Allahabad High Court
Yuvraj Yadav vs Adhichak Kendriya Karagar Naini ... on 26 May, 2023
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:118619-DB A.F.R. Reserved on 27.04.2023. Delivered on 26.05.2023. Court No. - 67 Case :- HABEAS CORPUS WRIT PETITION No. - 350 of 2023 Petitioner :- Yuvraj Yadav Respondent :- Adheekshak Kendriya Karagar Naini Prayagraj And Another Counsel for Petitioner :- Prabha Shanker Chaturvedi,Abhishek Kumar Mishra,Chandrakesh Mishra,Sr. Advocate Counsel for Respondent :- G.A.,Dan Bahadur Yadav,Parmeshwar Yadav Hon'ble Rahul Chaturvedi,J.
Hon'ble Gajendra Kumar,J.
(Per : 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 कि सम्माननीय न्यायालय बंदी प्रत्यक्षीकरण प्रकृति के याचिकादेश, आदेश / निर्देश के माध्यम से याची को सशरीर / सदेह माननीय न्यायालय के समक्ष उपस्थित करने हेतु उत्तरवादीगण को आदेशित / निर्देशित करने की महती कृपा करें।
2- यह कि सम्माननीय न्यायालय बंदी प्रत्यक्षीकरण प्रकृति के याचिकादेश, आदेश / निर्देश के माध्यम से याची की आद्योपान्त, क्रमानुगत / लगातार वर्तमान निरूद्धि व अभिरक्षा को युक्तयुक्तिक ढंग से पूर्णरूपेण व संदेहरहित विधिक प्रक्रिया के अनुकूल व अनुरूप सिद्ध करने हेतु उत्तरवादीगण समेत उनके सहयोगी / सहकर्मी को आदेशित/निर्देशित करने की महती कृपा करें।
3- यह कि सम्माननीय न्यायालय बंदी प्रत्यक्षीकरण प्रकृति के याचिकादेश, आदेश / निर्देश के माध्यम से याचिका के लम्बन अवधि तक जमानत पर अभिरक्षा से मुक्त करने हेतु आदेशित / निर्देशित करने की महती कृपा करें।
4- यह कि माननीय न्यायालय बंदी प्रत्यक्षीकरण प्रकृति के याचिकादेश, आदेश / निर्देश के माध्यम से याची की आद्योपान्त लगातार, वर्तमान अभिरक्षा निरूद्धि को अविधिक, असंवैधानिक घोषित करते हुए याची को अभिरक्षा से अविलम्ब 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 ¾ 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 ¾ 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 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 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
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 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 :-
"पत्रावली पेश हुई। प्रार्थी/अभियुक्त की ओर से प्रार्थनापत्र दिनांकित 15-09-22 वास्ते प्रार्थी/अभियुक्त के विरूद्ध धारा ¾ पाक्सो अधिनियम का रिमाण्ड निरस्त करने हेतु प्रस्तुत प्रार्थनापत्र पर आदेश हेतु नियत है।
पत्रावली के अवलोकन से यह स्पष्ट है कि दिनांक 21.09.22 को विवेचक को पीड़िता की आयु निर्धारण हेतु रेडियोलाजिकल जांच कराये जाने हेतु निर्देशित किया गया था, परन्तु पीड़िता की ओर से अभियुक्त की ओर से प्रस्तुत प्रार्थनापत्र के विरूद्ध आपत्ति दाखिल की गयी है, जिसके अवलोकन से यह स्पष्ट होता है कि पीड़िता द्वारा आयु निर्धारण हेतु अपनी जांच कराने से इंकार किया गया है। ऐसी स्थिति में पीड़िता की आयु के संबंध में दो जन्म तिथियां उपलब्ध हैं।
1. अभियुक्त की ओर से प्रस्तुत जन सूचना अधिकार के तहत प्राप्त सूचना कार्यालय खण्ड शिक्षा अधिकारी मऊआइमा प्रयागराज पत्रांक संख्या 467/2022-2023 दिनांक 07-09-22 जनहित अधिकार 2005 दाखिल की गयी है, जिसके अनुसार पीड़िता की जन्म तिथि 03-03-2002 अंकित है तथा पीड़िता की ओर से अपनी आपत्ति दिनांक 11-10-22 के साथ हाईस्कूल 2021 परीक्षा की प्रमाणपत्र सह अंक पत्र दाखिल किया गया है, जिसके अनुसार उसकी जन्म तिथि 18 जुलाई, 2007 है।
अभियुक्त की ओर से क्रिमिनल अपील नम्बर 1240/21 रिषीपाल सिंह सोलंकी बनाम स्टेट आफ उ०प्र० अन्य के पैरा 28 (एच.) संजीव कुमार गुप्ता बनाम स्टेट आफ यू०पी० व अन्य (2019) 12 एस.सी.सी. 370 में हाईस्कूल की सत्यता साबित न होने पर उसको नहीं माना गया है और कक्षा-4 तक अंकित जन्म तिथि को सही माना गया है।
