# Km. Hashmi v. State of U.P. & Ors. 776 INDIAN LAW REPORTS ALLAHABAD SERIES Counse

- **Citation:** (2021) 11 ILRA 775
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-09
- **Case number:** Habeas Corpus No. 23362 of 2020
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-hashmi-v-state-of-u-p-ors-776-indian-law-reports-allahabad-series-counse-46700
- **Pages:** 10

## Headnote

Civil Law - Constitution of India - Article 226 -
Habeas Corpus Petition - Habeas Corpus
petition moved by father of the alleged
detenue - To set up the minority of his
daughter, petitioner took reliance on Aadhar
Card wherein, date of birth is mentioned as
12.05.2004 - Petitioner concealed educational
certificate of the school first attended by
detenue where the date of birth recorded was
5.4.2001- Detenue was recovered by police on
17.11.2020, statement of the detenue under
Sections 161 and 164 of the Cr.P.C. were
recorded - Before Magistrate detenue, being
major, opted to go with the family members of
the opposite party no.3, Vineet Kumar &
desired not to go with her parents - Concealing
all these facts petition was filed - Held - writ of
mandamus cannot be issued against the
private opposite party for the release of alleged
detenue
-
petition
suffers
from
the
concealment of material facts like the date of
birth of the alleged detenue entered into her
school records which she attended first,
recovery of girl by the police, recording of her
statement under Section 164 Cr.P.C. before the
Magistrate, when she was produced before him
- detenue by virtue of a judicial order was set
free to go wherever she wants and opted to go
with opposite party no.3, Vineet Kumar with
whom she wanted to marry. (Para 24, 30)

Dismissed. (E-5)

Cases Relied on:

## Text

11 All. Km. Hashmi Vs. State of U.P. & Ors.
775
Bhai Hirji Bhai Versus State of Gujarat, AIR
1983 SCC page 753, which is a classical case
reported way back in the year 1983, on which
reliance is placed by the learned Session Judge
would be helpful to the prosecution. The medical
evidence should show some semblance of forcible
intercourse, the prosecutrix was gagged and
hospitalised for three days even if we go as per the
version of the prosecutrix that the accused had
gagged her mouth for ten minutes and had
thrashed her on ground, there would have been
some injuries to the fully grown lady on the basis
of the body.

26. In our finding, the medical evidence goes to
show that doctor did not find any sperm. The doctor
opined that no signs of forcible sexual intercourse
were found. This was also based on the finding that
there were no internal injuries on the girl who was
minor girl.

27. The factual data also goes to show that
there are several contradictions in the examination-inchief as well as cross examination of the witnesses.
The prosecutrix in her examination-in-chief, she
states that incident occurred at about 9:00 a.m. but
nowhere in her ocular version or the FIR, she has
mentioned that she was going to the fields to eat
cucumber.

28. For maintaining the conviction under
Section 376 Cr.P.C., medical evidence has to be in
conformity with the oral testimony. We may rely on
the judgment rendered in the case of Bhaiyamiyan
@ Jardar Khan and another Versus State of
Madhya Pradesh, 2011 SCW3104. The chain of
incident goes to show that the prosecutrix was raped
as would be clear from the provision of section 375
read with Section 376 of IPC.

29. The judgment relied on by the learned
counsel for the appellant will also permit us to concur
with the judgment impugned of the learned Trial
Judge where no perversity has crept in. Learned Trial
Judge has given any finding as to fact as to how
commission of offence under Section 376 IPC was
made out in the present case, but the learned Judge
further has not put any question in the statement
recorded under Section 313 Criminal Procedure
Code, 1973 of the accused relating to rape or
statement which is against him.

30. In view of the facts and evidence on record,
we are convinced that the accused has been convicted
for life, hence, the judgment and order impugned is
reversed and the accused is convicted for period
undergone. The accused appellant, if not wanted in
any other case, be set free forthwith.

31. Appeal is partly allowed accordingly.

32. A copy of this judgment be sent to the Law
Secretary, State of U.P. who shall impress upon the
District Magistrates of all the districts in the State of
U.P. to reevaluate the cases for remission after 14
years of incarceration as per mandate of Sections 432
and 433 of Cr.P.C. even if appeals are pending in the
High Court.

