# Mahesh (Minor) @ Kiran v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 787
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-07
- **Case number:** Habeas Corpus Writ Petition No. 337 of 2023
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-minor-kiran-v-state-of-u-p-ors-49411
- **Pages:** 5

## Headnote

A. Criminal Law -Constitution of India,1950Article 226 - Indian Penal Code,1860-Section
363- The F.I.R., which was lodged by none
other than the father of the detenu, no
allegation of illegal detention of the detenue by
respondent no.4 has been made-Now after
more than one year, while filing writ petition
through the mother of the detenue, for the first
time, it has been alleged that the detenu has
been kidnapped at the behest of respondent
no.4- This is a clear case of improvement and
changing the prosecution story so that the case
of Habeas Corpus may be made-The Writ in the
nature of Habeas Corpus cannot be issued in a
routine and casual manner. The writ of Habeas
Corpus is festinum remedium and unless there
is a clear case established by the petitioner
prima facie to show that the detenue is in illegal
confinement no writ of Habeas Corpus can be
issued. A Writ of Habeas Corpus cannot be
issued in respect of any and every missing
person more so when no named person is
alleged to be responsible in the F.I.R. for the
illegal detention of the person for whose
production a writ is to be issued. The petitioner
has failed to establish prima facie case of
unlawful detention of her daughter. A Writ of
788 INDIAN LAW REPORTS ALLAHABAD SERIES
Habeas Corpus cannot be issued by this Court
for tracing out a missing person particularly
when the F.I.R. of missing has already been
lodged more than one year back by the father
of the detenue where there is no allegation of
illegal detention.

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

11 All. Mahesh (Minor) @ Kiran Vs. State of U.P. & Ors.
787
Marriage Act would become insignificant
in such a scenario.

46. Even if the meaning of the phrase
"either party thereto" is considered to be
unclear or ambiguous, the principle of
beneficial construction should be applied to
determine
its
intent.
There
is
no
justification for interpreting section 11 in a
way that restricts its scope or narrows down
its meaning. The purpose of granting a
decree of nullity is to identify flaws in the
marriage and subsequently declare it as
void.

47. In the process of beneficial
construction, the Court should lean
towards an interpretation that serves the
interests of justice and aligns with the
broader objectives of the law. By doing
so, the Court can ensure that the remedies
available under section 11 are not unduly
limited, and individuals seeking relief are
not unjustly deprived of their rights. The
ultimate aim of granting a decree of
nullity is to annul a marriage that is found
to
be
invalid
from
its
inception,
effectively treating it as if it never
existed. Therefore, it is essential to
interpret the relevant provisions in a
manner that facilitates a fair and just
outcome for the parties involved.

48. In conclusion, we uphold the
family court's decision, which grants the
first wife, the respondent in this case, the
right to file an application under section
11 of the Hindu Marriage Act. This
application seeks the declaration of the
second marriage as illegal and void. The
Court
affirms
the
validity
of
the
impugned ruling, allowing the first wife
to pursue legal recourse to nullify the
second marriage on the grounds of its
illegality.
Accordingly,
appeal
is
dismissed.
----------
(2023) 11 ILRA 787
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.11.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Habeas Corpus Writ Petition No. 337 of 2023

Mahesh (Minor) @ Kiran ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Dadu Ram Shukla (D.R. Shukla0, Manoj Kumar
Singh

Counsel for the Respondents:
G.A.

A. Criminal Law -Constitution of India,1950Article 226 - Indian Penal Code,1860-Section
363- The F.I.R., which was lodged by none
other than the father of the detenu, no
allegation of illegal detention of the detenue by
respondent no.4 has been made-Now after
more than one year, while filing writ petition
through the mother of the detenue, for the first
time, it has been alleged that the detenu has
been kidnapped at the behest of respondent
no.4- This is a clear case of improvement and
changing the prosecution story so that the case
of Habeas Corpus may be made-The Writ in the
nature of Habeas Corpus cannot be issued in a
routine and casual manner. The writ of Habeas
Corpus is festinum remedium and unless there
is a clear case established by the petitioner
prima facie to show that the detenue is in illegal
confinement no writ of Habeas Corpus can be
issued. A Writ of Habeas Corpus cannot be
issued in respect of any and every missing
person more so when no named person is
alleged to be responsible in the F.I.R. for the
illegal detention of the person for whose
production a writ is to be issued. The petitioner
has failed to establish prima facie case of
unlawful detention of her daughter. A Writ of
788 INDIAN LAW REPORTS ALLAHABAD SERIES
Habeas Corpus cannot be issued by this Court
for tracing out a missing person particularly
when the F.I.R. of missing has already been
lodged more than one year back by the father
of the detenue where there is no allegation of
illegal detention.