पीड़िता की आयु का निर्धारण किशोर न्याय अधिनियम 2015 के अनुसार किया जाना है, जिसके धारा 94 में स्कूल से प्राप्त जन्म तिथि या मैट्रीकुलेशन सर्टीफिकेट संबंधित बोर्ड को वरीयता दी गयी है।
दोनों ही जन्म तिथियों की सत्यता का निर्धारण साक्ष्य के उपरान्त होना है जो विचारण के समय साक्ष्य का विषय है। ऐसी स्थिति में धारा 94 किशोर न्याय अधिनियम के अनुसार बोर्ड द्वारा हाईस्कूल प्रमाणपत्र सह अंक पत्र को प्रथम दृष्टया वरीयता देते हुये पीड़िता को घटना की तिथि पर नाबालिक माना जाता है तथा अभियुक्त की ओर से प्रस्तुत प्रार्थनापत्र दिनांकित 15-09-22 जो पीड़िता को बालिग घोषित किये जाने व धारा ¾ पाक्सो अधिनियम में रिमाण्ड निरस्त करने हेतु प्रस्तुत प्रार्थनापत्र निरस्त किया जाता है तथा अभियुक्त का रिमाण्ड मु.अ.सं. 558/22, अ. धारा 376,506,342 भा.द.सं. व धारा ¾ पाक्सो एक्ट, थाना सोरांव प्रयागराज में दिनांक 15-10-22 तक स्वीकृत किया 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 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. - 66Case :- 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 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 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 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 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 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 non-bailable 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 procedure to restrict the meaning of the word "custody" in S. 309(2), Cr.P.C., to legal imprisonment only. In fact, grave consequences follow if this restriction is placed on the meaning of the word "custody" for once the custody of the accused becomes illegal by his being confined in jail without a valid order or warrant of remand due to mistake of the Court it would become powerless to remand the accused to custody under S. 309(2), Cr.P.C., and rectify its error."
"The word "custody" in Section 309, Cr.P.C., in our opinion therefore, means physical imprisonment as distinct from being on bail. Even if the accused is in prison after his arrest in a criminal case without an order or warrant of remand by a competent Court he is in custody as distinct from being on bail. The word "custody" therefore embraces both legal imprisonment as well as illegal imprisonment."
"The Court is, therefore, competent to remand the accused to custody under S. 309(2), Cr.P.C., even if he is in illegal imprisonment. It can thus rectify its mistake and transform his illegal imprisonment into legal imprisonment."
Clearly, on the day when a remand order is made under section 309(2) CrPC it is not necessary that the petitioner/accused must have been in "lawful" custody. It is sufficient if he was in custody. In the context of the facts of the present case, even if we assume that the remand order was made on 26.4.2005 and not on 25.4.2005 and that the petitioner's custody between 25.4.2005 and 26.4.2005 was unlawful, it would not militate against the Magistrate's power to pass a valid order of remand under section 309 CrPC on 26.4.2005 when the accused was produced before him. It is also not necessary to go into the second ground urged by the learned counsel for the petitioner with regard to the remand order of 26.4.2005 being ex facie illegal on account of it being allegedly for a period of 16 days (i.e., "exceeding fifteen days"). This is so because subsequent remand orders passed under section 309 CrPC have legitimized the custody of the petitioner as of today."