33. The accused, if not wanted in any other
case, may be released forthwith.

34. We are thankful to learned counsel for the
parties for ably assisting this Court.

35. Record be sent to Session Court.
----------
(2021)11ILR A775
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.11.2021

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Habeas Corpus No. 23362 of 2020

Km. Hashmi ...Applicant
Versus
State of U.P. & Ors. ...Respondents
776 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicant:
Girish Kumar Pande, Prashant Pandey

Counsel for the Respondents:
G.A.

Civil Law - Constitution of India - Article 226 -
Habeas Corpus Petition - Habeas Corpus
petition moved by father of the alleged
detenue - To set up the minority of his
daughter, petitioner took reliance on Aadhar
Card wherein, date of birth is mentioned as
12.05.2004 - Petitioner concealed educational
certificate of the school first attended by
detenue where the date of birth recorded was
5.4.2001- Detenue was recovered by police on
17.11.2020, statement of the detenue under
Sections 161 and 164 of the Cr.P.C. were
recorded - Before Magistrate detenue, being
major, opted to go with the family members of
the opposite party no.3, Vineet Kumar &
desired not to go with her parents - Concealing
all these facts petition was filed - Held - writ of
mandamus cannot be issued against the
private opposite party for the release of alleged
detenue
-
petition
suffers
from
the
concealment of material facts like the date of
birth of the alleged detenue entered into her
school records which she attended first,
recovery of girl by the police, recording of her
statement under Section 164 Cr.P.C. before the
Magistrate, when she was produced before him
- detenue by virtue of a judicial order was set
free to go wherever she wants and opted to go
with opposite party no.3, Vineet Kumar with
whom she wanted to marry. (Para 24, 30)

Dismissed. (E-5)

Cases Relied on:

1. Dr. Vijay Kumar Kathuria Vs St. of Har. & ors.
(1983) 3 SCC 333

2. S.P. Chengalvaraya Naidu (dead) by Lrs.
VsJagannath (dead) by Lrs. & ors. (1994) 1 SCC
1

3. Union of India & ors. Vs Muneesh Suneja (2001) 3
SCC 92

4. Lata Singh Vs St. of U.P. & ors. AIR 2006 SC 2522
5. Sohan Lal Vs U.O.I. AIR 1957 SC 529

(Delivered by Hon'ble Vikas Kunvar Srivastav, J.)

1. The present writ petition of Habeas
Corpus is moved by the petitioner-Usman, father
of the alleged detenue, "Kumari Hashmi" aged
about 16 years, r/o Village Sarawan, P.S.
Itaunja, Distict- Lucknow. In addition, State of
U.P. and Station Officer, Police Station-Itaunja,
District-Lucknow, the private Opposite PartyVineet Kumar S/o Sukhdev R/o Village
Sarawan,
Police
Station-Itaunja,
DistrictLucknow is also made opposite party.

2. In brief, the facts emerging from the
pleadings of the writ petition reveals that the
daughter of the next friend, ''Usman' lodged an
F.I.R. in local Police Station Itaunja, DistrictLucknow on 13.11.2020 at 7:19 p.m. stating
therein, his 16 years' old daughter left the home
at about 4:00 p.m. on 12.11.2020 for going to
her maternal uncle's home at Village Darauna,
P.S.- Itaunja, Lucknow but she did not reach
there and he came to know from the whispers
amongst native villagers that one Vineet Kumar,
opposite party no.3, resident of the same village
enticed and taken away his minor daughter and
kept detained her in some lonely place, which is
not known to the petitioner and his family
members. The complainant/petitioner has further
stated in the said F.I.R. that opposite party no.3,
Vineet Kumar and his family members are not
permitted him to meet the alleged detenue.

3. To set up the minority of his daughter,
the petitioner-Usman has taken reliance on
Aadhar Card wherein, date of birth is mentioned
as 12.05.2004, which is made Annexure-2 to the
petition. Being helpless to see or meet his
daughter, the alleged detenue, opted to file the
instant petition in hand. The entire petition is
directed against the opposite party no.3 for the
violation of fundamental right of petitioner and
that of the alleged detenue. On the basis of facts
11 All. Km. Hashmi Vs. State of U.P. & Ors.
777
stated in the petition, following reliefs are
sought:-

"(i) Issue a writ, order or direction in
the nature of Habeas Corpus directing opposite
party no.3 to produce the detenue before this
Hon'ble Court and set her free from his illegal
detention forthwith.

