# Tasim & Anr v. State of U.P. & Ors

- **Citation:** (2022) 1 ILRA 1163
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-03
- **Case number:** Habeas Corpus Writ Petition No. 577 of 2021
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tasim-anr-v-state-of-u-p-ors-47643
- **Pages:** 5

## Headnote

Constitution of India , 1950 - Art.226 -
Criminal Procedure Code, Sections 190 &
156
-
Writ
of
habeas
corpus
-
Maintainability
-
Alternate
remedy
-
Petition filed by father to produce corpus
before Court who is in illegal custody of
respondents
- Petitioner
stated
that
corpus herself requested the petitioner to
get her out from illegal custody of
respondents
-
Petitioner
lodged
FIR
against
respondents
u/s
363,
366
regarding abduction of his daughter -
Petitioner
is
not
satisfied
with
the
progress of the investigation & grievance
that respondents have not been arrested -
Held - Petitioner has remedy u/S. 190
read with S. 156 of Cr.P.C. to approach
before concerned Magistrate for redressal
of his grievance - In view of availability of
remedy, habeas corpus writ petition, not
maintainable. (Para 6 8)

Disposed off (E-5)

## Text

1 All. Tasim & Anr. Vs. State of U.P. & Ors.
1163

"14. ... Despite the indefatigable effort,
we are not persuaded to accept the
aforesaid
proponent,
for
once
the
respondents are promoted, the juniors who
have been promoted earlier would become
juniors in the promotional cadre, and they
being not arrayed as parties in the lis, an
adverse order cannot be passed against
them as that would go against the basic
tenet of the principles of natural justice."

13.
In
view
of
the
aforesaid
enunciation of law, we are disposed to
think that in such a case when all the
appointees were not impleaded, the writ
petition was defective and hence, no relief
could have been granted to the writ
petitioners."

40. The principles laid down in the
aforesaid authorities are binding on this
Court and the learned Advocate General
would be right in his submissions, if the
decision taken here were to the prejudice
of any of the candidates, already selected,
much less appointed. The directions of the
Division Bench in Abhishek Srivastava
would show that for the award of one extra
mark
vis-à-vis
Question
No.60
of
Question Booklet Series ''A' and the
relative question numbers in the other
Question Booklet Series, a candidate, in
the limited contingency of being short of
marks by one below the cutoff, is entitled
to
the
benefit
of
selection,
but
appointments already made, would not be
disturbed. Also, the benefit of the extra
mark vis-à-vis Question No.60 (Question
Booklet Series ''A' and corresponding
questions in other Question Booklet
Series) would remain confined to the writ
petitioners who were before the Court up
to date of the decision of the Division
Bench
in
Abhishek
Srivastava,
i.e.
25.08.2021. If this is the nature of the
relief proposed to be granted, the nonimpleadment of all selected or appointed
candidates or issue of notice to them,
would hardly be of any consequence.

41. No other point was pressed on
behalf of either side.

42. In view of what has been said
above and following the judgment of the
Division Bench in Abhishek Srivastava
(supra), all the writ petitions placed in
Group-A are allowed in part, whereas
those in Group-B are dismissed. For the
writ petitions in Group-A, a mandamus is
issued to the respondents directing them to
grant one mark to each of the petitioners
and that one mark would enure to the
benefit of a petitioner, if he/ she is short of
the cutoff by one mark. If with the award
of one mark to any of the petitioners in
Group-A, they find place in the merit-list,
the
respondents
would
give
them
appointment subject to satisfaction of the
other conditions, if any. The aforesaid
orders, however, would not disturb any
selection or appointment, already made.

43. There shall be no order as to costs.
----------
(2022)01ILR A1163
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.09.2021

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Habeas Corpus Writ Petition No. 577 of 2021

Tasim & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
1164 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Rajesh Shukla, Sri Satendra Narayan
Singh

Counsel for the Respondents:
A.G.A.

