisi, J.)

1. Heard Sri Yogendra Singh, learned
counsel for the petitioner and Sri Satendra
Tiwari, learned AGA for the State and
perused the record.

2. Before hearing the arguments on
merits,
learned
AGA
have
objected
regarding the 'maintainability' of instant
Habeas Corpus writ petition, allegedly filed
by Golu @ Arun Patel, the petitioner. Thus
the Court has directed the counsel for the
petitioner to advance his argument with
regard to the 'maintainability' of the instant
Habeas Corpus writ petition, at the
admission stage itself, so that the same
shall be decided at the threshold stage.

3. Before appreciating the arguments
advanced by learned counsel for the
petitioner
with
regard
to
the
'maintainability', it is imperative to spell
out the 'prayer' sought by the petitioner in
the instant habeas corpus writ petition
coupled with the facts of the case, which
has allegedly given rise to this writ
petition:-

4. The prayer sought by the petitioner
is that :-

" i) A writ, order or direction in the
nature of habeas corpus to direct the
respondents to produce the corpus namely,
Golu @ Arun Patel before this Hon'ble
Court and to set free the corpus namely
Golu @ Arun Patel at his own liberty in
pursuance of the F.I.R. dated 16.02.2023
registered as Case Crime No. 41 of 2023,
Sessions Trial No. 385 of 2023 under
Sections 4,5 and 6 of the Prevention of
Immoral Trafficking Act, Police StateJaipura, District-Varanasi.
1076 INDIAN LAW REPORTS ALLAHABAD SERIES

ii)
An
order
or
direction
for
compensation in favour of the petitioner
and against the respondents.

iii) To pass an order of disciplinary
enquiry against the erring officer.

iv) Any other writ order or direction,
which this Hon'ble Court may deem fit and
proper under the facts and circumstances
of the case.

v) Award the cost of the petition in
favour of the petitioner and against the
respondents."

5. Thus, from the prayer sought, it is
apparent that the only prayer is sought is a
direction to the respondent authorities to
produce the corpus of petitioner Golu @
Arun Patel before this Court and thereafter
to set free the corpus Golu @ Arun Patel at
his own liberty, who is in judicial
confinement pursuant to the FIR dated
16.02.2023 in case crime no. 41 of 2023
and facing the trial in S.T. No. 385 of 2023
under Sections 4, 5 and 6 of the Immoral
Traffic
(Prevention)
Act
1956,
P.S.
Jaitpura, District Varanasi. There is neither
any prayer nor any pleadings to this effect
that
the
alleged
judicial
remand
is
absolutely illegal or suffers from the vice of
lack of jurisdiction or has been passed in
absolutely mechanical manner by the court
concerned. Moreover, now the petitioner is
facing the regular trial S.T. No.385 of 2023
and thus to canvass that the judicial remand
is farfetched.

FACTUAL
MATRIX
OF
THE
CASE

6. On 16.02.2023 around 13.38 hours
one Habiburrehman has lodged an FIR
against unknown person for the incident
said to have been taken place on
12.02.2023 under Section 363 IPC at P.S.
Jaitpura,
District
Kashi
(Police
Commissionerate
Varanasi)
with
the
allegation that the informant is residing at
adjacent lane, nearby Kohinoor Garden in a
tenanted
accommodation.
Informant's
daughter V.P. (the name of the victim has
been eclipsed) on 12.02.2023 went from
her home without informing anybody and
since then her whereabouts were not
traceable and thus prayed that the police
may help in searching his daughter V.P..
After lodging of the FIR the police has
inquired
from
the
informantHabiburrehman
but
the
victim
was
recovered after 15 days. In her 161 Cr.P.C.
statement was recorded and the same is
annexed as Annexure No. 2A to the
petition. In this 161 Cr.P.C., dated
25.02.2023, she declares that her age is 16
years and she further states in her 161
Cr.P.C. statement that she left her home on
her own, without any information or
knowledge to any of the family members in
order to earn money. She went to Cantt.
Railway Station Varanasi and started
searching out work for her. At the Station
she met with one Prakash. Prakash has
made an offer that he would provide
service at Indore, M.P. and asked her to
purchase ticket for Indore. For this purpose,
she contacted with one Golu, her own old
acquaintance. Golu and her father came to
station and taken her to home. She
remained silent when the question was put
by the I.O. as there was any sexual
excessive were done by Prakash or not. She
further states that all during these 15 days
she remained at Varanasi Station.

