# Krishna Mohan Mahrotra v. A.D.J. Lakhimpur Kheri & Ors

- **Citation:** (2015) 1 ILRA 388
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-01
- **Case number:** Rent Control No. 73 of 2011
- **Bench:** Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-mohan-mahrotra-v-a-d-j-lakhimpur-kheri-ors-43165
- **Pages:** 9

## Headnote

Rules 1972-Rule 34
(i)(g)
and
Rule
22(f)-issue
of
commission-can not be as matter of rightsole prerogative of Court.
Held: Para-26 & 27

## Text

388
 INDIAN LAW REPORTS ALLAHABAD SERIES
expressions "appeal" and "revision" are
employed in a statute, obviously, the
expression "revision" is meant to convey the
idea of a much narrower jurisdiction than
that conveyed by the expression "appeal".
The use of two expressions "appeal" and
"revision" when used in one statute
conferring appellate power and revisional
power, we think, is not without purpose and
significance.
Ordinarily,
appellate
jurisdiction involves a rehearing while it is
not so in the case of revisional jurisdiction
when the same statute provides the remedy
by way of an "appeal" and so also of a
"revision". If that were so, the revisional
power would become coextensive with that
of the trial Court or the subordinate tribunal
which is never the case. The classic
statement
in
Dattonpant
Gopalvarao
Devakate v. Vithalrao Maruthirao Janagaval,
(1975) 2 SCC 246 that revisional power
under the Rent Control Act may not be as
narrow as the revisional power under Section
115 of the Code but, at the same time, it is
not wide enough to make the High Court a
second court of first appeal, commends to us
and we approve the same. We are of the
view that in the garb of revisional jurisdiction
under the above three Rent Control Statutes,
the High Court is not conferred a status of
second court of first appeal and the High
Court should not enlarge the scope of
revisional jurisdiction to that extent."
26. After careful consideration of
the matter I am of the view that Court
below has correctly appreciated the
evidence on record and its findings on the
issue of default do not warrant any
interference by the Court in its revisional
jurisdiction under section 25 of the Act.
27. For the reasons recorded herein
above, revision lacks merit and it
accordingly dismissed.
28. The tenant -revisionist is granted
three months time to vacate the premises
subject to the following conditions:-
(I)the
tenant
shall
submit
an
undertaking in the court below that he
will handover the vacant and peaceful
possession to the landlord on or before
15th July,2015.
(II)he will continue to pay the rent on
each succeeding month till vacation of the
accommodation on 7th day of each
month.
(III)He will not create any third party
interest in the disputed premises.
29. There shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.04.2015
BEFORE
THE HON'BLE ADITYA NATH MITTAL, J.
Rent Control No. 73 of 2011
Krishna Mohan Mahrotra
 ...Petitioner
Versus
A.D.J. Lakhimpur Kheri & Ors.
...Respondents
Counsel for the Petitioner:
Mohd. Aslam Khan
Counsel for the Respondents:
Nirankar Nath Jaiswal
U.P. Urban Building (Regulation of letting
Rent & Eviction)
Rules 1972-Rule 34
(i)(g)
and
Rule
22(f)-issue
of
commission-can not be as matter of rightsole prerogative of Court.
Held: Para-26 & 27
26. Further to go for local inspection or
issue of commission for the proper
1 All] Krishna Mohan Mahrotra Vs. A.D.J. Lakhimpur Kheri & Ors.
389
disposal of the controversy pending is a
sole prerogative of the Court to decide
whether to move the same or not.
27. Accordingly, it is a sole domain of
the Court to issue a commission or not
and the local inspection or commission
can not be claimed as a matter of right
by a party, so arguments as advanced by
the learned counsel for petitioner for
issuing commission having no force and
is liable to be rejected.
