# Yuvraj Yadav v. Adheekshak Kendriya Karagar Naini, Prayagraj & Anr

- **Citation:** (2023) 6 ILRA 821
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-26
- **Case number:** Habeas Corpus Writ Petition No. 350 of 2023
- **Bench:** Rahul Chaturvedi, Gajendra Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yuvraj-yadav-v-adheekshak-kendriya-karagar-naini-prayagraj-anr-50457
- **Pages:** 18

## Headnote

G.A.,
Sri
Dan
Bahadur
Yadav,
Sri
Parmeshwar Yadav

The Constitution of India, 1950-Article226- WRIT of Habeas Corpus- Writ of
habeas corpus cannot be entertained
when a person is committed to judicial
custody or police custody by a competent
court by an order-the detention of the
accused cannot be said to invalid on
account of certain irregularities if any
occurring in the earlier remand orders and
the accused cannot get the benefit of such
technical errors-the petitioner has already
invoked provisions of Section 482 Cr.P.C.,
hence administration of criminal justice
has already come into play and the same
cannot
be
set
at
knaught
by
simultaneously
invoking
extra-ordinary
remedy
under
Article
226
of
the
Constitution of India, which may be a
remedy of right but as per settled law
cannot be issued as a matter of course.
Moreover, when corpus is in legal custody
under valid remand order, the present writ
petition is not be maintainable as per the
law settled by the Apex Court as well as
the High Courts. (Para 25, 27 & 31)

Petition dismissed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,822 of 60,617. This is a partial read: ask again with offset=39822 for what follows._

6 All. Yuvraj Yadav Vs. Adheekshak Kendriya Karagar Naini, Prayagraj & Anr.
821
Civil Judge (JD) (Fast Track Court),
offences against women, Meerut is liable to
be upheld findings of the appellate court is
perverse and against the law and facts.

20. Resutantly, the revision is
allowed. The impugned order of the
learned appellate court dated 20.08.2022 is
set aside and quashed. Order passed by
learned Civil Judge (JD) (Fast Track
Court), is affirmed. Respondent no. 2
(husband) is directed not to interfere in
residence of the revisionist in the shared
house in question
----------
(2023) 6 ILRA 821
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2023

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
THE HON'BLE GAJENDRA KUMAR, J.

Habeas Corpus Writ Petition No. 350 of 2023

Yuvraj Yadav ...Petitioner
Versus
Adheekshak
Kendriya
Karagar
Naini,
Prayagraj & Anr. ...Respondents

Counsel for the Petitioner:
Sri Prabha Shanker Chaturvedi, Sri Abhishek
Kumar Mishra, Sri Chandrakesh Mishra, Sri
D.S. Mishra (Sr. Advocate)

Counsel for the Respondents:
G.A.,
Sri
Dan
Bahadur
Yadav,
Sri
Parmeshwar Yadav

The Constitution of India, 1950-Article226- WRIT of Habeas Corpus- Writ of
habeas corpus cannot be entertained
when a person is committed to judicial
custody or police custody by a competent
court by an order-the detention of the
accused cannot be said to invalid on
account of certain irregularities if any
occurring in the earlier remand orders and
the accused cannot get the benefit of such
technical errors-the petitioner has already
invoked provisions of Section 482 Cr.P.C.,
hence administration of criminal justice
has already come into play and the same
cannot
be
set
at
knaught
by
simultaneously
invoking
extra-ordinary
remedy
under
Article
226
of
the
Constitution of India, which may be a
remedy of right but as per settled law
cannot be issued as a matter of course.
Moreover, when corpus is in legal custody
under valid remand order, the present writ
petition is not be maintainable as per the
law settled by the Apex Court as well as
the High Courts. (Para 25, 27 & 31)

Petition dismissed. (E-15)

List of Cases cited:

1. Ram Narayan Singh Vs St. of Delhi & ors.
1953 0 Supreme (SC) 27

2.
Keshav Singh Vs Speaker, Legislative
Assembly AIR 1965 All 349

3. Gautam Navlakha Vs National Investigation
Agency 2021 0 Supreme (SC) 334

4. Surjeet Singh Vs St. of U.P. 1984 ALL. L. J.
375

5. Urooj Abbas Vs St. of U.P. 1971 0 Supreme
(All) 211

6. Sunil Kumar Sharma Vs St. (Nct of Delhi)

7. Saquib Abdul Hamid Nachan & ors. Vs St.
of Mah. (2006) 108 BOMLR 339, 2006 CriLJ
2196,

8. Manubhai Ratilal Patel Vs St. of Guj. & ors.
[2013 1 SCC 314],

9. Saurabh Kumar v. Jailor, Koneila Jail & anr.
[2014 13 SCC 436]

10. St. of Mah. Vs Tasneem Rizwan Siddiquee
[AIR 2018 SC (Criminal) 1449]
822 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Gajendra Kumar, J.)

1. Heard Sri D.S. Mishra, learned
Senior
Counsel
assisted
by
S/Sri
Prabhashankar
Chaturvedi,
Abhishek
Kumar Mishra and Chandrakesh Mishra,
Sr. Advocate, learned counsel for the
petitioner and Sri Satyendra Tiwari, learned
A.G.A. appearing for the State respondents.