21. In Saquib Abdul Hamid Nachan And Ors v. State of Maharashtra (2006) 108 BOMLR 339, 2006 CriLJ 2196, the Bombay High Court has held as under :-
"11. The Special Court, while holding the inquiry, acts as a Magistrate and obviously Section 309 would enable the Magistrate/Special Court to remand the accused to the custody till the inquiry to be made is complete and the Special Court, if after taking cognizance of the offence or commencement of trial, finds it necessary or advisable to postpone or adjourn any inquiry or trial, it may, from time to time, for the reasons to be recorded, 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 custody. By following the law laid down in Lakshmi Brahman's case (Supra), it is evident that the order of remand passed by the Special Court on 22/7/2003, in the instant case, is an order passed under Section 309(2) of Cr.P.C. and the said order specifically states that the accused have been remanded to judicial custody until the disposal of the case. This is a valid and legal order passed under Section 309(2) of Cr.P.C. until the disposal of the case and in no way the detention of the petitioners is vitiated on account of their not being presented before the Special Court, even though the trial of the Special Case has been presently stayed. The contentions that inspite of the stay operating against the trial of the case, the petitioners are required to be presented before the Special Judge and unless the Court passes the order of remand on each such day of attendance, their detention is illegal or unconstitutional, Page 350 cannot be accepted. Section 309(2) of Cr.P.C. empowers the Special Court to pass the remand order until the disposal of the Special Case. It is pertinent to note that the order of dispensation of attendance passed under Section 317(1) of Cr.P.C. as well as the order of remand passed on 22/7/2003 and held by us to be an order under Section 309(2) of the Code are not under challenge in this petition nor were they challenged at any time in the past. We have also noted from the record that the order passed under Section 317(1) of Cr.P.C. was subsequently revoked on 17/11/2003 as the accused were directed to be produced before the Special Court on 24/11/2003 and the accused continued to remain present on the basis of the production warrants signed by the Sheristedar, City Civil and Sessions Court, Gr. Bombay till 10/10/2005 and this goes to show that the accused were aware about the remand order having been passed on 22/7/2003 till the completion of the trial. . We, therefore, hold that the contentions of the petitioners that they are held in detention as at present illegally or in violation of their rights under Article 21 of the Constitution cannot be accepted as they have no force in law and, therefore, this petition must fail.'"
22. In Manubhai Ratilal Patel v. State of Gujarat & Ors [2013 1 SCC 314], regarding writ of habeas corpus not entertainable when petitioner is in judicial custody, the Apex observed and held "32. Coming to the case at hand, it is evincible that the arrest had taken place a day prior to the passing of order of stay. It is also manifest that the order of remand was passed by the learned Magistrate after considering the allegations in the FIR but not in a routine or mechanical manner. It has to be borne in mind that the effect of the order of the High Court regarding stay of investigation could only have bearing on the action of the investigating agency. The order of remand which is a judicial act, as we perceive, does not suffer from any infirmity. The only ground that was highlighted before the High Court as well as before this Court is that once there is stay of investigation, the order of remand is sensitively susceptible and, therefore, as a logical corollary, the detention is unsustainable. It is worthy to note that the investigation had already commenced and as a resultant consequence, the accused was arrested. Thus, we are disposed to think that the order of remand cannot be regarded as untenable in law. 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 the cases of B.R. Rao (supra) and Kanu Sanyal (supra), the court is required to scrutinize 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. It is apposite to note that the investigation, as has been dealt with in various authorities of this Court, is neither an inquiry nor trial. It is within the exclusive domain of the police to investigate and is independent of any control by the Magistrate. The sphere of activity is clear cut and well demarcated. Thus viewed, we do not perceive any error in the order passed by the High Court refusing to grant a writ of habeas corpus as the detention by virtue of the judicial order passed by the Magistrate remanding the accused to custody is valid in law."