7. Thereafter, the I.O. of the case has
brought her before the Magistrate for
recording her statement under Section 164
Cr.P.C. dated 27.02.2023, in which, she
discloses that her age is 17 years and she
further states that on her own she left her
home, as the condition of the home were
9 All. Golu @ Arun Patel Vs. State of U.P. & Ors.
1077
not congenial on account of financial
distress & paucity. She went to the railway
station to get herself engage in some
work,so that she may earn money. At the
station, she met with two ladies and a manPrakesh, the ladies did not disclose their
names or identity and all of them have
made an offer to accompany her to Indore,
so that, they may arrange a good service for
her.
Consequently,
she
joined
their
company and thereafter, all of them have
administered her 'Beer' and some other
'intoxicant', so that she got unconscious.
Not only this, they have taken her to some
nearby hotel, where Prakash got her engage
in sexual activities with some unknown
persons. Not only this, Prakash and his wife
compulsorily making her, as an subject of
the sexual activities with some unknown
persons person and in flesh trading while
sending her in number of hotels and
virtually they have thrown her in the "so
called profession" of prostitution for 15
days.

8. In the 'Majeed Bayan' of
Habiburrehman, after inquiring from her
daughter thereby she disclose her pathetic
& ordeal experience during these 15 days.
She has given every minutest detail of
suffering faced by her to her father. In
which she has almost reiterated the 164
Cr.P.C. version with necessary details in it.
Many other characters were inserted in her
story as she was dumped into market of
flesh trading. It is not out of place to
mention here, that this shameful profession
there are number of persons involved in it
in the dark of secrecy. Since she was
thrown in this furnace of flesh trading, she
has disclosed the names of all those
persons, who were engaged in it as pimp or
broker,
hotel
owners,
its
mangers,
customers etc.. She states that Prakash used
to collect the amount and never shares with
her, however, she managed to come from
his clutches and came to her father's place
on 25.02.2023.

9. During this investigation the police
has recorded the statement of Durga
Vishwakarma, yet another victim and
recorded her 161 & 164 Cr.P.C. statement.
She was also engaged in the same business
of prostitution with V.P.. She too have
shared her experience before the Magistrate
by narrating pathetic saga faced buy her &
V.P.. Accused Abid Khan @ Rinku,
Manager of the Suyog Guest House, who
have disclose the active complicity of the
present petitioner Golu @ Arun Patel in
this racket. These statements clearly
indicates that the petitioner was actively
involved in this act of prostitution and flesh
trading, who was working as a pimp or a
broker, who used to provide the space in
the Guest House to his customer. Deepak
Kumar too has recorded her statement
under Section 161 Cr.P.C., one Suhani
Pathak, wife of Ramesh Kumar Pathak
recorded her statement under Section 161
Cr.P.C., accused Prakash Vishwakarma,
Golu Jaiswal and lastly the 'Majeed Bayan'
of the victim V.P.. In her .Majeed Bayan'
states that Prakash used to keep knife with
him and extending the threats she was
compelled to satisfy the customers. The
hotel owners, the Managers, the hotel
waiters
are
all
engage
in
the
act
prostitution. Not only this, the petitioner
named above has also confessed his guilt
and involvement in his 161 Cr.P.C.
statement before the police.

10. After collecting the material
during
investigation
and
critically
analysing the same, the police have
submitted a supplementary "Charge Sheet"
on 01.07.2023 under Section 363 and
Section 5, 4 and 6 Immoral Traffic
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
(Prevention) Act 1956 and Section 4,17 and
7 of the POCSO Act against the petitioner
named above and the learned trail judge has
taken the cognizance of the offence. Not
only this, the learned Magistrate after
committing the case to learned Sessions
Judge for the trial of the petitioner and all
other accused, who were facing the trial in
S.T. No. 385 of 2023.