Case Law discussed:
1988 (2) ARC 348; 1999 (2) ARC 289; 2005
(1) ARC 555; 2006 (60) ALR 359; (2002) 9
SCC 375; 2005 (23) LCD 336; 2007 (1) AWC
961; 2010 (1) AWC 371; 2014 (32) LCD 262;
1997 (2) JCLR 860; [2010 (2) A.D.J. 758]
1992 2 ARC 596; 1992 (1) ARC page 423;
2010 (2) ARC 84; 2010 (2) ARC 23; 2010 (2)
ARC 95; (2015) 0 Supreme (SC) 158.
(Delivered by Hon'ble Aditya Nath Mittal, J.)
1. Heard Mohd. Arif Khan, Senior
Counsel assisted by Mohd. Aslam Khan
learned counsel for the petitioner; Sri
Nirankar Nath Jaiswal learned counsel for
the respondents no. 3 and 4 and perused
the pleadings of writ petition.
2. This writ petition has been filed
with a prayer to issue writ of certiorari
quashing the order dated 17.05.2011
passed by the Additional District Judge,
Court no. 3 Lakhimpur Kheri whereby the
judgement dated 21.11.2009 passed by
the Additional Chief Judicial Magistrate,
Court no.2, Lakhimpur Kheri has been
upheld.
3. The brief facts of the case are that
the respondents had filed an application
under Section 21(1)(a) of the Act No. 13
of 1972 stating that he is the owner of the
building and the petitioner is the tenant @
Rs.200/- per month in his shop. There are
two major sons of the landlord and the
said shop is required for his sons as he has
no alternate shop. The landlord had
requested the tenant to vacate the shop but
the said shop has not been vacated.
4. The tenant had contested the case
and admitted that he is the tenant @
Rs.200/- per month. The previous owner
of the shop was Bankey Lal Gupta who
had given it on rent to Raman Lal
Mehrotra in the year 1962 at about 35
years ago. The half of the shop was got
vacated and after the death of Bankey Lal
Gupta, the said shop was sold to the
present landlord, who started his business
in the said shop. The landlord is engaged
in the business of preparation of 'Samosa'
and 'Namkeen' at a large level and both
his sons also remained busy in the said
business. The tenant is running the shop
of D.C.M. Cloths and he has a goodwill,
therefore, it is not possible to vacate the
said shop.
5. Both the parties had adduced their
evidence before the court below and the
court
below
after
appreciating
the
evidence on record had allowed the
application on the ground that the
landlord has the bonafide need. The said
judgement was challenged by way of Rent
Control Appeal No.5 of 2009 before the
Additional District Judge, Lakhimpur
Kheri, which was dismissed by the
judgement and order dated 17.05.2011.
6. Learned counsel for the petitioner
has submitted that the opposite parties no.
3 and 4 have no bonafide or genuine need
because they are carrying on the business
of selling 'Samosa' and 'Namkeen' at a
large scale with the help of their son. The
opposite parties no. 3 and 4 are also
carrying on their business on the
390
 INDIAN LAW REPORTS ALLAHABAD SERIES
accommodation available at the first floor
and during the pendency of the case
before the opposite party no.2, the
opposite party no.3 had filed his affidavit
specifically stating therein that he is ready
to provide the accommodation on the first
floor, which is in the shape of a room to
the petitioner but that point has not been
considered by the court below. It has also
been submitted that the Rule 16(D) has
also not been dealt with in accordance
with law and the application of the
petitioner for issuance of commission was
also rejected wrongly. It has also been
submitted that in paragraph 17 of the
grounds,
the
order-sheet
has
been
mentioned
in
which
the
learned
Additional District Judge has directed that
there is no need to issue commission so
far as the application for providing
alternative accommodation is concerned
and it will be appropriate to dispose of the
application at the time of final hearing of
the appeal and the point regarding
hardship can be inferred thereon but while
deciding the appeal, this point has not
been considered. Therefore, the said
judgement is perverse and is liable to be
set aside.