2. Present petition has been filed with
the following prayers:-

"1- यह भक सम्माननीय न्यायालय बंदी प्रत्यक्षीकरण
प्रकृभत के याभचकादेश, आदेश / भनदेश के माध्यम से याची को
सशरीर / सदेह माननीय न्यायालय के समक्ष उपभस्थत करने हेतु
उत्तरवादीगण को आदेभशत / भनदेभशत करने की महती कृपा करें।

2- यह भक सम्माननीय न्यायालय बंदी प्रत्यक्षीकरण
प्रकृभत के याभचकादेश, आदेश / भनदेश के माध्यम से याची की
आद्योपान्त, िमानुगत / लगातार वतथमान भनरूभद्ध व अभिरक्षा को
युक्तयुभक्तक ढंग से पूणथरूपेण व संदेहरभहत भवभधक प्रभिया के
अनुकूल व अनुरूप भसद्ध करने हेतु उत्तरवादीगण समेत उनके
सहयोगी / सहकमी को आदेभशत/भनदेभशत करने की महती कृपा करें।

3- यह भक सम्माननीय न्यायालय बंदी प्रत्यक्षीकरण
प्रकृभत के याभचकादेश, आदेश / भनदेश के माध्यम से याभचका के
लम्बन अवभध तक जमानत पर अभिरक्षा से मुक्त करने हेतु आदेभशत
/ भनदेभशत करने की महती कृपा करें।

4- यह भक माननीय न्यायालय बंदी प्रत्यक्षीकरण
प्रकृभत के याभचकादेश, आदेश / भनदेश के माध्यम से याची की
आद्योपान्त लगातार, वतथमान अभिरक्षा भनरूभद्ध को अभवभधक,
असंवैधाभनक घोभित करते हुए याची को अभिरक्षा से अभवलम्ब मुक्त
/ स्वतंत्र करने की महती कृपा करें।"

3. This petition has been filed on
behalf of the petitioner- Yuvraj Yadav
(corpus) who claims to have been falsely
implicated in Case Crime No.558 of 2022,
under sections 376, 506, 342 I.P.C. and
section 3⁄4 POCSO Act. It is also claimed
that FIR has been lodged by the father of
the victim and her age therein has been
shown as 15 years, which is not true one.
The allegation is that petitioner is detained
in illegal custody, which is unconstitutional
and contrary to law. On behalf of the
petitioner an application dated 15.09.2022
was moved with the prayer that remand
order may kindly be cancelled which is
under
section
3⁄4
POCSO
Act.
On
15.09.2022 the trial court has, without
jurisdiction, in a mechanical and arbitrary
way, signed custody warrant from dated
02.09.2022
to
15.09.2022.
Later
on,
remand order was mechanically signed, as
there was no case diary and any documents
/ papers regarding the case, were presented
before the trial court. It has been
specifically mentioned in the application
dated 15.09.2022 that under The Right To
Information Act, date of birth of the victim
in first school, attended from Khand
Shiksha Adhikari, Mauaima, Prayagraj was
asked for, according to which victim was
major and her age was more than 20 years.
Additional Sessions Judge and Special
Judge, POCSO Act, Prayagraj fixed a date
21.09.2022 for disposal and order for
radiologist's report of the victim. The
victim's father submitted an affidavit dated
11.10.2022 that as the medical examination
of the victim has not been done so he does
not want to get her daughter / victim to be
radiologically examined in accordance with
the order dated 21.09.2022 and prayer was
made to reject the same and to discharge
her
from
radiological
examination.
Objection was also filed on behalf of the
victim along with certificate / marksheet of
High School examination of 2021 in which
date of birth is shown as 18.07.2022. The
trial court has dismissed the application of
the petitioner in an arbitrary manner on
11.10.2022, which is contrary to the settled
case law. The trial court rejecting the
6 All. Yuvraj Yadav Vs. Adheekshak Kendriya Karagar Naini, Prayagraj & Anr.
823
application dated 15.09.2022 by passing the
impugned order dated 11.10.2022 by which
it has signed remand order under section
3/4 POCSO Act and section 376, 506, 342
IPC which is against the provisions of law.
On behalf of the petitioner, case law of
Rishipal Singh Solanki v. State of Uttar
Pradesh and Sanjeev Kumar Gupta v.
State of Uttar Pradesh were presented
along with provisions of J.J. Act, 2015 for
perusal but they were not considered and
the order was passed to the effect that the
age given in 8th standard marksheet is to
prevail regarding the age of the victim. The
trial court has not considered the provisions
given in section 94 (2) (i) of J.J. Act, 2015,
according to which the victim was not
minor and rather she was major as her date
of birth was 03.03.2002, as per the record
of class-1, primary school, Umari. This
vital point and fact has not been considered
by the trial court and remand order was
signed in a mechanical way. The trial court
has also not considered this important fact
and circumstance that trial court has given
order dated 21.09.2022 to the I.O. to get the
victim radiologically examined for the
determination of her age but this was
objected to on behalf of the victim and she
was not got examined for the determination
of age. The remand orders are not formal
ones but they are legal and judicial orders,
which are required to be passed after
perusal of the documents / papers in the
circumstances of a given case. Before the
trial court, no case diary and papers were
presented for the perusal and order of
remand was passed in a mechanical and
formal way. On 21 September, 01 October,
07 October, 11 October, 15 October, 28
October, no case diary and papers were
presented before the trial court and the
order was passed in a mechanical way and
no judicial custody has been extended.
Additional Sessions Judge / Special Judge
POCSO Act has no jurisdiction to take
cognizance and to pass a remand order, so
in this circumstance, the proceedings
conducted, remand orders passed dated
11.10.2022 to 27.03.2023, are beyond
jurisdiction. Petitioner has been deprived of
his personal liberty against the legal
process and in violation of the provisions of
Article 21 read with Article 14 of the
Constitution of India. Additional Sessions
Judge / Special Judge POCSO Act, on
03.11.2022, has not passed any remand
order extending the custody of the
petitioner in the like way, on 21.11.2022,
21.12.2022,
25.01.2023,
07.02.2023,
04.03.2023, 27.03.2023, no remand order
has been passed nor is available on record.
According to provisions of section 309
Cr.P.C. no remand order can be passed for
keeping in custody for an unlimited period.
The
intermediate
custody
orders
are
meaningless and on their basis petitioner
cannot be detained in jail. Intermediate
custody
orders
dated
21.12.2022,
25.01.2023,
07.02.2023,
04.03.2023,
22.03.2023 are against the provisions of
section 309 Cr.P.C. as well as Article 21 of
the Constitution of India. Additional
Sessions Judge / Special Judge POCSO Act
has no jurisdiction to try the S.S.T. No.326
of 2022 arising out of Case Crime No.558
of 2022 as the same has not been
committed to the Court. It is further stated
that an application under section 482
Cr.P.C. as Criminal Misc. Application
No.37471 of 2022 has been filed in which
interim stay order has been granted by this
Court vide order dated 23.01.2023, which
is extended upto 24.04.2023. The petitioner
is detained in illegal custody which is
contrary to legal process, unconstitutional
and contrary to law. On the grounds, the
prayer for habeas corpus has been made by
the petitioner that he is innocent and has
been falsely implicated in Case Crime
824 INDIAN LAW REPORTS ALLAHABAD SERIES
No.558 of 2022. The victim of the alleged
offence is major one. Her date of birth is
03.03.2002. As per the provisions of
section 94 (2) (i) of J.J. Act, 2015, the date
of birth shown in class-1 of the school of
the victim is to prevail over the date of
birth shown in the high school certificate /
marksheet.
The
trial
court
has
not
considered all these provisions. No remand
order, available on record, has been passed
by any competent court to detain the
petitioner in jail. No intermediate custody
warrants have been passed on prescribed
proforma for detaining the petitioner in jail.
Petitioner has been deprived of his personal
liberty against the legal procedure in an
arbitrary manner which is unlawful and
unconstitutional.

