# Rajesh Thru. His Wife Goldy Raj v. State Of U.P. & Ors

- **Citation:** (2016) 5 ILRA 732
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-13
- **Bench:** Ajai Lamba, Ravindra Nath Mishra-Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-thru-his-wife-goldy-raj-v-state-of-u-p-ors-43922
- **Pages:** 5

## Headnote

Remand by Competent Court During Investigation - Petitioner Remanded Under Cr.P.C. for
Cognizable Offences - Detention Not Illegal - Article 21 of Constitution - Petitioner (accused in
Crime No. 60 of 2016 under Sections 363/366 IPC and Sections 3/4 POCSO Act) sought Habeas Corpus
through his alleged wife/prosecutrix Goldy Raj challenging the remand order dated 22.04.2016 passed by
5 All. Rajesh Thru. His Wife Goldy Raj Vs State Of U.P. & Ors.

733
Additional Sessions Judge, Lakhimpur Kheri; petitioner pleaded that prosecutrix had willingly married him, was
of majority age, had not supported prosecution in her Section 164 Cr.P.C. statement, and was desirous of
living with him; Held, writ of Habeas Corpus is a remedy against detention forbidden by law; though it is a
writ of right it is not a writ of course; no person shall be deprived of his personal liberty except according to
procedure established by law under Article 21 of the Constitution; petitioner has been remanded to custody
during the process of investigation of a cognizable offence by a competent court with legal authority and
jurisdiction in accordance with procedure established by Cr.P.C.; such detention cannot by any figment of
imagination be termed illegal detention or confinement without authority of law; to plead that material
available on record establishes innocence and therefore Habeas Corpus be issued would be a fallacy in law;
petitioner may have a good case for bail which he is free to pursue; order of release on Habeas Corpus does
not amount to acquittal or discharge and does not deprive authorities of power to re-arrest; writ of Habeas
Corpus is not designed to interrupt the ordinary administration of criminal law; writ petition being
misconceived is dismissed. (Paras 5-17)

Writ Petition Dismissed

Case Law Discussed:

## Text

732 INDIAN LAW REPORTS ALLAHABAD SERIES
acquisition has deemed lapsed before insertion of aforesaid proviso. To the same effect is the decision in
Arvind Bansal and others Versus State of Haryana and others (2015) 3 Scale 200.

29. Similar view has been reiterated in Rajiv Choudhrie HUF versus Union of India and others
2015 (3)SCC 541 (decided on 10.12.2014); Rajiv Chaudhrie HUF versus Union of India and others
(decided on 6.2.2015) reported in 2015(3)Scale 203 and Karnail Kaur Versus State of Punjab 2015 (3)
SCC 206.

30. In view of above discussion, we have no hesitation in holding that impugned acquisition
notifications issued under Sections 4 and 6 of Act, 1894 in respect of petitioners' land in dispute and entire
acquisition proceedings in respect thereto are deemed lapsed. The respondents cannot deprive petitioners of
said land in view of aforesaid lapsed proceedings. It would, however, be open to respondents, if they so
decide, to proceed for fresh acquisition in accordance with provisions of Act, 2013.

31. Writ Petition is allowed. Impugned acquisition notifications dated 6.6.1979 and 27th July, 1982
issued under Sections 4 and 6 of Act, 1894, in respect of petitioners' land, disputed in writ petition, are hereby
quashed.

32. There shall be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.05.2016

BEFORE

THE HON'BLE AJAI LAMBA, J.
THE HON'BLE RAVINDRA NATH MISHRA-II, J.

Habeas Corpus Writ Petition No.- 10570 Of 2016

Rajesh Thru. His Wife Goldy Raj ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Jalaj Kumar Gupta, Rizwanul Haque Ansari

Counsel for the Respondents:
Govt. Advocate
.................................
Habeas Corpus - Nature and Scope - Writ Not Available Against Detention Pursuant to Legal
Remand by Competent Court During Investigation - Petitioner Remanded Under Cr.P.C. for
Cognizable Offences - Detention Not Illegal - Article 21 of Constitution - Petitioner (accused in
Crime No. 60 of 2016 under Sections 363/366 IPC and Sections 3/4 POCSO Act) sought Habeas Corpus
through his alleged wife/prosecutrix Goldy Raj challenging the remand order dated 22.04.2016 passed by
5 All. Rajesh Thru. His Wife Goldy Raj Vs State Of U.P. & Ors.

733
Additional Sessions Judge, Lakhimpur Kheri; petitioner pleaded that prosecutrix had willingly married him, was
of majority age, had not supported prosecution in her Section 164 Cr.P.C. statement, and was desirous of
living with him; Held, writ of Habeas Corpus is a remedy against detention forbidden by law; though it is a
writ of right it is not a writ of course; no person shall be deprived of his personal liberty except according to
procedure established by law under Article 21 of the Constitution; petitioner has been remanded to custody
during the process of investigation of a cognizable offence by a competent court with legal authority and
jurisdiction in accordance with procedure established by Cr.P.C.; such detention cannot by any figment of
imagination be termed illegal detention or confinement without authority of law; to plead that material
available on record establishes innocence and therefore Habeas Corpus be issued would be a fallacy in law;
petitioner may have a good case for bail which he is free to pursue; order of release on Habeas Corpus does
not amount to acquittal or discharge and does not deprive authorities of power to re-arrest; writ of Habeas
Corpus is not designed to interrupt the ordinary administration of criminal law; writ petition being
misconceived is dismissed. (Paras 5-17)

Writ Petition Dismissed

Case Law Discussed:

1. State of Maharashtra and others vs. Bhaurao Punjabrao Gawande, Criminal Appeal No. 417 of 2008 (arising
out of SLP (Crl) No. 583 of 2007)

(Delivered by Hon'ble Ajai Lamba, J.
 &
Hon'ble Ravindra Nath Mishra-II, J.)

