# Poonam Kushwaha v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 1746
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-01
- **Case number:** Habeas Corpus Writ No. 402 of 2022
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/poonam-kushwaha-v-state-of-u-p-ors-48982
- **Pages:** 11

## Headnote

A. Criminal Law-Constitution of India,
1950-Article 226 - Indian Penal Code,1860
- Section 366-Maintainability of-writ of
Habeas Corpus can only be issued when
there is specific assertion in the writ
petition that the corpus is in the illegal
captivity or wrongful confinement of an
individual against his/her wish and desire-
In the instant case, when the girl, major
girl of 24 years, no doubt, without any
information to her parent, fled away with
respondent no.4 and she has allegedly
solemnized marriage and happily residing
with him, it is a million dollar question as
to whether she could be considered in the
illegal confinement of the said boy- This is
a precise question of investigation- in this
backdrop, the custody of the victim being
disputed, now it is the police who has to
investigate this factual issue that the
corpus is residing with respondent no.4 on
her sweet will OR respondent no.4 is
keeping her in his illegal captivity, against
her desire. This comes within exclusive
domain of police to investigate into the
matter-Since the parent are against this
marriage and that's why after concocting
the facts of the case, wants to involve the
High Court to exert pressure upon the
police, to hold a futile exercise- Filing of
the present Habeas Corpus Petition is
nothing but an arm twisting of the local
police officials who are already engaged,
after lodging of the FIR. This Court feels
that after the girl is fled away from the
guardianship of her parent, it is their
personal perception that their son or
daughter has been kept in the illegal
captivity of the offence. But, in majority of
the cases, when these couples are brought
before the Court, after the notices, these
couples ruthlessly blasts the perception of
their parent, resultantly, the Habeas
Corpus Petition would end into big zero
and an exercise in vanity-where the FIR
with regard to alleged act of kidnapping,
abduction or illegal confinement or for
ransom has already been filed and police
personnel are pursuing the matter at their
end, the lodging of parallel Habeas Corpus
Petition is motivated and purposive one-
By filing such type of petitions, the
impatient petitioner wants to involve the
Courts to exert their pressure upon the
police to speed up their investigation. The
Habeas Corpus Petitions should not to be
used as whip over the police to officials,
just to serve out the petition's vanity over
the
police-Accordingly
instant
Habeas
Corpus
Petition
is
dismissed
at
the
admission stage itself. (Para 1 to 31)

B. A writ of habeas corpus can only be
issued when the detention or confinement
of a person is without the authority of law.
Though the literal meaning of the Latin
phrase habeas corpus is "to produce the
body", over a period of time production of
the body is more often than not insisted
upon but legally it is to be decided
whether
the
body
is
under
illegal
detention or not. Habeas corpus is often
used as a remedy in cases of preventive
detention because in such cases the
validity of the order detaining the detenu
is not subject to challenge in any other
court and it is only writ jurisdiction which
is available to the aggrieved party. The
scope of the petition of habeas corpus
has over a period of time been expanded
and this writ is commonly used when a
spouse claims that his/her spouse has
been illegally detained by the parents.
This writ is many times used even in
cases of custody of children. Even
though, the scope may have expanded,
there are certain limitations to this writ
and the most basic of such limitation is
that the Court, before issuing any writ of
habeas
corpus
must
come
to
the
conclusion that the detenu is under
detention without any authority of law.
(Para 16)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

1746 INDIAN LAW REPORTS ALLAHABAD SERIES

23. Now, applying the principles laid
down in the case of Rama Shanker Tiwari
(supra), it can safely be concluded that if
an order deciding an application would
have a direct bearing on the rights of the
parties, if it is allowed or rejected, same
would amount to 'case decided' and
revision would lie.

24. Section 115 (3) (ii) of C.P.C. as
applicable in Uttar Pradesh clearly states
that the order, if allowed to stand, results in
failure of justice or causes irreparable
injury to the party against whom it is made,
the revision under Section 115 of C.P.C as
applicable in the State of U.P. is
maintainable.

25. Viewed from this angle, if any
order illegally passed by the court below on
any application is allowed to stand
affecting the rights of parties, it would
cause the failure of justice or cause
irreparable injury to the party against
whom it is made, therefore, if said
condition is present, the revision against
such order passed by the court below vide
Section 115 (3) (ii) of C.P.C. as applicable
in the State of U.P. would lie.