7. In support of his arguments,
learned counsel for the petitioner has
relied upon 1988 (2) ARC 348 (M/s
Jawahar Lal Ratan Chand Nagar and
another vs. VIIth Additional District
Judge, Varanasi and others, wherein the
Hon'ble Single Judge of this court relying
upon the case of Jivram Ranchhod Das
Thakkar and another vs. Tulshiram
Ratanchand Mantri and others reported in
AIR 1977 SC 1357 has held that
"adopting the same principle it
appears to be just and proper to partition
this shop in dispute also half and half
between the landlord and the tenant. The
parties through their counsel have given
their consent that in the circumstances of
the case they are agreeable to the partition
of the disputed shop half and half between
them so that both parties may be able to
carry on their business in the half portion
falling on their shape."
8. Learned counsel for petitioner has
further relied upon 1999 (2) ARC 289
(Anil Kumar
and
others
vs.
IXth
Additional District Judge, Kanpur Nagar
and another, in which the Hon'ble Single
Judge of this Court has held as under:
"In the result, the writ petition is partly
allowed. The tenant shall vacate the
disputed accommodation provided the
petitioner given vacant possession of the
first floor accommodation marked by me by
letters EFGH MNOP and IJKL. Respondent
No. 2 shall give a notice to him. On giving
such a notice, the tenant shall vacate the
disputed accommodation within one month
and
will
handover
the
disputed
accommodation to the landlord-respondent.
If there is any dispute in regard to the
exchange of the accommodation, an
application can be filed before the
Prescribed Authority, who will execute the
order in accordance with the observations
and directions given by me. Considering the
facts and circumstances of the case, the
parties shall bear their own costs the rent of
the accommodation will be same which is
being paid by the tenant at present."
9. He has further relied upon 2005
(1) ARC 555 (Pratap Narain Tandon vs.
Abdul Mukadadir wherein it has been
held as under :
"A
perusal
of
the
orders
of
Prescribed Authority as well as the
1 All] Krishna Mohan Mahrotra Vs. A.D.J. Lakhimpur Kheri & Ors.
391
Appellant Authority demonstrates that
neither the Prescribed Authority nor the
Appellate
Authority
considered
the
question
of
part
release
of
the
accommodation. Therefore, in the interest
of justice, without entering into the merits
of the rival contentions, I remand back the
matter to the Appellate Authority to be
decided the matter after consideration of
question of part release also in accordance
with law."
10. Learned counsel has further
relied upon 2006 (60) ALR 359 (Swaraj
Kumar vs. Arvind Kumar) in which the
Hon'ble Single Judge of this Court has
considered the aspect of the release of the
part of the accommodation for the
purpose of landlord and tenant both and
remanded the matter back to consider the
question of part release.
11. Learned counsel for the opposite
parties no.3 and 4 has submitted that
during the pendency of the case, they
were ready to provide the alternate
accommodation but the petitioner has
refused to accept the said alternate
accommodation. Therefore, now he can
not take the benefit of that offer. It has
also been submitted that there is no
perversity or illegality in the judgement of
the court below and there are concurrent
findings of fact by the courts below,
which cannot be inferred by this Hon'ble
Court in exercise of writ jurisdiction
under Article 226 of the Constitution of
India. It has also been submitted that
Article 226 do not permit re-appreciating
the evidence on record.
12. In support of his arguments,
learned counsel for the respondents no. 3
and 4 has relied upon (2002) 9 SCC 375
(Mohd. Shahnawaz Akhtar and another
vs. Ist Additional District Judge Varanasi
and others in which the Hon'ble Apex
Court has held as under :
"We have carefully perused the
judgement of the trial court and the orders
of learned Additional District Judge as
also of the High Court. The High Court,
we are constrained to observe, has acted
like an appellate court and re-appreciated
the evidence and thereby exercised a
jurisdiction which it did not have. The
High Court has nowhere arrived at a
finding that there was any error of
jurisdiction committed by any of the
courts below or the finding of the fact
impugned
before
it
suffered
from
perversity. In our opinion, in exercise of
writ jurisdiction, the High Court ought not
to have entered into reappreciation of
evidence and dislodged the finding of fact
recorded by the trial court and maintained in
revision by the learned Additional District
Judge. To satisfy our own conscience,we
have gone through the record. In our
opinion, the findings arrived at by the trial
court are such as could have been
reasonably arrived at and are well-reasoned
and therefore, they are not open to
interference. The learned Additional District
Judge rightly affirmed those findings. In as
much as the order of the courts below were
not liable to be interfered with in exercise of
the writ jurisdiction by the High Court, the
impugned order of the High Court dated 3004-1997 cannot be sustained and is set
aside. The order of the trial court, as upheld
by the learned District Judge, is restored.