1. This petition seeks issuance of a writ in the nature of Certiorari quashing order dated
22.04.2016, Annexure 6, passed by Additional Sessions Judge, Court No. 1, Lakhimpur Kheri. As a
consequence of quashing of the order the petition also seeks issuance of a writ in the nature of
Habeas Corpus for producing and releasing the detenue/petitioner.

2. Perusal of the pleadings in the petition and appended documents indicate that Crime No.
60 of 2016 under Sections 363/366 Indian Penal Code and Section 3/4 of the Protection of Children
From Sexual Offences Act, 2012 has been registered at the instance of respondent No. 5. In the
petition, it has been pleaded that the First Information Report is belated; in fact the prosecutrix had
not been kidnapped, rather had gone willingly with the petitioner and got married to him; the
prosecutrix has attained age of majority; prosecutrix got married to the petitioner as is evident from
marriage certificate Annexure 2; during the course of investigation statement of the prosecutrix has
been recorded under Section 164 Code of Criminal Procedure (for short Cr.P.C) in which she has
not supported the prosecution case and has demonstrated that she solemnized marriage with the
petitioner/detenue of her free will and consent and wants to live with the petitioner; medical age of
the prosecutrix has been found to be 18 years; custody of the prosecutrix was given to her father,
however, she had gone to the house of the petitioner/detenue because she is married to the
petitioner/detenue.
734 INDIAN LAW REPORTS ALLAHABAD SERIES
3. We have taken into account the fact that the petition has been filed through Goldy Raj,
the deponent who is daughter of respondent no. 5, who is the alleged prosecutrix/victim in the
criminal proceedings. The deponent claims to be the wife of the petitioner/detenue.

4. Prayer in this petition is that the petitioner has been kept in judicial custody in
compliance of impugned order dated 22.4.2016 (Annexure 6), which is illegal, and be quashed. It
has been pleaded that offence has not been committed, therefore, there is no occasion in law to
keep the petitioner in confinement, hence, the petitioner is in illegal custody and is entitled to
issuance of a writ in the nature of Habeas Corpus for release. Liberty of the petitioner cannot be
curtailed because the petitioner has not committed any offence.

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 nonauthority. The official who is the respondent must prove his authority to do or not to do something.

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.
5 All. Rajesh Thru. His Wife Goldy Raj Vs State Of U.P. & Ors.

735
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 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.
736 INDIAN LAW REPORTS ALLAHABAD SERIES

16. So far as quashing of the impugned order is concerned, the petitioner would be free to
avail the remedies against the impugned order, or to seek his release by way of applying for bail. In
such circumstances, no ground for quashing of order dated 22.4.2016, Annexure 6, is made out in
extraordinary writ jurisdiction.

17. The writ petition being misconceived is dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.05.2016

BEFORE

THE HON'BLE KARUNA NAND BAJPAYEE, J.

Application U/S 482 No.- 14501 Of 2016

Atul Kumar Jain & Ors. ...Applicants
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Rahul Jain, Om Prakash

Counsel for the Opposite Parties:
G.A.

Summoning Order Under Sections 190/204 Cr.P.C. Not Required to State Reasons - No Legal
Requirement to Pass Speaking Order When Taking Cognizance on Police Report - Absence of
Reasons Does Not Per Se Indicate Non-Application of Mind - Applicants (accused in case under
Sections 498A/323/506 IPC and Sections 3/4 D.P. Act) sought quashing of summoning order dated 30.3.2016
on the ground that it was passed on a printed proforma and did not contain reasons, reflecting nonapplication of mind; Held, there is no legal requirement that a Magistrate taking cognizance of an offence
under Section 190(1)(b) Cr.P.C. on the basis of a charge sheet filed by the Investigating Officer under Section
173(2) Cr.P.C. should record reasons for doing so; Section 204 Cr.P.C. mandates formation of an opinion that
sufficient ground exists for proceeding but does not require explicit narration of such reasons in the order; at
the stage of taking cognizance and issuing summons it is imperative that the Magistrate must have taken
notice of the accusations and applied his mind to the allegations made in the police report and the materials
filed therewith; to further burden already burdened trial courts with writing detailed orders at interlocutory
stages such as issuing process, remanding to custody, framing of charges is contrary to the aim of expediting
court procedures; challenge to summoning order merely on the ground of being a non-speaking order is
bereft of merit.
Application Under Section 482 Cr.P.C. - Quashing of Charge Sheet and Proceedings - FIR
Discloses Prima Facie Case Under Sections 498A/323/506 IPC and D.P. Act - Application
Disposed Off - After perusal of the FIR disclosing allegations of cruelty, dowry harassment, raising demand
of additional dowry of Rs.5 lakh and a vehicle, attempted killing by pouring kerosene, and threats, a prima
facie case against applicants is made out; material collected in case diary and statements of witnesses