26. In view of aforesaid discussions,
this Court believes that the trial court in not
deciding the application under Order 26
Rule 9 of C.P.C. on merit and dismissing
the same by taking a pedantic view has
exercised its jurisdiction illegally and with
material irregularity, therefore, the case
being covered under Section 115 (1)(c) and
Section 115 (3)(ii) of C.P.C., the revision
would lie. In such view of the fact, this
Court finds that revision in the instant case
is maintainable.

27. So far as the judgement relied upon
by the learned counsel for the petitioners in
the case of Ram Ishwar @ Rameshwar
(supra) is concerned, this Court finds that in
the said case, the Court did not consider the
Full Bench judgement of this Court in the
case of Rama Shanker Tiwari (supra) which
defines the meaning of 'case decided' and
further the Court has not considered the issue
in the light of Section 115 (3)(ii) of C.P.C. as
applicable in the State of U.P.

28. So far as another judgement relied
upon by the learned counsel for the
petitioner in the case of Uttrakhand High
Court in the case of Rajesh Kumar Gautam
(supra) is concerned, the Uttrakhand High
Court was considering Section 115 of
Central Act and did not consider the Section
115 of C.P.C. as applicable in the State of
U.P.

29. In such view of the fact, this Court
finds that the revision court has not
committed any error in holding that revision
is maintainable against the order passed by
the trial court and has rightly remanded the
matter to the trial court to decide the
application under Order 26 Rule 9 of C.P.C.
afresh.

30. Thus, for the reasons writ petition
lacks merit and is accordingly, dismissed
with no order as to costs.
----------
(2022) 9 ILRA 1746
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2022

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Habeas Corpus Writ No. 402 of 2022

Poonam Kushwaha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
9 All. Poonam Kushwaha Vs. State of U.P. & Ors.
1747
Counsel for the Petitioner:
Sri Manish Dwivedi

Counsel for the Respondents:
G.A.

A. Criminal Law-Constitution of India,
1950-Article 226 - Indian Penal Code,1860
- Section 366-Maintainability of-writ of
Habeas Corpus can only be issued when
there is specific assertion in the writ
petition that the corpus is in the illegal
captivity or wrongful confinement of an
individual against his/her wish and desire-
In the instant case, when the girl, major
girl of 24 years, no doubt, without any
information to her parent, fled away with
respondent no.4 and she has allegedly
solemnized marriage and happily residing
with him, it is a million dollar question as
to whether she could be considered in the
illegal confinement of the said boy- This is
a precise question of investigation- in this
backdrop, the custody of the victim being
disputed, now it is the police who has to
investigate this factual issue that the
corpus is residing with respondent no.4 on
her sweet will OR respondent no.4 is
keeping her in his illegal captivity, against
her desire. This comes within exclusive
domain of police to investigate into the
matter-Since the parent are against this
marriage and that's why after concocting
the facts of the case, wants to involve the
High Court to exert pressure upon the
police, to hold a futile exercise- Filing of
the present Habeas Corpus Petition is
nothing but an arm twisting of the local
police officials who are already engaged,
after lodging of the FIR. This Court feels
that after the girl is fled away from the
guardianship of her parent, it is their
personal perception that their son or
daughter has been kept in the illegal
captivity of the offence. But, in majority of
the cases, when these couples are brought
before the Court, after the notices, these
couples ruthlessly blasts the perception of
their parent, resultantly, the Habeas
Corpus Petition would end into big zero
and an exercise in vanity-where the FIR
with regard to alleged act of kidnapping,
abduction or illegal confinement or for
ransom has already been filed and police
personnel are pursuing the matter at their
end, the lodging of parallel Habeas Corpus
Petition is motivated and purposive one-
By filing such type of petitions, the
impatient petitioner wants to involve the
Courts to exert their pressure upon the
police to speed up their investigation. The
Habeas Corpus Petitions should not to be
used as whip over the police to officials,
just to serve out the petition's vanity over
the
police-Accordingly
instant
Habeas
Corpus
Petition
is
dismissed
at
the
admission stage itself. (Para 1 to 31)

B. A writ of habeas corpus can only be
issued when the detention or confinement
of a person is without the authority of law.
Though the literal meaning of the Latin
phrase habeas corpus is "to produce the
body", over a period of time production of
the body is more often than not insisted
upon but legally it is to be decided
whether
the
body
is
under
illegal
detention or not. Habeas corpus is often
used as a remedy in cases of preventive
detention because in such cases the
validity of the order detaining the detenu
is not subject to challenge in any other
court and it is only writ jurisdiction which
is available to the aggrieved party. The
scope of the petition of habeas corpus
has over a period of time been expanded
and this writ is commonly used when a
spouse claims that his/her spouse has
been illegally detained by the parents.
This writ is many times used even in
cases of custody of children. Even
though, the scope may have expanded,
there are certain limitations to this writ
and the most basic of such limitation is
that the Court, before issuing any writ of
habeas
corpus
must
come
to
the
conclusion that the detenu is under
detention without any authority of law.
(Para 16)

