# Smt. Jayanti (corpus) & Anr v. State of U.P. & Ors

- **Citation:** (2022) 1 ILRA 1173
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-06
- **Case number:** Habeas Corpus Writ Petition No. 671 of 2021
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-jayanti-corpus-anr-v-state-of-u-p-ors-47645
- **Pages:** 16

## Headnote

Constitution
of
India,
Article
226
-
Juvenile Justice (Care and Protection of
Children) Model Rules, 2016 - Rule 18 (8)
- placement of a child under the care of a
parent, made by the CWC - Habeas Corpus
writ petition - Maintainability - in a case
where the custody of the corpus has been
handed over as per a judicial order passed
a Judicial Magistrate or a court of
competent
jurisdiction
or
a
CWC
constituted under the JJ Act, the said
order cannot be assailed in a petition
seeking a writ of habeas corpus - Habeas
Corpus writ petition not maintainable
(Para 23)

In the present case, petitioner no.1 (minor)
placed under the care of her father-respondent
no.4 pursuant to an order passed by the CWC
exercising powers under the JJ Act and the
Rules made thereunder - Held - custody which
is presently with the father cannot be said to be
illegal and a petition for a writ of habeas corpus
through her husband would not be entertainable
in the facts of the case (Para 24)

Dismissed. (E-5)
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

## Text

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1 All. Smt. Jayanti (corpus) & Anr. Vs. State of U.P. & Ors.
1173
take resort to the substantive statutory
remedy in respect of his claim regarding
custody of the child.

19. In a child custody matter, a writ of
habeas corpus would be entertainable
where it is established that the detention of
the minor child by the parent or others is
illegal and without authority of law. In a
writ court, where rights are determined on
the basis of affidavits, in a case where the
court is of a view that a detailed enquiry
would be required, it may decline to
exercise the extraordinary jurisdiction and
direct
the
parties
to
approach
the
appropriate forum. The remedy ordinarily
in such matters would lie under the Hindu
Minority and Guardianship Act, 195615 or
the Guardians and Wards Act, 189016, as
the case may be.

20. Counsel for the petitioners has not
disputed the aforesaid legal and factual
position and the only grievance, which is
sought to be raised, is with regard to a
claim for visitation rights on behalf of the
father.

21. The contention which has been
sought to be raised by the counsel for the
petitioner with regard to the father's claim
for custody and/or visitation rights, are
matters which are to be agitated in
appropriate proceedings.

22. Having regard to the aforesaid,
this Court is not inclined to exercise its
extraordinary jurisdiction to entertain the
present petition seeking a writ of habeas
corpus.

23. The petition stands dismissed
accordingly.
----------
(2022)01ILR A1173
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.10.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 671 of 2021

Smt. Jayanti (corpus) & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Awadh Bihari Pandey

Counsel for the Respondents:
A.G.A.

Constitution
of
India,
Article
226
-
Juvenile Justice (Care and Protection of
Children) Model Rules, 2016 - Rule 18 (8)
- placement of a child under the care of a
parent, made by the CWC - Habeas Corpus
writ petition - Maintainability - in a case
where the custody of the corpus has been
handed over as per a judicial order passed
a Judicial Magistrate or a court of
competent
jurisdiction
or
a
CWC
constituted under the JJ Act, the said
order cannot be assailed in a petition
seeking a writ of habeas corpus - Habeas
Corpus writ petition not maintainable
(Para 23)

In the present case, petitioner no.1 (minor)
placed under the care of her father-respondent
no.4 pursuant to an order passed by the CWC
exercising powers under the JJ Act and the
Rules made thereunder - Held - custody which
is presently with the father cannot be said to be
illegal and a petition for a writ of habeas corpus
through her husband would not be entertainable
in the facts of the case (Para 24)