11. On these factual matrix of the
case, learned counsel for the petitioner have
tried to assail the confinement order of the
petitioner. It is contended by the counsel
that the petitioner's incarceration into the
jail is a result of the procedural fallacy. The
petitioner ought not to have send to jail in
connection with the offence. It is stated that
petitioner's name does not find place in the
FIR and the way and the manner
petitioner's alleged complicity has shown
by the police is wholly untrustworthy. In
this regard number of procedural fallacy
were pointed out by the learned counsel for
the petitioner. In this regard, it is contended
that the 161 Cr.P.C. statement of Deepak
Kumar and Abid Khan, the co-accused
could be read against the petitioner.
Interestingly in the entire pleadings the
petitioner has not made any whisper with
regard to non-compliance of mandatory
provisions
along
with
a
total
nonapplications of mind while passing the
judicial remand order.

We have perused the grounds taken in
which no ground was taken challenging the
alleged remand order or the powers of
Magistrate while passing the remand
orders.

12. It is not disputed that after having
a thread bare investigation, the police has
already submitted report under Section
173(2) Cr.P.C. and the learned Magistrate
has already taken the cognizance of the
offence. Presently, the petitioner is under
the judicial remand by an order of
competent Judicial Magistrate, who is
empowered to pass judicial remand order.
Without any pleadings or ground taken in
this petition, learned counsel for the
petitioner have started taking tangent
arguments, half heartedly with regard to the
judicial remand, without any basis or
ground taken by him.

It is also not disputed that the
petitioner is facing the S.T. No. 385 of
2023 and is in behind the bars pursuant to
the judicial remand. At this stage, when
there is ensuing Session's Trial, in which
the petitioner is facing the trial, much water
has flown in the river and at this juncture
we cannot put the clock back to the
cognizance stage & challenge the charge
sheet.

13. The second limb of the argument
is that after the recording the 164 Cr.P.C.
statement "majeed bayan" of the victim
cannot be looked into. Thirdly, the
confinement made by the State-Authority is
per-se illegal and remand order is bad in
eye of law and therefore, the petitioner is
entitled to be released from the jail as the
same is violative of Article 21 of the
Constitution of India.

14. Broadly speaking aforementioned
are moot issues canvassed by the learned
counsel for the petitioner, in support of
prayer sought by means of the present
Habeas Corpus writ petition.

15. Per contra, Sri Satendra Tiwari,
learned AGA has vehementally opposed
the 'maintainability' aspect of the present
Habeas Corpus writ petition. He has
charged, the counsel for the petitioner for
9 All. Golu @ Arun Patel Vs. State of U.P. & Ors.
1079
concealing the material fact, a deliberate
and intentional attempt for hiding of the
material fact that the petitioner's Bail
Application No.3252 of 2023 was rejected
by the court concerned on 11.07.2023
arising out of case crime no. 41 of 2023 in
S.T. No. 385 of 2023 under Sections, 4,5
and 6 of Immoral Traffic (Prevention) Act,
1956. In this regard, it is contended by
learned AGA that though there is passing
reference of the aforesaid bail rejection
order in paragraph 2A of the petition but
the learned counsel for the petitioner has
purposely concealed and have not annexed
the said bail rejection order by the
concerned court for the reasons best known
to him. Moreover, when learned court
below have rejected the bail application of
the petitioner, then natural outcome would
be to move Bail Application before the
High Court under Section 439 Cr.P.C. and
not by filing the Habeas Corpus Petition.

16. Learned AGA has produced a
judgment of Hon'ble Apex Court in the
case of Serious Fraud Investigation
Office and Ors. Vs. Rahul Modi and Ors.
reported in 2019 (5)SCC 266 in which
reads thus:-

"(21) The act of direction remand of
an accused is thus held to be a judicial
function and the challenge to the order of
remand is not to be entertained in a
habeas corpus petition."

We have also noticed in paragraph 19
of the judgment :-

"(19) The law is thus clear that "in
habeas corpus proceedings a court is to
have regard to the legality or otherwise of
the detention at the time of the return and
not with reference to the institution of the
proceedings".