Constitution of India , 1950 - Art.226 -
Criminal Procedure Code, Sections 190 &
156
-
Writ
of
habeas
corpus
-
Maintainability
-
Alternate
remedy
-
Petition filed by father to produce corpus
before Court who is in illegal custody of
respondents
- Petitioner
stated
that
corpus herself requested the petitioner to
get her out from illegal custody of
respondents
-
Petitioner
lodged
FIR
against
respondents
u/s
363,
366
regarding abduction of his daughter -
Petitioner
is
not
satisfied
with
the
progress of the investigation & grievance
that respondents have not been arrested -
Held - Petitioner has remedy u/S. 190
read with S. 156 of Cr.P.C. to approach
before concerned Magistrate for redressal
of his grievance - In view of availability of
remedy, habeas corpus writ petition, not
maintainable. (Para 6 8)

Disposed off (E-5)

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri Satendra Narayan Singh,
Advocate holding brief of Sri Rajesh Shukla,
learned counsel for the petitioners as well as
learned A.G.A. for the State and perused the
record.

2. This habeas corpus writ petition has
been filed by the father of the corpus, Tasim,
petitioner no. 1 with the following prayer :

"(i) Issue a writ, order or direction
in the nature of habeas corpus petition
directing the respondent nos. 2 and 3 to
produce the corpus (Tabbassum) before this
Hon'ble Court who is in the illegal custody of
the respondent nos. 4 to 10. So that the legal
custody of the corpus (Tabbassum) be handed
over to her father i.e. petitioner no. 1.

(ii) Issue a writ, order or direction
in the nature of habeas corpus petition,
directing the respondent nos. 2 and 3 to
provide protection to the petitioners from
respondent nos. 4 to 10 whenever it is required
by the petitioners.

(iii) Issue any other order or
direction which this Hon'ble Court may deem
fit
and
proper
under
the
facts
and
circumstances of the instant case."

3. Learned counsel for the petitioners
submits
that
the
petitioner
no.
2,
Tabbassum (corpus) has herself informed
the petitioner no. 1 that she is in illegal
custody of respondent nos. 4 to 10 and she
requested the petitioner no. 1 to get her out
from the illegal custody of the respondent
nos. 4 to 10. Thereafter, the father of the
corpus i.e. petitioner no. 1 has himself met
the respondent nos. 4 to 10 and requested
them to let the petitioner no. 2 go along
with him but they refused the same and
said to him by threatening that he can do
whatever he want. Thereafter, petitioner no.
1 has lodged first information report
registered as Case Crime No. 0191 of 2021,
under Sections 363 and 366 I.P.C. at Police
Station-Thana
Bhawan,
District-Shamli
with regard to abduction of his daughter by
the respondent nos. 4 to 10. The petitioner
no. 1 is a labour and he used to proceed for
his work in the morning and comes back in
the evening. The respondent no. 4, Amir
son of respondent no. 10, Khurshid has
abducted his daughter who is a minor girl
with the help of other accused persons.
Learned counsel for the petitioners submits
that petitioner no. 1 has sent an application
on Jan Sunwai portal on 24.06.2021 and
26.06.2021 and a direction was given to
S.H.O. of Police Station Thana Bhawan,
District Shamli by S.S.P. for taking
1 All. Tasim & Anr. Vs. State of U.P. & Ors.
1165
necessary action and in this regard a report
was also submitted on 26.07.2021. On
01.07.2021, the petitioner no. 1 came to
know that S.H.O. of Police Station Thana
Bhawan, District Shamli has decided the
matter
and
submitted
report
dated
30.06.2021.
He
further
submits
that
petitioner no. 1 again sent an application
online complaining that his daughter has
been abducted and anyhow she could not
be traced out. In this regard, a direction was
given to SHO of Police Station Thana
Bhawan, District Shamli for investigating
the matter. He further argued that the
daughter of the petitioner no. 1 could not be
traced out whether she is alive or not. The
respondent nos. 4 to 10 have not arrested
despite several complaints made by the
petitioner no. 1 against them and the minor
girl of the petitioner no. 1 has yet not been
traced out.

