# Kanya Devi v. State of U.P. & Ors

- **Citation:** (2022) 1 ILRA 164
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-23
- **Case number:** Habeas Corpus Writ Petition No. 266 of 2021
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kanya-devi-v-state-of-u-p-ors-47649
- **Pages:** 5

## Headnote

Criminal Law - Constitution of India, 1950
- Article 226 - Indian Penal Code 1860 -
Sections 364 & 498A - Dowry Prohibition
Act, 1961 - Section 3/4 - Habeas Corpus
writ petition - Petitioner (mother of
corpus ) lodged F.I.R. - mother of corpus,
moved
an
application
before
the
Magistrate
for
fair
investigation
-
petitioner allegation that she was neither
aware of the proceedings of the case nor
any progress report has been submitted
by the Investigating Officer - Held -
Habeas Corpus writ petition before High
court is not maintainable - petitioner has a
remedy under Section 190 read with
Section 156 of Cr.P.C. to approach before
the concerned Magistrate for redressal of
her grievance & regarding the latest
progress of the case (Para 7, 9)

Disposed off. (E-5)

## Text

164 INDIAN LAW REPORTS ALLAHABAD SERIES

(iv) Income after deduction of
1/4th : Rs. 84,000 - 21,000 = Rs. 63,000/-

(v) Multiplier applicable : 16 :-
Rs. 63,000 X 16 = Rs. 10,08,000/-

(vi) Amount under non pecuniary
head:Rs.70,000/-+30,000 = Rs.1,00,000/

(vii)
Total
compensation:Rs.
10,08,000+ Rs. 1,00,000 = Rs.11,08,000 /-

14. As far as Sukhpal is concerned,
he was in private service and also doing
agricultural
work.
We
consider
his
income to be Rs. 3,000/- per month to
which being below the age of 30 years,
40% will have to be added for future
prospects. He had 70% disability of body
as a whole to which we would consider it
as 35% as functional disability. The
Tribunal has been inconsistent, one
Tribunal has granted interest and other
Tribunal has refused interest on no fault
liability. Though the amount under no
fault liability should not have been kept
in fixed deposit as that amount is of
meeting the immediate needs of the
family, we deprecate the said practice.
The award shall carry 7% interest.

(i) Annual income Rs.3,000 X
12 = Rs. 36,000/- per annum

(ii) Percentage towards future
prospect : 40% = Rs. 14,400/-

(iii) Total income : Rs. 36,000 +
Rs. 14,400 = Rs. 50,400/-

(iv) Compensation for disability
@ 35%=Rs.2,99,880 or Rs. 3,00,000/-
(rounded of)

(v)
For
paying
shocking
suffering:- Rs. 25,000/-

(vi) Medical expenses and all
other charges:- Rs. 3,00,000 + Rs.
20,000= Rs. 3,20,000/-

(vii) Total compensation: Rs.
3,00,000 + Rs. 25,000/- + Rs. 3,20,000/-
= Rs. 6,45,000/-. Out of which the
amount under no fault liability will
have to be deducted.

15. In this case the Tribunal has held
that the Insurance Company will have right
of recovery from the owner, but in the final
award that direction is missing. However,
as we find that it is admitted fact that the
vehicle was insured with the Insurance
Company,
and
having
decided
the
compensation. We grant the Insurance
Company right of recovery to recover from
owner. However, it will have to prove
before the Tribunal that the owner was
aware about the fake driving license of the
driver and that driver was plying the
vehicle with such a fake driving license.
We pass this order as the Apex court in
Ram Chandra Singh Vs. Rajaram and
others AIR 2018 SC 3789 and the case of
Nirmala
Kothari
v.
United
India
Insurance Co. Ltd. (2020) 4 SCC 49,
wherein it is held that High Court and Trial
Court should examine the fact as to
whether the owner of the vehicle was aware
of fake driving license. In our case we
remand the matter for fresh consideration
on question of liability of the Insurance
Company to recover the amount form the
owner.