(ii) Issue a writ, order or direction in
the nature of mandamus directing the the
opposite party no.3 to set free the detenue from
his illegal detention frothwith.

(iii) Issue any other order or direction
which this Hon'ble Court may deem just and
proper in the circumstances of the case in favour
of the petitioner.

(iv) Allow writ petition with cost in
favour of the petitioners against opposite
parties."

4. Counter affidavit on behalf of the State
is filed on 14.12.2020/17.12.2020. In para-3 of
the counter affidavit, it is stated that the
petitioner ''Usman' filed an FIR on 13.11.2020 in
Police Station Itaunja, District Lucknow against
the opposite party no.3, ''Vineet Kumar'
whereupon Case Crime No.317 of 2020 under
Sections 363 and 366 of Indian Penal Code was
registered. The informant-complainant in the
said FIR stated that opposite party no.3 has
enticed his minor daughter and taken her away
with him. The victim girl was recovered on
17.11.2020, the informant of the case, the next
friend-Usman was called on and his daughter,
the alleged detenue, Km. Hashmi was sent for
medical examination, where she refused to
undergo the medical examination. On the basis
of educational certificate from the school first
attended by her, the date of birth was found
recorded 5.4.2001, according to which, the age
of the victim on the date of incident was 19
years 7 months. Further, the statements of the
victim under Sections 161 and 164 of the
Cr.P.C. were recorded, that she left the home on
her own. The Magistrate finding her an adult
person set her free to go wherever she wants, she
opted to go with the family members of the
opposite party no.3, Vineet Kumar. She being an
adult desired not to go with her parents. In
support of the facts alleged in para-3 of the
counter affidavit, learned A.G.A. placed the case
diary before the court for perusal and also made
relevant extracts from case diary Annexures to
the counter affidavit. The counter affidavit is
duly sweared on by Sub Inspector, Ameer
Bahadur Singh, Police Station- Itaunja, DistrictLucknow, the Investigating Officer of the case.

5. To controvert the facts arisen from the
para-3 of the counter affidavit of the state, a
rejoinder affidavit by the petitioner is also filed,
sweared on by the petitioner's (next friend-
''Usman'). Para-4 of the rejoinder affidavit is
relevant here, which runs as under:-

"4. That in reply to the contents of
para 3 of the counter affidavit only this much is
admitted that petitoner lodged the report on 1311-2020 at Police Station Itaunja Distt.
Lucknow for enticing away his daughter/detenue
Km. Hashmi by Vineet Kumar s/o Sukhdev R/O
Vill Sarawan, Police Station Itaunja District
Lucknow which was registered at Case Crime
No.317/2020 U/Ss 363/366 I.P.C. and rest of the
contents are denied. In fact petitioner was not
called by the police nor he went there neither
met to the Detenue. It is also submitted that any
documentary evidence regarding age of the
detenue has not been filed with the Counter
Affidavit and detenue is minor. For ascertaining
the age of the detenue her medical examination
is necessary."

6. Countering the para-9 of the counter
affidavit filed on behalf of the State, stating that
the alleged detenue being major as her age
assessed on the basis of date of birth entered in
her school record first attended being 5.4.2001,
para-10 of the rejoinder affidavit is relevant to
be quoted hereunder:-
778 INDIAN LAW REPORTS ALLAHABAD SERIES

"10. That contents of para 9 of
Counter Affidavit are wrong hence denied and
contents of para 6 of our writ petition are
reiterated. It is also submitted that any school
certificate regarding date of birth of the deteneu
has not been filed with the Counter Affidavit."

7. Heard learned counsel for the petitioner,
Shri Girish Kumar Pandey, Advocate and
Learned Additional Government Advocate for
the State, Sri Balkeshwar Srivastava, Advocate.

The girl (alleged detenue) is an
adult, the law relating the manner of
assessing the age in given facts.