4. As per FIR version on 07.08.2022
when the daughter of the first informant
was going to purchase books, the petitioner
on the way intercepted her daughter at
about 1:00 p.m. near Dadauli Nahar
(Soraon Highway) and dragged her inside
his house, bolting it from inside, committed
rape on her and kept her as hostage for four
hours. The daughter of the first informant
kept crying loudly, depite it the petitioner
kept molesting her and after a long time,
when the first informant, searched her with
his family members, his daughter was
found in the house of the petitioner. The
petitioner is also said to have threatened the
first informant and his family members of
making the video viral of his daughter.
When the victim was brought home she
narrated all the incident to her mother.

5. The first limb of the argument of
the counsel for the petitioner has been that
the victim was major at the time of alleged
incident as per her class-1 record obtained
through The Right To Information Act was
duly brought to the notice of the court and a
prayer was made to set-aside the remand
order to the effect that no offence under
POCSO Act is made out but the learned
trial court, against the provisions of law
relied upon the high school certificate and
the prayer was declined, which is without
jurisdiction and against the law. It is
accepted by the learned counsel for the
petitioner that against that order an
application under section 482 Cr.P.C. has
been filed before this court in which
proceedings of the Case Crime No.558 of
2022 have been stayed and are still stayed.
The second limb of the argument is that
trial court concerned has not passed
intermediate remand orders according to
law and there is no legal remand order on
record. The petitioner is in jail without any
legal remand order, therefore, the petitioner
is in an illegal custody against the process
of law which is violative of his personal
liberty as provided and protected under the
Constitution of India. Learned counsel for
the petitioner has relied upon several
judgements which are as follows :-

1. Sanjeev Kumar Gupta v. State
of Uttar Pradesh 2019 0 Supreme (SC) 783

2. Rishipal Singh Solanki vs.
State of Uttar Pradesh AIRONLINE 2021
SC 1050

3. Ram Narayan Singh vs. State
of Delhi and others 1953 0 Supreme (SC)
27

4. Keshav Singh v. Speaker,
Legislative Assembly AIR 1965 All 349

5. Urooj Abbas v. State of U.P.
1971 0 Supreme (All) 211

6. Surjeet Singh v. State of U.P.
1984 ALL. L. J. 375
6 All. Yuvraj Yadav Vs. Adheekshak Kendriya Karagar Naini, Prayagraj & Anr.
825