Dismissed. (E-5)
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

1. Greene Vs Home Secretary (1941) 3 All ER
388

2. Kanu Sanyal Vs District Magistrate, Darjeeling
& ors. (1973) 2 SCC 674

3. Col. Dr. B. Ramachandra Rao Vs The St. of
Orissa & ors. (1972) 3 SCC 256

4. Manubhai Ratilal Patel Vs St. of Guj. & ors.
(2013) 1 SCC 314

5. Secy. of St. for Home Affairs Vs O'Brien 1923
AC 603

6. Ranjit Singh Vs St. of Pepsu AIR 1959 SC 843

7. Ummu Sabeena Vs St. of Kerala (2011) 10
SCC 781

8. Saurabh Kumar Vs Jailor, Koneila Jail & anr
(2014) 13 SCC 436

9. St. of Mah. & ors.. Vs Tasneem Rizwan
Siddiquee (2018) 9 SCC 745

10. Serious Fraud Investigation Office Vs Rahul
Modi & anr. Etc. (2019) 5 SCC 266

11. Sanjay Dutt Vs St. (1994) 5 SCC 410

12. Gautam Navlakha Vs National Investigation
Agency 2021 SCC Online SC 382

13. Km. Rachna & anr. Vs St. of U.P. & ors.
2021 (3) ADJ 415

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Awadh Bihari Pandey,
learned counsel for the petitioners and Sri
Vinod Kant, learned Additional Advocate
General assisted by Sri Pankaj Saxena,
learned Additional Government Advocate-I
and Sri Arvind Kumar, learned Additional
Advocate General appearing for the Staterespondent.

2. The present petition seeking a writ
of habeas corpus has been filed on behalf
of petitioner no.1-corpus through the
petitioner no.2 asserting to be her husband,
seeking to contend that the petitioner
corpus has been illegally detained by her
father-respondent no.4.

3. Learned Additional Advocate
General, has pointed out that instructions
have been received to the effect that in
terms of an order dated 9.8.2021 passed by
the Child Welfare Committee1 constituted
under the Juvenile Justice (Care and
Protection of Children) Act, 20152, the
petitioner no.1, stated to be a minor, has
been placed under the care of her fatherrespondent no.4 and in view thereof since
the custody has been handed over pursuant
to a judicial order, the same cannot be said
to be illegal and the present petition
seeking a writ of habeas corpus would not
be entertainable. It is pointed out that the
order, for placement of a child under the
care of a parent, made by the CWC, would
be referable to the provisions under subrule (8) of Rule 18 of the Juvenile Justice
(Care and Protection of Children) Model
Rules, 20163.

4. In response to the aforesaid
objection with regard to entertainability of
the petition, learned counsel for the
petitioners has sought to refer to the factual
aspects of the case and has asserted that he
was unaware of the proceedings before the
CWC.

5. Learned Additional Advocate
General has referred to the provisions of
the JJ Act to point out that the Child
Welfare Committee is a committee having
a statutory status constituted as per the
provision contained under Section 27 of the
1 All. Smt. Jayanti (corpus) & Anr. Vs. State of U.P. & Ors.
1175
JJ Act. For ease of reference, Section 27 of
the JJ Act is being extracted below:-

"27.
Child
Welfare
Committee.--(1) The State Government
shall by notification in the Official
Gazette constitute for every district, one
or more Child Welfare Committees for
exercising the powers and to discharge
the duties conferred on such Committees
in relation to children in need of care and
protection under this Act and ensure that
induction training and sensitisation of all
members of the committee is provided
within two months from the date of
notification.

(2) The Committee shall consist
of a Chairperson, and four other members
as the State Government may think fit to
appoint, of whom atleast one shall be a
woman and another, an expert on the
matters concerning children.

(3) The District Child Protection
Unit shall provide a Secretary and other
staff that may be required for secretarial
support to the Committee for its effective
functioning.

(4) No person shall be appointed
as a member of the Committee unless
such person has been actively involved in
health, education or welfare activities
pertaining to children for atleast seven
years or is a practicing professional with
a
degree
in
child
psychology
or
psychiatry or law or social work or
sociology or human development.

(5) No person shall be appointed
as a member unless he possesses such other
qualifications as may be prescribed.

(6) No person shall be appointed
for a period of more than three years as a
member of the Committee.

(7) The appointment of any
member of the Committee shall be
terminated by the State Government
after making an inquiry, if--

(i) he has been found guilty of
misuse of power vested on him under this
Act;

(ii) he has been convicted of an
offence involving moral turpitude and such
conviction has not been reversed or he has
not been granted full pardon in respect of
such offence;

(iii) he fails to attend the
proceedings
of
the
Committee
consecutively for three months without any
valid reason or he fails to attend less than
three-fourths of the sittings in a year.

(8) The District Magistrate shall
conduct
a
quarterly
review
of
the
functioning of the Committee.

(9) The Committee shall function
as a Bench and shall have the powers
conferred by the Code of Criminal
Procedure, 1973 (2 of 1974) on a
Metropolitan Magistrate or, as the case may
be, a Judicial Magistrate of First Class.