8. Learned counsel for the petitioner
insisted on the basis of Aadhar Card made
Annexure-2 to the petition issued in favour of
the alleged detenue that she is minor in age as
date of birth mentioned therein 12.5.2004.
Whereas, learned A.G.A. on behalf of the State
argued that learned counsel for the petitioner has
suppressed the fact with regard to the date of
birth recorded in the records of the school first
attended by the alleged detenue i.e., 5.4.2001, as
such, on the date of alleged incident she was
major. The writ petition is liable to be dismissed,
for the reason of suppression of fact and fraud
committed upon court by concealment of
necessary facts. It is further argued that learned
counsel for the petitioner has not denied
anywhere in the petition that his daughter, the
alleged detenue has not attended any school and
she is uneducated. He further submitted that
Aadhar card is not a recognized document under
law, so as to accept as proof of age.

9. Learned A.G.A. further objected the
maintainability of the writ petition on the ground
that the entire petition is oriented against the
private opposite party-Vineet Kumar. A writ in
the nature of mandamus on the ground of the
opposite party no.3, violating the fundamental
right of the alleged detenue and her family
members including the petitioner under Article
21 of the Constitution of India. This is
established principle of law that a mandamus
cannot be issued against a private individual,
petition is not directed for any action of
violation of fundamental right by the State
opposite parties, namely opposite party no.1 and
2, therefore, petition under Article 226 of the
Constitution of India is not maintainable and
deserves to be dismissed.

10. Learned A.G.A. further submitted that
the Investigating Officer of the Case Crime
No.317 of 2020 instituted on the F.I.R. dated
13.11.2020 lodged by the detenue's father
''Usman', has sworn the rejoinder affidavit and
denied even the recovery of the alleged detenue
on 17.11.2020 and proceedings thereafter. In
every proceeding the petitioner, Usman, his wife
both were present and in their knowledge the
statement under Section 164 Cr.P.C. before the
Magistrate was recorded, wherein she stated her
desire not to go with her family members and
desired to marry Vineet Kumar, opposite party
no.3. The Magistrate set her free at liberty to go
wherever, she wants and thus a final report was
submitted by the police in the case with closure.
However, learned counsel for the petitioner
denies as to the information of recovery of the
girl as well as the further proceeding before the
Magistrate and setting the alleged detenue free at
liberty to go anywhere, she wants.

11. Learned A.G.A. submitted that petition
is also not maintainable as the alleged detenue
living with opposite party no.3, ''Vineet Kumar'
in pursuant to her setting free by the Magistrate
finding her adult in age and she on her own
opted to choose Vineet Kumar.

12. In the light of arguments over the facts
coming out from the pleadings on record reveals
that when the petition of Habeas Corpus is
presented as fresh before the Court on
1.12.2020, the learned A.G.A. on behalf of the
11 All. Km. Hashmi Vs. State of U.P. & Ors.
779
State informed the court about recording of
statement of victim under Section 164 Cr.P.C.
before the Magistrate in the court. Order dated
1.12.2020 is quoted hereunder:

"Learned counsel for the applicant
and learned AGA are present.

Learned AGA states that the alleged
detenu has been recovered and she has given
her statement under Section 164 Cr.P.C. before
the Magistrate also.

Learned counsel for the applicant
states that he has no information about the said
fact, he wants time to confirm.

Learned AGA is directed to submit his
instructions/counter affidavit within three weeks.

List this case after three weeks."

13. The petitioner pursuant to order neither
on 1.12.2020, despite he was informed by the
learned A.G.A. as to the latest update in the case
lodged by him under Sections 363, 366 I.P.C.
did not move any amendment application to
meet out the said information nor proceeded to
the court of Magistrate. The detailed fact in
further update of the proceeding, is submission
of final report of closure though revealed in the
counter affidavit. The petitioner again denies to
be in knowledge of the said fact in the rejoinder
affidavit and did not bring on record any protest
petition against the said final report lodged in
the concerned court by him. The inaction on the
part of the petitioner, thus implies the
information was well within his knowledge
since before the date of filing the petition and he
is willingly and knowingly suppressed the fact
for coming before the court, so as to relief of
Habeas Corpus. He seems to have approached
the court seeking relief based on equity not with
clean hands.

