# Smt. Madhubala Mishra & Anr v. Shyam Dhar Dubey & Ors

- **Citation:** (2020) 9 ILRA 51
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-08-27
- **Case number:** Habeas Corpus Writ Petition No. 410 of 2020
- **Bench:** J.J. Munir, J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-madhubala-mishra-anr-v-shyam-dhar-dubey-ors-45990
- **Pages:** 3

## Headnote

A. Constitution of India -Article 226-Writ
of Habeas Corpus-Free will - Old lady
living with her one daughter-Judicial
Magistrate recorded her statement - No
illegal confinement -Held, no good ground
to make the rule nisi absolute. (Para 4 and
5)

Writ Petition dismissed. (E-1)

## Text

9 All. Smt. Madhubala Mishra & Anr. Vs. Shyam Dhar Dubey & Ors.
51
minor's custody, better than the mother, can
move and establish that right before a Court
of competent jurisdiction under the Act. If
an application is brought under Section 25
of the Act or other appropriate proceeding
under the said statute, anything said in this
judgment, shall not affect the determination
to be made by the Court of competent
jurisdiction.

23. In the result, this Habeas Corpus
Writ Petition succeeds and is allowed.

24. The rule nisi is made absolute. It
is ordered that the minor be set at liberty by
respondent nos.6 to 9 and delivered into
custody of the mother, Smt. Reetu within a
week of the date of this judgment. In case
the custody of the minor is not delivered by
respondent no.8 or respondent no.9, or any
of the respondent nos.6 to 9, the learned
Chief Judicial Magistrate, Etah shall cause
it to be delivered to the first petitioner, Smt.
Reetu by employment of necessary force
through the Superintendent of Police, Etah.
The Superintendent of Police, Etah is
ordered to act in aid of the learned Chief
Judicial Magistrate, Etah in the matter. It is
further ordered that on the first Sunday of
every month between 10:00 a.m. to 2.00
p.m., the first petitioner, Smt. Reetu shall
permit respondent nos.8 and 9 to meet the
minor, Mohan @ Bholey at her residence.
During each such visit, the first petitioner
shall extend all due courtesy to respondent
nos.8 and 9 and will wholesomely facilitate
the meeting.

25. Let this order be communicated
forthwith
by
the
Joint
Registrar
(Compliance) to the learned District Judge,
Etah, the learned Chief Judicial Magistrate,
Etah and the Superintendent of Police,
Etah.
----------
(2020)09ILR A 51
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.08.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Habeas Corpus Writ Petition No. 410 of 2020

Smt. Madhubala Mishra & Anr. ...Petitioners
Versus
Shyam Dhar Dubey & Ors. ...Respondents

Counsel for the Petitioners:
Sri Vivek Tiwari, Sri K.S. Tiwari

Counsel for the Respondent:
G.A.

A. Constitution of India -Article 226-Writ
of Habeas Corpus-Free will - Old lady
living with her one daughter-Judicial
Magistrate recorded her statement - No
illegal confinement -Held, no good ground
to make the rule nisi absolute. (Para 4 and
5)

Writ Petition dismissed. (E-1)

(Delivered by Hon'ble J.J. Munir, J.)

1. In compliance with the rule nisi
issued by this Court vide order dated
24.08.2020, the learned Chief Judicial
Magistrate, Jaunpur nominated a lady
Judicial Officer to go over to the residence
of the detenue, Smt. Prabhawati Devi, who
stays with her other daughter Manju Devi
Dubey and to record her statement. This
rule nisi was issued to ascertain whether
Smt. Prabhawati is staying with respondent
no. 2, Manju Devi Dubey of her free will or
she is illegally confined.

2. This modified rule was issued
looking to the extraordinary circumstances
52 INDIAN LAW REPORTS ALLAHABAD SERIES
prevalent due to Covid-19 pandemic. Normally,
this Court, under the prevalent circumstances,
would have required Smt. Prabhawati Devi to
be produced before the learned Chief Judicial
Magistrate or some other Judicial Officer, who
would be asked to record her statement acting
on this Court's Commission. The Commission
here was, however, modified to ask a lady
Judicial Officer nominated by the learned Chief
Judicial Magistrate to go over to the residence
of Smt. Prabhawati Devi, considering her
extreme old age which would imperil her life if
she were forced to be produce in court.

3. In compliance with the Court's
order, the learned Chief Judicial Magistrate,
Jaunpur nominated Smt. Sneha, Judicial
Magistrate-II, Jaunpur to execute the
Commission issued by this Court. The
learned Chief Judicial Magistrate has sent a
copy of the statement of Smt. Prabhawati
Devi through electronic mode recorded by
the
learned
Judicial
Magistrate
on
26.08.2020 at the former's residence.