(10) The District Magistrate shall
be the grievances redressal authority for the
Child Welfare Committee and anyone
connected with the child, may file a
petition before the District Magistrate, who
shall consider and pass appropriate orders."

6. It has further been pointed out that
as per sub-section (9) of Section 27 of the
JJ Act, the Committee is to function as a
Bench and shall have the powers conferred
by the Code of Criminal Procedure, 1973
on a Metropolitan Magistrate or, as the case
may be, a Judicial Magistrate of First Class.
It has been submitted that procedure in
relation to children in need of care and
protection is provided under Chapter V of
the Rules, 2016. Rule 18 prescribes the
procedure with regard to production of a
child in need of care and protection before
1176 INDIAN LAW REPORTS ALLAHABAD SERIES
the Committee and the procedure for
enquiry is delineated under Rule 19 of the
aforesaid Rules. The aforementioned Rules
are being set out herein below:-

"18. Production before the
Committee.--(1) Any child in need of care
and protection shall be produced before the
Committee during the working hours at its
place of sitting and beyond working hours
before the member as per the duty roster:

Provided that where the child
cannot be produced before the Committee,
the Committee shall reach out to the child
where the child is located.

(2) Whoever produces the child
before the Committee shall make a report
in Form 17 containing the particulars of
the child as well as the circumstances in
which the child was received or found.

(3) In case of a child less than
two years of age, who is medically unfit,
the person or the organisation who comes
in contact with the child in need of care
and protection shall send a written report
along with the photograph of the child to
the Committee within twenty-four hours
and
produce
the
child
before
the
Committee as soon as the child is
medically fit along with a medical
certificate to that effect.

(4)
The
Committee
after
interaction with the child may issue
directions for placing the child with the
parent or guardian or Children's Home,
where such Home is available in the
vicinity of the Committee before which the
child is produced, and in the absence of
such Home, to direct the placing of the
child in safe custody of a fit person or a fit
facility.

(5)
The
Committee
or
the
member on duty shall issue the order for
placing the child in Children's Home in
Form 18.

(6)
The
Committee
or
the
member on duty shall order immediate
medical examination of the child produced
before the Committee or the member on
duty, if such examination is needed.

(7) In the case of abandoned or
lost or orphaned child, the Committee,
before passing an order granting interim
custody of the child pending inquiry, shall
see that, the information regarding such
child is uploaded on a designated portal.

(8) The Committee may, while
making an order in Form 19 for placing a
child under the care of a parent, guardian or
fit person, pending inquiry or at the time of
restoration, as the case may be, direct such
parent, guardian or fit person to enter into
an undertaking in Form 20.

(9) Whenever the Committee
orders a child to be kept in an institution, it
shall forward to the Person-incharge of
such institution, a copy of the order of short
term placement pending inquiry in Form 18
with
particulars
of
the
Child
Care
Institution and parents or guardian and
previous record. A copy of such order shall
also be forwarded to the District Child
Protection Unit.

19. Procedure for inquiry.--(1)
The Committee shall inquire into the
circumstances under which the child is
produced and accordingly declare such
child to be a child in need of care and
protection.

(2) The Committee shall, prima
facie determine the age of the child in order
to ascertain its jurisdiction, pending further
inquiry as per Section 94 of the Act, if need
be.

(3) When a child is brought
before the Committee, the Committee shall
assign the case to a social worker or Case
Worker or Child Welfare Officer or to any
1 All. Smt. Jayanti (corpus) & Anr. Vs. State of U.P. & Ors.
1177
recognised non-governmental organisation
for conducting the social investigation
under sub-section (2) of Section 36 of the
Act through an order in Form 21.

(4) The Committee shall direct
the person or organisation concerned to
develop an individual care plan in Form 7
including a suitable rehabilitation plan. The
individual care plan prepared for every
child in the institutional care shall be
developed with the ultimate aim of the
child being rehabilitated and re-integrated
based on the case history, circumstances
and individual needs of the child.

(5) The inquiry shall satisfy the
basic principles of natural justice and shall
ensure the informed participation of the
child and the parent or guardian. The child
shall be given an opportunity to be heard
and his opinion shall be taken into
consideration with due regard to his age and
level of maturity. The orders of the
Committee shall be in writing and contain
reasons.

(6) The Committee shall interview
the child sensitively and in a child friendly
manner and will not use adversarial or
accusatory words or words that adversely
impact the dignity or self-esteem of the
child.