No order as to the costs."
13. Learned counsel has further
relied upon 2005 (23) LCD 336 (Prakash
Chandra Gupta vs. District Judge, Unnao
and others) in which the Hon'ble Single
Judge of this Court has held as under:
392
 INDIAN LAW REPORTS ALLAHABAD SERIES
"so for as issue of commission is
concerned, the same, as argued by the
learned counsel for the tenant, was sought
for finding out feasibility whether the
landlord could satisfy his need by getting
a shop constructed for himself on the
upper floor with a stair case adjacent to
the shop in question. Learned counsel for
the landlord rightly placed reliance on the
judgement of this Court in Sarla Ahuja vs.
United India Insurance Co. Ltd. AIR 1999
SCC 100, wherein it has been observed
that tenant has not to suggest terms to the
landlord as to how he can adjust himself
without possession of tenanted premises.
Thus, the said question is totally out of
contest and in case need of the landlord is
genuine and comparative hardship lies in
his favour then tenant has not to suggest
that landlord should get his need fulfilled
by
getting
another
accommodation
constructed."
14. Further in the case of Janki
Prasad vs. Kashi Nath Mishra reported in
2007 (1) AWC 961, the Hon'ble Single
Judge of this Court has held as under:
"It is evident that both the courts
below, after appraisal of evidence of both
the parties, have given concurrent finding
of fact that the need of the landlord is
greater than the tenant and that the tenant
has got another shop adjacent to shop in
dispute where he may shift his business.
In Harbans Lal v. Jasmohan Saran
1986 ALJ 84, it has been held that a writ
in the nature of certiorari may be Issued
only if the order of the Inferior court
suffers from the error of jurisdiction or
from a breach of the principles of natural
justice or is vitiated by a manifest or
apparent error of law. There is no sanction
enabling the High Court to reappraise the
evidence without sufficient reason in law
and reach finding of fact contrary to those
rendered by an inferior court. When High
Court proceeds to do so, it acts plainly in
excess of its powers.
In the instant case, counsel for the
petitioner could not establish that the
orders of the courts below suffer from the
error of jurisdiction or from a breach of
the principles of natural justice or vitiated
by a manifest or apparent error of law.
Thus, it would be inappropriate in the
circumstances
for
High
Court
to
reappraise the evidence without sufficient
reason in law and reach finding of fact
contrary to those rendered by the courts
below."
15. Learned counsel has further
relied upon 2010 (1) AWC 371 (Ram
Narayan Singh vs. Additional District
Judge/Special Judge E.C. Act, Etawah
and others in which the Hon'ble Single
Judge of this court has held as under:
"The Apex Court has ruled on the
question of comparative hardship in the
case of Badri Narayan Chuni Lal Bhutada
Vs. Govindram Ram Gopal Mundada,
A.I.R. 2003 S.C., 2713. Failure of the
tenant
to
search
an
alternative
accommodation after institution of the
release application is good enough reason
to decide the question of hardship against
the tenant and refuse comparison of likely
hardship on this ground alone. Similar
view was adopted in the case of
Azamuddin Vs. Malika Bano Smt.),
2008(3) A.R.C., 570. In the case of
Siddalingamma and another Vs. Mamtha
Shenoy, A.I.R. 2001 S.C. 2896, the Apex
Court was of the view that since the Rent
Control Act is basically meant for the
benefit of the tenants and provisions of
the release on the ground of bonafide
need is the only provision which treats the
1 All] Krishna Mohan Mahrotra Vs. A.D.J. Lakhimpur Kheri & Ors.
393
landlord
with some
sympathy
and,
therefore, if the tenant is satisfied that the
accommodation in which he is living
since very long time thus it should not be
released on the asking of the landlord.