The writ petition is dismissed. (E-6)

List of Cases cited:

1. Lata Singh Vs St. of U.P. (2006) Cr.L.J. 3312
1748 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Bhagwan Das Vs NCT, New Delhi (2011) 6
SCC 396

3. Greene Vs Home Secry. (1941) 3 All ER
388

4. St. Vs H. Nilofer Nisha (2020) 14 SCC 161

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

6. Kanu Sanyal Vs D. M.(1973) 2 SCC 674

7. Swapan Das Vs St. of W.B. & ors. (2013) SCC
Online Cal 11681

8. Sulochana Bai Vs St. of M.P. & ors. (2008) 2
MPHT 233

9. Selvaraj Vs St. Rep. by the Suptt of
Police, Nagapattinam Distt. (2018) 3 MLJ
(Cri) 712

10. Amar Nath Chaubey Vs UOI, SLP (Cr.)
No.6951 of 2018

11. Manohar Lal Sharma Vs Prin. Secy & ors.
(2014) 2 SCC 532

(Delivered by Hon'ble Rahul Chaturvedi, J.)

1. Heard Sri Manish Dwivedi, learned
counsel for the petitioner as well as Sri
Ghanshyam Kumar and Sri Mohd. Afzal,
learned counsels appearing for the State
and perused the records of the case.

2. At the outset, learned A.G.A. has
raised strong preliminary objection with
regard to the maintainibility of the present
Habeas Corpus petition and floated certain
arguments against this petition, which
would be considered in the later part of the
judgment.

3. From the petition, Sri Dwivedi,
learned counsel for the petitioner has
sought
following
prayer
mentioned
hereinbelow viz:-

"a) Issue a writ, order or
direction in the nature of Habeas Corpus
direction the respondent no.2 to produce
the corpus-Km. Poonam from the custody
of respondent no.4(Manish Kumar Sharma)
before this Hon'ble Court to ensure his
safety and happy life

b) Issue any other suitable writ,
order or direction, as this Hon'ble Court
may deem fit and proper in the facts and
circumstances of the case.

c) Award cost of this petition in
favour of the petitioner."

In this petition, Ms. Poonam
Kushwaha (25 years) is the daughter of
Kailash Chandra Kushwaha who in fact, is
the "petitioner no.2" has arrayed (i) State of
U.P. Principal Secretary, Homes, Lucknow,
Uttar Pradesh; (ii) Superintendent of
Polilce, Banda ; (iii) S.H.O. Police StationKalinger, Banda ;(iv) Manish Kumar
Sharma aged 29 years s/o Rajesh Sharma,
r/o
village-Talahati,
police
stationKalinger, District-Banda, as respondents
from whom he has sought aforementioned
prayer.

4. The bare skelton fact which has
given rise to the present Habeas Corpus
petition are formulated hereinbelow: -

(A) Submission advanced by
learned counsel for the petitioner no.2 is
that Kailash Chandra Kushwaha, has
lodged the FIR on 24.01.2022 for the
alleged act of enticement of his daughter
Poonam Kushwaha on 22.01.2022 from
Kalinger. This FIR was got registered as
case crime no.25 of 2022 under section 366
IPC at Police Station-Kalinger, DistrictBanda.

(B)
On
account
of
certain
misconceptions
and
mis-information
received to the informant, initially the FIR
was registered against one Biru Prajapati,
9 All. Poonam Kushwaha Vs. State of U.P. & Ors.
1749
but later on, it was revealed to the
informant
that
a
person
Rohit
Bhatt@Manish
Kumar
Sharma,
after
hatching the conspiracy with one Afsar,
Chand Khan and two others, has forcibly
taken away Km. Poonam Kushwaha (24
years)
from
the
custody
of
her
father/petitioner no.2. Consequently, an
application was moved on the same day i.e
24.01.2022
itself
to
the
concerned
Investigating Officer giving the correct
information about the real offenders.

(C) During the pendency of the
investigation, petitioner no.2 came to know
that Rohit Bhatt@Manish Kumar Sharma
carried her daughter to the Bench of this
Hon'ble Court seeking civil protection,
projecting that both of them are major and
now are married couple and thus, their
future may be secured by giving certain
civil protection to them, accordingly, a
Civil Writ Petition No.3002 of 2022 was
filed by them and on 17.02.2022, coordinate Bench of this Court while relying
upon the judgments of Lata Singh Vs.
State of U.P. 2006 Cr.L.J. 3312 and
Bhagwan Das Vs. NCT, New Delhi,(2011)
6 SCC 396 disposed of the aforesaid
petition protecting the interest of the couple
with certain conditions.