14. The relevant extracts from the case
diary
showing
the
proceeding
after
the
institution of Case Crime No.317 of 2020 based
on F.I.R. lodged on 13.11.2020 reveal, pursuant
to the recovery of the girl on 17.11.2020,
recording of statement by the Investigating
Officer under Section 161 Cr.P.C. and sending
the alleged detenue for medical examination is
done in the presence of her parents. Her denial
to undergo the medical examination, the
production of the detenue before the court of
Magistrate for getting recorded her statement
under Section 164 Cr.P.C., the assessment of age
by the Magistrate on the basis of date of birth
entered in school record, the order of the
Magistrate setting free the alleged detenue at
liberty to go wherever she wants, all are made
annexures to the counter affidavit. Further, the
case diary is placed before the court for perusal
of the said facts and proceeding referred in
annexures. It is absolutely clear that alleged
detenue stated before the court of Magistrate in
her statement under Section 164 Cr.P.C. that she
has studied only upto Class-I in Prathamik
Vidyalaya, Sarawan, where her date of birth is
entered as 5.4.2001. The case diary being a
document required under law to be prepared by
the police officer while investigating a case is a
document prepared in its routine course of
business by the police official who is a public
officer. The acts and proceeding entered by such
officer is case diary unless contrary is proved,
shall be presumed to be correct.

15. From Section 114 of the Indian
Evidence
Act,
1872-
"Provisions
for
presumption of the court with regard to the
existence of the certain facts.", the relevant
portion
with
illustration
is
reproduced
hereunder:-

"114. Court may presume existence of
certain facts. --The Court may presume the
existence of any fact which it thinks likely to
have happened, regard being had to the common
course of natural events, human conduct and
public and private business, in their relation to
the facts of the particular case.

Illustrations
780 INDIAN LAW REPORTS ALLAHABAD SERIES

The Court may presume--

(a) .....................

(b) .....................

(c).......................

(d)..........................

(e) That judicial and official acts have
been regularly performed;

(f) That the common course of
business has been followed in particular cases."

16. Thus, there is a strong presumption of
correctness of the document bearing the entry of
the date of birth of the alleged detenue, issued
by school first attended namely "Primary School
Sarawan" having been prepared in common
course of business to be followed by a school.
Since the said entry is not rebutted by the
petitioner by alleging contrary to this even in his
rejoinder affidavit, shall be presumed correct.
Likewise, the case diary which is prepared by a
police officer (a public officer) in common
course of business shall be presumed that proper
procedure have been followed and judicial order
passed by the Magistrate for release of the
detenue setting her free to go anywhere, she
wants, all are genuinely and correctly performed
in the presence and notice of the complainant of
the case on whose instance the proceeding is
launched.

17. For assessing the age of the victim of
an alleged offence or of any person alleged to be
a ''victim' of the offence or under unlawful
detention as complained in the writ of habeas
Corpus is necessary to be stated with proof of
age as recognized under the provisions of law. In
case of obscurity as to the age the same requires
to be ascertained in accordance with the
procedure established under law or on the basis
of document legally certifying the age or date of
birth. If a person is claiming another to be a
minor, he has burden to establish the age of that
another, for the purpose of seeking relief based
on age. The age of the victim of an offence or
age of offender, if they are alleged to be a minor
shall be ascertained on the basis of procedure
envisaged under Section 94 of the Juvenile
Justice (Care and Protection of Children) Act,
2015 read with the Rule 12 of the Juvenile
Justice (Care and Protection of Children) Act,
2000 (56 of 2000) (as amended by the
Amendment Act 33 of 2006), which runs as
under:-

"12. Procedure to be followed in
determination of Age.― (1) In every case
concerning a child or a juvenile in conflict with
law, the court or the Board or as the case may
be the Committee referred to in rule 19 of these
rules shall determine the age of such juvenile or
child or a juvenile in conflict with law within a
period of thirty days from the date of making of
the application for that purpose.

(2) The court or the Board or as the
case may be the Committee shall decide the
juvenility or otherwise of the juvenile or the
child or as the case may be the juvenile in
conflict with law, prima facie on the basis of
physical appearance or documents, if available,
and send him to the observation home or in jail.

(3) In every case concerning a child
or juvenile in conflict with law, the age
determination inquiry shall be conducted by
the court or the Board or, as the case may be,
the
Committee
by
seeking
evidence
by
obtaining -

(a) (i) the matriculation or equivalent
certificates, if available; and in the absence
whereof;

(ii) the date of birth certificate from
the school (other than a play school) first
attended; and in the absence whereof;

(iii) the birth certificate given by a
corporation or a municipal authority or a
panchayat.