The writ petition is dismissed. (E-6)

List of Cases cited:

1. Home Secy (Pris.) & ors.. Vs H. Nilofer Nisha
(2020) 14 SCC 161

2. UOI Vs Yumnam Anand M. @ Bocha @ Kora
@ Suraj & anr.. (2007) 10 SCC 190

3. Nimananda Biswal Vs St. of Ori. & ors..
WPCRL No.124 of 2023

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Supplementary Affidavit filed by
learned counsel for the petitioner is taken
on record.

2. This petition has been filed by the
detenue through her next friend Smt.
Meena @ Kiran (mother of the detenue)
praying for issuance of a writ in the nature
of Habeas Corpus directing the respondents
to produce the corpus of the child/detenue
forthwith.

3. Heard learned counsel for the
petitioner as well as Shri Alok Tewari,
learned A.G.A. for respondent nos. 1 to 3.

4. Notices to respondent no.4 is
dispensed with in view of the proposed
order.

5. Learned counsel for the petitioner
has submitted that the detenue is missing
since 25.6.2022 at 4.00 pm to 6.00 pm from
Mohalla Shakti Nagar, Police Station
Gazipur, Lucknow. He submits that some
scuffle took place between the child and
respondent no.4 and on the very next day
the child became missing, hence, an
application was moved at Police station
Gazipur. Thus it is apprehended by the
petitioner that the detenue has been
kidnapped by respondent no.4.

6. It has been further submits that an
F.I.R. under Section 363 Indian Penal Code
regarding missing of the detenu was
registered as F.I.R. No.326 of 2022 under
Section 363 I.P.C., Police Station Gazipur,
District Lucknow. It is alleged in the F.I.R.
by the complainant Ramtej, who is the
husband of the deponent of this petition,
that his son Mahesh, aged about 9 years
went missing from yesterday between 4.00
pm to 6.00 pm. He used to drink shikanji
for the last two months and he had
developed some relationship with shikanji
seller and he was last seen on the shikanji
shop.
No
allegation
in
the
F.I.R.
whatsoever has been made against the
respondent no.4 regarding illegal detention.
Pamphlet regarding the missing of the
detenue have been pasted in the local area
of the Police Station Gazipur one of which
pamphlet is also on record. Nothing except
missing of the detenue has been mentioned
in the F.I.R. as well as in the pamphlet. The
F.I.R. was lodged on 27.6.2022. Now the
writ petition is filed after more than one
year i.e. on 17.10.2023 by the mother on
behalf
of
the
detenue
by
making
improvement in the prosecution case
alleging that Mahesh appears to have been
kidnapped by unknown miscreants at the
behest of respondent no.4. Still no clear
statement has been made by the deponent
in this petition that the detenu has been
illegally detained by respondent no.4. The
facts pleaded in the writ petition are
definite improvement from a story of the
prosecution in the F.I.R. which has been
11 All. Mahesh (Minor) @ Kiran Vs. State of U.P. & Ors.
789
alleged by none other than father of the
detenue.

7. Learned counsel for the petitioner
has relied on a judgement of the Hon'ble
Supreme Court in the case of Home
Secretary (Prison) and others vs. H.Nilofer
Nisha reported in 2020(14) SCC 161.

8. Learned A.G.A. for the respondent
State, on the basis of instructions received,
which is taken on record, has submitted
that
the
investigation
was
started
immediately after lodging of the F.I.R. for
search of the missing child/detenue. DCRB
has been informed and posters have been
pasted
at
the
public
places.
The
investigation is going on. Search operations
are also going on. Information regarding
missing
has
been
given
in
various
newspapers and broadcast in All India
Radio and Doordarshan still the missing
persons has not been recovered. During
investigation one dead body has been
received and his clothes and the DNA
samples have been sent for Forensic
Science Laboratory for the testing.