7. Sunil Kumar Sharma v. State
(Nct of Delhi)

8. Saquib Abdul Hamid Nachan
And Ors. v. State of Maharashtra And
Anr, 2006 CriLJ 2196

9.
Gautam
Navlakha
vs.
National Investigation Agency, 2021 0
Supreme (SC) 334

6. Per contra, learned A.G.A. refuted
the arguments advanced by the counsel for
the petitioner and submitted that the
petitioner is in judicial custody under the
valid order passed by the court of
competent jurisdiction. No writ of habeas
corpus lies against the judicial order as in
this case the petitioner is in legal custody
by virtue of judicial order, therefore, the
writ of the petitioner is liable to be
dismissed
on
this
very
ground.
Furthermore,
he
submitted
that
the
impugned order dated 11.10.2022 has been
challenged in Application No.37471 of
2022 filed under section 482 Cr.P.C. The
petitioner cannot be permitted to avail two
remedies at the same time from the same
court.
Therefore,
this
habeas
corpus
petition is liable to be set-aside. Learned
A.G.A. has relied upon various judgements
of Apex Court in Manubhai Patel vs.
State of Gujarat & Ors 2013 CRI. L. J.
160, Saurabh Kumar v. State of Jailor
2014 (13) SCC 436, Koneila Jail & Anr,
State of Maharashtra v. Tasneem Rizwan
Siddiquee AIR 2018 SC (Criminal) 1449.

7. Before proceeding further, it would
be relevant to take note 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."

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

9. 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
826 INDIAN LAW REPORTS ALLAHABAD SERIES
court for investigation of a restraint of the
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."

10. We have carefully gone through
the judgments cited by learned counsel for
the petitioner as well as respondents in light
of submissions made by respective parties
and perused the record of the petition.

11. As in this case, main controversy
hinges upon the order dated 11.10.2022 by
which the application dated 15.09.2022 for
setting aside the remand order regarding
3/4 POCSO Act was rejected by the
Additional District and Session Judge/
Special Judge POCSO Act, Allahabad
which is as follows :-

"पत्रािली पेश हुई। प्राथी/अवभर्ुक्त की ओर से
प्राथयनापत्र वदनांवकत 15-09-22 िास्ते प्राथी/अवभर्ुक्त के विरूद्ध
धारा 3⁄4 पाक्सो अवधवनर्म का ररमाण्ड वनरस्त करने हेतु प्रस्तुत
प्राथयनापत्र पर आदेश हेतु वनर्त है।

पत्रािली के अिलोकन से र्ह स्पष्ट है वक वदनांक
21.09.22 को वििेचक को पीव़िता की आर्ु वनधायरर् हेतु
रेवडर्ोलावजकल जांच करार्े जाने हेतु वनदेवशत वकर्ा गर्ा था, परन्तु
पीव़िता की ओर से अवभर्ुक्त की ओर से प्रस्तुत प्राथयनापत्र के
विरूद्ध आपवत्त दावखल की गर्ी है, वजसके अिलोकन से र्ह स्पष्ट
होता है वक पीव़िता द्वारा आर्ु वनधायरर् हेतु अपनी जांच कराने से
इंकार वकर्ा गर्ा है। ऐसी वस्थवत में पीव़िता की आर्ु के संबंध में दो
जन्म वतवथर्ां उपलब्ध हैं।

1. अवभर्ुक्त की ओर से प्रस्तुत जन सूचना अवधकार
के तहत प्राप्त सूचना कार्ायलर् खण्ड वशक्षा अवधकारी मऊआइमा
प्रर्ागराज पत्रांक संख्र्ा 467/2022-2023 वदनांक 07-0922 जनवहत अवधकार 2005 दावखल की गर्ी है, वजसके अनुसार
पीव़िता की जन्म वतवथ 03-03-2002 अंवकत है तथा पीव़िता
की ओर से अपनी आपवत्त वदनांक 11-10-22 के साथ हाईस्कूल
2021 परीक्षा की प्रमार्पत्र सह अंक पत्र दावखल वकर्ा गर्ा है,
वजसके अनुसार उसकी जन्म वतवथ 18 जुलाई, 2007 है।

अवभर्ुक्त की ओर से वक्रवमनल अपील नम्बर
1240/21 ररिीपाल वसंह सोलंकी बनाम स्टेट आफ उ०प्र० अन्र्
के पैरा 28 (एच.) संजीि कुमार गुप्ता बनाम स्टेट आफ र्ू०पी० ि
अन्र् (2019) 12 एस.सी.सी. 370 में हाईस्कूल की सत्र्ता
सावबत न होने पर उसको नहीं माना गर्ा है और कक्षा-4 तक
अंवकत जन्म वतवथ को सही माना गर्ा है।

