Allahabad High Court
Smt. Jayanti And Another vs State Of U.P. And 3 Others on 6 October, 2021
Author: Yogendra Kumar Srivastava
Bench: Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 84 Case :- HABEAS CORPUS WRIT PETITION No. - 671 of 2021 Petitioner :- Smt. Jayanti And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Awadh Bihari Pandey Counsel for Respondent :- G.A. Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri Awadh Bihari Pandey, learned counsel for the petitioners and Sri Vinod Kant, learned Additional Advocate General assisted by Sri Pankaj Saxena, learned Additional Government Advocate-I and Sri Arvind Kumar, learned Additional Advocate General appearing for the State-respondent.
2. The present petition seeking a writ of habeas corpus has been filed on behalf of petitioner no.1-corpus through the petitioner no.2 asserting to be her husband, seeking to contend that the petitioner corpus has been illegally detained by her father-respondent no.4.
3. Learned Additional Advocate General, has pointed out that instructions have been received to the effect that in terms of an order dated 9.8.2021 passed by the Child Welfare Committee1 constituted under the Juvenile Justice (Care and Protection of Children) Act, 20152, the petitioner no.1, stated to be a minor, has been placed under the care of her father-respondent no.4 and in view thereof since the custody has been handed over pursuant to a judicial order, the same cannot be said to be illegal and the present petition seeking a writ of habeas corpus would not be entertainable. It is pointed out that the order, for placement of a child under the care of a parent, made by the CWC, would be referable to the provisions under sub-rule (8) of Rule 18 of the Juvenile Justice (Care and Protection of Children) Model Rules, 20163.
4. In response to the aforesaid objection with regard to entertainability of the petition, learned counsel for the petitioners has sought to refer to the factual aspects of the case and has asserted that he was unaware of the proceedings before the CWC.
5. Learned Additional Advocate General has referred to the provisions of the JJ Act to point out that the Child Welfare Committee is a committee having a statutory status constituted as per the provision contained under Section 27 of the JJ Act. For ease of reference, Section 27 of the JJ Act is being extracted below:-
"27. Child Welfare Committee.--(1) The State Government shall by notification in the Official Gazette constitute for every district, one or more Child Welfare Committees for exercising the powers and to discharge the duties conferred on such Committees in relation to children in need of care and protection under this Act and ensure that induction training and sensitisation of all members of the committee is provided within two months from the date of notification.
(2) The Committee shall consist of a Chairperson, and four other members as the State Government may think fit to appoint, of whom atleast one shall be a woman and another, an expert on the matters concerning children.
(3) The District Child Protection Unit shall provide a Secretary and other staff that may be required for secretarial support to the Committee for its effective functioning.
(4) No person shall be appointed as a member of the Committee unless such person has been actively involved in health, education or welfare activities pertaining to children for atleast seven years or is a practicing professional with a degree in child psychology or psychiatry or law or social work or sociology or human development.
(5) No person shall be appointed as a member unless he possesses such other qualifications as may be prescribed.
(6) No person shall be appointed for a period of more than three years as a member of the Committee.
(7) The appointment of any member of the Committee shall be terminated by the State Government after making an inquiry, if--
(i) he has been found guilty of misuse of power vested on him under this Act;
(ii) he has been convicted of an offence involving moral turpitude and such conviction has not been reversed or he has not been granted full pardon in respect of such offence;
(iii) he fails to attend the proceedings of the Committee consecutively for three months without any valid reason or he fails to attend less than three-fourths of the sittings in a year.
(8) The District Magistrate shall conduct a quarterly review of the functioning of the Committee.
(9) The Committee shall function as a Bench and shall have the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974) on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of First Class.
(10) The District Magistrate shall be the grievances redressal authority for the Child Welfare Committee and anyone connected with the child, may file a petition before the District Magistrate, who shall consider and pass appropriate orders."
6. It has further been pointed out that as per sub-section (9) of Section 27 of the JJ Act, the Committee is to function as a Bench and shall have the powers conferred by the Code of Criminal Procedure, 1973 on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of First Class. It has been submitted that procedure in relation to children in need of care and protection is provided under Chapter V of the Rules, 2016. Rule 18 prescribes the procedure with regard to production of a child in need of care and protection before the Committee and the procedure for enquiry is delineated under Rule 19 of the aforesaid Rules. The aforementioned Rules are being set out herein below:-
"18. Production before the Committee.--(1) Any child in need of care and protection shall be produced before the Committee during the working hours at its place of sitting and beyond working hours before the member as per the duty roster:
Provided that where the child cannot be produced before the Committee, the Committee shall reach out to the child where the child is located.