4. Learned counsel for the petitioner
further argued that the petitioner no. 1 has
moved Criminal Misc. Writ Petition No. 5831
of 2021 (Tasim Vs. State of U.P. & 9 Ors.;)
with the prayer that this Court may graciously
be pleased to direct the respondent no. 2 to
supervise the investigation and direction may
also be given to the respondent no. 3 to arrest
the accused persons in pursuance of the first
information report dated 25.06.2021. The
Hon'ble Court vide order dated 02.08.2021
passed in Criminal Misc. Writ Petition No.
5831 of 2021 (Tasim Vs. State of U.P. & 9
Ors.;) dismissed the same with the following
observation :

"Heard learned counsel for the
petitioner and the learned A.G.A.

This writ petition has been filed
praying for the following reliefs:

"(a) Issue a writ, order or
direction in the nature of Mandamus
directing the respondent no.2 to supervise
the investigation and direction may be
given to respondent no.3 to arrest the
accused of the First Information Report
dated 25.6.2021 as Case Crime No.0199 of
2021, under Section 363 and 366 I.P.C.
Police Station-Thana bhawan, DistrictShamli.

(b) Issue a writ, order or
direction in the nature of Mandamus to
direct
the
concerned
authorities
to
conclude fair investigation in the aforesaid
First Information Report within the time as
prescribed by this Hon'ble Court."

Learned counsel for the petitioner
submits that the investigating officer is not
properly investigating the matter and
collusively not taking action against the
accused.

Be that as it may, the petitioner
has a remedy under Section 156(3),
Cr.P.C. to move an appropriate application
before the concerned Magistrate. This legal
position has also been clarified by this
court vide judgment dated 27.01.2021 in
Criminal Misc. Writ Petition No.15692 of
2020 (Ajay Kumar Pandey vs. State of U.P.
and others).

In view of the aforesaid, we do
not find any good reason to entertain this
writ petition. Therefore, without expressing
any opinion on merits of the case of the
petitioner, this writ petition is dismissed
leaving it open to the petitioner to move an
appropriate
application
before
the
concerned
Magistrate
under
Section
156(3), Cr.P.C. In the event such an
application is filed by the petitioner, it is
expected that the concerned Magistrate
shall proceed in accordance with law."
1166 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Per contra, learned A.G.A. submits
that the jurisdiction lies with the Magistrate
in view of the provision of Section 190
read with Section 156 of Cr.P.C. and the
Magistrate shall proceed in accordance
with law. He further suggests that the
petitioner no. 1 may approach before the
concerned Magistrate regarding the latest
progress of the case and he may also
apprised the learned Magistrate that the
matter may be expedited, the learned
Magistrate may proceed in the matter in
accordance with law, hence the present
habeas
corpus
writ
petition
is
not
maintainable at this stage and referred the
provision of Section 190 and 156 Cr.P.C.
which is reproduced hereinbelow :

"190. Cognizance of offences by
Magistrates.

(1)Subject to the provisions of
this Chapter, any Magistrate of the first
class, and any Magistrate of the second
class specially empowered in this behalf
under
sub-
section
(2),
may
take
cognizance of any offence-

(a) upon receiving a complaint of
facts which constitute such offence;

(b) upon a police report of such
facts;

(c) upon information received
from any person other than a police officer,
or upon his own knowledge, that such
offence has been committed.

(2) The Chief Judicial Magistrate
may empower any Magistrate of the second
class to take cognizance under sub- section
(1) of such offences as are within his
competence to inquire into or try.

156. Police officer' s power to
investigate cognizable case.

(1) Any officer in charge of a
police station may, without the order of a
Magistrate, investigate any cognizable case
which a Court having jurisdiction over the
local area within the limits of such station
would have power to inquire into or try
under the provisions of Chapter XIII.

(2) No proceeding of a police
officer in any such case shall at any stage
be called in question on the ground that the
case was one which such officer was not
empowered
under
this
section
to
investigate.