16. Appeals are partly allowed.
----------
(2022)01ILR A164
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.07.2021

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Habeas Corpus Writ Petition No. 266 of 2021

Kanya Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
1 All. Kanya Devi Vs. State of U.P. & Ors.
165
Counsel for the Petitioner:
Sri Ulajhan Singh Bind, Mansa Singh, Neetu
Singh

Counsel for the Respondents:
A.G.A.

Criminal Law - Constitution of India, 1950
- Article 226 - Indian Penal Code 1860 -
Sections 364 & 498A - Dowry Prohibition
Act, 1961 - Section 3/4 - Habeas Corpus
writ petition - Petitioner (mother of
corpus ) lodged F.I.R. - mother of corpus,
moved
an
application
before
the
Magistrate
for
fair
investigation
-
petitioner allegation that she was neither
aware of the proceedings of the case nor
any progress report has been submitted
by the Investigating Officer - Held -
Habeas Corpus writ petition before High
court is not maintainable - petitioner has a
remedy under Section 190 read with
Section 156 of Cr.P.C. to approach before
the concerned Magistrate for redressal of
her grievance & regarding the latest
progress of the case (Para 7, 9)

Disposed off. (E-5)

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

1. Counter affidavit filed today, is
taken on record.

2. Heard Sri Ulajhan Singh Bind,
learned counsel for the petitioner as well as
Sri
Vinod
Kant,
learned
Additional
Advocate General assisted by Sri Nagendra
Srivastava and Sri G.P. Singh represents
State-respondents.

3. This habeas corpus writ petition
has been filed by Ramrati, the mother of
the corpus with the following prayer :

"(i) Issue a habeas corpus writ,
order or direction in the nature of habeas
corpus directing the respondents to
produce the corpus namely Kanya Devi d/o
Harmunji Lal before this Hon'ble Court
and setting her at liberty to go anywhere
where she wants.

(ii) Issue any other suitable
habeas corpus order or direction as may be
deemed fit and proper in the circumstances
of the case.

(iii) Allow this habeas corpus
writ petition in favour of the petitioner."

4. Learned counsel for the petitioner
submits that in pursuance of the application
filed by the petitioner before the learned
Magistrate on 18.11.2018 for registering
the F.I.R. against the respondent nos. 4, 5
and 6 namely Sanjay Kumar, Madhu and
Arvind,
an
F.I.R.
was
lodged
on
13.01.2020, under Sections 498A, 364
I.P.C. and 3/4 D.P. Act against them at
Police Station Shivkuti, District Prayagraj
but neither the proceedings of the case was
expedited nor the corpus was recovered. He
further argued that respondent nos. 4 and 5
used to harass the petitioner-Kanya Devi
and the petitioner had informed her mother
in this regard. The petitioner had phoned
her mother for help but her mother was not
in a position to help her and after some
days, respondent nos. 4 & 5 with the help
of respondent no. 6 detained the petitioner.
The respondent no. 6 and respondent no. 5
are live in relationship and respondent no. 5
is sister of respondent no. 4 and respondent
nos. 5 & 6 are living in the house of
respondent no. 4. It was further the case of
the prosecution is that the investigating
officer after registering the FIR had not
taken any action against the respondent
nos. 4, 5 & 6 nor given any information
about recovery of the petitioner/corpus to
her mother namely Ramrati. Thereafter, the
mother of the corpus namely Ramrati filed
166 INDIAN LAW REPORTS ALLAHABAD SERIES
a Criminal Misc. Writ Petition No. 7408 of
2020 before this Court and this Court
disposed of the above writ petition vide
order dated 06.10.2020, the same is
reproduced herein below :

"Heard Sri Ulajhan Singh Bind,
learned counsel for the petitioner and the
learned AGA.

This writ petition has been filed
for
seeking
a
writ
of
mandamus
commanding the respondent concerned to
conduct fair investigation in pursuance of
FIR dated 13.01.2020.

It is submitted that petitioner is
an informant in the above case and despite
approaching the authority concerned for
fair investigation, no action whatsoever has
been taken, an appropriate direction be
issued
for
fair
and
expeditious
investigation.