(D) The father of the corpus Mr.
Kailash Chandra Kushwaha also came to
know that his daughter Poonam Kushwaha
got married with respondent no.4.

(E) In the present petition, father
has levelled all sorts of severe allegations
about
the
nature
and
character
of
respondent no.4 that after laying love trap,
Rohit
Bhatt@Manish
Kumar
Sharma
spoiled the life of many other young girls,
were trapped in his love and thereafter,
utilized them for women trafficking and
thrown them into flesh market etc.

(F) Raising all his suspicion,
father of the girl moved an application on
04.04.2022, raising his grievance regarding
his daughter before the Superintendent of
Police, Banda but it seems that no heed
was paid on the said letter. In addition to
this in paragraph no.12 of the petition, it
is also alleged that informant's wife Ram
Janki(mother of Poonam Kushwaha) has
received phone calls allegedly from
Manish Bhatt@Manish Kumar Sharma
demanding Rs.5 lacs for the safety and
security of the kidnapee Ms. Poonam
Kushwaha. Perturbed by this, Ram Janki
too made an application to the concerned
S.H.O., Kalinger on 09.05.2022 but that
application too gone into deaf ear of
concerned S.H.O.

In
paragraph
no.14
of
the
petition, on 24.01.2022, Manish Kumar
Sharma
and
Poonam
Kushwaha
got
married but this marriage was never
accepted by her parent. The marriage
certificate is from Ram Janki Mandir,
Prayagraj dated 24.01.2022 certified by one
Acharya
Vijay
Shashtri
annexed
as
Annexure-8 to the petition.

5. The petitioner/father was anxious
to know about the well-being of his
daughter and it is the petitioner who also
received unconfirmed information that her
daughter may be carried way outside the
country and on this ground, it is prayed that
S.P. Banda(respondent no.2) was directed
to
produce
the
corpus
of
Poonam
Kushwaha from the custody of respondent
no.4-Manish Kumar Sharma to ensure the
safety and security of her life so that justice
could be done during the pendency of the
present petition.

Interestingly, in the entire writ
petition, there is not even a whisper, that
his daughter was in the illegal confinement
of respondent no.4 or she has been kept
forcibly against her wish with respondent
no.4.
1750 INDIAN LAW REPORTS ALLAHABAD SERIES

6. After hearing these factual
submissions advanced by learned counsel
for the petitioner, learned A.G.A. relying
upon the instructions received from the
S.H.O. Kalinger, Banda have pointed out
that pursuant to the FIR as case crime no.25
of 2022 under section 366 IPC, police
station-Kalinger dated 24.01.2022, the
investigation is still going on with full
swing. It is the informant who has initially
lodged the FIR againt one Biru Prajapati
and later on, gave an application, have
replaced him by inserting Manish Kumar
Sharma. During investigation, it has come
to the knowledge of the Investigating
Agency that the aforesaid couple have
solemnized marriage in some temple at
Prayagraj and appeared before the Court
for having a civil protection by means of
Writ-C No.3002 of 2022 and vide order
dated 17.02.2022, the single Bench of this
Court has protected the interest of the
couple with certain conditions.

7. Besides this, petitioner no.1Poonam Kushwaha on 27.02.2022 has
given an application to the S.P. Banda
annexing the certified copy of the aforesaid
order levelling specific allegations against
her own father, that petitioner no.2 Kailash
Chandra Kushwaha was planning to get her
married with a person double of her age.
Meanwhile, she, on her own, contacted
Manish Kumar Sharma, respondent no.4
and both of them got married on
24.01.2022 at Prayagraj. This marriage was
performed by them as per their own sweet
will without any coercion or duress from
any quarter and now, they are leading
happy marital life.

However,
as
per
the
wild
allegations levelled in paragraph 12, 13, 15,
16 and 17 of the writ petition, that ransom
of
Rs.five
lacs
were
demanded
on
telephone of Ram Janki, mother of Poonam
Kushwaha is concerned, the police is
examining all these allegations in a
thorough professional way and yet to file
their report under section 173(2) Cr.P.C.

