# Smt. Zainab Fatima @ Rubi & Ors v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 860
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-12
- **Case number:** Habeas Corpus Writ Petition No. 223 of 2023
- **Bench:** Vivek Kumar Birla, Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-zainab-fatima-rubi-ors-v-state-of-u-p-ors-50033
- **Pages:** 15

## Headnote

Civil Law-Constitution of India, 1950Article
21
&
226-Habeas
Corpus
petition filed seeking direction to the
respondents to produce the corpus
before this Hon'ble Court and set them
at liberty forthwith-Petitioners already
invoked provisions of Section 151 CrPC
and have been released on personal
bonds
which
is
a
"procedure
established by law"- No defect in the
procedure adopted for releasing the
petitioners on personal bond has ever
been
alleged-Petitioners
are
not
controlled
by
any
body
or
any
authority or by any other person
against whom a direction can be issued
to produce him or her-Writ of Habeas
Corpus would not be maintainable at
the instance of a person, who has got
himself released as per the procedure
established by law i.e. Section 151
Cr.P.C. on his own promise, to claim
that he shall be made free from his
own promise made in the personal
bond by issuing a writ of habeas
corpus. (Para 18-26, 36-38)

Writ petition dismissed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,909 of 50,328. This is a partial read: ask again with offset=39909 for what follows._

860 INDIAN LAW REPORTS ALLAHABAD SERIES

"It is clear that the observations
made
by
this
Court
in
this
case
unambiguously indicate that it would be
inappropriate to suggest that the decision
rendered by a judicial tribunal can be
described as offending Article 14 at all. It
may be a right or wrong decision and if it
is a wrong decision it can be corrected by
appeal or revision as may be a permitted
by law, but it cannot be said per se to
contravene Article 14 of the Constitution."

48. Having heard learned counsel for
the parties and examined the matter in its
entirety, I find that as per post-mortem
prepared by the Department of Forensic
Medicine
and
Toxicology
Vardhman
Mahavir Medical College and Safdarjung
Hospital, New Delhi as described above,
the assault was so powerful that a piece of
skull bone was found missing underneath
cranlotomy wound from left fronti-temporo
parietal region over an area of 13.0 cm x
10.0 cm. Linear fracture of length 2.2 cm
present over floor of middle cranial fossa
on left side. Sutural fracture of length 5.2
cm present along coronal suture on right
side. Linear fracture of length 5.1 cm
present
over
right
temporal
bone.
Extravasation
of
blood
present
over
fractured sites. I also find that the
prosecution case is corroborated from the
statement under Section 164 Cr.P.C. of the
minor victim as well as from the injuries
found on the body of the deceased as noted
above. So far as the submission of learned
counsel for the applicant that other coaccused have been granted bail, are
concerned,
I
find
substance
in
the
submission of learned State Counsel that
neither the facts of the case have been
considered while granting bail order nor
any reason has been assigned in granting
bail to co-accused. I also find that case of
present applicant is distinguishable from
the case of other co-accused persons
because there was no allegation against
them with regard to outraging the modesty
of the minor victim which has only been
assigned to the present applicant and the
further incident, which took place on
28.08.2021 was the outcome of the act
committed by the applicant in the night of
27.08.2021. Further the Danda, which was
used in the incident, was also recovered at
the pointing out of the appellant.

49. In view of the verbose discussion,
considering
the
overall
facts
and
circumstances of the case as well as
keeping in view the submissions advanced
on behalf of parties, gravity of offence, role
assigned to applicant, nature of injuries and
severity of punishment, I do not find any
good ground to release the applicant on
bail.

50. Accordingly, the bail application
is rejected.

51. However, It is made clear that the
observations made herein above were only
confined to the disposal of bail application
and in no way be construed to have an
expression on the merits of the case.
----------
(2023) 4 ILRA 860
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SURENDRA SINGH-I, J.

Habeas Corpus Writ Petition No. 223 of 2023

Smt. Zainab Fatima @ Rubi & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
4 All. Smt. Zainab Fatima @ Rubi & Ors. Vs. State of U.P. & Ors.
861
Counsel for the Petitioners:
Sri Abhishek Kumar Mishra, Sri Khan Saulat
Hanif, Sri Ravindra Sharma, Sri Shadab Ali, Sri
Vijay Mishra, Sri D.S. Mishra (Senior Adv.)

Counsel for the Respondents:
G.A.