It is well settled in view of the
decision of the Apex Court in Sakiri Vasu v.
State of U.P., (2008) 2 SCC 409 as
reiterated in Sudhir Bhaskarrao Tambe v.
Hemant, Yashwant Dhage and others,
(2016) 6 SCC 277 that in the event of
unsatisfactory investigation, remedy of the
aggrieved person is not to approach the
High Court under Article 226 of the
Constitution of India but to approach the
Magistrate concerned under Section 156(3)
Cr.P.C.

Paragraphs 2 and 3 of Tambe
(supra) are quoted hereunder:

"2. This Court has held in Sakiri
Vasu v. State of U.P., that if a person has a
grievance that his FIR has not been
registered by the police, or having been
registered, proper investigation is not
being done, then the remedy of the
aggrieved person is not to go to the High
Court under Article 226 of the Constitution
of India, but to approach the Magistrate
concerned under Section 156(3) CrPC. If
such an application under Section 156(3)
CrPC is made and the Magistrate is, prima
facie, satisfied, he can direct the FIR to be
registered, or if it has already been
registered,
he
can
direct
proper
investigation to be done which includes in
his discretion, if he deems it necessary,
recommending change of the investigating
officer, so that a proper investigation is
done in the matter. We have said this in
Sakiri Vasu case because what we have
found in this country that the High Courts
have been flooded with writ petitions
praying for registration of the first
information report or praying for a proper
investigation.

3. We are of the opinion that if
the High Courts entertain such writ
petitions, then they will be flooded with
such writ petitions and will not able to do
any other work except dealing with such
writ petitions. Hence, we have held that the
complainant must avail of his alternate
remedy
to
approach
the
Magistrate
concerned under Section 156(3) CrPC and
if he does so, the Magistrate will ensure, if
prima facie he is satisfied, registration of
the first information report and also ensure
a proper investigation in the matter, and he
can also monitor the investigation."

Thus, in view of the above,
remedy, if any, for the petitioner is to
approach the competent Magistrate in
respect of his grievance.

With the aforesaid observations,
this writ petition is disposed off.

The party shall file a computer
generated copy of this order downloaded
from the official website of High Court
Allahabad, self attested by the petitioner
alongwith a self attested identity proof of
the said person (s) (preferably Aadhar
Card).

The concerned Court/ Authority/
Official shall verify the authenticity of such
1 All. Kanya Devi Vs. State of U.P. & Ors.
167
computerized copy of the order from the
official website of High Court Allahabad
and shall make a declaration of such
verification in writing."

5. Thereafter, learned counsel for the
petitioner
further
submits
that
in
compliance of the order dated 06.10.2020,
the mother of corpus, Ramrati moved an
application
before
the
Magistrate
concerned, thereafter, the learned Chief
Judicial
Magistrate,
Court
No.
10,
Allahabad passed an order on 22.10.2010,
the same is reproduced herein below :

vkns'k

izkfFkZuh jkejrh dh vksj ls mijksDr
ekeys esa ekUuh; mPp U;k;ky; esa nkf[ky fdzfe0
fel0 fjV isVh'ku ua0 7408@2020 esa ikfjr
vkns'k fnukafdr 06-10-2020 nkf[ky fd;k x;k
gSA

lquk rFkk ekUuh; mPp U;k;ky; ds
mijksDr vkns'k dk voyksdu fd;kA

ekUuh; mPp U;k;ky; ds mijksDr
vkns'k ds vkyksd esa lacaf/kr foospd dks vknsf'kr
fd;k tkrk gS fd mDr ekeys esa foospuk
vfr'kh?kz iw.kZ djuk lqfuf'pr djsa rFkk vkjksii=
vfr'kh?kz U;k;ky; esa izf"kr djuk lqfuf'pr djsaA
bl vkns'k dh ,d izfr lacaf/kr Fkkuk iqfyl dks
vuqikyu gsrq izsf"kr dh tkosA

6. Learned counsel for the petitioner
further submits that the petitioner was
neither aware of the proceedings of the case
nor any progress report has been submitted
by the Investigating Officer.