This leniency cannot be allowed. The
Courts, if during the proceedings come to
a conclusion that comparison of relative
hardship caused to the landlord and tenant
is a step-in-aid and beneficial to the
tenant, therefore, comparison of hardship
is necessary. However, if the tenant fails
to establish its bonafide that during
continuation of the proceedings the tenant
did make an effort to search for an
alternative accommodation but failed to
do so only then a view in favour of the
tenant is possible in such an event. If the
tenant fails to establish this, the courts are
well
within
their
rights
to
refuse
comparison of hardship."
16. Lastly learned counsel for the
opposite parties no. 3 and 4 has relied on
2014 (32) LCD 262 (Keshar Bai vs.
Chhunulal), wherein the Hon'ble Supreme
Court has held as under:
"It is well settled by a long line of
judgements of this Court that the High
Court should not interfere with a
concurrent finding of fact unless it is
perverse. (See: Deep Chandra Juneja,
Yash Pal & Firojuddin). In this case, for
the reasons which we shall soon record,
we are unable to find any such perversity
in the concurrent finding of fact returned
by the courts below warranting the High
Court's interference."
17. From the perusal of the aforesaid
judgements, the legal position is crystal
clear that if the order of the court below
suffers from error of jurisdiction or breach
of the principles of natural justice or is
vitiated by a manifest or apparent error of
law, it may be set aside. It is also settled
position
that
High
Court
cannot
reappraise the evidence without sufficient
reasons and reach finding of fact contrary
to those rendered by the court below. The
Hon'ble Apex Court has held that where
there are concurrent findings of fact, the
High Court should not interfere unless the
findings are perverse.
18. Learned counsel for the
petitioner has mainly emphasised that the
provisions of Rule 16(1)(d) of U.P. Urban
Buildings (Regulation of Letting Rent and
Eviction) Rules 1972 have not been
considered by the court below because the
respondents no. 3 and 4 had specifically
mentioned in their affidavit that they are
ready to provide alternate accommodation
to the petitioner. Therefore, the findings
of the learned court below are perverse.
19. I do not find any substance in the
submissions of the learned counsel for the
petitioner because the trial court while
deciding the issue no.2 has specifically
dealt with the said affidavit in which the
offer
was
given
for
alternate
accommodation. The learned court below
has come to the conclusion that the
petitioner himself has neither accepted the
said offer of the landlord nor has shown
any willingness to accept the said offer
and he has not come forward that he is
ready
to
take
the
alternative
accommodation. On the contrary, the
tenant has given suggestion to the
landlord that the said portion may be
utilized by his sons.
20. It is settled preposition of law
that the landlord is the best judge of his
needs and it cannot be decided by the
tenant that where the landlord or his
394
 INDIAN LAW REPORTS ALLAHABAD SERIES
family members will reside or carry on
their
business.
Accordingly,
the
provisions of Rule 16(1)(d) of the Rules
have
been
dealt
with
specifically.
Therefore, the law cited by the learned
counsel
for
the
petitioner
has
no
relevance.
21. It has also been submitted that the
application for commission was rejected by
the trial court without any sufficient
grounds. Therefore, the learned court below
has committed jurisdictional error because
under the provisions of Section 34, the
prescribed authority has the powers of Civil
Court. The application for commission was
moved on 25.07.2009, a copy of which has
been filed as annexure 4, in which it was
requested that Amin Commissioner be
directed to inspect the shop of the landlord
and the portion of the first floor. In the main
suit, the shop of the landlord or the portion
of the first floor of the building was not in
dispute. The trail court has rejected the said
application by order dated 03.08.2009
holding that there was no dispute regarding
the location of the shop in question and the
landlord
has
himself
stated
in
the
application that he is doing the business of
'Samosa' and 'Namkeen' and the portion of
the first floor has also been described.
