# Mukesh v. State Of U.P & Ors - **Citation:** (2016) 7 ILRA 180 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-07-04 - **Bench:** Ajai Lamba, Ravindra Nath Mishra-Ii - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukesh-v-state-of-u-p-ors-44003 - **Pages:** 4 ## Text 180 INDIAN LAW REPORTS ALLAHABAD SERIES 69. Let a copy of this order be certified to the trial court concerned for information and necessary follow-up action. ----------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 04.07.2016 BEFORE THE HON'BLE AJAI LAMBA, J. THE HON'BLE RAVINDRA NATH MISHRA-II, J. Habeas Corpus No.- 13799 Of 2016 Mukesh ...Petitioner Versus State Of U.P & Ors. ...Respondents Counsel for Petitioner: Alok Srivastava, Ratna Singh Counsel for Respondents: G.A This petition seeks issuance of a writ in the nature of habeas Corpus directing release of Mukesh, the petitioner, who is in jail in context of Case Crime No.65 of 2016, under Sections 363, 366 I.P.C., Police Station Maholi, District Sitapur. Learned AGA contented that the petitioner is in jail in compliance of procedure prescribed by law. In such circumstances, the petitioner cannot plead that his right vested under Article 21 of the Constitution of India has been abrogated or denied. Shri Dwivedi, has relied on judgment dated 13.5.2016 rendered by this Court (this Bench) in Writ Petition No.10570 (H.C.) of 2016 : Rajesh through his wife Goldy Raj Vs. State of U.P. and others. Court after considering the aforesaid judgement held that the writ petition has been filed without any legal basis. The petitioner has been taken in custody as per procedure established by law and therefore it cannot be pleaded that the liberty of the petitioner has been curtailed, illegally. In such circumstances, the petitioner is not entitled to invoke a writ in the nature of habeas corpus. The petitioner might have a good case for grant of bail under the Code of Criminal Procedure, however, cannot be plead release through issuance of a writ in the nature of habeas corpus. The petition is dismissed. (Delivered by Hon'ble Ajai Lamba, J. & Hon'ble Ravindra Nath Mishra-II, J.) 7 All. Mukesh Vs State Of U.P. & Ors. 181 1. This petition seeks issuance of a writ in the nature of habeas Corpus directing release of Mukesh, the petitioner, who is in jail in context of Case Crime No.65 of 2016, under Sections 363, 366 I.P.C., Police Station Maholi, District Sitapur. 2. Contention of learned counsel for the petitioner is that criminal proceedings were initiated vide Crime number, above noted, at the instance of Ram Das, father of Madhu. It has been pleaded that Madhu and the petitioner Mukesh are married. The marriage, however, has not been accepted by father of Madhu and therefore impugned proceedings have been initiated. In the course of investigation, Madhu did not support the prosecution case yet the petitioner has been arrested. It has been argued that there is no legal reason to keep the petitioner in custody thereby depriving the petitioner of his liberty and therefore the petitioner is entitled to issuance of a writ in the nature of habeas corpus. 3. Shri R.K.Dwivedi, learned Additional Government Advocate appearing for the respondent State has argued that the petitioner is in jail in compliance of procedure prescribed by law. In such circumstances, the petitioner cannot plead that his right vested under Article 21 of the Constitution of India has been abrogated or denied. Shri Dwivedi, has relied on judgment dated 13.5.2016 rendered by this Court (this Bench) in Writ Petition No.10570 (H.C.) of 2016 : Rajesh through his wife Goldy Raj Vs. State of U.P. and others. 4. We have heard learned counsel for the parties and have considered the facts and circumstances of the case. 5. The undisputed facts are that the petitioner is an accused in Case Crime No.65 of 2016(supra) and in the course of investigation, the accused has been arrested and is being kept in jail. 6. In Rajesh' case (supra), the following has been held ( relavant paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 ) :- 5. Before we embark on the issue of considering the prayer of the petitioner for issuing the writ we would like to refer to the nature of the writ sought to be issued, and the circumstances under which it can be issued. 6. Habeas Corpus has certain limitations though it is a writ of right, it is not a writ of course. Writ of Habeas Corpus is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as entitlement to a fair trial. In the circumstances, if imposition such as internment without trial is permitted in law, then Habeas Corpus may not be a useful remedy. 7. A writ of Habeas Corpus is one of what are called the "extraordinary", "common law", or "prerogative writs", which were historically issued by the English Courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The due process for such petition is not simply civil or criminal, because they incorporate the presumption of non-authority. The official who is the respondent must prove his authority to do or not to do something. 