Civil Law-Constitution of India, 1950Article
21
&
226-Habeas
Corpus
petition filed seeking direction to the
respondents to produce the corpus
before this Hon'ble Court and set them
at liberty forthwith-Petitioners already
invoked provisions of Section 151 CrPC
and have been released on personal
bonds
which
is
a
"procedure
established by law"- No defect in the
procedure adopted for releasing the
petitioners on personal bond has ever
been
alleged-Petitioners
are
not
controlled
by
any
body
or
any
authority or by any other person
against whom a direction can be issued
to produce him or her-Writ of Habeas
Corpus would not be maintainable at
the instance of a person, who has got
himself released as per the procedure
established by law i.e. Section 151
Cr.P.C. on his own promise, to claim
that he shall be made free from his
own promise made in the personal
bond by issuing a writ of habeas
corpus. (Para 18-26, 36-38)

Writ petition dismissed. (E-15)

List of Cases cited:

1. Rachna & anr. Vs St. of U.P. & others AIR
2021 (Allahabad) 109 (FB)

2. Markendey & ors. Vs St. & anr. 1976 (74) ALJ
88

3. Bal Mukund Jaiswal Vs Superintendent,
District Jail, Varanasi & anr. 1998 A.L.J. 1428

4. Niranjan Singh & anr. Vs Prabhakar Rajaram
Kharote & ors. (1980) 2 SCC 559

5. Chandra Dev Ram Yadav Vs St. of U.P. & anr.
2014 (1) ALJ 210
6. Udaybhan Shuki Vs St. of U.P. & ors. 1998
A.L.J. 2362

7. Sandal Singh Vs District Magistrate and
Superintendent, Dehradun AIR 1934 Allahabad
148

8. Zahir Ahmad Vs Ganga Prasad, A.S.D.M.,
Ballia & anr. AIR 1963 Allahabad 4

9. Ram Manohar Lohia & ors. Vs St. of U.P. &
ors. AIR 1968 Allahabad 100

10. Nirmal Jeet Kaur Vs St. of M. P. & anr.
(2004) 7 SCC 558

11. Sunita Devi Vs St. of Bihar & anr. (2005) 81
SCC 608

12. Udaybhan Shuki Vs St. of U.P. & ors. 1998
A.L.J. 2362

13. In the matter of Madhu Limaye 1969 (1)
SCC 292

14. Bhim Singh, MLA Vs St. of J & K & ors. AIR
1986 SC 494

15. Sunil Batra Vs Delhi Aministration (1980) 3
SCC 488

16. In the matter of Keshav Singh 1965 AIR
(All) 148

17. Home Secretary (Prison) & ors. Vs H. Nilofer
Nisha (2020) 14 SCC 161

18. Sapmawia Vs Deputy Commissioner, Aijal,
1970 (2) SCC 399

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Heard Sri D.S. Mishra, learned
Senior Counsel for the petitioners assisted
by Abhishek Kumar Mishra, Sri Ravindra
Sharma, Sri Sadab Ali, Sri Ravindra
Sharma and Sri Vijay Mishra, learned
counsels and Sri Manish Goyal, learned
Additional Advocate General assisted by
Sri A.K. Sand, learned AGA-I for the Staterespondents.
862 INDIAN LAW REPORTS ALLAHABAD SERIES

2. We have heard learned counsel for
the parties at length on preliminary
objection that present petition is no longer
maintainable as admittedly the petitioners
have been released on personal bonds and
they are not in illegal detention and in such
case the petition has become infructuous.

3. Per contra, learned Senior Counsel
for the petitioners disputed the same and
submitted that even if petitioners are not in
physical custody, the petition is still
maintainable and has not been rendered
infructuous
as
their
movements
are
restricted due to personal bonds executed
by them for their release.

4. Present petition has been filed
seeking direction to the respondents to
produce the corpus before this Hon'ble
Court and set them at liberty forthwith.