22. As far as the provision of
Section 34(1)(g) and the Rule 22 (f) are
concerned, the commission may be issued
by the court, if it is not able to arrive at a
just conclusion or where the court feels
that there is some ambiguity in the
evidence of the parties, which can be
clarified by making local inspection or
inspection through commission.
23. Local inspection or issue a
commission by the court cannot be
claimed as of right by any party. Such
inspections are made to appreciate the
evidence already on record and Court is
not expected to visit the site for collecting
evidence. (See:- Randhir Singh Sheoran
Vs. 6th Additional District Judge, 1997(2)
JCLR 860, Radhey Shyam Vs. A.D.J.,
Court no. 13, Lucknow and others,
[2010(2) A.D.J., 758] and Sonpal Vs. 4th
Additional District Judge, Aligarh and
others, 1992 2 ARC, 596).
24. In the case of Smt. Shamshun
Nisha Vs. Ist Additional District Judge,
Lucknow and others 1992, (1) ARC page
423, it is held as under :
"By means of the present writ
petition, the petitioner challenges the
order, dated 13.05.1991, passed by Ist
Additional District Judge, Lucknow,
contained in Annexure No. 6 by which the
petitioner's request for local inspection
was rejected by the appellate Court. The
appellate Court pointed out that the
petitioner had been given sufficient
opportunity to rebut the evidence of the
expert. However, the fact is not disputed
that the appeal is still pending and in
appeal only an application for local
inspection of the site by the Advocate
Commissioner
has
been
rejected.
Therefore, in my opinion, the said order
cannot be challenged in the writ petition."
25. The aforesaid view was further
reiterated by this Court in the case
following cases:-
(i) Avinash Chandra Tewari Vs.
A.D.J. Court No. 3, Unnao & others, 2010
(2) ARC 84
(ii) Radha Rani Mehrotra (Smt. And
5
others
Vs.
Learned
prescribed
Authority/Civil Judge, S.D. and 2 others,
2010 (2) ARC 23
1 All] Krishna Mohan Mahrotra Vs. A.D.J. Lakhimpur Kheri & Ors.
395
(iii) Radhey Shayam and others Vs.
Additional District Judge, Lucknow and
others 2010 (2) ARC 95
26. Further to go for local inspection
or issue of commission for the proper
disposal of the controversy pending is a
sole prerogative of the Court to decide
whether to move the same or not.
27. Accordingly, it is a sole domain
of the Court to issue a commission or not
and the local inspection or commission
can not be claimed as a matter of right by
a party, so arguments as advanced by the
learned counsel for petitioner for issuing
commission having no force and is liable
to be rejected.
28. As the situation and location of
the shop in dispute was not in controversy
and the landlord has also specified his
shop as well as the portion of the first
floor,
therefore,
in
the
facts
and
circumstances of the case, there was no
ambiguity regarding the location and
situation of the shop in question. Thus,
the application for commission has also
been rightly rejected.
29. Learned counsel for the
petitioner has further emphasised that in
the order dated 08.06.2010, the learned
Additional District Judge, Kheri has
observed that there is no need to issue
commission. So far as the application for
providing alternate accommodation is
concerned, it will be appropriate to
dispose of this application at the time of
hearing of the appeal and the point
regarding the hardship can be inferred
thereon, but the learned Additional
District Judge Kheri has not dealt with
this point while deciding the Rent Control
Appeal. I do not find any substance in the
submission of the learned counsel for the
appellant because the said point has been
discussed at length at page 11 and 12 of
the judgement of the appellate court dated
17.05.2011 wherein the court has come to
the conclusion that the landlord cannot be
compelled to make available the rooms at
the first floor.