पीव़िता की आर्ु का वनधायरर् वकशोर न्र्ार्
अवधवनर्म 2015 के अनुसार वकर्ा जाना है, वजसके धारा 94 में
स्कूल से प्राप्त जन्म वतवथ र्ा मैट्रीकुलेशन सटीवफकेट संबंवधत बोडय
को िरीर्ता दी गर्ी है।

दोनों ही जन्म वतवथर्ों की सत्र्ता का वनधायरर् साक्ष्र्
के उपरान्त होना है जो विचारर् के समर् साक्ष्र् का वििर् है। ऐसी
वस्थवत में धारा 94 वकशोर न्र्ार् अवधवनर्म के अनुसार बोडय द्वारा
हाईस्कूल प्रमार्पत्र सह अंक पत्र को प्रथम दृष्टर्ा िरीर्ता देते हुर्े
पीव़िता को घटना की वतवथ पर नाबावलक माना जाता है तथा
अवभर्ुक्त की ओर से प्रस्तुत प्राथयनापत्र वदनांवकत 15-09-22 जो
पीव़िता को बावलग घोवित वकर्े जाने ि धारा 3⁄4 पाक्सो अवधवनर्म
में ररमाण्ड वनरस्त करने हेतु प्रस्तुत प्राथयनापत्र वनरस्त वकर्ा जाता है
तथा अवभर्ुक्त का ररमाण्ड मु.अ.सं. 558/22, अ. धारा
376,506,342 भा.द.सं. ि धारा 3⁄4 पाक्सो एक्ट, थाना सोरांि
प्रर्ागराज में वदनांक 15-10-22 तक स्िीकृत वकर्ा जाता है।"

12.

In
the
application
dated
15.09.2022 the ground was taken for
setting aside the remand order under
section 3/4 POCSO Act is that according to
the documents obtained throught Right To
Information Act regarding date of birth of
the record of class-1 of the primary school
in which the victim was admitted and
studied was 03.03.2002 which is the true
date of birth of the victim which ought to
have been considered and relied upon by
the trial Court for deciding whether the
victim was minor or major at the date of
6 All. Yuvraj Yadav Vs. Adheekshak Kendriya Karagar Naini, Prayagraj & Anr.
827
incident but the trial court relied upon the
high school marksheet / certificate of the
victim which was filed on behalf of the
victim by way of objection to the
application moved on behalf of the
petitioner which is against the provisions of
law particularly section 94 of the J.J. Act,
2015. From the perusal of the order dated
11.10.2022, it is apparent that after giving
ample opportunity of hearing to both the
parties the trial court arrived at the conclusion
that both the dates of birth are subject to
evidence for the determination of the
truthfullness which will be decided at the
stage of trial after adduction of evidence. In
these circumstances giving precedence, in
view of provisions of section 94 of J.J. Act,
2015, to the high school marksheet /
certificate the victim is prima facie found
minor and the application dated 15.09.2022
on behalf of the accused for declaring the
victim major and cancelling the remand
under section 3/4 POCSO Act was dismissed.
Accused was remanded in Case Crime No.
558 of 2022, U/S 376, 506, 342 I.P.C. and 3
POCSO Act, PS Soraon, Prayagraj till
15.10.2022. The order dated 11.10.2022 has
been challenged by virtue of an application
filed under section 482 Cr.P.C. before this
Court in which an order has been passed by
the Court which is as follows :-

"Court No. - 66

Case :- APPLICATION U/S 482
No. - 37471 of 2022

Applicant :- Yuvraj Yadav

Opposite Party :- State Of U.P.
And 4 Others

Counsel for Applicant :- Abhishek
Kumar
Mishra,Chandrakesh
Mishra,Prabha Shanker Chaturvedi

Counsel for Opposite Party :-
G.A.,Pradeep
Kumar
Yadav,Prakash
Chandra Trivedi,Ravindra Kumar Mishra

Hon'ble Rajeev Misra,J.

Heard Mr. D.S. Mishra, the
learned Senior Counsel assisted by Mr.
Abhishek Kumar Mishra and Mr. Prabha
Shanker Chaturvedi, the learned counsel
for applicant, the learned AGA for State
and Mr. Ajay Kumar Yadav, Advocate
holding brief of Mr. Pradeep Kumar Yadav,
learned
counsel
for
first
informant-
opposite party 2.

Present application under section
482 Cr.P.C. has been filed challenging the
order
dated
11.10.2022
passed
by
Additional District and Sessions Judge/
Special Judge, POCSO Act, Allahabad,
arising out of Case Crime No. 558 of 2022,
under Sections 376, 506, 342 IPC and 3/4
POCSO
Act,
Police
Station-Soraon,
District-
Prayagraj,
whereby
judicial
remand of applicant has been extended till
15.10.2022 as well as with a prayer that
application dated 15.09.2022 submitted by
applicant seeking recall of the order dated
11.10.2022 be decided.