Learned A.G.A. has accused the
petitioner with regard to the maintainability
that by filing the present Habeas Corpus
petition,
the
father
Kailash
Chandra
Kushwaha wants to exploit its extraordinary power just to exert extra pressure
on the police who are in the midst of the
investigation. It is further contended by
learned A.G.A. that this Habeas Corpus
petition is nothing but a device of arm
twisting by involving the High Court in this
ongoing investigation thus, it is not only
purposive but also misconceived.

8. It has been further contended that
writ of Habeas Corpus can only be issued
when there is specific assertion in the writ
petition that the corpus is in the illegal
captivity or wrongful confinement of an
individual against his/her wish and desire.
In the instant case, when the girl, major girl
of 24 years, no doubt, without any
information to her parent, fled away with
respondent no.4 and she has allegedly
solemnized marriage and happily residing
with him, it is a million dollar question as
to whether she could be considered in the
illegal confinement of respondent no.4?

9. After hearing the rival parties, the
father is asserting that his daughter is being
enticed away by respondent no.4 in the
dead hours of the night of 21/22.01.2022
whereas the other documents especially
Annexure-4 order in the writ petition Smt.
Poonam Kushwaha and ors. Vs. State of
U.P., indicates that both of them got
married and leading a happy marital life.
This is a precise question of investigation.
However, in this backdrop, the custody of
the victim being disputed, now it is the
9 All. Poonam Kushwaha Vs. State of U.P. & Ors.
1751
police who has to investigate this factual
issue that the corpus is residing with
respondent no.4 on her sweet will OR
Manish Kumar Sharma respondent no.4 is
keeping her in his illegal captivity, against
her desire. This comes within exclusive
domain of police to sinvestigate into the
matter.

After
hearing
the
rival
submission, the Court has formulated
following proposition of law for the
judicial scrutiny, viz :-

WHEN
THE
POLICE
IS
PURSUING
ITS
INVESTIGATION
AFTER LODGING OF THE FIR, AND,
IS
IN
THE
MIDST
OF
INVESTIGATION,
WHETHER
HABEAS
CORPUS
PETITION
IS
MAINTAINIBLE OR NOT ?? OR IN
OTHER
WORDS,
THE
HABEAS
CORPUS
PETITION
AND
INVESTIGATION WITH REGARD TO
THE
SAME
ISSUE
CAN
GO
PARALLELLY OR NOT ?

Let us examine this instant prelimnary
objection raised by the learned A.G.A.

10. So far as this pertinent question
regarding maintainability of the present
Habeas Corpus petition is concerned, it is
imperative to examine the meaning and
scope of Habeas Corpus petition from its
historical background.

11. The Latin phrase habeas corpus
means literally that "you", that is, the
person with custody over the prisoner, must
"have the body" of the prisoner produced in
court at the place and time ordered by a
judge. The writ of habeas corpus provides
individuals with protection against arbitrary
and wrongful imprisonment.

12. The meaning of the term habeas
corpus is "you must have the body". In
Halsbury Laws of England, 4th Edition,
Vol.11, p.1452, p.768, it is observed:

"The writ of habeas corpus ad
subjiciendum" which is commonly known as
the writ of habeas corpus, is a prerogative
High Court process for securing the liberty of
the subject by affording an effective means of
immediate release from the unlawful or
unjustifiable detention whether in prison or
in private custody. It is a prerogative writ by
which the queen has a right to inquire into
the causes for which any of her subjects are
deprived of their liberty. By it the High
Court and the judges of that Court, at the
instance of a subject aggrieved, command
the production of that subject, and inquiry
into the cause of his imprisonment. If there
is no legal justification for the detention, the
party is ordered to be released. Release on
habeas corpus is not, however, an acquittal,
nor may the writ be used as a means of
appeal."

13. Habeas corpus ad subjiciendum
means "that you have the body to submit or
answer."

May in his Constitutional History
of England (1912), Vol.II, p.130, described
writ of habeas corpus as "the first security
of civil liberty". Blackstone called the writ
of habeas corpus as "the great and
efficacious writ in all manner of illegal
confinement."

14.

Julius
Stone
in
Social
Dimensions of Law and Justice, (1966),
p.203 described the writ of habeas corpus
as a picturesque writ with an extraordinary
scope and flexibility High Court of an
application.
1752 INDIAN LAW REPORTS ALLAHABAD SERIES

15. According to Dicey (A.C. Dicey),
Introduction to the Study of Law of the
Constitution, Macmillan and Co., Ltd.,
p.215(1915): "if, in short, any man, woman
or child is, or is asserted on apparently
good grounds to be deprived of liberty, the
court will always issue a writ of habeas
corpus to anyone who has the aggrieved
person in his custody to have such person
brought before the court and if he is
suffering restraint without lawful cause, set
him free."