23. In Saurabh Kumar v. Jailor, Koneila Jail & Anr. [2014 13 SCC 436], the Apex Court (per : N.V. Ramana, J.) has held as under :-
"13. It is clear from the said narration of facts that the petitioner is in judicial custody by virtue of an order passed by the Judicial Magistrate. The same is further ensured from the Original Record which this Court has, by order dated 9th April, 2014, called for from the Court of Additional Chief Judicial Magistrate, Dalsingsarai, District Samastipur, Bihar. Hence, the contention of the learned counsel for the petitioner that there was illegal detention without any case is incorrect. Therefore, the relief sought for by the petitioner cannot be granted. Even though there are several other issues raised in the Writ Petition, in view of the facts narrated above, there is no need for us to go into those issues. However, the petitioner is at liberty to make an application for his release in Criminal Case No. 129/13 pending before the Court of the learned Addl. Chief Judicial Magistrate, Dalsingsarai."
Per : T.S. Thakur, J. has held as under :-
"6. 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 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 mis-placed. Having said that, we are of the view that the petitioner could and indeed ought to have filed an application for grant of bail which prayer could be allowed by the Court below, having regard to the nature of the offences allegedly committed by the petitioner and the attendant circumstances. The petitioner has for whatever reasons chosen not to do so. He, instead, has been advised to file the present petition in this Court which is no substitute for his enlargement from custody. We are also of the view that the Magistrate has acted rather mechanically in remanding the accused petitioner herein to judicial custody without so much as making sure that the remaining accused persons are quickly served with the process of the Court and/or produced before the Court for an early disposal of the matter. The Magistrate appears to have taken the process in a cavalier fashion that betrays his insensitivity towards denial of personal liberty of a citizen who is languishing in jail because the police have taken no action for the apprehension and production of the other accused persons. This kind of apathy is regrettable to say the least. We also find it difficult to accept the contention that the other accused persons who all belong to one family have absconded. The nature of the offences alleged to have been committed is also not so serious as to probablise the version of the respondent that the accused have indeed absconded. Suffice it to say that the petitioner is free to make an application for the grant of bail to the Court concerned who shall consider the same no sooner the same is filed and pass appropriate orders thereon expeditiously."
24. In the State of Maharashtra v. Tasneem Rizwan Siddiquee [AIR 2018 SC (Criminal) 1449], the Apex Court has held as under :-
"9. The question as to whether a writ of habeas corpus could be maintained in respect of a person who is in police custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with the offence under investigation, this issue has been considered in the case of Saurabh Kumar through his father Vs. Jailor, Koneila Jail and Anr., 1 and Manubhai Ratilal Patel Vs. State of Gujarat and Ors. 2 It is no more res integra. In the present case, admittedly, when the writ petition for issuance of a writ of habeas corpus was (2014) 13 SCC 436 (2013) 1 SCC 314 filed by the respondent on 18th/19th March, 2018 and decided by the High Court on 21st March, 2018 her husband Rizwan Alam Siddique was in police custody pursuant to an order passed by the Magistrate granting his police custody in connection with FIR No.I31 vide order dated 17th March, 2018 and which police remand was to enure till 23 rd March, 2018. Further, without challenging the stated order of the Magistrate, a writ petition was filed limited to the relief of habeas corpus. In that view of the matter, it was not a case of continued illegal detention but the incumbent was in judicial custody by virtue of an order passed by the jurisdictional Magistrate, which was in force, granting police remand during investigation of a criminal case. Resultantly, no writ of habeas corpus could be issued. "
25. Thus, from the conjoint reading of all the above mentioned case laws, the legal position is clear that a 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, which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or is wholly illegal.