9. It is further submitted by learned
A.G.A. that it is clear from perusal of the
F.I.R. that it is a case of missing and F.I.R.
was rightly lodged by the father of the
detenu. After more than one year since the
deponent of this petition being the mother
is not satisfied with the investigation by
making improvement in the prosecution
story has alleged that at the behest of
respondent no.4 some unknown miscreants
have kidnapped the detenue. He submits
that where missing report has been lodged
the petition of Habeas Corpus will not lie.
In support of his contention learned A.G.A.
has placed reliance on a judgment of High
Court of Orissa at Cuttack passed in
WPCRL No.124 of 2023 Nimananda
Biswal versus State of Odisha & others.

10. Perused the record.

11. It is not disputed that earlier an
F.I.R. was lodged by the father of the
detenu which was registered as Case Crime
No.326 of 2022 under Section 363 Indian
Penal Code Police Station Gazipur, District
Lucknow against unknown persons on
27.6.2022. While lodging the F.I.R. no
allegation against respondent no.4 has been
leveled by the complainant that he has
kidnapped the detenue rather a simple
missing
F.I.R.
was
lodged
and
consequently
the
investigation
started
which is still pending. The information
regarding missing of the detenue has been
given to various new channels newspapers
and pamphlets have been pasted across the
city. However, no success has been gained
by the police. It appears that in utter
frustration and being annoyed by the
investigation the petition has been filed by
changing the prosecution story for the first
time after more than one year by the
deponent.

12. The law for issuance of Habeas
Corpus is settled. The petitioner has to
show as the condition precedent prima
facie that the detenue is in unlawful
detention before it prays the court for
issuing the prerogative writ.

13. In the case of Union of India Vs.
Yumnam Anand M. alias Bocha alias
Kora alias Suraj and another reported in
(2007) 10 Supreme Court Cases 190,
Hon'ble Supreme Court held that though it
is a writ of right, it is not a writ of course
and the applicant must show a prima facie
case of his unlawful detention. Paragraph 7
of the judgement is reproduced as under:-

"7. Article 21 of the Constitution
having declared that no person shall be
790 INDIAN LAW REPORTS ALLAHABAD SERIES
deprived of life and liberty except in
accordance with the procedure established
by law, a machinery was definitely needed
to examine the question of illegal detention
with utmost promptitude. The writ of
habeas corpus is a device of this nature.
Blackstone called it "the great and
efficacious writ in all manner of illegal
confinement". The writ has been described
as a writ of right which is grantable ex
debito justitiae. Though a writ of right, it is
not a writ of course. The applicant must
show a prima facie case of his unlawful
detention. Once, however, he shows such a
cause and the return is not good and
sufficient, he is entitled to this writ as of
right."

14. This Court has taken notice of the
fact that in the F.I.R., which was lodged by
none other than the father of the detenu, no
allegation of illegal detention of the
detenue by respondent no.4 has been made.
Now after more than one year, while filing
writ petition through the mother of the
detenue, for the first time, it has been
alleged that the detenu has been kidnapped
at the behest of respondent no.4. This is a
clear case of improvement and changing
the prosecution story so that the case of
Habeas Corpus may be made.

15. So far as case of Home Secretary
(Prison) and others (surpa) relied upon by
learned counsel for the petitioner is
concerned in support of his arguments, a
perusal of the said judgement shows that
the writ petition was filed by the detenue
seeking release from the prison at the
strength of some government order issued
by the State government for premature
release of convicted persons. The facts of
this case are quite peculiar and do not apply
to this case at all. Rather it has been held in
this case by Hon'ble Supreme Court that
before issuing any writ of Habeas Corpus
this Court must come to the conclusion that
the detenu is under detention without any
authority of law.

16. The Writ in the nature of Habeas
Corpus cannot be issued in a routine and
casual manner. The writ of Habeas Corpus
is festinum remedium and unless there is a
clear case established by the petitioner
prima facie to show that the detenue is in
illegal confinement no writ of Habeas
Corpus can be issued. A Writ of Habeas
Corpus cannot be issued in respect of any
and every missing person more so when no
named person is alleged to be responsible
in the F.I.R. for the illegal detention of the
person for whose production a writ is to be
issued. The petitioner has failed to establish
prima facie case of unlawful detention of
her daughter. A Writ of Habeas Corpus
cannot be issued by this Court for tracing
out a missing person particularly when the
F.I.R. of missing has already been lodged
more than one year back by the father of
the detenue where there is no allegation of
illegal detention.