It is submitted by learned Senior
Counsel for applicant that in the FIR dated
09.08.2022 giving rise to present criminal
proceedings, the age of the prosecutrix
namely 'X minor' has been mentioned as 15
years. Subsequently, applicant obtained
certificate from the institution which the
prosecutrix had attended for first time. As
per said certificate issued by Principal of
concerned institution her date of birth as
recorded in school records is 03.03.2002.
As such on the date of occurrence, the
prosecutrix was aged about 20 years. It is
then argued by learned Senior Counsel that
828 INDIAN LAW REPORTS ALLAHABAD SERIES
in view of above, by no stretch of
imagination, offence under Section 3/4
POCSO Act can be said to have been
committed by present applicant.

Learned Senior Counsel for the
applicant further contends that in the light
of aforesaid facts, applicant filed an
application dated 15.09.2022 before the
court below that applicant be not sent to
judicial remand under Section 3/4 POCSO
Act as no offence is made out. However,
court below by means of order dated
11.10.2022 rejected the same and sent
applicant for judicial remand up to
15.10.2022.

On the above premise, learned
counsel for applicant submits that since no
offence under Section 3/4 POCSO Act is
made out against applicant, therefore,
judicial remand extended by concerned
Special Court is manifestly illegal and
without jurisdiction. Even otherwise, the
entire proceedings against applicant under
Section 3/4 POSCO Act cannot be
sustained and therefore liable to be
quashed by this Court.

Per contra, the learned A.G.A.
and Mr. Ajay Kumar Yadav, the learned
counsel for opposite party- 2 have opposed
this application. However, they could not
dislodge the factual and legal submissions
urged by learned Senior Counsel for
applicant at this stage.

Having heard the learned Senior
Counsel for applicant, learned A.G.A. for
State, learned counsel for opposite party-2
and upon perusal of record, matter requires
consideration.

Notice on behalf of opposite
party-1 has been accepted by learned AGA.
Mr. Pradeep Kumar Yadav, Advocate has
put in appearance on behalf of opposite
party-3. They pray for and are granted
three weeks time to file counter affidavit.
Applicant will have one week thereafter to
file rejoinder affidavit.

Put up this case as fresh on
23.02.2023.

Till
23.02.2023,
further
proceedings against applicant in Case
Crime No. 558 of 2022, under Sections
376, 506, 342 IPC and 3/4 POCSO Act,
Police Station-Soraon, District- Prayagraj,
shall remain stayed.

Order Date :- 23.1.2023

A.Kr. "

13. In the peculiar circumstances of
this case, though we find that there is no
quarrel with the law regarding invoking the
jurisdiction of High Court under Article
226 of the Constitution of India that
availability of alternative remedy is not an
absolute bar. However, equally settled is
the law that Courts ought to be extremely
slow
in
exercising
its
extraordinary
jurisdiction if effective alternative statutory
remedy is available. In the present case, we
find that the petitioner has already invoked
the provisions of Section 482 Cr.P.C.,
which is an effective statutory remedy,
therefore, it is not the question where
preliminary objection is being raised solely
on the ground that effective statutory
remedy is available. In fact, objection is
that admittedly, the effective alternative
statutory remedy has already been availed
of by the petitioner, which is still pending
and is being pursued by the petitioner.
Therefore, reply to the objection that
effective statutory remedy has already been
availed of, merely by asserting that the
6 All. Yuvraj Yadav Vs. Adheekshak Kendriya Karagar Naini, Prayagraj & Anr.
829
alternative remedy is not an absolute bar, in
our opinion, is of no help to the petitioner
as admittedly the same has already been
availed of. On this admitted fact, the
objection
is
liable
to
be
sustained.
Moreover, so far as the validity and legality
of the order dated 11.10.2022 is concerned,
this Court cannot, in a petition under
Article 226 of the Constitution, sit in
appeal over the same.

14. Another argument from the
petitioner's side has been that petitioner is
in illegal custody as no valid remand order
has been passed nor is on the record. If
remand order is illegal, the natural
consequence of the same is that the custody
is also illegal for illegal custody there is
remedy of habeas corpus. As the petitioner
is detained in illegal custody against the
legal
process
in
violation
of
his
constitutional rights under Article 21 of the
Constitution of India. He deserves to be set
at liberty forthwith. On the other hand,
learned A.G.A. has submitted that the
petitioner is in custody by judicial order
which is valid one, therefore, against the
valid custody the writ of habeas corpus is
not maintainable because the petitioner is
in judicial custody in accordance with the
established procedure as provided under
Cr.P.C.

15. Counsel for the petitioner has
relied on the case of Ram Narayan Singh
(supra) in which it was observed and held
:-

"Detention of a person in custody
after the expiry of remand order, without
any fresh order of remand committing him
to further custody while adjourning the
case under S. 344, Cr.P.C. is illegal. -
Adjournment of case - No order remanding
accused to custody Legality of detention-
Habeas corpus -Criminal Procedure Code,
S.344."