5. Submission of learned Senior
Counsel for the petitioners is that the
petitioner nos. 2 and 3 are permanent
resident of H.No. 52, Bhawani Nagar,
Hapur Road, Meerut and being close
relative of petitioner no. 1, who came at the
house of the petitioner no. 1 from district
Meerut and on 1.3.2023 petitioner nos. 2
and 3 were present at the house of the
petitioner no. 1; petitioner nos. 1 and 2 are
housewives and petitioner no. 3 is the
minor daughter of the petitioner no. 2; at
present, husband of the petitioner no. 1,
namely, Khalid Azeem @ Ashraf (ExMLA) is in jail at District Jail-II, Bareilly
and such the petitioner no. 1 is living at her
Maika / parental house along with four
minor children at Village Hatwa, Police
Station Puramufti, District Prayagraj; on
1.3.2023 the petitioners were present at
their house and on the said day at about
01:00 A.M. the police personnels of Police
Station Puramufti and Dhoomanganj along
with Special Task Force and Crime Branch
Team
raided
the
parental
house
of
petitioner no. 1, where all the petitioners
were residing breaking the front wall and
the main door of the house even though no
males were present in the house. The police
personnel took rifle on forehead of
petitioner no. 1 and also beaten the
petitioners and other family members of the
house with batons and sticks and also
harassed the children at midnight. The
petitioner no. 1 having four minor children
who were all crying upon their mother
being taken by the police; the police
personnels of Police Station Puramufti and
Dhoomanganj came at the parental house
of the petitioner no. 1 without lady police
and forcibly entered into the house of the
petitioners after breaking wall and doors of
the house and forcibly/illegally taking away
the petitioners in their illegal custody in the
night without showing any summon,
warrant or any other documents; the police
authorities arrested the petitioners being
women in violation of Section 46(4)
Cr.P.C.; the police personnels of the Police
Station
Puramufti
and
Dhoomanganj
forcibly taking the petitioners into their
illegal custody without disclosing the
reason of their arrest/confinement; the
petitioners are innocent lady and they are
not involved in any case at any police
station of district Prayagraj and district
Meerut; the petitioners are not wanted in
any criminal case; the police personnels of
Police Station Puramufti and Dhoomanganj
illegally detained the petitioners without
any authority; the police illegally detained
the petitioners since 1.3.2023 and till
3.3.2023 (i.e till the date of filing of the
petition) the police did not produce the
petitioners before any Magistrate; the
family
members
are
searching
the
petitioners from one police station to
another but no one is telling anything about
4 All. Smt. Zainab Fatima @ Rubi & Ors. Vs. State of U.P. & Ors.
863
the petitioners; on 2.3.2023 in all the
newspapers news was published regarding
arrest of the petitioners by the police and
the police officers admitted that they have
arrested the petitioners on 1.3.2023 and
since then the petitioners are in their
custody and the police officers also giving
statement that they are interrogating the
petitioners regarding the incident that had
taken place on 24.2.2023 regarding which a
first information report was registered on
25.2.2023 being Case Crime No. 114 of
2023, under Sections 147, 148, 149, 302,
307, 506, 34, 120B IPC, Section 3 of
Explosive Act and Section 7 of Criminal
Law Amendment Act, Police Station
Dhoomanganj,
District
Prayagraj;
the
petitioners have no concern with the
aforesaid FIR; the petitioners are not
named in the aforesaid FIR, however,
husband of the petitioner no. 1 and brother
of the petitioner no. 2 have been made
accused and the allegations levelled against
the father of the petitioner is of criminal
conspiracy; the intention of the police is not
fair and any mishappening may be occurred
at any point of time with the petitioners.

6. On the basis of supplementary
affidavit it is submitted that on 2.3.2023
Mansoor Ahmad (father of the petitioner
no. 1) filed an application before Chief
Judicial
Magistrate,
Allahabad
under
Section 97 & 98 Cr.P.C. upon which report
was
sought
from
police
station
Dhoomanganj and on 3.3.2023 Head
Moharrir, Police Station Dhoomanganj
submitted his report mentioning therein that
Smt. Zainab Fatima, Smt. Aaisha Noori and
Km. Unzila Noori are not in the police
station. Being not satisfied and upon the
objection of the counsel of Smt. Zainab
Fatima and others the learned CJM
Allahabad again directed the Station House
Officer, Dhoomanganj to submit parawise
reply and thereafter on 4.3.2023 the Station
House Officer, Dhoomanganj submitted his
report mentioning therein that Smt. Zainab
Fatima, Smt. Aisha Noori and Km. Unzila
Noori have been challaned by the police of
police station Puramufti under Section 151
Cr.P.C. and they have been released on
personal bonds on 3.3.2023.

7. The admitted position thus, is that
the corpus are not under physical detention
as on date.

8. A preliminary objection has been
raised by Sri Manish Goyal learned
Additional Advocate General appearing for
the State- respondents that the petitioners
are admittedly not in detention/custody,
therefore, present petition is no longer
maintainable
and/or
has
become
infructuous. It is submitted that admittedly
the provision of Section 151 Cr.P.C. was
invoked and petitioners have been released
on
personal
bonds
on
their
own
undertaking and no restrain has been put on
them.