17. In addition to above, Sri Satendra
Tiwari, learned AGA also cited yet another
judgement of Hon'ble Apex Court in the
case of Manubhai Ratilal Patel through
Ushaben Vs. State of Gujrat and others
reported in (2013) 1 SCC 314, in the
aforesaid judgment the Hon'ble Apex
Court has an occasion to evaluate the depth
and the reach and the import of Habeas
Corpus Petition, since the petitioner had
knocked the door of the High Court in the
Habeas Corpus Petition. The writ of
Habeas Corpus has always been given due
signification as a effective method to
ensure the release of detained person from
the prison. In and old treatises expounding
the scope and ambit of Habeas Corpus
Petition while defining the Habeas Corpus
states as under:-

"The ancient prerogative writ of
habeas corpus take its name from two
mandatory word Habeas & Corpus which
contain at the time when it, in common
with all forms of legal process, was
framed in latin. The general purpose of
these writs as there name indicates, was to
obtain the production of an individual."

In the case of Secretary of Home
Affairs Vs. O Brien reported in 1923 AC
603 in which it has been observed that :-

"It has been observed that it is
perhaps the most important writ known to
the constitutional law of England affording
as it does a swift and imperative remedy in
all cases of illegal restraint or confinement.
It is of immemorial antiquity, an instance of
its use occurring in the thirty third year of
Edward I. It has through the ages been
jealously maintained by the courts of law
as a check upon the illegal usurpation of
power by the executive at the cost of
liege."
1080 INDIAN LAW REPORTS ALLAHABAD SERIES

18. The whole object of proceeding
for a writ of habeas corpus writ is to make
them expeditious, keep them free from all
the technicality as possible and keep them
simple as possible.

19. In the case of Kanu Sanyal Vs.
District Magistrate, Darjeeling reported
in 1976(2) SCC 674, the Hon'ble Apex
Court has laid down that these writ of
habeas corpus deals with the machinery of
justice and not a substantive law. The
object of the writ is to secure the release of
the person who is illegal restrain to this
liberty.

20. At this juncture, we may
profitably refer to the Constitutional Bench
Judgement in the case of Sanjay Dutt (2)
Vs. State reported in 1994 (5)SCC 410, the
relevant extract of the judgment, which
reads thus:-

"48.......It
is
settled
by
the
Constitution Bench decisions that a
petition seeking the writ of habeas corpus
on the ground of absence of a valid order
of remand or detention of the accused, has
to be dismissed, if on the date of return of
the rule, the custody or detention is on the
basis of a valid order."

"23. Keeping in view the aforesaid
concepts with regard to the writ of habeas
corpus, especially pertaining to an order
passed by the learned Magistrate at the
time of production of the accused, it is
necessary to advert to the schematic
postulates under the Coderelating to
remand. There are two provisions in the
Codewhich
provide
for
remand,
i.e.,Sections 167and309. The Magistrate
has the authority underSection 167(2)of
the Code to direct for detention of the
accused in such custody, i.e., police or
judicial, if he thinks that further detention
is necessary.

24. The act of directing remand of an
accused is fundamentally a judicial
function. The Magistrate does not act in
executive capacity while ordering the
detention of an accused. While exercising
this judicial act, it is obligatory on the part
of the Magistrate to satisfy himself
whether the materials placed before him
justify such a remand or, to put it
differently, whether there exist reasonable
grounds to commit the accused to custody
and extend his remand. The purpose of
remand as postulated underSection 167is
that investigation cannot be completed
within 24 hours. It enables the Magistrate
to see that the remand is really necessary.
This requires the investigating agency to
send the case diary along with the remand
report
so
that
the
Magistrate
can
appreciate the factual scenario and apply
his mind whether there is a warrant for
police remand or justification for judicial
remand or there is no need for any
remand at all. It is obligatory on the part
of the Magistrate to apply his mind and
not
to
pass
an
order
of
remand
automatically or in a mechanical manner.
It is apt to note that in Madhu Limaye
(supra), it has been stated that once it is
shown that the arrests made by the police
officers were illegal, it was necessary for
the State to establish that at the stage of
remand, the Magistrate directed detention
in jail custody after applying his mind to
all relevant matters."