16. Another case relied upon by the
counsel for the petitioner is Keshav Singh
(supra) in which petitioner was admitted
on bail in petition filed under Article 226 of
the Constitution of India, para 17 of which
is relevant :-

"17. The petitioner is not entitled
to challenge the commitment either on the
ground of violation or the principles of
natural justice or on the ground. that the
facts found by the Legislative Assembly do
not amount to its contempt. Once we come
to the conclusion that the Legislative
Assembly has the power and Jurisdiction to
commit for its contempt and to impose the
sentence passed on the petitioner, we
cannot go into the question of the
correctness, propriety or legality of the
commitment. This Court cannot, in a
petition
under
Article
226
of
the
Constitution, sit in appeal over the decision
of the Legislative Assembly committing the
petitioner for its contempt. The legislative
Assembly is the master of its own procedure
and is the sole judge of the question
whether its contempt has been committed
or not. In this connection, we may mention
that learned counsel for the petitioner also
contended that Rules 74 and 76 of the
Rules of Procedure and Conduct of
Business of the U. P. Legislative Assembly
are ultra vires, Rule 74 reads as follows:"

17. In Gautam Navlakha v. National
Investigation Agency 2021 0 Supreme
(SC) 334, regarding writ of habeas corpus
and judicial custody, the Apex Court
observed and held :-

"61. A Habeas Corpus petition is
one seeking redress in the case of illegal
830 INDIAN LAW REPORTS ALLAHABAD SERIES
detention. It is intended to be a most
expeditious remedy as liberty is at stake.
Whether a Habeas Corpus petition lies
when a person is remanded to judicial
custody or police custody is not res integra.
We may notice only two judgments of this
court. In Manubhai Ratilal Patel v. State of
Gujarat and others,11. We may notice
paragraph 24.

"(24) The act of directing remand
of an accused is fundamentally a judicial
function. The Magistrate does not act in
executive capacity while ordering the
detention of an accused. While exercising
this judicial act, it is obligatory on the part
of the Magistrate to satisfy himself whether
the materials placed before him justify such
a remand or, to put it differently, whether
there exist reasonable grounds to commit
the accused to custody and extend his
remand. The purpose of remand as
postulated under Section 167 is that
investigation cannot be completed within
24 hours. It enables the Magistrate to see
that the remand is really necessary. This
requires the investigating agency to send
the case diary along with the remand report
so that the Magistrate can appreciate the
factual scenario and apply his mind
whether there is a warrant for police
remand or justification for judicial remand
or there is no need for any remand at all. It
is obligatory on the part of the Magistrate
to apply his mind and not to pass an order
of remand automatically or in a mechanical
manner." However, the Court also held as
follows:

"31. It is well-accepted principle
that a writ of habeas corpus is not to be
entertained when a person is committed to
judicial custody or police custody by the
competent court by an order which prima
facie does not appear to be without
jurisdiction or passed in an absolutely
mechanical manner or wholly illegal. As
has been stated in B. Ramachandra Rao
[(1972) 3 SCC 256 : 1972 SCC (Cri) 481 :
AIR 1971 SC 2197] and Kanu Sanyal
[(1974) 4 SCC 141 : 1974 SCC (Cri) 280] ,
the court is required to scrutinise the
legality or otherwise of the order of
detention which has been passed.

Unless the court is satisfied that a
person has been committed to jail custody
by virtue of an order that suffers from the
vice of lack of jurisdiction or absolute
illegality, a writ of habeas corpus cannot
be granted."

62. One of us (U.U. Lalit, J.)
speaking for a Bench of two, followed the
aforesaid line of thought in the decision of
Serious Fraud Investigation Office and
Ors. vs. Rahul Modi and Ors.12 and held
as follows:

"(21) The act of directing remand
of an accused is thus held to be a judicial
function and the challenge to the order of
remand is not to be entertained in a habeas
corpus petition." We may also notice
paragraph 19 from the same judgment.

"(19) The law is thus clear that
"in habeas corpus proceedings a court is to
have regard to the legality or otherwise of
the detention at the time of the return and
not with reference to the institution of the
proceedings".

63. Thus, we would hold as
follows: If the remand is absolutely illegal
or the remand is afflicted with the vice of
lack of jurisdiction, a Habeas Corpus
petition would indeed lie. Equally, if an
order of remand is passed in an absolutely
mechanical manner, the person affected
6 All. Yuvraj Yadav Vs. Adheekshak Kendriya Karagar Naini, Prayagraj & Anr.
831
can seek the remedy of Habeas Corpus.
Barring such situations, a Habeas Corpus
petition will not lie."

18. In Surjeet Singh v. State of U.P.
1984 ALL. L. J. 375, full bench of this
Court regarding whether the word 'custody'
used in Section 309 (2) Cr.P.C. means
imprisonment
both
legal
and
illegal
observed and held as under :-

"7. A plain reading of the
abovementioned section shows that the power
to remand the accused by a warrant is given
to the Court if the accused is in custody. The
aforesaid section does not mention that the
accused must be in legal custody when the
power to remand by a warrant can be
exercised. In the above mentioned cases it is
only mentioned that 'custody' means legal
custody. No reason has been given in them
for holding that custody means legal custody.
The cardinal principle of interpretation of
statutes is that words used in a statute must
be given their ordinary, normal and
grammatical
meaning.
Their
ordinary
meaning must neither be enlarged nor
restricted
unless
it
is
necessary
for
harmonious construction. In London Rubber
Co. Ltd. v. Durex Products Incorporated it
has been observed:

Indeed, it is the duty of the Court
to give full effect to the language used by
the legislature. It has no power either to
give that language a wider nor narrower
meaning than the literal one, unless other
provisions of the Act compel it to give such
other meaning.

