# Smt. Seema Devi Thru. Her Next Husband Chhote Lal v. State Of U.P. & Ors

- **Citation:** (2016) 5 ILRA 354
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-25
- **Bench:** Ajai Lamba, Ravindra Nath Mishra-Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-seema-devi-thru-her-next-husband-chhote-lal-v-state-of-u-p-ors-43840
- **Pages:** 9

## Text

354 INDIAN LAW REPORTS ALLAHABAD SERIES
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.05.2016

BEFORE

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

Habeas Corpus No.- 10006 Of 2016

Smt. Seema Devi Thru. Her Next Husband Chhote Lal ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioner:
Arvind Kumar Yadav

Counsel for Respondents:
Satyendra Kumar Tripathi

HELD:

Illegal detention of a major woman is unconstitutional
The petitioner, being a major, was illegally detained by the police from 26.04.2016 to 10.05.2016 without
any authority of law. Such detention is a gross violation of Article 21 of the Constitution of India.

No provision under Cr.P.C. permits custody of a witness
There is no provision in the Code of Criminal Procedure that authorises police to take a witness or
alleged victim into custody for:

recording statement under Section 164 Cr.P.C., or
medical examination / ossification test.
Detention of the petitioner for these purposes was wholly illegal.

Violation of High Court's earlier order
Despite a specific direction of the High Court dated 21.04.2016 that the petitioner should not be
taken into custody, the police detained her. This amounted to wilful disobedience of a judicial order.

Habeas Corpus lies even after release, if liberty was violated
Although the petitioner was released during pendency of the petition, the Court held that illegal curtailment
of liberty itself gives rise to a justiciable cause, warranting judicial scrutiny and compensation.

Compensation for illegal detention
The Court directed payment of ₹10,000 per day for 15 days (₹1,50,000 total) as monetary
compensation for unlawful deprivation of liberty, clarifying that money cannot truly compensate loss of
liberty but serves as constitutional redress.

Custodial confinement includes restriction of movement
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355
Even confinement at an undisclosed or controlled place, or restriction on free movement, amounts to
illegal confinement in law.

Misuse of police power strongly deprecated
The Court strongly condemned the routine and illegal practice of detaining women in kidnapping cases
arising out of consensual marriages, terming it arbitrary, unconstitutional, and abusive of police
authority.

Apology accepted; no further criminal or contempt proceedings
Considering the unconditional apology, payment of compensation, and the petitioner's unwillingness to
pursue further action, the Court refrained from initiating:
criminal prosecution, or
contempt proceedings.

Preventive directions issued
A copy of the judgment was directed to be sent to the Director General of Police, U.P., to ensure that
witnesses are not confined during investigation.

CASE LAW CITED

Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors.
(2011) 1 SCC 694

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

1. It is often said that "one realizes the value of liberty only when he/she is deprived of it".

2. Smt. Seema Devi through her husband Chhote Lal has approached this court for issuance of
a writ in the nature of habeas corpus directing respondent nos.2 and 3 (Superintendent of Police,
District Unnao and Station House Officer, Police Station Bihar, District Unnao) to release her from
wrongful and illegal detention/confinement.

3. The facts in brief are required to be considered before we consider the prayer made on
behalf of the petitioner.

4. The facts in brief are that Seema Devi, as per her own case, willingly got married to Chhote
Lal. The marriage, however, has not been accepted by Vishambhar, father of Seema Devi, therefore
in abuse of process of the law and process of the court, Vishambhar initiated criminal proceedings
vide Case Crime No.058 of 2016, under Sections 363, 366 I.P.C., Police Station Bihar, District
Unnao alleging that his daughter Seema Devi has been kidnapped by Chhote Lal and others. Seema
Devi, Chhote Lal and two others being aggrieved by initiation of the criminal proceedings,
approached this court by way of filing Writ Petition No.8453(M/B) of 2016 : Smt. Seema Devi
and others Vs. State of U.P. And otthers for quashing criminal proceedings initiated vide Case
Crime No.058 of 2016(supra).
356 INDIAN LAW REPORTS ALLAHABAD SERIES

5. This court heard the matter on 21.4.2016 and passed the following order in Writ Petition
No.8453(M/B) of 2016 :-

"1. The petition seeks issuance of a writ in the nature of certiorari quashing First
Information Report bearing Case Crime No. 058 of 2016, under Sections 363/366 Indian Penal
Code, Police Station Bihar, District Unnao.