9.

Learned
counsel
for
the
respondents
has
placed
reliance
on
judgments in the cases of Rachna and
another vs. State of U.P. and others AIR
2021 (Allahabad) 109 (FB), Markendey
and others vs. State and another 1976
(74) ALJ 88, Bal Mukund Jaiswal vs.
Superintendent, District Jail, Varanasi
and another 1998 A.L.J. 1428, Niranjan
Singh
and
another
vs.
Prabhakar
Rajaram Kharote and others (1980) 2
SCC 559, Chandra Dev Ram Yadav vs.
State of U.P. and another 2014 (1) ALJ
210 and Udaybhan Shuki vs. State of
U.P. and others 1998 A.L.J. 2362.

10. Replying to the preliminary
objection, Sri D.S. Mishra, learned Senior
864 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the petitioners submitted that
even though the petitioners are not in
physical custody but since they have been
released on personal bonds, therefore, they
are not at liberty to move freely, hence their
personal liberty is still curtailed due to
conditions imposed in the personal bonds.
Submission, therefore, is that the present
habeas corpus is still maintainable and has
not become infructuous.

11.

Learned
counsel
for
the
petitioners
has
placed
reliance
on
judgments in the cases of Sandal Singh vs.
District Magistrate and Superintendent,
Dehradun AIR 1934 Allahabad 148,
Zahir
Ahmad
vs.
Ganga
Prasad,
A.S.D.M., Ballia and another AIR 1963
Allahabad 4, Ram Manohar Lohia and
others vs. State of U.P. and others AIR
1968 Allahabad 100, Nirmal Jeet Kaur
vs. State of Madhya Pradesh and
another (2004) 7 SCC 558, Sunita Devi
vs. State of Bihar and another (2005) 81
SCC 608, Udaybhan Shuki vs. State of
U.P. and others 1998 A.L.J. 2362, In the
matter of Madhu Limaye 1969 (1) SCC
292, Bhim Singh, MLA vs. State of J & K
and others AIR 1986 SC 494, Sunil Batra
vs. Delhi Aministration (1980) 3 SCC 488
and In the matter of Keshav Singh 1965
AIR (All) 148.

12. Sri D.S. Mishra, learned Senior
Counsel appearing for the petitioners draws
strength to his arguments mainly from
Zahir Ahmad (supra) and Udaybhan
Shuki (supra). Relevant paragraphs 4, 7
and 19 of Zahir Ahmad (supra) are
quoted as under:-

"4. A preliminary objection has
been 'taken on behalf of the State by Sri
Tripathi,
the
learned
Additional
Government Advocate, that the petitioner
having been bailed out and being out of jail
'custody, cannot maintain the present
petition, it has been submitted on behalf of
the State that before a writ for habeas
corpus can issue, the person sought to be
set at liberty must be in actual physical
custody and inasmuch as bail has been
granted to the petitioner and he has availed
of the same, he is neither in custody nor his
movements are restrained, with the result
that no writ of habeas corpus can be issued.
It is common ground that the petitioner has
been bailed out and is in the custody of the
bondsmen, if the expression, 'custody' can
be used in respect of a 'bailee' and that he is
no longer in jail custody. It cannot be
denied
that
the
question
under
consideration is a difficult one and not free
from controversy. Even if the case were to
be decided on first principles, we would
have been inclined to hold that the fact that
a person has been granted bail does not
amount to his being set at liberty. It is true
that after bail is granted, he is no longer in
physical custody in the sense of being in a
prison but it is difficult to say that he has
liberty of action or even complete liberty of
movement. In the surety bonds, the sureties
definitely state that they will produce him
on a date appointed by the Court. The
failure to produce him on the appointed
date entails not only the forfeiture of the
surety bonds but also the consequence of
the cancellation of "the bail and the person
being lodged in jail. The movements of the
person let out on bail are subject to the
directions of the Court and the Court has
always the power to cancel the bail at any
time. Under these circumstances, we find it
difficult either to believe or to hold that the
mere fact of bail being granted leads to the
result that the petitioner has been set at
liberty and that the case is no longer
amenable to the writ of habeas corpus. In
Words and Phrases, Volume 19, at page, 6
4 All. Smt. Zainab Fatima @ Rubi & Ors. Vs. State of U.P. & Ors.
865
the law on the point has been stated in the
following words:

"The writ of 'habeas corpus' is the
remedy which the law gives for the
enforcement of the civil right of personal
liberty........................... The writ of habeas
corpus is a writ of liberty, and its original
purpose was for the release of persons
illegally or forcibly imprisoned, but when it
was made to appear that such detention was
by virtue of the process of a Court, the writ
was not granted, unless the proceeding or
judgment supporting the process was
absolutely void....... One under arrest, but at
large on bail, is entitled to a writ of "habeas
corpus" the same as if the arrest was
accompanied by actual imprisonment; the
purpose of the writ being to test the right of
the Court or other body issuing the process
to detain the person for any purpose by
restraining him of his right to go without
question."