(7) The Committee shall satisfy
itself through documents and verification
reports, before releasing or restoring the
child, as per Form 19, in the best interest of
the child.

(8)
The
social
investigation
conducted by a social worker or Case
Worker or Child Welfare Officer of the
institution
or
any
non-governmental
organisation shall be as per Form 22 and
must provide an assessment of the family
situation of the child in detail, and explain in
writing whether it will be in the best interest
of the child to restore him to his family.

(9) Before the Committee
releases or restores the child, both the child
as well as the parents or guardians may be
referred to the Counsellor.

(10)
The
Committee
shall
maintain proper records of the children
produced before it including medical
reports, social investigation report, any
other report(s) and orders passed by the
Committee in regard to the child.

(11) In all cases pending inquiry,
the Committee shall notify the next date of
appearance of the child not later than
fifteen days of the previous date and also
seek periodic status report from the social
worker or Case Worker or Child Welfare
Officer conducting investigation on each
such date.

(12) In all cases pending inquiry,
the Committee shall direct the person or
institution with whom the child is placed to
take steps for rehabilitation of the child
including education, vocational training,
etc., from the date of first production of the
child itself.

(13) Any decision taken by an
individual member, when the Committee is
not sitting, shall be ratified by the
Committee in its next sitting.

(14) At the time of final disposal
of a case, there shall be at least three
members
present
including
the
Chairperson, and in the absence of
Chairperson, a member so nominated by
the Chairperson to act as such.

(15)
The
Committee
shall
function cohesively as a single body and as
such shall not form any subcommittees.

(16) Where a child has to be sent
or repatriated to another district or state or
country the Committee shall direct the
District Child Protection Unit to take
necessary permission as may be required,
such
as
approaching
the
Foreigners
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
Regional Registration Offices and Ministry
of External Affairs for a no-objection
certificate,
contacting
the
counterpart
Committee,
or
any
other
voluntary
organisation in the other district or state or
country where the child is to be sent.

(17) At the time of final disposal
of
the
case,
the
Committee
shall
incorporate in the order of disposal, an
individual care plan in Form 7 of such child
prepared by the social worker or Case
Worker or Child Welfare Officer of the
institution
or
any
non-governmental
organisation, as the case may be.

(18) While finally disposing of
the case, the Committee shall give a date
for follow-up of the child not later than one
month from the date of disposal of the case
and thereafter once every month for the
period of first six months and thereafter
every three months for a minimum of one
year or till such time as the Committee
deems fit.

(19) Where the child belongs to a
different district, the Committee shall
forward the age declaration, case file and
the individual care plan to the Committee
of the district concerned which shall
likewise follow up the individual care plan
as if it had passed such disposal order.

(20) The individual care plan
shall be monitored by means of a
rehabilitation card in Form 14 issued for
the purpose by the Committee passing the
disposal order and which shall form part of
the record of the Committee which follow
up the implementation of the individual
care plan. Such rehabilitation card shall be
maintained by the Rehabilitation-cumPlacement Officer.

(21) All orders passed by the
Committee in respect of a child in need of
care and protection shall also be uploaded
on the designated portal with due regard to
the confidentiality and privacy of the child.

(22) When a parent or guardian,
wishes to surrender a child under subsection (1) of Section 35 of the Act, such
parent
or
guardian
shall
make
an
application to the Committee in Form 23.
Where such parent or guardian is unable to
make an application due to illiteracy or any
other reason, the Committee shall facilitate
the same through the Legal Aid Counsel
provided by the Legal Services Authority,
the deed of surrender shall be executed as
per Form 24.

(23) The inquiry under subsection 3 of Section 35 of the Act shall be
concluded by the Committee expeditiously
and the Committee shall declare the
surrendered child as legally free for
adoption after the expiry of sixty days from
the date of surrender.

(24) In case of orphan or
abandoned child, the Committee shall make
all efforts for tracing the parents or
guardians of the child and on completion of
such inquiry, if it is established that the
child is either an orphan having no one to
take care, or abandoned, the Committee
shall declare the child legally free for
adoption.

(25) In case an abandoned or
orphan child is received by a Child Care
Institution
including
a
Specialised
Adoption Agency, such a child shall be
produced before the Committee within
twenty-four hours (excluding the time
necessary for the journey) along with a
report in Form 17 containing the particulars
and photograph of the child as well as the
circumstances in which the child was
received by it and a copy of such report
shall also be submitted by the Child Care
Institution or a Specialised Adoption
Agency to the local police station within
the same period.