17. On due consideration of the law
laid down by Hon'ble Supreme Court in the
case of Nimananda Biswal (supra), Union
of India Vs. Yumnam Anand M. alias
Bocha alias Kora alias Suraj(supra) as well
as Home Secretary (Prisons) and others Vs.
H. Nilofer Nisha reported in (2020) 14
Supreme Court Cases 161, I am of the view
that writ of Habeas Corpus cannot be
issued in respect of missing person more so
when no named person is alleged to be
responsible in the F.I.R. for the illegal
detention
of
the
person
for
whose
production a writ is sought to be issued.

18. Accordingly, a writ in the nature
of Habeas Corpus fails and is accordingly
dismissed.
11 All. Danish Vs. State of U.P. & Ors.
791
----------
(2023) 11 ILRA 791
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2023

BEFORE

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

Habeas Corpus Writ Petition No. 1051 of 2022

Danish ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Uttam Kumar, Sri Nitin Sharma

Counsel for the Respondents:
G.A., A.S.G.I., Sri Alok Ranjan Mishra

A. Criminal Law -Constitution of India,1950 -
Indian Penal Code,1860-Sections 147, 148, 149,
298, 352, 324, 308 & 504 - Criminal Law
Amendment Act, 2013- Section 7 -The present
case is only a case of simply 'law and order' and
would not fall within the ambit of 'public order'-
The facts of the case that 2-3 boys after
consuming the snacks from a street vendor
going to home and were intercepted by few
hooligans of a particular community, who
allegedly assaulted them by sword, knife and
iron rod, but fact remains that all the injured
persons have sustained "simple injuries with a
haematoma"
over
the
head
of
injuredThereafter the action of the police came into
play whereby they have magnified the small
incident
into
manifold
using
all
sort
of
hyperboles and exaggerating the incident using
their horses of imagination. The deployment of
the police and the hours consumed by them
would not going to convert the tone, texture
and tenor of the case- no material on record to
arrive at the satisfaction that detenu is in jail
and his custody is imperative to prevent him
from any activity or eventuality recorded u/s
3(2) of National Security Act-No subjective
satisfaction while passing the detention order or
extension order was recorded by the District
Magistrate-The District Magistrate neither in the
order nor in his grounds of detention have
provided any cogent reason attracting the public
order- Detention period is not enumerated in
the detention order and the same has been
extended without there being any ground or
cogent reason- The satisfaction recorded by the
appropriate government regarding the detenu
is absolutely ill-founded and based on malicious
analysis of the facts-The impugned detention
order is being passed only to frustrate the order
of bail passed in favour of petitioner by the
learned Session Judge- Thus,The detention
order deserves to be revoked as State of U.P. as
well as Central Government have failed to
decide
quintessentially
the
representation
submitted by the detenu.(Para 1 to 24)

B. The breach of public order involves a degree
of disturbance and it affects upon the life of the
community in a locality which determines
whether the disturbance amounts only to breach
of law and order and not a public order. The
difference between two concepts is in only one
degree. An act affecting law and order may not
necessarily also affect the public order and an
act which might be prejudicial to public order
may not affect the security of the State. Public
order is synonymous with public safety and
tranquillity and it is the absence of any disorder
involving breaches of local significance in
contradiction to national upheavals, such as
revolution, civil strife, war, affecting the security
of the State. (Para 22)

The writ petition is allowed. (E-6)

List of Cases cited:

1. Subhash Bhandari Vs DM, Lko. (1987) 4 AIR
SCC 685

2. Ramveer Jatav Vs St. Of U.P. & ors. (1987)
AIR SC 63

3. Rekha Vs St. Of T.N. thru Secy to Govt.
(2011) 5 AIR SCC 244

4. Mrs. T. Devaki Vs Govt Of T.N. & ors. (1990)
AIR SC 1086

5. Dr. Ram Manohar Lohia Vs St. of Bih. & ors.
(1966) AIR SC 740