This statement of law is based
upon Mackenzie v Barrett, 141 F. 964 at p.
966. The report of the case has, however,
not been produced before us.

7. It would appear from the
statement
of
law
as
contained
in
Extraordinary Legal Remedies by Ferris
that
actual
physical
custody
is
not
necessary and even if the person is subject
to the orders of another to surrender at the
time when he wants him to surrender, a writ
of habeas corpus would lie.

19. We have already examined
the various provisions occurring in the
Code of Criminal Procedure relating to bail
and release on bail and it is clear from them
that whereas a person released on bail is
not in physical confinement, he still
remains under the control of the Court and
notionally in the custody of the Court, and
that persons, who are his sureties, are only
the agents of the Court. For these reasons it
appears to us that even a person who has
been temporarily let out on bail but still on
trial, can present an application for a writ of
habeas corpus. We, therefore, overrule the
preliminary objection made by the learned
Additional Government Advocate."

(emphasis supplied)

13. For ready reference, paragraphs 8
to 12 of Udhaybhan Shuki (supra) are
quoted as under:-

8. We shall take up the prayers
one by one and in that light refer to the
facts relevant in relation to such prayers.
The first prayer made before us relates to a
writ of habeas corpus for production of the
petitioner before the Court and for his
immediate release and for his being set at
liberty
forthwith.
Undisputedly,
the
applicant was released on bail and is being
physically released from custody does not
arise.
The
learned
counsel
for
the
petitioner, however, submits that his
custody still continued as he was released
on bail and is not at liberty to move freely.
In this connection the learned counsel for
the petitioner relied on the decision of the
Allahabad High Court in the case of Zahir
Ahmad v. Ganga Prasad, A.S.D.M. Ballia
AIR 1963 All 4, it was observed by a
Division Bench of this High Court that the
fact that a person had been granted bail did
not amount to his being set at liberty. It was
true that after bail was granted, he was no
longer in physical custody in the sense of
being in a prison but it was difficult to say
that he had liberty of action or even
complete liberty of movement as he
continued to remain under the control of
the Court and notionally in the custody of
866 INDIAN LAW REPORTS ALLAHABAD SERIES
the Court. The Court held on this reasoning
that even a person who had been
temporarily let out on bail but was still on
trial would present an application for a writ
of habeas corpus under Article 226 of the
Constitution.

9. Zahir Ahmad in that case had
made the application for a writ of habeas
corpus to set him at liberty under certain
backgrounds. A report was made to the
S.D.M. by an S.I. of Police for action under
Section 107 Cr.P.C. against Zahir Ahmad.
The case was transferred to the Additional
S.D.M. No order in writing was made by
the Additional S.D.M. setting forth the
substance of the information received, the
amount of the bond to be executed, the
term for which it was to be in force and the
number, character and class of sureties
required as provided under the law. He had
simply issued notices along with warrants
of arrest and as such is was argued that the
order was not one under Section 112
Cr.P.C. and upon a preliminary objection
the Division Bench had opined that
although he was on bail the habeas corpus
petition would lie at the instance of Zahir
Ahmad.

10. On the facts of the case,
however, the Division Bench was satisfied
that in substance the provisions of Section
112 Cr.P.C. had been complied with and
consequently it was of the view that under
the circumstances operating in the case it
was not possible to hold that the petitioner
was being illegally detained. It was thus a
case where the very detention was
challenged due to some illegality in the
initial order although the petitioner was
released on bail. In the case at our hands
the detention is said to be illegal for non
compliance of certain provisions of the
constitution and certain directions of the
Cr.P.C. It is stated that the petitioner was
not told the reasons of his arrest as required
under Section 50 of the Cr.P.C. and was
produced before the Court and the Court
had no authority to remand him or even
release him on bail rather the Court should
have release him forthwith because of his
unlawful arrest.