(26) The Committee shall issue
an order in Form 18 for short term
1 All. Smt. Jayanti (corpus) & Anr. Vs. State of U.P. & Ors.
1179
placement and interim care of the child,
pending inquiry under Section 36 of the
Act.

(27) The Committee shall use the
designated portal to ascertain whether the
abandoned child or orphan child is a
missing child while causing the details of
the orphan or the abandoned child to be
uploaded.

(28) The Committee, after taking
into account the risk factors, and in the best
interest of the child, may direct the
publication
of
the
particulars
and
photograph of an orphan or abandoned
child in national newspapers with wide
circulation within seventy two hours from
the time of receiving the child for the
purposes of tracing out the biological
parents or the legal guardian(s).

(29)
The
Committee,
after
making inquiry as per the provisions of the
Act, shall issue an order in Form 25
declaring the abandoned or orphan child as
legally free for adoption and send the same
information to the Authority.

(30) Where the parents of the
child
are
traced,
the
procedure
for
restoration of the child shall be as per rule
82 of these rules."

7. It is submitted that it is as per the
procedure under sub-rule (8) of Rule 18
that the CWC has passed an order for
placing of the child i.e. the petitioner no.1
under the care of her father and the
necessary order has been passed in the
requisite Form 19 as provided under the
Rules.

8. The question with regard to
entertainability of a petition seeking a writ
of habeas corpus in a case where the
custody of the corpus has been handed over
pursuant to a judicial order would be
the question which therefore falls for
consideration.

9. Before examining the aforesaid
question, it would be apposite to advert to
the ambit and scope of a habeas corpus
petition.

10. The meaning of the term habeas
corpus is "you must have the body". In
Halsbury Laws of England, 4th Edition,
Vol. 114, it has been observed as follows:

"The writ of habeas corpus ad
subjiciendum" which is commonly known
as the writ of habeas corpus, is a
prerogative 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."

11. In "Constitutional History of
England (1912), Vol. II5" by May, writ of
habeas corpus has been described as "the
first security of civil liberty". Blackstone
has referred to the writ of habeas corpus as
"the great and efficacious writ in all manner
of illegal confinement."
1180 INDIAN LAW REPORTS ALLAHABAD SERIES

12.

Julius
Stone
in
Social
Dimensions of Law and Justice, (1966)6,
has described writ of habeas corpus as a
writ with an extraordinary scope and
flexibility of application.

13. According to Dicey, Introduction
to the Study of Law of the Constitution7,
Macmillan and Co., Ltd., (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."

14. In Greene vs. Home Secretary8,
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."

15. The nature and scope of a writ of
habeas corpus was considered in extenso in
a Constitution Bench decision in Kanu
Sanyal v. District Magistrate, Darjeeling
& Ors.9, wherein it was observed that a
writ of habeas corpus is essentially a
procedural writ dealing with machinery of
justice with the object to secure release of a
person who is illegally restrained of his
liberty. It was stated thus:-

"4. It will be seen from this brief
history of the writ of habeas corpus 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. The writ is, no
doubt, a command addressed to a person
who is alleged to have another person
unlawfully in his custody requiring him to
bring the body of such person before the
Court, but the production of the body of the
person detained is directed in order that the
circumstances of his detention may be
inquired into, or to put it differently, "in
order
that
appropriate
judgment
be
rendered on judicial enquiry into the
alleged unlawful restraint". The form of the
writ employed is "We command you that
you have in the King's Bench Division of
our High Court of Justice -- immediately
after the receipt of this our writ, the body of
A. B. being taken and detained under your
custody -- together with the day and cause
of his being taken and detained -- to
undergo and receive all and singular such
matters and things as our court shall then
and there consider of concerning him in
this behalf". The italicized words show that
the writ is primarily designed to give a
person restrained of his liberty a speedy
and effective remedy for having the legality
of
his
detention
enquired
into
and
determined and if the detention is found to
be unlawful, having himself discharged and
freed from such restraint. The most
characteristic element of the writ is its
peremptoriness and, as pointed out by Lord
Halsbury, L.C., in Cox v. Hakes (supra)
"the essential and leading theory of the
whole
procedure
is
the
immediate
determination of the right to the applicant's
freedom" and his release, if the detention is
found to be unlawful. That is the primary
purpose of the writ; that is its substance and
end. ..."