30. Both the learned courts below have
considered the bonafide need and the
comparative hardship of the parties and have
come to the conclusion that the landlord has
the bonafide need and the comparative
hardships is also in favour of the landlord
because the shop in question is required for
his sons who have now become major. The
findings of both the courts below are
concurrent and I do not find any good ground
to interfere with the findings. I do not find
any error of jurisdiction or perversity in the
impugned judgement.
31. This writ petition has been filed
under Article 226 of the Constitution with
a prayer to issue a writ of certiorari. The
judicial order of the courts below have
been challenged.
32. Hon'ble Apex Court in a recent
judgement reported in (2015) 0 Supreme
(SC) 158 [Radhey Shyam vs. Chhabi
Nath] has held that a writ of certiorari is
not available against the judicial order of
a competent court because the court could
not violate the fundamental rights. It has
further been held that even incidental
violation cannot be held to be violative of
fundamental rights. It has further been
held that an order of civil court could be
challenged under Article 227 and not
under Article 226.
33. Present writ petition has been
filed under Article 226 of the Constitution
396
 INDIAN LAW REPORTS ALLAHABAD SERIES
of India with a prayer to quash the order
dated
17.05.2011
passed
by
the
Additional District Judge, Court no. 3
Lakhimpur Kheri. Thus, the writ petition
is also not maintainable to this aspect of
the matter.
34.
Accordingly the writ petition is
dismissed.
The
interim
order
dated
31.05.2011 stands vacated. The petitioner is
directed to vacate the premises in question
within a period of two months from today.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.04.2015
BEFORE
THE HON'BLE AJAI LAMBA, J.
THE HON'BLE AKHTAR HUSAIN KHAN, J.
Habeas Corpus No. 78 of 2015
Km. Ankita
 ...Petitioner
Versus
State of U.P. & Anr.
...Respondents
Counsel for the Petitioner:
K.K. Tewari
Counsel for the Respondents:
Govt. Advocate
Constitution of India, Art.-226-Habeas
Corpus petition-rejection-for release of
custody to her parent-on ground of
impediment of review under Section 362
Cr.P.C.-held-earlier she confinement in
nari niketan-on refusal to join the
company
of
her
parent-now
being
pregnant getting majority desirous to go
with her father-held curtailment of her
liberty
not
permissible-approach
of
Judge wholly insensitive and injudicious
being
irresponsible-order
quasheddirection to release the detainee to
custody of her father given.
Held: Para-11 & 14
11. In the case in hand, the detenue
filed an application for being released in
custody of her own parents. We fail to
understand
as
to
under
what
circumstance, law or procedure, the
application of the detenue could have
been dismissed. The detenue is a victim,
and not the accused. The relevant
considerations have not been kept in
mind by the court while deciding the
application.
14. Considering the stand of the
detenue,
the
court
should
have
immediately
passed
orders
for
her
release in the custody of the parents.
The parents are not aliens for their
daughter, who is pregnant. The order
denying the detenue to live with her
parents is not only wholly on account of
insensitive
approach,
but
is
also
injudicious, and irresponsible.
(Delivered by Hon'ble Ajai Lamba, J.)
1. The petition has been filed
through
Ramesh
Kumar
with
the
allegation that his daughter Ankita, the
detenue has been kept in illegal detention
in
the
Women
Protection
Home,
Lucknow.
2. It has been pointed out that on
19.7.2014, one Chhanga Raidas abducted
the detenue with the help of other
accused. In that regard, Crime No.1205 of
2014 under Sections 363, 366 I.P.C.,
Police Station Asiwan, District Unnao
was registered. During investigation,
Section 376(2) (D) alongwith Section 3/4
of Prevention of Children from Sexual
Offences Act(for short 'POCSO Act')
were also added.
3. The prosecutrix was recovered on
1.11.2014 and was medically examined.
Medical age of the detenue/prosecutrix
was found to be 19 years. Statement of