11. The aforesaid contention of
the learned counsel for the petitioner is not
acceptable to us. Even conceding that the
applicant was not told the reasons of his
arrest as required under Section 50(1) of
the Cr.P.C., his production before the Court
was made with an allegation of his
involvement in a substantive case. Once the
applicant was produced in Court the
provisions of Section 167 Cr.P.C. would
apply. This section states that whenever any
person is arrested and detained in custody
and the investigation cannot be completed
within a period of 24 hours, he is to be
produced
before
the
nearest
judicial
Magistrate with the relevant entries in the
diary. After his arrest the applicant was
produced before a Magistrate. Section
167(2) Cr.P.C. requires than when such a
person has been produced before a
Magistrate he may authorise the detention
of the accused in such custody as such
Magistrate may think fit. Under Secion 437
Cr.P.C. the Magistrate was also empowered
to grant him bail instead of sending him to
custody. An order of the Magistrate either
directing remand of the accused in custody
or directing his release on bail may not be
affected by any initial defect in the making
of arrest. Thus the present custody of the
petitioner, as being on bail under orders of
the Court, may not be treated to be a
wrongful detention and although suitable
action may lie against the concerned police
officer for non-compliance of Section 50(1)
Cr.P.C., there may not be an order directing
4 All. Smt. Zainab Fatima @ Rubi & Ors. Vs. State of U.P. & Ors.
867
the petitioner to be set at liberty the effect
of which would be to discharge him from
his bail bonds. In this connection a Full
Bench decision of this High Court in the
case
of
Bal
Mukund
Jaiswal
v.
Superintendent, District Jail, Varanasi as
per Habeas Corpus Writ Petn. No. 9061 of
1994 reported in 1998 All LJ 1428 is
relevant. This order was passed by the Full
Bench when the matter was referred to it
for answering a particular question. The
Full Bench answered the question as
follows (at p. 1430 of All LJ) :-

"Where an accused person is in
judicial custody on the basis of a valid
remand order passed under Section 209 or
309 Code of Criminal Procedure by the
Magistrate or by any other competent Court
then such accused person cannot be set at
liberty by issuing a writ of habeas corpus
solely on the ground that his initial
detention was violative of a constitutional
guarantee enshrined in Articles 21 and 22
of the Constitution of India."

12. In view of the aforesaid
reasonings given by us and in view of the
Full Bench decision, we are unable to hold
that the petitioner's first prayer is tenable
simply on the ground of alleged wrongful
arrest."

(emphasis supplied)

14. Before proceeding further it
would be relevant to take note of the
provision of Article 21 of the Constitution
of India, which is quoted as under:-

"21. Protection of life and
personal liberty.- No person shall be
deprived of his life or personal liberty
except
according
to
procedure
established by law."

(emphasis supplied)

15. Article 21 clearly provides that no
person shall be deprived of his life or
personal liberty except "according to
procedure established by law".

16. It is also relevant to take note of
meaning of ''habeas corpus' as provided
under Law of Writs by V.G. Ramachandran
Seventh Edition at page 5, which is quoted
as under:-

"Habeas Corpus Meaning

"Habeas corpus" is a Latin term.
It means "have the body", "have his body"
or "bring the body". By the writ of habeas
corpus, the court directs the person (or
authority) who has arrested, detained or
imprisoned another to produce the latter
before it (court) in order to let the court
know on what ground he has been arrested,
detained, imprisoned or confined and to set
him free if there is no legal justification for
the arrest, detention, imprisonment or
confinement.

According
to
the
dictionary
meaning, "habeas corpus" means "have the
body", "bring the body-person-before us".
Habeas corpus is a writ requiring a person
to be brought before a judge or a court for
investigation of a restraint of the person's
liberty, used as a protection against illegal
imprisonment.

It is a writ to a jailer to produce a
prisoner in person, and to state the reasons
of detention.

Habeas corpus is a writ requiring
a person to be brought before a judge or
court for investigation of a restraint of the
868 INDIAN LAW REPORTS ALLAHABAD SERIES
person's liberty, used as a protection against
illegal imprisonment.

Habeas corpus is a writ requiring
a person under arrest to be brought before a
judge or into court to secure the person's
release unless lawful grounds are shown for
his or her detention."

17. In the same book at Sl. No. 15 at
page 21 it has been provided that ''when
habeas corpus does not lie' and at Sl. No. 3
it had been clearly provided that where the
prisoner or detenu has been released and
habeas corpus has become infructuous.