16. The question as to whether a writ
of habeas corpus can be granted in a
situation where the person has been
1 All. Smt. Jayanti (corpus) & Anr. Vs. State of U.P. & Ors.
1181
committed to jail custody by a competent
court and the order of detention prima facie
was not without jurisdiction or wholly
illegal, was examined in Col. Dr. B.
Ramachandra Rao v. The State of Orissa
& Ors.10, and it was held that the position
in this regard is well settled and a writ of
habeas corpus cannot be granted in such a
situation.

17. The aforementioned position that
a habeas corpus petition cannot be
entertained when a person is committed to
judicial custody or police custody by a
competent court by order which prima
facie does not appear to be without
jurisdiction nor is wholly illegal, was
reiterated in Manubhai Ratilal Patel v.
State of Gujarat & Ors.11. Referring to
P. Ramanatha Aiyar's Law Lexicon12
and the decisions in Secy. of State for
Home Affairs v. O'Brien13, Ranjit Singh
v. State of Pepsu14, Greene v. Secy. of
States for Home Affairs, Kanu Sanyal v.
District Magistrate, Darjeeling, Ummu
Sabeena v. State of Kerala15 and Col. B.
Ramachandra Rao v. State of Orissa, it
was observed as follows:-

"11. ... The writ of habeas corpus
has always been given due signification as
an effective method to ensure release of the
detained
person
from prison.
In P.
Ramanatha Aiyar's Law Lexicon (1997
Edn.), while defining "habeas corpus",
apart from other aspects, the following has
been stated:

"The ancient prerogative writ of
habeas corpus takes its name from the two
mandatory words habeas corpus, which it
contained at the time when it, in common
with all forms of legal process, was framed
in Latin. The general purpose of these
writs, as their name indicates, was to
obtain the production of an individual."

12. In Secy. of State for Home
Affairs v. O'Brien, it has been observed
that: (AC p. 609)

"... It is perhaps the most
important writ known to the constitutional
law of England, affording as it does a swift
and imperative remedy in all cases of
illegal restraint or confinement. It is of
immemorial antiquity, an instance of its use
occurring in the thirty-third year of Edward
I. It has through the ages been jealously
maintained by the courts of law as a check
upon the illegal usurpation of power by the
executive at the cost of the liege."

13. In Ranjit Singh v. State of
Pepsu, after referring to Greene v. Secy. of
States for Home Affairs, this Court
observed that: (Ranjit Singh case, AIR pp.
845-46, para 4)

"4. ... the whole object of
proceedings for a writ of habeas corpus is
to make them expeditious, to keep them as
free from technicality as possible and to
keep them as simple as possible."

The Bench quoted Lord Wright
who, in Greene case, had stated thus: (AC
p. 302)

... The incalculable value of
habeas corpus is that it enables the
immediate determination of the right to the
applicant's freedom."

Emphasis
was
laid
on
the
satisfaction of the court relating to
justifiability and legality of the custody.

14. In Kanu Sanyal v. District
Magistrate, Darjeeling, it was laid down
that the writ of habeas corpus 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.
1182 INDIAN LAW REPORTS ALLAHABAD SERIES

15.
Speaking
about
the
importance of the writ of habeas corpus, a
two-Judge Bench in Ummu Sabeena v.
State of Kerala has observed as follows:
(SCC p. 786, para 15)

"15. ... the writ of habeas corpus
is the oldest writ evolved by the common
law of England to protect the individual
liberty against its invasion in the hands of
the executive or may be also at the instance
of private persons. This principle of habeas
corpus has been incorporated in our
constitutional law and we are of the opinion
that in a democratic republic like India
where Judges function under a written
Constitution and which has a chapter on
fundamental rights, to protect individual
liberty the Judges owe a duty to safeguard
the liberty not only of the citizens but also
of all persons within the territory of India.
The most effective way of doing the same
is by way of exercise of power by the court
by issuing a writ of habeas corpus."

In the said case, a reference was
made to Halsbury's Laws of England, 4th
Edn., Vol. 11, para 1454 to highlight that a
writ of habeas corpus is a writ of highest
constitutional importance being a remedy
available to the lowliest citizen against the
most powerful authority.