(b) and only in the absence of either
(i), (ii) or (iii) of clause (a) above, the medical
opinion will be sought from a duly constituted
Medical Board, which will declare the age of
the juvenile or child. In case exact assessment
11 All. Km. Hashmi Vs. State of U.P. & Ors.
781
of the age cannot be done, the Court or the
Board or, as the case may be, the Committee,
for the reasons to be recorded by them, may, if
considered necessary, give benefit to the child
or juvenile by considering his/her age on lower
side within the margin of one year.

and, while passing orders in such case
shall, after taking into consideration such evidence
as may be available, or the medical opinion, as the
case may be, record a finding in respect of his age
and either of the evidence specified in any of the
clauses (a)(i), (ii), (iii) or in the absence whereof,
clause (b) shall be the conclusive proof of the age
as regards such child or the juvenile in conflict
with law.

(4) If the age of a juvenile or child or the
juvenile in conflict with law is found to be below
18 years on the date of offence, on the basis of any
of the conclusive proof specified in sub-rule (3),
the court or the Board or as the case may be the
Committee shall in writing pass an order stating
the age and declaring the status of juvenility or
otherwise, for the purpose of the Act and these
rules and a copy of the order shall be given to such
juvenile or the person concerned.

(5) Save and except where, further
inquiry or otherwise is required, inter alia, in
terms of section 7A, section 64 of the Act and these
rules, no further inquiry shall be conducted by the
court or the Board after examining and obtaining
the certificate or any other documentary proof
referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule
shall also apply to those disposed off cases, where
the status of juvenility has not been determined in
accordance with the provisions contained in sub-
rule (3) and the Act, requiring dispensation of the
sentence under the Act for passing appropriate
order in the interest of the juvenile in conflict with
law."

18. As such, the certificate of date of birth
as recorded in the school first attended, the
Primary School, Sarawan is a document
recognized by law for determination of age of
the alleged detenue. In the aforesaid rules of
Juvenile Justice Act, 2015, Aadhar Card is not
enumerated as a document recognized for the
determination of age. Even Aadhar Card is not
notified by any official gazette to be a document
recognized for determination of age, as such, the
Aadhar Card to setup the age of minority on the
basis of date of birth entered therein, is of no
weight. Moreover, in the presence of a
recognized documents the certificate issued from
the school first attended having date of birth
5.4.2001, the Adhar Card is of no evidentiary
value to prima facie establish the age of the
alleged detenue.

The right of a major girl

19. The Court of Magistrate before whom the
alleged detenue was produced for recording
statement under Section 164 Cr.P.C. has also relied
on the school certificate having date of birth as
5.4.2001 of the alleged detenue and treated her a
major girl. Accordingly, the court set her at liberty
to go whereever she wants. Consequent upon the
said order, the Investigating Officer let the alleged
detenue to go with whom she wanted to go. This
order was not challenged anywhere, despite in the
knowledge of the petitioner's, (next friend). This
inaction to challenge the proceeding implies
strongly that the writ petition is moved with
suppression of facts and concealment of essential
information, do not deserve to be entertained as
petition did not come with clean hands.

Suppression of facts by the
petitioner.

".....even a tiny bit of deceit is
dishonorable when it's used for selfish or
cowardly reasons."

- Jeanne Birdsall (An American
writer, author of the book- The Penderwicks)

20. The petitioner next friend, father of the
alleged detenue knowing very well that her
daughter being major, an adult who went with
782 INDIAN LAW REPORTS ALLAHABAD SERIES
the opposite party No.3 on her own as they
wanted to marry each other. Knowingly,
concealed the material facts of the proceeding as
disclosed on the very first date the case was
taken as fresh and thereafter in the counter
affidavit filed by the State opposite parties. The
willful concealment of the facts of which the
petitioner had knowledge since before filing of
the petition seeking relief of Habeas Corpus is
malafide. As such, a fraud is committed upon
the court for the purpose of seeking advantage
by the petitioner, (next friend). He did not come
before the court with clean hands.

21. In a case of Dr. Vijay Kumar Kathuria
Vs. State of Haryana & Ors.1, it is held that
false representation and reckless allegation made
before the Court by the petitioner, such conduct,
disentitled to getting any relief from the court
comes within the term ''Fraud' upon the court.