"Ref: Talib Hussain vs. State of J
& K, (1971) 3 SCC 118; Bhim Singh v.
State of J&K, 1984 Supp SCC 504; Ram
Jethmalani v. Union of India, (1984) 3 SCC
571; Manilal Chatterjee v. State of W.B.,
(1972) 3 SCC
836
(1); Competent
Authority v. Amritlal Chandmal Jain,
(1998) 5 SCC 615; Karimaben K. Bagad v.
State of Gujarat, (1998) 6 SCC 264."

18. The scope of habeas corpus has
been recently decided in the case of Home
Secretary (Prison) and others vs. H.
Nilofer Nisha (2020) 14 SCC 161.
Paragraphs 12, 16, 20, 21, 22 and 23
whereof are quoted as under:-

12.
Article
226
of
the
Constitution of India empowers the High
Courts to issue certain writs including writs
in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari for
the enforcement of any right conferred
under Part III of the Constitution dealing
with the fundamental rights. In this case,
we are concerned with the scope and ambit
of the jurisdiction of the High Court while
dealing with the writ of habeas corpus.

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

20. Having held that a writ of
habeas corpus is maintainable by a person
who is under detention if his rights are
violated, the question that remains to be
answered is whether in the present case any
right of the detenus was violated which
could have led to the issuance of an order
directing his release from prison. We may
make reference to the judgment of this
Court in B. Ramachandra Rao v. State of
Orissa (1972( 3 SCC 256, wherein it was
urged before this Court that the orders of
the Court directing the detention of the
petitioner were illegal. In this case, the
Court has held as follows:
4 All. Smt. Zainab Fatima @ Rubi & Ors. Vs. State of U.P. & Ors.
869

"5....This Court does not, as a
general rule, go into such controversies in
proceedings for a writ of habeas corpus.
Such a writ 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 and we are not satisfied that
the present is not such a case."

21. In Kanu Sanyal v. District
Magistrate, Darjeeling (1973) 2 SCC 674
this Court while dealing with the writ of
habeas corpus has held as follows:

"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...."

22. In Manubhai Ratilal Patel v.
State of Gujarat (2013) 1 SCC 314, an
order of remand was challenged before this
Court. After referring to a large number of
judgments9, which we are not referring in
detail since they have all been considered
in this judgment, this Court held as follows:

"31....It is wellaccepted 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...."

23. In Saurabah Kumar v. Jailor,
Koneila Jail (2014) 13 SCC 436, this Court
came to the conclusion that the petitioner
was in judicial custody by virtue of an
order passed by the judicial magistrate and,
hence, could not be said to be in illegal
detention. Justice T.S. Thakur, as he then
was, in his concurring judgment held 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..."

(emphasis supplied)

19. For ready reference, paragraphs 5,
9, 10, 11 and 12 of Markendey (supra) are
quoted as under:-

5. Briefly speaking, the allegation
regarding malafide is that the petitioners
were arrested by the executive authorities
under the directions of some political party,
which did not favour the petitioners and
other students of their group. To us-it
appears that this ground cannot now be
taken, simply because the present position
is that all these six petitioners have been
granted bail and, therefore, they are in the
custody of the Magistrate who granted bail.
We have looked into the judicial record of
Crime No. 63 and have found that bail has
been granted to all the six petitioners.
There being no allegation of malafide
against the Magistrate, who granted bail,
the allegation of malafide against the Police
or the executive authorities has now,
therefore, become irrelevant.
870 INDIAN LAW REPORTS ALLAHABAD SERIES

9. ....

The question whether a person
who has been released on bail can
present a petition for a writ of habeas
corpus was specifically raised in Zahir
Ahmad v. Ganga Prasad, and it was held
that such a person remains under the
control of the court and notionally in the
custody of the court and he can, therefore,
present a petition for a writ of habeas
corpus. In the case of Babu Lal v. The State
of Maharashtra, it has been laid down that a
writ of habeas corpus can be presented by a
person who has been released on bail.