16. Having stated about the
significance of the writ of habeas corpus
as a weapon for protection of individual
liberty through judicial process, it is
condign to refer to certain authorities to
appreciate how this Court has dwelled
upon and expressed its views pertaining
to the legality of the order of detention,
especially that ensuing from the order of
the court when an accused is produced in
custody before a Magistrate after arrest. It
is also worthy to note that the opinion of
this Court relating to the relevant stage of
delineation
for
the
purpose
of
adjudicating the legality of the order of
detention is of immense importance for
the present case.

17. In Col. B. Ramachandra Rao
v. State of Orissa, it was opined that a writ
of habeas corpus is not granted where a
person is committed to jail custody by a
competent court by an order which prima
facie does not appear to be without
jurisdiction or wholly illegal."

***

31. ... It is well-accepted principle
that a writ of habeas corpus is not to be
entertained when a person is committed to
judicial custody or police custody by the
competent court by an order which prima
facie does not appear to be without
jurisdiction or passed in an absolutely
mechanical manner or wholly illegal. As
has been stated in B. Ramachandra Rao
and Kanu Sanyal, the court is required to
scrutinise the legality or otherwise of the
order of detention which has been passed.
Unless the court is satisfied that a person
has been committed to jail custody by
virtue of an order that suffers from the vice
of lack of jurisdiction or absolute illegality,
a writ of habeas corpus cannot be granted.
It is apposite to note that the investigation,
as has been dealt with in various authorities
of this Court, is neither an inquiry nor trial.
It is within the exclusive domain of the
police to investigate and is independent of
any control by the Magistrate. The sphere
of activity is clear cut and well demarcated.
Thus viewed, we do not perceive any error
in the order passed by the High Court
refusing to grant a writ of habeas corpus as
the detention by virtue of the judicial order
passed by the Magistrate remanding the
accused to custody is valid in law."

18. A similar view was taken in
Saurabh Kumar v. Jailor, Koneila Jail &
Anr.16, wherein it was opined that writ of
habeas corpus would not be maintainable
1 All. Smt. Jayanti (corpus) & Anr. Vs. State of U.P. & Ors.
1183
against a judicial order remanding a person
to custody. It was observed as follows:-

"22. The only question with
which we are concerned within the above
backdrop is whether the petitioner can be
said to be in the unlawful custody. Our
answer to that question is in the negative.
The record which we have carefully
perused shows that the petitioner is an
accused
facing
prosecution
for
the
offences, cognizance whereof has already
been taken by the competent court. He is
presently in custody pursuant to the order
of remand made by the said Court. A writ
of habeas corpus is, in the circumstances,
totally misplaced. ..."

19. The aforesaid view was again
reiterated in the decision in State of
Maharashtra & Ors. v. Tasneem Rizwan
Siddiquee17, and a petition seeking a writ
of habeas corpus was held to be not
maintainable in a case of a police custody
pursuant to remand order passed by a
jurisdictional Magistrate.

20. The question with regard to
maintainability of a petition seeking a writ
of habeas corpus against a judicial order
remanding accused to custody again came
up for consideration in Serious Fraud
Investigation Office v. Rahul Modi And
Another Etc.18, and it was held that the
act of directing remand of accused is a
judicial function and challenge to order of
remand is not to be entertained in a habeas
corpus petition. Referring to the earlier
decisions in Manubhai Ratilal Patel v.
State of Guajarat, Kanu Sanyal v. Distt.
Magistrate, Darjeeling, B. Ramachandra
Rao v. State of Orissa, Sanjay Dutt v.
State19,
Saurabh
Kumar
v.
Jailor,
Koneila
Jail
and
State
of
Maharashtra
v.
Tasneem
Rizwan
Siddiquee, following observations was
made in the judgement:-

"20.1. In Manubhai Ratilal Patel
v. State of Gujarat a Division Bench of this
Court
extensively
considered
earlier
decisions in the point including cases
referred to above. It also dealt with an issue
whether habeas corpus petition could be
entertained against an order of remand
passed by a Judicial Magistrate. The
observations of this Court in paras 20 to 24
and para 31 were as under: (SCC pp. 323324 and 326)

"20.After so stating, the Bench in
Kanu
Sanyal
case
opined
that
for
adjudication in the said case, it was
immaterial which of the three views was
accepted as correct but eventually referred
to para 7 in B. Ramachandra Rao wherein
the Court had expressed the view in the
following manner: (SCC p. 259)

''7.
...
in
habeas
corpus
proceedings the court is to have regard to
the legality or otherwise of the detention at
the time of the return and not with
reference
to
the
institution
of
the
proceedings.'