21. Thus, the exercise of jurisdiction
clearly shows that the Magistrate performs
a judicial act. The order of remand, which
is a judicial act, as we perceive does not
suffer from any infirmity. It is a well
accepted principles that a writ of Habeas
Corpus is not to be entertained when a
9 All. Golu @ Arun Patel Vs. State of U.P. & Ors.
1081
person committed to the judicial custody or
the police custody by a competent court by
an order, which prima facie does not appear
without jurisdiction or passed in absolutely
mechanical manner or wholly illegal as has
been
stated
in
judgement
in
B.Ramchandra Rao(supra) & Kanu
Sanyal(supra). The court is required to
scrutinize the legality or otherwise of the
order of detention which has been passed
unless the court is satisfied the person has
been committed to the jail custody by
virtue of an order that suffer from vice of
lack of jurisdiction or absolute illegality a
habeas corpus writ petition cannot be
granted. It is apposite to note that the
investigation, as has been dealt with in a
various authorities of the courts is neither
an inquiry or a trial. It is within the
exclusive
domain
of
the
police
to
investigate and is independent of any
control by Magistrate. The sphere of
activities is clear cut and well demarcated,
thus we are of the considered opinion that
the prayer sought by means of the present
Habeas Corpus writ petition could not be
granted in favour of the petitioner.

22. Seeking help from yet another
judgment
in
the
case
of
State
of
Maharashtra
Vs.
Tanseem
Rizwan
Siddiquee reported in (2018) 9 SCC 745 :-

"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 346] 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.131 vide order
dated 17th March, 2018 and which
police remand was to enure till 23 rd
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."

23. In the latest pronouncement of the
Hon'ble Supreme Court delivered on
07.08.2023 in the case of V. Senthil Bala
Ji Vs. The State of represented by
Deputy Director & Others in Crl. Appeal
no. 2288-2289 of 2023 in which Hon'ble
Supreme Court lucidly explained :-

"29. A writ of Habeas Corpus shall
only be issued when the detention is
illegal. As a matter of rule, an order of
remand by a judicial officer, culminating
into a judicial function cannot be
challenged by way of writ of Habeas
Corpus, while it is open to the person
aggrieved to seek other statutory remedies.
When there is a non-compliance of the
mandatory provisions along with a total
non-application of mind, there may be a
1082 INDIAN LAW REPORTS ALLAHABAD SERIES
case for entertaining a writ of Habeas
Corpus and that too by way of challenge."

As mentioned earlier the petitioners
neither challenged the judicial remand
order nor any pleadings to this effect was
made in the entire proceedings. The Court
is at complete loss to appreciation the
arguments which are tangent to the
pleadings.

24. In the light of the above
judgements, when there is a no prayer with
regard to the alleged judicial remand is exfacie defective or illegal by the aforesaid
any of the vices, we cannot allow the
instant Habeas Corpus writ petition in
favour of the petitioner. As it is evident
from the prayer, that only limited remedy is
sought to the extent that the personal
presence of the petitioner may be ordered
and he is sat at liberty. There is no whisper
with regard to the fact that the alleged
remand by the Magistrate suffers from any
of the vices enumerated above. Even
assuming for the sake of argument that the
said judicial remand order suffers from any
of the vice mentioned above the apt remedy
is challenge the said order first by invoking
proper remedy for the same and then to
approach this Court.

25. Now coming to the last leg of the
argument
that
the
petitioner's
bail
application has already been rejected by the
concerned court by order dated 11.07.2023,
he ought to have invoked the powers of this
Court under Section 439 Cr.P.C. for filing
the bail application but instead of invoking
the same, learned counsel for the petitioner
has wrongly advices the petitioner to move
a instant Habeas Corpus writ petition
without challenging the judicial remand
order,
which
clearly
indicates
the
professional incompetence of the counsel
for the petitioner. Not only this, the learned
counsel during this marathon argument of
two days never divulged this important
aspect of this issue, that petitioner's bail
application was rejected on 11.07.2023.
When
a
counsel
is
invoking
the
extraordinary jurisdiction of this Court, he
must come with clean hands. We are of the
opinion that the learned counsel for the
petitioner
without
annexing
the
bail
rejection order has made a passing
reference, so as to justify his conduct.