(2) Whoever produces the child before the Committee shall make a report in Form 17 containing the particulars of the child as well as the circumstances in which the child was received or found.
(3) In case of a child less than two years of age, who is medically unfit, the person or the organisation who comes in contact with the child in need of care and protection shall send a written report along with the photograph of the child to the Committee within twenty-four hours and produce the child before the Committee as soon as the child is medically fit along with a medical certificate to that effect.
(4) The Committee after interaction with the child may issue directions for placing the child with the parent or guardian or Children's Home, where such Home is available in the vicinity of the Committee before which the child is produced, and in the absence of such Home, to direct the placing of the child in safe custody of a fit person or a fit facility.
(5) The Committee or the member on duty shall issue the order for placing the child in Children's Home in Form 18.
(6) The Committee or the member on duty shall order immediate medical examination of the child produced before the Committee or the member on duty, if such examination is needed.
(7) In the case of abandoned or lost or orphaned child, the Committee, before passing an order granting interim custody of the child pending inquiry, shall see that, the information regarding such child is uploaded on a designated portal.
(8) The Committee may, while making an order in Form 19 for placing a child under the care of a parent, guardian or fit person, pending inquiry or at the time of restoration, as the case may be, direct such parent, guardian or fit person to enter into an undertaking in Form 20.
(9) Whenever the Committee orders a child to be kept in an institution, it shall forward to the Person-incharge of such institution, a copy of the order of short term placement pending inquiry in Form 18 with particulars of the Child Care Institution and parents or guardian and previous record. A copy of such order shall also be forwarded to the District Child Protection Unit.
19. Procedure for inquiry.--(1) The Committee shall inquire into the circumstances under which the child is produced and accordingly declare such child to be a child in need of care and protection.
(2) The Committee shall, prima facie determine the age of the child in order to ascertain its jurisdiction, pending further inquiry as per Section 94 of the Act, if need be.
(3) When a child is brought before the Committee, the Committee shall assign the case to a social worker or Case Worker or Child Welfare Officer or to any recognised non-governmental organisation for conducting the social investigation under sub-section (2) of Section 36 of the Act through an order in Form 21.
(4) The Committee shall direct the person or organisation concerned to develop an individual care plan in Form 7 including a suitable rehabilitation plan. The individual care plan prepared for every child in the institutional care shall be developed with the ultimate aim of the child being rehabilitated and re-integrated based on the case history, circumstances and individual needs of the child.
(5) The inquiry shall satisfy the basic principles of natural justice and shall ensure the informed participation of the child and the parent or guardian. The child shall be given an opportunity to be heard and his opinion shall be taken into consideration with due regard to his age and level of maturity. The orders of the Committee shall be in writing and contain reasons.
(6) The Committee shall interview the child sensitively and in a child friendly manner and will not use adversarial or accusatory words or words that adversely impact the dignity or self-esteem of the child.
(7) The Committee shall satisfy itself through documents and verification reports, before releasing or restoring the child, as per Form 19, in the best interest of the child.
(8) The social investigation conducted by a social worker or Case Worker or Child Welfare Officer of the institution or any non-governmental organisation shall be as per Form 22 and must provide an assessment of the family situation of the child in detail, and explain in writing whether it will be in the best interest of the child to restore him to his family.
(9) Before the Committee releases or restores the child, both the child as well as the parents or guardians may be referred to the Counsellor.
(10) The Committee shall maintain proper records of the children produced before it including medical reports, social investigation report, any other report(s) and orders passed by the Committee in regard to the child.
(11) In all cases pending inquiry, the Committee shall notify the next date of appearance of the child not later than fifteen days of the previous date and also seek periodic status report from the social worker or Case Worker or Child Welfare Officer conducting investigation on each such date.
(12) In all cases pending inquiry, the Committee shall direct the person or institution with whom the child is placed to take steps for rehabilitation of the child including education, vocational training, etc., from the date of first production of the child itself.
(13) Any decision taken by an individual member, when the Committee is not sitting, shall be ratified by the Committee in its next sitting.
(14) At the time of final disposal of a case, there shall be at least three members present including the Chairperson, and in the absence of Chairperson, a member so nominated by the Chairperson to act as such.
(15) The Committee shall function cohesively as a single body and as such shall not form any subcommittees.
(16) Where a child has to be sent or repatriated to another district or state or country the Committee shall direct the District Child Protection Unit to take necessary permission as may be required, such as approaching the Foreigners Regional Registration Offices and Ministry of External Affairs for a no-objection certificate, contacting the counterpart Committee, or any other voluntary organisation in the other district or state or country where the child is to be sent.