Eventually, the Bench ruled thus:
(Kanu Sanyal case, SCC p. 148, para 5)

''5. ... The production of the
petitioner
before
the
Special
Judge,
Visakhapatnam, could not, therefore, be said
to be illegal and his subsequent detention in
the Central Jail, Visakhapatnam, pursuant to
the orders made by the Special Judge,
Visakhapatnam, pending trial must be held to
be valid. This Court pointed out in B.
Ramachandra Rao v. State of Orissa (SCC p.
258, para 5) that a writ of habeas corpus
cannot be granted
1184 INDIAN LAW REPORTS ALLAHABAD SERIES

"5.
...
where
a
person
is
committed to jail custody by a competent
court by an order which prima facie does
not appear to be without jurisdiction or
wholly illegal".'

21. The principle laid down in
Kanu Sanyal, thus, is that any infirmity in
the detention of the petitioner at the initial
stage cannot invalidate the subsequent
detention and the same has to be judged on
its own merits.

22. At this juncture, we may
profitably refer to the Constitution Bench
decision in Sanjay Dutt v. State wherein it
has been opined thus: (SCC p. 442, para
48)

''48.
...
It
is
settled
by
Constitution Bench decisions that a petition
seeking the writ of habeas corpus on the
ground of absence of a valid order of
remand or detention of the accused, has to
be dismissed, if on the date of return of the
rule, the custody or detention is on the basis
of a valid order.'

* * *

31. ... The order of remand which
is a judicial act, as we perceive, does not
suffer from any infirmity. The only ground
that was highlighted before the High
Court20 as well as before this Court is that
once there is stay of investigation, the order
of remand is sensitively susceptible and,
therefore, as a logical corollary, the
detention is unsustainable. It is worthy to
note that the investigation had already
commenced
and
as
a
resultant
consequence, the accused was arrested.
Thus, we are disposed to think that the
order of remand cannot be regarded as
untenable in law. It is well-accepted
principle that a writ of habeas corpus is not
to be entertained when a person is
committed to judicial custody or police
custody by the competent court by an order
which prima facie does not appear to be
without jurisdiction or passed in an
absolutely mechanical manner or wholly
illegal.
As
has
been
stated
in
B.
Ramachandra Rao and Kanu Sanyal, the
court is required to scrutinise the legality or
otherwise of the order of detention which
has been passed. Unless the court is
satisfied that a person has been committed
to jail custody by virtue of an order that
suffers from the vice of lack of jurisdiction
or absolute illegality, a writ of habeas
corpus cannot be granted. It is apposite to
note that the investigation, as has been
dealt with in various authorities of this
Court, is neither an inquiry nor trial. It is
within the exclusive domain of the police to
investigate and is independent of any
control by the Magistrate. The sphere of
activity is clear-cut and well demarcated.
Thus viewed, we do not perceive any error
in the order passed by the High Court
refusing to grant a writ of habeas corpus as
the detention by virtue of the judicial order
passed by the Magistrate remanding the
accused to custody is valid in law."

20.2. In Saurabh Kumar v. Jailor,
Koneila Jail the issue was dealt with in
para 13 of the leading judgment as under:
(SCC p. 440)

13. It is clear from the said
narration of facts that the petitioner is in
judicial custody by virtue of an order
passed by the Judicial Magistrate. The
same is further ensured from the original
record which this Court has, by order dated
9-4-2014, called for from the Court of the
Additional
Chief
Judicial
Magistrate,
Dalsingsarai, District Samastipur, Bihar.
Hence, the contention of the learned
counsel for the petitioner that there was
illegal detention without any case is
incorrect. Therefore, the relief sought for
by the petitioner cannot be granted. Even
though there are several other issues raised
in the writ petition, in view of the facts
1 All. Smt. Jayanti (corpus) & Anr. Vs. State of U.P. & Ors.
1185
narrated above, there is no need for us to go
into those issues. However, the petitioner is
at liberty to make an application for his
release in Criminal Case No. 129 of 2013
pending before the Court of the learned
Additional
Chief
Judicial
Magistrate,
Dalsingsarai."

Thakur, J. (as the learned Chief
Justice then was) who agreed with the
leading judgment authored by Ramana, J.,
also dealt with the matter in para 22 of his
concurring opinion as under: (Saurabh
Kumar case, SCC p. 442)

"22.