22. In S.P. Chengalvaraya Naidu (dead)
by Lrs. Vs.Jagannath (dead) by Lrs. & Ors.2,
Hon'ble Supreme Court held as under:

"A fraud is an act of deliberate
deception with the design of securing something
by taking unfair advantage of another. It is a
deception in order to gain by another's loss. It is
a cheating intended to get an advantage. A
litigant, who approaches the Court, is bound to
produce all the documents executed by him
which are relevant to the litigation. If he
withholds vital document in order to gain
advantage on other side then he would be of
playing fraud on the court as well as on the
opposite party."

23. Hon'ble Apex Court in the another case
of Union of India & Ors. Vs. Muneesh Suneja3
has held that "non disclosure of material fact is
fatal to the petition".

24. In view of the above case laws, the
petition moved by the petitoner's next friend the
father of the alleged detenue, ''Usman' suffers
from willful suppression of material fact and
misrepresentation for getting undue advantage to
get the issuance of the writ in the nature of
habeas corpus seeking production of alleged
detenue who by virtue of a judicial order was set
free to go wherever she wants and opted to go
with opposite party no.3, Vineet Kumar with
whom she wanted to marry. The petition
deserves to be dismissed on this count alone.

Apprehension of the petitioner as to
communal tension in the garb of a

threat, if the alleged detenue is not
handed over to him.

25. Para 11 of the petition runs as under:-

"11. That Detenue belongs to Muslim
community and O.P. No. 3 belongs to Hindu
community and there is every possibility for
communal tension is prevailing in the village"

26. Thrust of issuing a writ of habeas
corpus is also upon an unfounded apprehension
in the garb of an implied threat of communal
tension in the village as the alleged detenue and
opposite party no.3 belong to different religions
namely Muslim and Hindu respectively. The
alleged detenue being an adult herself desired to
go with the Opposite party no.3-Vineet Kumar
to whom she wanted to marry and therefore, it
would be relevant to cite here the judgment of
Hon'ble Supreme Court in the case of Lata
Singh Vs. State of U.P. & Others4 has held as
under:

"................This
is
a
free
and
democratic country, and once a person becomes
a major he or she can marry whosoever he/she
likes. If the parents of the boy or girl do not
approve of such inter-caste or inter-religious
marriage the maximum they can do is that they
can cut off social relations with the son or the
daughter, but they cannot give threats or commit
11 All. Km. Hashmi Vs. State of U.P. & Ors.
783
or instigate acts of violence and cannot harass
the person who undergoes such inter-caste or
interreligious marriage. We, therefore, direct
that
the
administration/police
authorities
throughout the country will see to it that if any
boy or girl who is a major undergoes inter-caste
or inter-religious marriage with a woman or
man who is a major, the couple are not harassed
by any one nor subjected to threats or acts of
violence, and any one who gives such threats or
harasses or commits acts of violence either
himself or at his instigation, is taken to task by
instituting criminal proceedings by the police
against such persons and further stern action is
taken against such persons as provided by law."

27. In the circumstances of the case merely
on the apprehension in the garb of an implied
threat of communal tension in the village for the
reason of different religions of the couples, no
writ of habeas corpus can be issued in favour of
the petitioner next friend, ''Usman', father of the
alleged detenue. The local police need to be
directed to ensure peace and tranquility in the
locality and to maintain the law and order.

Writ of mandamus against a private
individual.

28. Moreover, the petition not having been
directed against the state and/or the public officer
of the State though they are arrayed opposite party
no.1 and 2 and only directed against a private
individual for the relief of mandamus seeking
release of alleged detenue, who is a major girl and
willingly reside with opposite party no.3 may not
be issued, for the reason writ of mandamus cannot
be issued directing against the private individuals
in a writ of Habeas Corpus moved under Article
226 of the constitution of India. It has assumed the
shape of litigation between two private individuals
for the breach of fundamental rights.