(3) Any Magistrate empowered
under section 190 may order such an
investigation as above- mentioned."

6. Considering the arguments as
advanced by the learned counsel for the
parties and after perusal of record, this
Court finds that there is a force in the
submission made by learned A.G.A. that
the petitioner no. 1 has a remedy under
Section 190 read with Section 156 of
Cr.P.C. to approach before the concerned
Magistrate for redressal of his grievance
and this court also vide order dated
2.8.2021 in the case of Tasim (supra)
directed the petitioner no. 1 to approach
before the concerned Magistrate under
Section 156(3) Cr.P.C. for redressal of his
grievances.

7. From the persual of the record, it
appears that the complaint of petitioner no.
1 with regard to abduction of his minor
daughter, the same was forwarded to the
concerned police station but nothing has
done in the matter whereas a direction was
issued to the S.H.O. of concerned police
station
to
investigate
the
matter
expeditiously
and
submit
his
report
forthwith and if the petitioner no. 1 is not
satisfied
with
the
progress
of
the
investigation, he may apprise the learned
Magistrate with this fact and he may move
appropriate application in the case for
further direction to be issued in accordance
with law by the learned Magistrate.
1 All. Sushil Kumar Tiwari & Ors. Vs. State of U.P. & Ors.
1167

8. Thus, in view of the above, the
remedy, if any, for the petitioner is to
approach the concerned Magistrate in
respect of his grievance, the present habeas
corpus writ petition before this Court is not
maintainable.

9. With the above observation and
direction, the present habeas corpus writ
petition is being finally disposed of.
----------
(2022)01ILR A1167
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2021

BEFORE

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

Habeas Corpus Writ Petition No. 632 of 2021

Sushil Kumar Tiwari & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Maqsood Ahmad Beg, Sri Naiyar
Masroof Siddiqui

Counsel for the Respondents:
G.A.

Constitution of India, 1950 - Article 226 -
Habeas Corpus writ petition - custody of
minor child - father alleging that corpus is
under illegal custody of his biological
mother- Held - 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 - custody of the child with
his mother is not unlawful - only in an
exceptional situation that the custody of a
minor may be directed to be taken away
from the mother for being given to any
other person-including father of the
child, in exercise of writ jurisdiction - in the
present case, father, can take resort to the
substantive statutory remedy in respect of
his claim regarding custody/visitation of
the child. (Para 18, 19)

Dismissed. (E-5)

List of Cases cited:

1. Rachhit Pandey (Minor) & anr. Vs St. of U.P.
& ors. 2021 (2) ADJ 320

2. Master Manan @ Arush Vs St. of U.P. & ors.
2021 (5) ADJ 317

3. Krishnakant Pandey (Corpus)& ors. Vs St. of
U.P. & ors. 2021 2 AWC 1053 ALL

4. Master Tarun @ Akchhat Kumar & anr. Vs St.
of U.P. & ors. 2021 (6) ADJ 23

5. Priyanshu (Minor) Vs St. of U.P.& ors. 2021
(7) ADJ 438

6. Vahin Saxena (Minor Corpus) & anr. Vs St. of
U.P. & ors. 2021 SCC OnLine All 593

7. Reshu @ Nitya & ors. Vs St. of U.P. & ors.
Habeas Corpus Writ Petition No. 9 of 2020,
decided on 22.10.2021

8. Mohammad Ikram Hussain Vs St. of U.P. &
ors. AIR 1964 SC 1625

9. Kanu Sanyal Vs District Magistrate Darjeeling
(1973) 2 SCC 674

10. Sayed Saleemuddin Vs Dr. Rukhsana & ors.
(2001) 5 SCC 247

11. Nithya Anand Raghvan Vs St. (NCT of Delhi)
& anr. (2017) 8 SCC 454

12. Tejaswini Gaud & ors. Vs Shekhar Jagdish
Prasad Tewari & ors. (2019) 7 SCC 42

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