4. It must be remarked that the Judicial
Officer has gone about the exercise very
carefully and has done a remarkable effort.
She has gone over to the residence of Smt.
Prabhawati, who stays with her other
daughter,
Manju
Devi
Dubey
and
ascertained her identity very carefully.
Thereafter she has recorded the fact that
Smt. Prabhawati Devi is very old and hard
of hearing. The learned Judicial Magistrate
has also ascertained whether her mental
faculties are good enough to understand
what she is being asked. Once satisfied, the
learned Judicial Magistrate has proceeded
to record Smt. Prabhawati's statements
which is in the following words:

"ममुझझे
मझेरर
उम्र
नहह ीं
ममाललूम हहै। (ममींजलू दझेवर कक तरफ
इशमारमा
कर
कहमा
)
यझे
मझेरर
बबबबबियमा हहै।

मधमुबबमालमा मझेरर बबझेबिर हहै, ममुझझे
ज्यमादमा ध्यमान नहह ीं हहै। महै ममींजलू
दझेवर कझे समाथ कबब सझे रह रहर हहह
ममुझझे ध्यमान नहह ीं हहै। महै ममींजलू कझे
समाथ अपनर मजजी सझे रह रहर हहह।
मधमु कझे पमास नहह ीं जमाउमींगर ,
अपनझे कमरझे मम जमाउमींगर । मधमु कमा
बबबयमाह ममनझे गगोपमालपमुर मम बकयमा
थमा। मधमु कझे पमास बबहहत
वरर पहलझे गयर थर अबब नहर जमानमा
हहै। ममींजलू मझेरर सझेवमा करतर हहै।
समुनकर तस्दर क बकयमा।
प्रभमावतर दझेवर दमारमा बबगोलझे जमानझे
पर अक्षरससः अमींबकत बकयमा गयमा

Sneha
 26/08/2020
 JM-IInd
 Jaunpur"

5. The aforesaid statement does not
spare a shadow of doubt that the second
petitioner, Smt. Prabhawati Devi is staying
with her other daughter Smt. Manju Devi
Dubey of her free will and without any
restraint. She is not confined there, much
less illegally confined. There is, therefore,
no good ground to make the rule nisi
absolute. The rule is discharged and this
petition is dismissed.

6. This Court places on record its
appreciation for the excellent work done by
Smt. Sneha, Judicial Officer-II, Jaunpur.

7. Let this order be communicated to
the learned District Judge, Jaunpur by the
Joint Registrar (compliance) within 24
hours.
----------
9 All. Rana Pratap Singh Vs. State of U.P. & Ors.
53
(2020)09ILR A53
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.07.2020

BEFORE

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

Special Appeal No. 239 of 2020

Rana Pratap Singh ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri J.P. Singh

Counsel for the Respondents:
C.S.C., Sri Bheem Singh, Sri Indal Singh

A. Service Law - Recovery of salary
amount - The State cannot be burdened
with the payment of salary to two persons
staking claim to the same post and the
regular incumbent alone is entitled for
salary. (Para 4)

Petitioner continued to discharge duties as
Officiating Principal even after the regular
Principal had joined. Therefore, recovery was
held unjustified.

B. Fixation of pension - Petitioner was not
legally entitled to continue as Officiating
Principal after 20.05.2010 i.e. the date when the
regular incumbent had joined the post of
Principal, therefore, the prayer for fixation of
pension treating the last pay drawn by the
petitioner to be that of the Officiating Principal,
cannot be accepted. (Para 5)

Special appeal dismissed. (E-4)

Present
special
appeal
challenges
judgment and order dated 14.02.2020,
passed by the writ court.

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

1. Heard Sri J.P.Singh, learned
counsel for the petitioner-appellant, learned
Standing Counsel for the respondent nos. 1
to 4, Sri Bheem Singh, learned counsel for
the respondent no. 5 and Sri Indal Singh,
learned counsel for respondent no. 6.

2. The judgment and order dated
14.02.2020 passed by the writ court
allowing the writ petition in part is under
challenge.

3.

The
petitioner
worked
as
Officiating Principal for a certain time
period in an Intermediate College. He
challenged the order dated 25.11.2010
passed by the District Inspector of Schools
whereby the recovery of salary amount for
the period 20th May, 2010 to 30th June,
2010 was ordered against him.

4. The learned Single Judge in
allowing the writ petition in part held that
in so far as the petitioner continued to
discharge duties as Officiating Principal
during the period 20th May, 2010 to 30th
June, 2010, the recovery is not justified.
However, as the respondent no. 6, Dr.
Savindra Kumar Singh, had joined as
regular Principal of the Institution on 20th
May, 2010, the State could not be burdened
with the payment of salary to two persons
staking claim to the same post and it is the
regular Principal who is alone entitled for
salary. It was further observed that in view
of the above, the Court could not accept the
claim
of
the
petitioner-appellant
for
fixation of pension on the basis of the last
pay drawn as Officiating Principal.

5. As regards the submission of the
learned counsel for the appellant-petitioner
that the pensionary benefits have to be