2. Contention of learned counsel for the petitioners is that petitioner no. 1 got married to
petitioner no. 2 of her free will. Petitioner no. 1 has not been kidnapped, therefore, offence has not
been committed. Respondent no. 4 has not accepted the marriage of petitioners 1 and 2, therefore,
impugned criminal proceedings have been initiated in abuse of process of the law and process of
the court.

3. Issue notice to serve respondent no. 4 returnable on 13.5.2016.

4. List on 13.5.2016.

5. Till the next date of listing, the petitioners shall not be taken in custody.

6. Investigating officer is directed to ensure that statement of petitioner no. 1 is recorded
under Section 164 Criminal Procedure Code and she is also medically examined.

7. Let counter affidavit be filed."

6. As per the pleadings in this Habeas Corpus petition, allegedly the police took the petitioner
Seema Devi and her husband Chhote Lal in custody/detention on 26.4.2016 from their residence in
village Ram Khera, Police Station Bihar, District Unnao. During the evening hours of the said day,
copy of order dated 21.4.2016 above extracted was shown to the police whereupon Chhote Lal was
released from custody, however, detention of Seema Devi was maintained.

Chhote Lal approached Superintendent of Police, Unnao with application dated 30.4.2016
for release of his wife Seema Devi. The said communication has been placed on record as
Annexure No.4. Seema Devi, the petitioner, however, was not released. This has been specifically
pleaded in paragraphs 9 to 11 of the writ petition.

7. Being aggrieved by continued detention of Seema Devi, the present petition has been filed,
which was heard for the first time on 9.5.2016. On 9.5.2016, the following order was passed :-

"1. In this petition for issuance of a writ in the nature of Habeas Corpus, it has been
pleaded that the petitioner has been confined in illegal custody of respondent no. 3, de hors the
observations of the court recorded in order dated 21.4.2016 rendered in Writ Petition No. 8453
(MB) 2016, Smt. Seema Devi and others Vs. State of U.P. and others.
5 All. Smt. Seema Devi Thru. Her Next Husband Chhote Lal Vs State Of U.P. & Ors.

357

2. List on 13.5.2016 along with Writ Petition No. 8453
(MB) 2016, Smt. Seema Devi and others Vs. State of U.P.
and others.

3. Station House Officer, Police Station Bihar, District Unnao is directed to remain
present and produce the petitioner in court.

4. Let copy of this order be conveyed to Superintendent of Police Unnao.

5. Learned Government Advocate shall ensure compliance of the order"

8. Short counter affidavit of Shri Pramod Kumar Dubey, Sub- Inspector, Police Station Bihar,
District Unnao, has been filed in Court with the plea that the victim of offence in Case Crime
No.058 of 2016(supra) was recovered on 26.4.2016. Her statement was recorded under Section 161
Code of Criminal Procedure, 1971(for short 'Cr.P.C.'). Thereafter, the victim/the petitioner was
referred for medical examination to Chief Medical Officer, Unnao. Age of the petitioner has been
found to be 19 years, as is evident from Annexure No.SCA-1.

9. Statement of the petitioner/victim has been recorded under Section 164 Cr.P.C. in which she
did not support the prosecution case, rather has endorsed the fact that she was in love with Chhote
Lal. Her parents were resisting her marriage with Chhote Lal, therefore, she left her house of her
sweet will, met Chhote Lal outside and got married to him. Statement recorded under Section 164
Cr.P.C. is appended as Annexure No.SCA-2.

10. The short counter affidavit further makes it evident that High School marksheet of the
petitioner has also been collected by the investigator in the course of investigation, according to
which date of birth of the petitioner has been found to be 18.7.1993. It has been demonstrated that
the petitioner has attained the age of majority.