7. Per contra, Sri Vinod Kant, learned
Additional Advocate General submits that
the jurisdiction lies with the Magistrate in
view of the provision of Section 190 read
with Section 156 of Cr.P.C. and the
Magistrate shall proceed in accordance
with law. He further suggests that the
petitioner
may
approach
before
the
concerned Magistrate regarding the latest
progress of the case and she may also
apprised the learned Magistrate that the
matter may be expedited, the learned
Magistrate may proceed in the matter in
accordance with law, hence the present
habeas
corpus
writ
petition
is
not
maintainable at this stage and referred the
provision of Section 190 and 156 Cr.P.C.
which is reproduced hereinbelow :

190. Cognizance of offences by
Magistrates.

(1) Subject to the provisions of
this Chapter, any Magistrate of the first
class, and any Magistrate of the second
class specially empowered in this behalf
under
sub-
section
(2),
may
take
cognizance of any offence-

(a) upon receiving a complaint of
facts which constitute such offence;

(b) upon a police report of such
facts;

(c) upon information received
from any person other than a police officer,
or upon his own knowledge, that such
offence has been committed.

(2) The Chief Judicial Magistrate
may empower any Magistrate of the second
class to take cognizance under sub- section
(1) of such offences as are within his
competence to inquire into or try.

156. Police officer' s power to
investigate cognizable case.

(1) Any officer in charge of a
police station may, without the order of a
Magistrate, investigate any cognizable case
which a Court having jurisdiction over the
local area within the limits of such station
would have power to inquire into or try
under the provisions of Chapter XIII.
168 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) No proceeding of a police
officer in any such case shall at any stage
be called in question on the ground that the
case was one which such officer was not
empowered
under
this
section
to
investigate.

(3) Any Magistrate empowered
under section 190 may order such an
investigation as above- mentioned.

8.

Considering
the
arguments
advanced by the learned counsel for the
parties and after perusal of record, this
Court finds that there is a force in the
submission made by Sri Vinod Kant,
learned Additional Advocate General that
the petitioner has a remedy under Section
190 read with Section 156 of Cr.P.C. to
approach before the concerned Magistrate
for redressal of her grievance.

9. From the persual of the record, it is
beyond doubt to observe that the learned
Magistrate is already monitoring the matter
and has passed the order dated 22.10.2020
directing the Investigating Officer to
investigate the matter expeditiously and
submit his report forthwith, if the petitioner
is not satisfied with the progress of the
investigation, she may apprise the learned
Magistrate with this fact and she may move
appropriate application in the case for
further direction to be issued in accordance
with law by the learned Magistrate.

10. Thus, in view of the above, the
remedy, if any, for the petitioner is to
approach the concerned Magistrate in
respect of her grievance, the present habeas
corpus writ petition before this Court is not
maintainable.

11. With the above observation and
direction, the present habeas corpus writ
petition is being finally disposed of.
----------
(2022)01ILR A168
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.12.2021

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

E-Habeas Corpus Writ Petition No. 362 of 2021

Abhayraj Gupta ...Petitioner
Versus
Superintendent, Central Jail, Bareilly &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Daya Shankar Mishra, Senior Advocate,
Sri Chandrakesh Mishra, Sri Abhishek
Mishra

Counsel for the Respondents:
Sri Syed Ali Murtaza, A.G.A., A.S.G.I., Ms.
Sadhana Singh, Advocate

Constitution of India - Article 226 - Habeas
corpus writ petition - F.I.R. lodged u/s 498A,
364 I.P.C., 3/4 D.P. Act - but neither
proceedings of case expedited nor corpus
recovered - habeas corpus writ petition filed for
direction to produce corpus and to set her at
liberty - Held - In view of S. 190 & S. 156
Cr.P.C. petitioner may approach Magistrate
regarding the latest progress of the case &
apprised Magistrate that the matter may be
expedited - habeas corpus writ petition not
maintainable (Para 9, 10)

Disposed Off. (E-5)

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Shri Daya Shankar Mishra,
learned Senior Advocate, assisted by Shri
Chandrakesh Mishra and Shri Abhishek
Mishra
Advocates,
learned
Counsel
appearing for the petitioner, Shri Syed Ali