29. A writ cannot lie against the private
person, where he violates fundamental rights
that are enshrined under Article 17, 23 and 29 of
the Constitution of India. However, writ may be
issued against the private person, if it is found
that the act of the person is in collusion with a
public authority, reliance placed on the judgment
of Hon'ble Apex Court in the case of Sohan Lal
Vs. Union of India5 in which it is held "There is
no evidence and no finding of the High Court
that the appellant was in collusion with the
Union of India or that he had knowledge that the
eviction of Jagan Nath was illegal. Normally, a
writ of mandamus does not issue to or an order
in the nature of mandamus is not made against a
private individual. Such an order is made
against a person directing him to do some
particular thing, specified in the order, which
appertains to his office and is in the nature of a
public duty (Halsbury's Laws of England Vol.
11, Lord Simonds Edn. p. 84). If it had been
proved that the Union of India and the appellant
had colluded, and the transaction between them
was merely colourable, entered into with a view
to deprive Jagan Nath of his rights, jurisdiction
to issue a writ to or make an order in the nature
of mandamus against the appellant might be
said to exist in a Court."

30. In view of the above facts, where the
pleadings made in the writ petition nowhere
state about the private opposite party no.3 being
in collusion with the police authorities or any
public officer with regard to any act or omission,
therefore, opposite party no.3 being a private
individual does not fall within the ambit of word
"STATE". The writ of mandamus in all the
circumstances cannot be issued against the
opposite party no.2 for the release of alleged
detenue.
The
petition
suffers
from
the
concealment of material facts like the date of
birth of the alleged detenue entered into her
school records which she attended first, the
recovery of girl by the police and proceedings
adopted. thereafter, recording her statement
under Section 161 Cr.P.C. by the Investigating
Officer and recorded under Section 164 Cr.P.C.
784 INDIAN LAW REPORTS ALLAHABAD SERIES
before the Magistrate, when she was produced
before him.

31. With these observations, the writ
petition is dismissed.

32. The Director General of Police, U.P. is
required to direct the Opposite party no.2 to
keep vigil over the society in the locality and to
ensure that the couple are not harassed by
anyone, nor subjected to threats or acts of
violence and anyone who gives threats or
harasses or commits act of violence either
himself or at his instigation, is taken to task by
instituting criminal proceedings by the police
against such persons and further stern action
taken against such persons as provided in the
law, in compliance of the direction of Hon'ble
Apex Court given in the case of Lata Singh
(Supra).

33. Further, the Director General of Police
and the local police officers shall also ensure the
law and order as well peace and tranquility in
the locality, so as to eradicate apprehension if
any as raised by the petitioner.

34. The Deputy Registrar (Criminal) to
communicate the order of the Court promptly to
the Director General of Police, Uttar Pradesh.
----------
(2021)11ILR A784
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.10.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 9 of 2020

Reshu @ Nitya (minor) & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioners:
Sri Rajeev Sawhney, Sri Rajiv Lochan Shukla, Sri
Ramanuj Yadav, Sri Virendra Kumar Yadav, Sri
M.D. Mishra

Counsel for the Respondents:
G.A., Sri Abhinav Gaur, Sri Ankur Verma, Sri
Manoj Kumar Rajvanshi, Sri Prakash Chandra
Yadav, Sri Anoop Trivedi

Civil Law - Custody of minor Constitution of
India - Art.226 - Writ of Habeas corpus -
Petition for - Custody of minor - Paternal
grand-parents seeking custody of corpus, a girl
child aged about 3 years from her maternal
grandfather - mother of corpus, upon being
seriously ill, was taken away by the respondent
(maternal grandfather of corpus) along with
the minor child, for medical treatment - mother
died on 31.07.2019 - since then corpus is
under the care and custody of her maternal
grandfather - FIR u/s 498A, 304B IPC &
Section 3/4 Dowry Prohibition Act, 1961,
lodged in which petitioner /Paternal grandparents
named
as
accused
&
criminal
proceedings still pending - Held - custody of
minor with respondent (maternal grandfather
of corpus) cannot in any manner be said to
amount to an illegal and improper detention -
child from her infancy, living with her maternal
grandfather - father who is claiming custody is
named as an accused in a criminal case relating
to the death of the mother of the corpus, is a
relevant factor

Dismissed . (E-5)

Cases Relied on:

1. Tejaswini Gaud Vs Shekhar Jagdish Prasad Tewari
& ors. (2019) 7 SCC 42

2. Kumari Palak (Minor) & anr. Vs Raj Kumar

3.Vishwakarma & ors. (Habeas Corpus Writ Petition
No. 61687 of 2016, dt 12.04.2017)

4. Neelam Vs Man Singh 2014 SCC OnLine P&H 25034

5. Smt. Anjali Kapoor Vs Rajiv Baijal (2009) 7 SCC
322