26. From the record, it is observed that petitioner is accused in S.S.T. 326 of 2022 arising out of Case Crime No. 558 of 2022, under section 376, 506, 342 I.P.C. and Section 3/4 POCSO Act, P.S. Soraon, District Prayagraj. He is named accused in the FIR and has been in judicial custody after submission of charge-sheet and cognizance taken, his remand has been changed to under section 309(2) CrPC from under section 167 CrPC. Later on, proceedings of the aforesaid Special S.S.T. 326 of 2022 have been stayed by the Court vide order dated 23.01.2023 in Application U/S 482 No. 37471 of 2022. Order dated 07.02.2023 is as follows :
"पत्रावली पेश हुई। पुकार करायी गयी। अभियुक्त युवराज यादव की से अप्लीकेशन अन्तर्गत धारा 482 नम्बर 37471/22 युवराज बनाम स्टेट आफ यू.पी. एवं 4 अन्य में माननीय उच्च न्यायालय के आदेश दिनांक 23.01.23 अभियुक्त द्वारा आज प्रस्तुत किया गया। उक्त आदेश का अवलोकन किया गया। उक्त आदेश के अनुसार माननीय उच्च न्यायालय द्वारा अं० धारा 376, 506, 342 भा०द०सं० व धारा ¾ पाक्सो एक्ट, थाना सोरांव जिला प्रयागराज की कार्यवाही स्थगित की गयी है। अतः माननीय न्यायालय द्वारा अप्लीकेशन अन्तर्गत धारा 482 नंबर 37471/22 युवराज यादव बनाम स्टेट आफ यू.पी. एवं 4 अन्य में पारित दिनांक 23.01.23 के अनुपालन में कार्यवाही स्थगित की जाती है। पत्रावली दिनांक 04.03.23 को वास्ते एफ०ओ० पेश हो।"
27. There is no dispute with regard to the argument put forward by the counsel for the petitioner that remand order cannot be passed without application of mind and it must not be in a routine and mechanical manner. But all the same, it does not require that the order sheet should look like, a judgment delivered after full trial. In this view of the matter, we find that since the remand order authorising the detention of the accused to District Jail, Prayagraj is valid, within jurisdiction, after considering the stay order passed by this Court, 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. We further held that the reasons contemplated in Section 309(2) Cr.P.C. for adjournment need not be detailed one. They should merely indicate as to why the proceedings in the Court on a particular date were adjourned. It is sufficient to show that proceedings of the S.S.T. No.326 of 2022 arising out of Case Crime No.558 of 2022, under section 376, 506, 342 I.P.C. and Section 3/4 POCSO Act, P.S. Soraon, District Prayagraj have been stayed by the order of this Court in Application No.37471 of 2022 under section 482 CrPC which is still operating. Therefore, if this much of indication is available from the record, the inference shall be that full compliance of Section 309(2) CrPC has been made and the accused is in legal custody vide valid remand order passed within jurisdiction and cannot get any benefit of it.
28. Lastly, there has been arguments on behalf of the petitioner that the petitioner is in illegal custody as remand order under section 309(2) Cr.P.C. has not been extended till date by the trial Court. From the case law discussed above, it is settled that if there is any irregularity found in remanding the accused under section 167 and 309(2) CrPC, the said irregularity may be rectified, the time it is brought to the notice of the Court concerned. It is not evident from the record that it has been brought to the notice of the court concerned that there is a illegality/ irregularity in extending the remand of the accused under section 309 (2) CrPC, moreover there is no duration fixed by the Court or the statute for the rectification of illegality/ irregularity of the remand order. Therefore, in the special facts and circumstances of this case the argument advanced by the counsel for the petitioner is not tenable.
29. At the cost of repetition it is reiterated that Article 21 clearly provides protection of life and personal liberty, however, it has clearly provided that no person shall be deprived of his life or personal liberty "except according to procedure established by law".
30. In the present case, the stand taken by the State while raising objection to the present petition is that the petitioner is in judicial / legal custody under the valid order of remand, which is the procedure established by law. It is clearly reflected from the record that the petitioner has already invoked provisions of Section 482 Cr.P.C. before the court. Thus, he has availed the effective statutory remedy and thus, has put the criminal administration of justice into motion and as per settled law writ of habeas corpus cannot be issued to set the same at knaught.
31. To sum up, it can be said that 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.
32. Consequently, in view of the discussions made hereinabove objection raised by the State that the present petition is not maintainable as the petitioner has already invoked provisions of Section 482 Cr.P.C. and have approached the court, is upheld.
33. Present petition, accordingly, stands dismissed.
34. However, it is made clear that observations made in the aforesaid judgment shall have no bearing on any other pending or future proceedings.
Order Date :- 26.05.2023.
Shiv