10. We have examined the
principle, which has been laid down in the
aforesaid rulings. It is true that a person,
who is on bail, can also present a petition,
of habeas corpus, but the question still
remains what relief can be granted to such
a petitioner. In the case of Ram Manohar
Lohia and so also in the case of Babu Lal it
appears that the petitioner has challenged
the legality of the provision of law under
which the case was pending against him. It
has been noted above that in the instant
petition the legality of the provision of law
has not been challenged and it has also not
been said that there is no case under Sec.
188 of the Penal Code, 1860 pending
against petitioners. Now the reliefs which
have been claimed by the petitioners in the
instant case are: (i) that the petitioners be
released from jail and (ii) that the opposite
parties
should
be
restrained
from
enjoyment of the fundamental rights by the
petitioners. Further, the petitioners have
prayed that the detention should be
declared illegal and invalid. So far as the
first relief is already out of jail. The
question of the validity of their detention
has already been answered above, in the
sense, that at present the petitioners are
only under the notional custody of the
Magistrate who has granted them bail. This
notional custody could be challenged by
the petitioners only on two grounds, which
have already been indicated above. The
question whether the detention of the
petitioners prior to the granting of bail was
valid or not is not relevant now. The prayer
that
the
opposite
parties
should
be
restrained
from
the
enjoyment
of
fundamental rights by the petitioners is
quite vague and the Court cannot pass any
such order. Thus, in brief, it is evident that
the Court is unable to grant any relief
whatsoever to the petitioners in the instant
petition.

11. If a person who is alleged to
have committed a, bailable offence is
produced before a Magistrate, as provided
by Sec. 436(1) of the Code of Criminal
Procedure, the person so arrested shall be
released on bail, if at any stage of the
proceedings before the court he is prepared
to give bail. This provision of law also
empowers the court to release the person on
executing a bond, even without sureties.
Similarly Sec. 437 of the Code makes a
provision for persons who have been
arrested in a non-bailable offence and have
been produced before a Magistrate. Thus
the policy of the law is that wherever a
person is arrested their for a bailable
offence or for a non-bailable offence, he
shall remain either in actual physical
custody to which he may be remanded
under the various relevant provisions of the
Code, namely, Secs. 167, 209 or 309 of the
Code of Criminal Procedure, or he may be
released on bail on personal bond with or
without sureties, which would mean that
the person shall remain in the notional
custody of the court. No third course is
open to the Magistrate. Thus the position is
that once a person has been validly arrested
4 All. Smt. Zainab Fatima @ Rubi & Ors. Vs. State of U.P. & Ors.
871
in connection with an offence, he has either
to remain in physical custody, and if that
physical custody comes to an end, he will
have to remain in notional custody so long
as
the
proceedings
are
pending.
Accordingly if at any stage it is found that
there was some defect in the order or orders
remanding the arrested person to physical
custody, the order placing him in the
notional custody of the court will not be
necessarily vitiated. The physical restraint
which once originated validly can come to
an end only by placing him under the
national custody of the court. If the
physical custody becomes vitiated for some
reason or the other, the court can order
release, of the arrested person while issuing
a writ of habeas corpus. But the court
cannot order the release of the person from
physical custody unconditionally, and it can
only direct that the person be placed in
notional custody of the court by admitting
him to bail. In the instant case, the
petitioners are in notional custody, and
unless they could succeed in showing that
this notional custody is illegal for some
reason or the other, an order in their favour
can be passed in these proceedings, even
though there might the some defects in the
order or orders remanding the petitioners to
physical custody prior to the granting of
bail to them.

12. The petition has been filed
against
the
State
of
U.P.
and
the
Superintendent
of
Central
Jail,
Naini.
Because the petitioners are not confined in
the Jail at all, it is evident that no relief can be
granted against the Superintendent, Central
Jail, Naini. It cannot also be said that the
petitioners are in the custody of he State of
U.P. In fact the petitioners are in the notional
custody of the Magistrate who has granted
bail to them, and no relief has been claimed
against the Magistrate. If the petitioners are
not in the custody of any of the opposite
parties, the Court is unable to grant any relief.
The object of a Writ of habeas corpus is not
to punish previous illegality but to release a
man from present illegal detention, and the
writ must be directed to the person who is
having the actual custody of the detenu.
(emphasis supplied)

20. Admittedly, the petitioners have
already invoked provisions of Section
151 Cr.P.C. and have been released on
personal bonds. The petitioners are,
therefore, not in detention much less the
illegal detention.

21. In the present case no defect in
the procedure adopted for releasing the
petitioners on personal bond has ever
been alleged.

22. From the entire petition it is not
clear against whom, after having been
released on personal bonds, the directions
are being sought for protection of the
corpus. It is, therefore, clear that the main
plank of argument of learned counsel for
the petitioners is that even after release
their liberty is curtailed in case certain
conditions are imposed for production of
the corpus at the command of the court or
the authority.

23.