16. In Greene vs. Home Secretary,
(1941) 3 All ER 388, it has been observed:

"Habeas corpus is a writ in the
nature of an order calling upon the person
who has detained another to produce the
later before the court, in order to let the
court know on what ground he has been
confined and to set him free if there is no
legal jurisdiction of imprisonment."

17. The prerogative writ of habeas
corpus ad subjiciendum is the most
renowned contribution of English common
law to the protection of human member.

In India, the jurisdiction to issue
prerogative
writs
came
with
the
establishment of the Supreme Court by
regulating Act of 1773. The charter of 1774
gave power to each High Court of the
justices of the Supreme Court of Calcutta to
issue a writ of habeas corpus. The three
Supreme Courts in Calcutta, Bombay and
Madras by the Act of Parliament in 1861
were abolished and High Courts were
established and the power to issue writs of
habeas corpus was inherited by them. This
power to issue writ of habeas corpus was
taken away from 1875 and new power of
the High Court arose under Section 491 of
the Code of Criminal Procedure, 1898 to
issue statutory directions in the nature of
habeas corpus. By Articles 32 and 226, the
Supreme Court and all the High Court got
jurisdiction to issue writ of habeas corpus
throughout
their
respective
territorial
jurisdiction when the Constitution came
into force.

18. Considering the decision of the
Constitution Bench, recently the Apex
Court in State Vs. H. Nilofer Nisha,
since reported in (2020) 14 SCC 161 has
considered the expanding scope of the
writ of habeas corpus and has held as
under :-

"16. A writ of habeas corpus can
only be issued when the detention or
confinement of a person is without the
authority of law. Though the literal
meaning of the Latin phrase habeas corpus
is "to produce the body", over a period of
time production of the body is more often
than not insisted upon but legally it is to be
decided whether the body is under illegal
detention or not. Habeas corpus is often
used as a remedy in cases of preventive
detention because in such cases the validity
of the order detaining the detenu is not
subject to challenge in any other court and
it is only writ jurisdiction which is
available to the aggrieved party. The scope
of the petition of habeas corpus has over a
period of time been expanded and this writ
is commonly used when a spouse claims
that his/her spouse has been illegally
detained by the parents. This writ is many
times used even in cases of custody of
children. Even though, the scope may have
expanded, there are certain limitations to
this writ and the most basic of such
limitation is that the Court, before issuing
any writ of habeas corpus must come to the
conclusion that the detenu is under
detention without any authority of law."
9 All. Poonam Kushwaha Vs. State of U.P. & Ors.
1753

19. Illegal confinement is the precondition to issue a writ of habeas corpus.
Though a writ of right, it is not a writ of
course. It is an extra ordinary remedy and
cannot be granted on mere asking. It cannot
be resorted to in a casual and routine
manner. Who is responsible for kidnapping
the son of the petitioner and who is
wrongfully confining him are maters of
investigation and definite opinion in this
regard is lacking in the present case.

20. In a criminal investigation, what
action should have been taken by the police
that cannot be a matter of habeas corpus
because there is no application whatsoever
that there has been wrongful confinement by
the police.

In Union of India vs. Yumnam
Anand M. @ Bocha @ Kora @ Suraj,
(2007) 10 SCC 190 while explaining the
nature of writ of habeas corpus, the Supreme
Court held that it is writ of right, it is not a
writ of course. The application must show a
prima facie case of his unlawful detention.
Relevant para-7 of the judgment reads as
under:

"7.Article 21 of the Constitution
having declared that no person shall be
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."

21. In Kanu Sanyal vs. Distt.
Magistrate, (1973) 2 SCC 674 , the Supreme
Court held that while dealing with a writ of
habeas corpus, the Supreme Court held that it
is essentially a procedural writ. It deals with
the machinery of justice, not the substantive
law. The object of the writ is to secure release
of a person who is illegally restrained of his
liberty.

22. In Swapan Das vs. the State of
West Bengal & Ors. 2013 SCC Online
Cal 11681, the High Court Calcutta held as
under:

"A habeas corpus writ is to be
issued only when the person concerning
whose liberty the petition has been filed is
illegally detained by a respondent in the
petition. On the basis of a habeas corpus
petition the power under art.226 is not to
be exercised for tracing a missing person
engaging
an
investigating
agency
empowered to investigate a case under the
Code of Criminal Procedure, 1973. The
investigation, if in progress, is to be
overseen by the criminal court. Here the
petitioner is High Court asking this court to
direct the police to track down his missing
son. For these reasons, we dismiss the writ
petition."