11. Interestingly, document Annexure No.SCA-3 has been filed with the counter affidavit
which is order dated 10.5.2016. The order indicates that the investigator filed an application before
Judicial Magistrate, Purwa, Unnao with the plea that Seema Devi be given in appropriate custody.
The custody was not contested by any other person. The magistrate has recorded in the order that
the documents accompanying the application indicate date of birth of Seema Devi to be 18.7.1993.
As per medical examination also, she has been found to be more than 19 years. In her statement
recorded under Section 164 Cr.P.C., she has declared her age as approximately 20 years. The
Magistrate has ruled that because Seema Devi has attained the age of majority, she is free to go
anywhere, therefore the application is liable to be dismissed and is dismissed. It has further been
provided in the order that it should be ensured that Seema Devi is transported to the place where
she wants to go.
358 INDIAN LAW REPORTS ALLAHABAD SERIES

12. In para 7 of the affidavit filed by the investigating officer, it has been stated that the victim
of offence was safely handed over to Chhote Lal on 10.5.2016 in the presence of two witnesses.
Supurdagi Nama was also prepared which is enclosed as Annexure No.SCA-4.

13. It appears that on receipt of the copy of order dated 9.5.2016, Seema Devi was released
from detention on 10.5.2016.

14. The counter affidavit filed by the investigating officer to which a detailed reference has
been made hereinabove, is absolutely silent as regards the place of confinement of Seema Devi
from 26.4.2016 till 10.5.2016. The facts asserted in the writ petition that Seema Devi was taken in
custody on 26.4.2016 and had not been released till passing of the order by this Court on 9.5.2016,
have not been denied in the counter affidavit filed on behalf of investigating agency. It is therefore
evident and clearly demonstrated that Seema Devi was kept at some undisclosed place by the police
officials w.e.f. 26.4.2016 till 10.5.2016, when she was produced before the Magistrate.

15. The counter affidavit further indicates that an attempt was made by the police officials to
justify custody of Seema Devi by way of producing her before the Magistrate on 10.5.2016 on the
ruse that her custody is required to be delivered to the proper person, as noticed above, however,
the Magistrate found that it was a clear cut case wherein Seema Devi has attained the age of
majority and is required to be released to live as per her own wish.

16. The irrefutable facts and circumstances as they emanate from the pleadings in the writ
petition and accompanying documents, and the counter affidavit and accompanying documents
demonstrate that the petitioner was a witness in Case Crime No.058 of 2016(supra) being the
alleged kidnappee. In deference to order dated 21.4.2016 passed in Writ Petition No.8453 (M/B) of
2016 (supra) (above extracted), Seema Devi was required to be medically examined and her
statement was required to be recorded under Section 164 Cr.P.C. in pursuance to effective
investigation. The documents establish that on 26.4.2016, Seema Devi and her husband Chhote Lal
were taken in custody from their village. Order dated 21.4.2016 passed by this Court in Writ
Petition No.8453 (M/B) of 2016(supra) ( above extracted) was shown to the police officers. Chhote
Lal was released on the same day during the evening hours, however, detention of Seema Devi was
continued till 10.5.2016 in a place not disclosed by the police officers. It is only when order was
passed by this Court that Seema Devi was released and produced before this Court.

17. On release of the petitioner, although technically, cause of action does not survive,
however, we find that in this part of the country, the investigating officers have been misusing their
legal authority provided under the Code of Criminal Procedure for investigation of the cases, and
witnesses are detained for continued period.

18. A word may be said in regard to the scope of a writ of habeas corpus.

19. 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
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359
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.

20. 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.

21. 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.

22. Since issuance of the writ is in context of liberty of a citizen, we would like to highlight
the essence, relevance, and importance of 'liberty'.

23. 'Personal Liberty' means liberty relating to or concerning the person or body of the
individual and it is, in this sense, antithesis of physical restraint or coercion. 'Personal Liberty'
means a personal right not to be subjected to imprisonment, arrest or other physical coercion in any
manner that does not admit legal justification. The negative right constitutes the essence of personal
liberty.