10.
In
Niranjan
Singh
v.
Prabhakar Rajaram Kharote, it was held:

"When is a person in custody,
within the meaning of Section 439 Cr. P.C.?
When he is in duress either because he is
held by the investigating agency or other
police or allied authority or is under the
control of the Court having been remanded
by judicial order, or having offered himself
to the Court's jurisdiction and submitted to
its orders by physical presence. No lexical
dexterity nor precedential profusion is
needed to come to the realistic conclusion
that he who is under the control of the
Court or is in the physical hold of an
officer with coercive power is in custody for
the purpose of Section 439."

12. Section 41(1)(e) is as follows:

"41(1) any police officer may
without an order from a Magistrate and
without a warrant, arrest any person. (c)
who obstructs a police officer while in the
execution of his duty, or who has escaped,
or
attempts
to
escape,
from
lawful
custody."

19. In Urooj Abbas v. State of U.P.
1971 0 Supreme (All) 211, this court
regarding order of remand observed and
held as under :-

"17. The second point raised by
the learned Counsel is that it is mandatory
on the part of a Magistrate, while
remanding a prisoner to jail, to pass a
separate or independent order remanding
him to jail custody, as the mere issue of a
warrant of remand will not be sufficient in
law. He placed reliance for this proposition
on Atiq Ahmad v. The State, an unreported
decision of a Division Bench of this Court,
of which I was a member. In Ram Narayan
Singh's case, the Supreme Court had to
deal with the validity of detention of an
accused in respect of whom no order of the
Magistrate remanding him to custody was
placed before the Court, Four slips of
832 INDIAN LAW REPORTS ALLAHABAD SERIES
paper were produced but the Court did not
take any notice of these documents because
they were not produced at the proper stage.
That decision, therefore, cannot be taken to
be an authority for the proposition that a
warrant of remand alone is insufficient. In
Ojha's case, an observation was certainly
made that a remand, without a specific
order of remand, was invalid and illegal.
With due respect, however, I am unable to
agree to that view. The contention put
forward by the learned Counsel, to my
mind, does not flow from the language used
in Section 344 (1-A). Criminal P. C. This
section says that if. from the absence of a
witness, or any other reasonable cause, it
becomes
necessary
or
advisable
to
postpone the commencement of, or adjourn,
any inquiry or trial, the Court may, if it
thinks fit, by order in writing, stating the
reasons therefor, from time to time,
postpone or adjourn the same on such
terms as it thinks fit, for such time as it
considers reasonable, and may by a
warrant remand the accused if in cus-tody.
It is only a postponement or adjournment
which requires an order in writing and the
reasons therefor, and not the act of
remanding, which, if I may say so, can be
evidenced by a mere warrant of remand,
signed by the Magistrate. The decision in
Atiq Ahmad's case, Cri. Misc. Case No. 737
of 1969, D/- 27-10-1969 (All) does not deal
with the point now before us as it turned
upon the invalidity of the warrant itself.
The question whether a separate order of
remand is or is not necessary came up for
decision Fn re Kunjan Nadar, AIR 1955
Trav-Co 74 : 1955 Cri LJ 740 where Koshi,
C. J. dealing with the matter observed thus
:

The reasons to be stated as per
the above provision are the reasons for the
adjournment of the case and not the
reasons for the remand. When a person
charged with the commission of a nonbailable offence is produced before the
Court unless he is admitted to bail the
Court remands him to custody. This is done
as a matter of course and is the only way to
make him available for trial."

20. In Sunil Kumar Sharma v. State
(Nct of Delhi) decided on 27.06.2005,
Delhi High Court has held as under :-

"16.
These
considerations
convince me that the court is not required
or expected to go into the lawfulness of the
custody of the accused before remand
under section 309. The only question with
which the court is concerned is whether it
is necessary to further detain the accused
in custody. It must heed the future and not
the past. For purposes of that Section it is
enough that the accused is physically in
custody, as opposed to being free. The
legality of the custody is of no moment."

Lastly,
the
decision
of
the
Allahabad High Court in Surjeet Singh v.
State of U.P. : 1984 All. L. J. 375 (FB)
requires some discussion. The question
before the Full Bench of that court was
whether the word "custody" used in Section
309, CrPC, means imprisonment both legal
and illegal? This was answered in the
affirmative. The Full Bench held:

"In view of the normal meaning
of the word "custody" actual or physical
imprisonment of a person both legal and
illegal amounts to his being in custody. By
restricting the meaning of the word
"custody" in S. 309(2), Cr.P.C., to only
legal imprisonment the normal meaning is
obviously curtailed. It is not at all
necessary for the harmonious construction
of the provisions of the code of criminal
6 All. Yuvraj Yadav Vs. Adheekshak Kendriya Karagar Naini, Prayagraj & Anr.
833
procedure to restrict the meaning of the
word "custody" in S. 309(2), Cr.P.C., to
legal imprisonment only.