23. Similarly, in Sulochana Bai vs.
State of M.P. & Ors, 2008 (2) MPHT 233,
the High Court of Madhya Pradesh
observed as under:

"12. We have referred to the
aforesaid decisions only to highlight that
the writ of habeas corpus can only be
issued when there is assertion of wrongful
confinement. In the present case, what has
been asserted in the writ petition is that her
father-in-law has been missing for last four
years and a missing report has been lodged
1754 INDIAN LAW REPORTS ALLAHABAD SERIES
at the Police Station. What action should
have been taken by the Police that cannot
be the matter of habeas corpus because
there is no allegation whatsoever that there
has been wrongful confinement by the
police or any private person. In the result,
the writ petition is not maintainable and is
accordingly dismissed."

24. In Selvaraj vs. the State, Rep. by
the
Superintendent
of
Police,
Nagapattinam District, in 2018(3) MLJ
(Cri) 712, a Division Bench of the Madras
High Court observed as under:

The constitutional Courts across
the country predominantly held in catena of
judgments that establishing a ground of
"illegal detention" and a strong suspicion
about any such "illegal detention" is a
condition precedent for moving a Habeas
Corpus petition and the Constitutional
Courts shall be restrained in entertaining
such Habeas Corpus petition, where there is
no allegation of "illegal detention" or
suspicion
about
any
such
"illegal
detention". Man/Women missing cases
cannot be brought under the provision of
the Habeas Corpus petition. Man/Women
missing cases are to be registered under the
regular provisions of the Indian Penal Code
and the Police officials concerned are
bound to investigate the same in the
manner prescribed under the Code of
Criminal Procedure. Such cases are to be
dealt as regular cases by the competent
Court of Law and the extraordinary
jurisdiction of the Constitutional Courts
cannot be invoked for the purpose of
dealing with such Man/Women Missing
cases.

To
hold
investigation
in
a
cognizable offence is the statutory right of the
police. It is well settled that at the stage of
investigation the Court has no role to play.
However,
the
investigating
agency
is
required to take all necessary steps to
conclude the investigation and submit its
report to the Magistrate concerned. If the
police fail to perform their statutory duty in
accordance with law, the Court has a
bounden statutory obligation to ensure that
the investigation is conducted in accordance
with law.

25. In Amar Nath Chaubey Vs. Union
of India (SLP (Cr.) no.6951 of 2018) by
order dated 14 th December, 2020, a threeJudge Bench of the Supreme Court observed
as under :-

"8. The police has a statutory duty
to investigate into any crimein accordance
with law as provided in the Code of Criminal
Procedure. Investigation is the exclusive
privilege and prerogative of the police which
cannot be interfered with. But if the police
does not perform its statutory duty in
accordance with law or is remiss in the
performance of its duty, the court cannot
abdicate its duties on the precocious plea that
investigation is the exclusive prerogative of
the police. Once the conscience of the court is
satisfied, from the materials on record, that
the police has not investigated properly or
apparently is remiss in the investigation, the
court has a bounden constitutional obligation
to ensure that the investigation is conducted
in accordance with law. If the court gives any
directions for that purpose within the
contours of the law, it cannot amount to
interference
with
investigation.
A
fair
investigation is, but a necessary concomitant
of Articles 14 and 21 of the Constitution of
India and this Court has the bounden
obligation to ensure adherence by the
police."

26. In Manohar Lal Sharma Vs.
Principal Secretary & Ors., since reported
9 All. Poonam Kushwaha Vs. State of U.P. & Ors.
1755
in (2014) 2 SCC 532, the Supreme Court
observed as under :-

"24. In the criminal justice system
the investigation of an offence is the
domain of the police. The power to
investigate into the cognizable offences by
the police officer is ordinarily not impinged
by any fetters. However, such power has to
be exercised consistent with the statutory
provisions and for legitimate purpose. The
courts ordinarily do not interfere in the
matters
of
investigation
by
police,
particularly,
when
the
facts
and
circumstances do not indicate that the
investigating officer is not functioning bona
fide. In very exceptional cases, however,
where the court finds that the police officer
has exercised his investigatory powers in
breach of the statutory provision putting
the personal liberty and/or the property of
the citizen in jeopardy by illegal and
improper use of the power or there is abuse
of the investigatory power and process by
the police officer or the investigation by the
police is found to be not bona fide or the
investigation is tainted with animosity, the
court may intervene to protect the personal
and/or property rights of the citizens."