24. It is very difficult to define the term 'liberty'. It has many facets and meanings. The
philosophers and moralists have praised freedom and liberty but this term is difficult to define
because it does not resist any interpretation. The term 'liberty' may be defined as the affirmation by
an individual or group of his or its own essence. It needs the presence of three facts, firstly,
harmonious balance of personality, secondly, the absence of restraint upon the exercise of that
affirmation and thirdly, organization of opportunities for the exercise of a continuous initiative.

25. It can be found that 'liberty' generally means the prevention of restraints and providing
such opportunities, the denial of which would result in frustration and ultimately disorder.
Restraints on man's liberty are laid down by power used through absolute discretion, which when
used in this manner brings an end to 'liberty' and freedom is lost. At the same time, 'liberty' without
restraints would mean liberty won by one and lost by another. So 'liberty' means doing of anything
one desires but subject to the desire of others.
360 INDIAN LAW REPORTS ALLAHABAD SERIES

26. Life and liberty are the most prized possessions of an individual. The inner urge for
freedom is a natural phenomenon of every human being. Respect for life, liberty and property is not
merely a norm or a policy of the State but an essential requirement of any civilized society.

27. All human beings are born with some unalienable rights like life, liberty and pursuit of
happiness. The importance of these natural rights can be found in the fact that these are
fundamental for their proper existence and no other right can be enjoyed without the presence of a
right to life and liberty. Life bereft of liberty would be without honour and dignity and it would lose
all significance and meaning and the life itself would not be worth living. That is why 'liberty' is
called the very quintessence of a civil existence. (Vide Siddharam Satlingappa Mhetre Vs. State
of Maharashtra and others : (2011) 1 SCC 694.

28. Article 21 of the Constitution of India provides that no person shall be deprived of his life
or personal liberty except according to procedure established by law.

29. When a right is so guaranteed, it has to be understood in relation to its orbit and its
infringement. Conferring the right to life and liberty imposes a corresponding duty on the rest of
the society, including the State, to observe that right that is to say, not to act or do anything which
would amount to infringement of that right, except in accordance with the procedure prescribed by
law. In other words, conferring the right on a citizen involves the compulsion on the rest of the
society, including the State, not to infringe that right. When right to personal liberty is guaranteed
and the rest of the society, including the State, is compelled or obligated not to violate that right
and if someone has threatened to violate it and the person whose right is so threatened resorts to
Article 226 of the Constitution, the court is required to protect the right.

30. In context of investigation of a criminal case, ordinarily, the procedure established by law
has been provided under the Cr.P.C. The respondents have not been able to show from the Cr.P.C.,
any provision under which a witness could be taken in custody, and detained for the purposes of
investigation of the case as has been done in the present case.

31. It is the admitted position that Seema Devi is the prime witness to endorse or deny the
factum of kidnapping. For the said purpose and for considering whether she was taken from the
custody of her guardian, a direction was issued on 21.4.2016 by this Court in Writ Petition No.8453
of 2016(supra) that statement of Seema Devi be recorded under Section 164 Cr.P.C. and she be
medically examined. So as to carry out the order or so as to conduct investigation, as per law, by no
figment of imagination could Seema Devi be kept in confinement for a period of 15 days as has
been done by the respondents, who appear to be totally oblivious to the right to liberty of the
petitioner.

32. There is another dimension to this case insomuch as vide order dated 21.4.2016 rendered
in Writ Petition No.8453 (M/B) of 2016(Supra), it was specifically directed that the petitioners,
including Seema Devi, be not taken in custody. Despite directions of the court, the petitioner was
kept in custody for 15 days. It cannot be pleaded that the contents of order dated 21.4.2016 were
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361
not known to the police officers because in the petition, as noticed above, it has been specifically
pleaded that on showing order dated 21.4.2016, Chhote Lal was released from custody on
26.4.2016. Confinement of the petitioner, however, was continued. It clearly establishes violation
of order passed by this Court dated 21.4.2016 (supra).