182 INDIAN LAW REPORTS ALLAHABAD SERIES 8. A writ of Habeas Corpus is known as "the great and efficacious writ in all manner of illegal confinement", being a remedy available to the meanest against the mightiest. It is a summons with the force of a court order; it is addressed to the custodian (a prison official for example) and demands that the prisoner be taken before the court, and that the custodian to present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian is acting beyond his or her authority, then the prisoner must be released. Any prisoner, or another person acting on his or her behalf, may petition the court, or a judge, for a writ of habeas corpus. 9. There can be no doubt that personal liberty is a precious right, therefore, the writ of Habeas Corpus provides a prompt and effective remedy against illegal detention. By this writ, the Court directs the person or authority who has detained another person to bring the body of the detenue before the Court so as to enable the Court to decide the validity, jurisdiction or justification for such detention. The principal aim of the writ is to ensure swift judicial review of alleged unlawful detention of liberty or freedom of the prisoner or detenu. 10. The writ of habeas corpus is a prerogative writ by which, the causes and validity of detention of a person are investigated by summary procedure and if the authority having his custody does not satisfy the court that the deprivation of his personal liberty is according to the procedure as established by law, the person is entitled to his liberty. The order of release in the case of a person suspected of or charged with commission of an offence does not per se amount to his acquittal or discharge and the authorities are not, by virtue of the release only on habeas corpus, deprived of the power to arrest and keep him in custody in accordance with law, for this writ is not designed to interrupt the ordinary administration of criminal law. (emphasised by us) (Vide judgment rendered by Hon'ble Supreme Court of India in Criminal Appeal No. 417 of 2008 (arising out of Special Leave Petition (Crl) No. 583 of 2007) State of Maharashtra and others vs. Bhaurao Punjabrao Gawande). 11. On consideration of the law it is evident that personal liberty is a precious right, however, confinement for valid reasons with legal justification would not tantamount to denial of personal liberty, or illegal detention. 12. Article 21 of the Constitution of India is explicit in the sense that no person shall be deprived of his personal liberty except according to procedure established by law. Under the circumstances, it is imperative for the writ petitioner claiming a writ of habeas Corpus to establish or indicate that his personal liberty has been deprived without following procedure established by law. 13. Procedure for detention of an accused in the course of investigation of a case, and trial process, and subsequently if followed by judgement of conviction and order of sentence, is ordinarily provided under the Cr.P.C. In the case in hand, it is evident that Case Crime No. 60 of 16 (supra) has been registered making allegations of kidnapping and of sexual offences against the petitioner. The petitioner in 7 All. Ramesh Rajbhar Vs State Of U.P. & Ors. 183 accordance with procedure established by law under Cr.P.C. has been remanded to custody vide the impugned order, during the process of investigation of the case. In such circumstances, it cannot be held by any figment of imagination that the petitioner is in illegal confinement or has been kept in custody without authority of law. 14. To plead that there is sufficient material available on record to establish innocence of the petitioner at this stage itself and, therefore, writ in the nature of Habeas Corpus be issued, would be a fallacy in law. At this stage, the petitioner might have a good case for grant of bail under the Cr.P.C., however, detention of the petitioner cannot be termed as illegal confinement without following procedure establish by law. It is not even the case of the petitioner that the court had no legal authority or jurisdiction to remand the petitioner in custody. 15. In view of the above, we are of the considered opinion that the present case has been filed without there being any legal basis for issuance of a writ in the nature of Habeas Corpus." 7. Considering the law as noted above, in the extracted portion of the judgement from Rajesh' case (supra), we are of the considered opinion that the writ petition has been filed without any legal basis. The petitioner has been taken in custody as per procedure established by law and therefore it cannot be pleaded that the liberty of the petitioner has been curtailed, illegally. In such circumstances, the petitioner is not entitled to invoke a writ in the nature of habeas corpus. The petitioner might have a good case for grant of bail under the Code of Criminal Procedure, however, cannot be plead release through issuance of a writ in the nature of habeas corpus. 8. In view of the above, we find no ground to interfere under extraordinary writ jurisdiction. 9. The petition is dismissed. ----------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 04.07.2016 BEFORE THE HON'BLE RAMESH SINHA, J. THE HON'BLE SHAMSHER BAHADUR SINGH, J. Criminal Misc. Writ Petition No.- 15223 Of 2016 Ramesh Rajbhar ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for Petitioner: Mohd. Irfan, Mainuddin Ahamad