27. Now, in this backdrop of settled
tenets of law with regard to Habeas Corpus
petition from its very inception, its
historical background and thereafter its
gradual evolution by various court of law in
India, one of the basic and essential
convenent that, an individual must be
detained or confined without any authority
of law. Confinment means, "the state of
being forced to stay in prison or another
place which one cannot leave". Thus the
basic ingredient of illegal confinement or
detention is forced stay and against one's
wish or desire. If a person is residing on his
own sweet free will or on his own volition,
cannot be fall within realm of illegal
confinement, under these circumstances,
Habeas Corpus Petition is simply a futile
exercise.

In the instant case, when both the
victim(girl)
and
respondent
no.4
themselves reached to the Bench of this
Court by filing a Writ C No.3002 of 2022
and entertaining that writ, on 17.02.2022,
Bench has protected their interest that by
no stretch of imagination, the girl is said to
be in illegal confinement or detention of
respondent no.4. Not only this, after
obtaining the order from this Court, she has
submitted the same by giving a covering
letter in her own writing to the concerned
police station, accusing her own father, that
she was compelled to marry of a person
double of her age, an elderly person and
thus, she on her own, decided to fled away
with the boy(respondent no.4) with whom
she
has
got
an
early
acquaintance/friendship
and
a
tender
relationship and both of them have decided
to marry. Since, both of them were major,
they decided to marry with each other and
now they are married couple. It seems that
the parent are against this marriage and
that's why after concocting the facts of the
case, wants to involve the High Court to
exert pressure upon the police, to hold a
futile exercise.

28. From above, this Court is of the
strong
opinion,
that
petitioner
no.2
invoking this extra-ordinary powers by way
of Habeas Corpus petition, when he has
already lodged an FIR and the police is
seized with the matter. It is expected from
the S.S.P. and S.H.O. Concern district and
police station to look into the matter with
all their professional skills and competence
at the earliest, else the petitioner may
explore other alternative avenues from their
redressal of grievance, but certainly not, the
1756 INDIAN LAW REPORTS ALLAHABAD SERIES
Habeas Corpus Petition. In the instant
Habeas Corpus Petition, there is not even a
whisper that the corpus has been kept
forcibly by respondent no.4 against her
wish. In the absence of the basic pleadings
in the petition, it lacks merits and liable to
be dismissed on this score alone.

29. In my view, filing of the present
Habeas Corpus Petition is nothing but an
arm twisting of the local police officials
who are already engaged, after lodging of
the FIR. This Court feels that after the girl
is fled away from the guardianship of her
parent, it is their personal perception that
their son or daughter has been kept in the
illegal captivity of the offence. But, in
majority of the cases, when these couples
are brought before the Court, after the
notices, these couples ruthlessly blasts the
perception of their parent, resultantly, the
Habeas Corpus Petition would end into big
zero and an exercise in vanity.

30. Rightly so, the Court too is of the
considered opinion that where the FIR with
regard to alleged act of kidnapping,
abduction or illegal confinement or for
ransom has already been filed and police
personnels are pursuing the matter at their
end, the lodging of parallel Habeas Corpus
Petition is motivated and purposive one. By
filing such type of petitions, the impatient
petitioner wants to involve the Courts to
exert their pressure upon the police to
speed up their investigation. The Habeas
Corpus Petitions should not to be used as
whip over the police to officials, just to
serve out the petition's vanity over the
police.

31. Thus, after marshalling of facts
and circumstances of the instant case and
the law in this regard, the preliminary
objection raised by learned A.G.A., finds
force and accordingly instant Habeas
Corpus Petition is dismissed at the
admission stage itself.

32. It is made clear that the ratio
adopted in the present case shall not apply
in the case of minors because any amount
of their consent or willingness is not a valid
consent in the eye of law and therefore, the
police report shall not be precluded in the
matter of minors.
----------
(2022) 9 ILRA 1756
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.09.2022

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE SHEKHAR KUMAR YADAV, J.

Habeas Corpus Writ No. 30758 of 2021

Ram Sevak ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Arvind Kumar Tripathi, Dr. Ravi Kumar
Mishra

Counsel for the Respondents:
G.A.

A.
Criminal
Law
-
Constitution
of
India,1950-Article 226 - National Security
Act, 1980- Section 3 (2) - Indian Penal
Code,1860-Sections 302 , 201 & 376 read
with Section 5(d)/6 of Prevention of
Children from Sexual Offence Act, 2012Preventive detention- It is not a case
involving merely law and order, but, a
case where the public order got disturbed
initially and, the District Magistrate was
well within his rights to form a subjective
opinion on the basis of objective material
before him that in the event the petitioner
was enlarged on bail it would prejudice