33. We have come across a number of cases of this nature in which although witness is
required to be medically examined and for recording her statement, however, particularly in cases
under Sections 363, 366 or 364 I.P.C. where parents of the girl are opposed to the marriage and
initiate criminal proceedings making allegations of kidnapping, the witness/kidnappee is taken in
custody and is kept as such for weeks together. Thereafter, at times, the custody of the girl is given
to the parents, although the girl might be desirous of living in her in-laws' house. The practice of
taking witness in custody for recording her statement under Section 164 Cr.P.C. is not
contemplated under the Code of Criminal Procedure or any other law for that purpose. Likewise,
for conducting ossification test/medical examination, the witness is not required to be kept in
custody yet this practice is commonly followed. There being no established procedure of law, the
present practice is required to be discouraged and stopped.

34. It stands established that the right to liberty of the petitioner has been violated by keeping
her in confinement from 26.4.2016 till 10.5.2016. The confinement was not warranted by law and
was not contemplated in procedure established by law. We may add that confining is when a person
is enclosed within bounds ; limit or restrict ; to prevent from leaving a place. Even if the movement
of a person is limited or restricted to his own house, it would tantamount to his confinement.

35. Considering the illegal custody of the petitioner, vide order dated 13.5.2016, we had
directed Station House Officer of the concerned Police Station and Investigating Officer of the case
to pay a sum of Rs.10,000/- per day for curtailment of liberty of the petitioner, for fifteen days viz.
a total sum of Rs.1,50,000/- to the petitioner. We are alive to the fact that liberty of a person cannot
be calculated in terms of money. No panacea can be fixed for liberty of a person. However, so as to
compensate the petitioner, the above noted amount was directed to be paid to the petitioner.

36. We had also appointed Shri Brij Mohan Sahai, Advocate as Amicus Curiae to assist the
court. Shri Sahai has pointed out that cognizable offences have been committed by the police
officers for which they ought to be prosecuted so that appropriate message is sent to the police
force in general that liberty of a person is required to be respected. It has been highlighted by Shri
Sahai that because the police officers have not acted in accordance with the procedure established
by law and have acted whimsically without any legally tenable reason, criminal case be registered
forthwith. Shri Sahai has also highlighted that by taking the petitioner in custody, the police
officers have also committed Contempt of Court because the action is in conscious violation of
order dated 21.4.2016 rendered in Writ Petition No.8453(M/B) of 2016 (supra). Under the
circumstances, proceedings be initiated under the Contempt of Courts Act, 1971 for violation of the
order of the court.
362 INDIAN LAW REPORTS ALLAHABAD SERIES

37. The police officers who are present in court namely, Mr. Amol Ranjan Chaudhary, Station
House Officer, Police Station Bihar, District Unnao and Mr. Pramod Kumar Dubey, Sub-Inspector,
the investigating officer of the case, however, have tendered unqualified apology with an assurance
to the court that such acts would not be repeated. The police officers have tendered the cost amount
in the sum of Rs.1,50,000/- in cash so as to compensate the petitioner.

38. The petitioner who is present in court states that in view of the fact that she has been
compensated, she would not like to prosecute the police officers. The cost amount has been paid to
the petitioner in court.

39. With the aforesaid observations, this petition is disposed of.

40. Let a copy of this judgement be sent to Director General of Police, U.P., Lucknow so that
appropriate directions are issued not to confine witnesses for the purpose of investigation of a
crime.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2016

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No.- 10051 Of 2016

Smt. Khushboo Goswami ...Petitioner
Versus
Power Grid Corporation Of India & Ors. ...Respondents

Counsel for Petitioner:
Nirvikar Gupta, Kamal Singh

Counsel for Respondents:
A.S.G.I., Pratik J. Nagar, S.C.,Vinay Kumar Singh

In the present writ order dated 19th May, 2015 was under challenged as petitioner's claim for grant of
compassionate appointment, consequent upon death of her husband, in harness, has been rejected. Law is
settled that grant of compassionate appointment is in the nature of a concession and not a vested right.
Compassionate appointment can be made only in accordance with the scheme framed for the purpose.

The issue as to what is required to be proved for the death to have occurred in an accident.

Court held that petitioner's case for grant of compassionate appointment is not correct under the Scheme of
the Corporation, and as such, no benefit could be extended on the basis of these authorities. The contention
that reasons have not been assigned, or that no application of mind is reflected in the order, is also not liable