26. More over, when he has only
given a passing reference the petitioner bail
application was rejected on 11.07.2023
without annexing the bail rejection order
clearly establish the fact that he wants to
hide
something
while
invoking
the
equitable jurisdiction of this Court, which
was purpose and intentional attempt on the
part of the counsel for the petitioner to play
a
hide
and
seek
with
the
court's
proceedings by concealing the material
fact.

27. Thus we are not at all inclined to
grant the desired prayer to the petitioner on
the aforesaid reasons and ground hereby
REJECTED the present Habeas Corpus
petition with the cost of Rs. 50,000/- (Rs.
Fifty
Thousand
Only),
which
the
petitioner shall deposit with the Registrar
General, High Court, Allahabad within a
period of one month from today. On
deposit of such cost, it shall be transmitted
to the account of 'High Court Legal
Services Committee, Allahabad'. If the
petitioner fails to deposit the cost of Rs.
50,000/- (Rs. Fifty Thousand Only), the
Registrar General of this Court shall inform
the District Magistrate/Collector, Varanasi
for recovery of the said amount as arrears
of land revenue, who shall after recovering
the said amount from the petitioner,
9 All. Sunil Kumar Katiyar Vs. State of U.P.
1083
transmit it to the Registrar General of this
Court for depositing in the account of
'High Court Legal Services Committee,
Allahabad' within a further period of two
months. It is also incumbent upon the
DM/Collector to apprise the court after
executing the order within the aforesaid
period.

28. No laxity would be tolerated in
executing the directions of the Court while
collecting the 'COST' from the petitioner
by the executive authority concerned within
time bound period.
----------
(2023) 9 ILRA 1083
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.08.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 948 of 2014

Sunil Kumar Katiyar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Yashpal, Sri Abhay Nitin Singh, Sri
Ashok Kumar Tripathi, Sri Binod Kumar
Tripathi, Sri Rajesh Yadav, Sri Shamimul
Hasnain

Counsel for the Respondent:
Govt. Advocate

Criminal Law-Code of Criminal Procedure,
1973-Section
374
-
The
Evidence
Act,1872-Section
106-
Appeal
against
judgment whereby accused has been convicted
under Section 302 I.P.C and sentenced for life
imprisonment with fine of Rs.10,000/- with
default
stipulation---Case
of
circumstantial
evidence---Any
ingredient
mandatory
for
conviction and sentencing of an accused in a
case based on circumstantial evidence has not
been proved beyond reasonable doubt and
chain of circumstantial evidence also could not
be established against the accused---Order of
conviction and sentencing passed by the learned
Trial Court is not liable to be sustained in the
eye of law and is liable to be set-aside. (Para
15)
Appeal allowed. (E-15)

List of Cases cited:

1. Ujjagar Singh Vs St. of Punj., (2007) 13 SCC 90

2. Bhaskar Rao & ors.Vs St. of Mah., (2018) 6
SCC 591

3. Shivaji Chintappa Patil Vs St. of Mah., 2021 0
Supreme (SC) 121

4. Kulwinder Singh Vs St. of Punj., AIR 2007 SC
2868

5. Ganpat Singh Vs St. of M.P., (2018) 2 SCC
(Cri) 159

6. P. Mani Vs St. of T.N., AIR 2006 SC 1319

7. Kailash Chand Vs St. of Raj. (2017) 11 SCC 268

8. Gargi Vs St. of Har., 2019 0 Supreme SC
1042

9. Satye Singh & anr.Vs St. of Uttrakhand,
(2022) 5 SCC 438

10. Devilal; Babulal Vs St. of Raj., 2019 Law Suit
(SC) 36

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Shri Ashok Kumar Tripathi
learned counsel for the sole appellant and
learned AGA for the state.

2. This appeal has been preferred
against the judgment and order dated