(17) At the time of final disposal of the case, the Committee shall incorporate in the order of disposal, an individual care plan in Form 7 of such child prepared by the social worker or Case Worker or Child Welfare Officer of the institution or any non-governmental organisation, as the case may be.
(18) While finally disposing of the case, the Committee shall give a date for follow-up of the child not later than one month from the date of disposal of the case and thereafter once every month for the period of first six months and thereafter every three months for a minimum of one year or till such time as the Committee deems fit.
(19) Where the child belongs to a different district, the Committee shall forward the age declaration, case file and the individual care plan to the Committee of the district concerned which shall likewise follow up the individual care plan as if it had passed such disposal order.
(20) The individual care plan shall be monitored by means of a rehabilitation card in Form 14 issued for the purpose by the Committee passing the disposal order and which shall form part of the record of the Committee which follow up the implementation of the individual care plan. Such rehabilitation card shall be maintained by the Rehabilitation-cum-Placement Officer.
(21) All orders passed by the Committee in respect of a child in need of care and protection shall also be uploaded on the designated portal with due regard to the confidentiality and privacy of the child.
(22) When a parent or guardian, wishes to surrender a child under sub-section (1) of Section 35 of the Act, such parent or guardian shall make an application to the Committee in Form 23. Where such parent or guardian is unable to make an application due to illiteracy or any other reason, the Committee shall facilitate the same through the Legal Aid Counsel provided by the Legal Services Authority, the deed of surrender shall be executed as per Form 24.
(23) The inquiry under sub-section 3 of Section 35 of the Act shall be concluded by the Committee expeditiously and the Committee shall declare the surrendered child as legally free for adoption after the expiry of sixty days from the date of surrender.
(24) In case of orphan or abandoned child, the Committee shall make all efforts for tracing the parents or guardians of the child and on completion of such inquiry, if it is established that the child is either an orphan having no one to take care, or abandoned, the Committee shall declare the child legally free for adoption.
(25) In case an abandoned or orphan child is received by a Child Care Institution including a Specialised Adoption Agency, such a child shall be produced before the Committee within twenty-four hours (excluding the time necessary for the journey) along with a report in Form 17 containing the particulars and photograph of the child as well as the circumstances in which the child was received by it and a copy of such report shall also be submitted by the Child Care Institution or a Specialised Adoption Agency to the local police station within the same period.
(26) The Committee shall issue an order in Form 18 for short term placement and interim care of the child, pending inquiry under Section 36 of the Act.
(27) The Committee shall use the designated portal to ascertain whether the abandoned child or orphan child is a missing child while causing the details of the orphan or the abandoned child to be uploaded.
(28) The Committee, after taking into account the risk factors, and in the best interest of the child, may direct the publication of the particulars and photograph of an orphan or abandoned child in national newspapers with wide circulation within seventy two hours from the time of receiving the child for the purposes of tracing out the biological parents or the legal guardian(s).
(29) The Committee, after making inquiry as per the provisions of the Act, shall issue an order in Form 25 declaring the abandoned or orphan child as legally free for adoption and send the same information to the Authority.
(30) Where the parents of the child are traced, the procedure for restoration of the child shall be as per rule 82 of these rules."
7. It is submitted that it is as per the procedure under sub-rule (8) of Rule 18 that the CWC has passed an order for placing of the child i.e. the petitioner no.1 under the care of her father and the necessary order has been passed in the requisite Form 19 as provided under the Rules.
8. The question with regard to entertainability of a petition seeking a writ of habeas corpus in a case where the custody of the corpus has been handed over pursuant to a judicial order would be the question which therefore falls for consideration.
9. Before examining the aforesaid question, it would be apposite to advert to the ambit and scope of a habeas corpus petition.
10. The meaning of the term habeas corpus is "you must have the body". In Halsbury Laws of England, 4th Edition, Vol. 114, it has been observed as follows:
"The writ of habeas corpus ad subjiciendum" which is commonly known as the writ of habeas corpus, is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from the unlawful or unjustifiable detention whether in prison or in private custody. It is a prerogative writ by which the queen has a right to inquire into the causes for which any of her subjects are deprived of their liberty. By it the High Court and the judges of that Court, at the instance of a subject aggrieved, command the production of that subject, and inquiry into the cause of his imprisonment. If there is no legal justification for the detention, the party is ordered to be released. Release on habeas corpus is not, however, an acquittal, nor may the writ be used as a means of appeal."
11. In "Constitutional History of England (1912), Vol. II5" by May, writ of habeas corpus has been described as "the first security of civil liberty". Blackstone has referred to the writ of habeas corpus as "the great and efficacious writ in all manner of illegal confinement."
12. Julius Stone in Social Dimensions of Law and Justice, (1966)6, has described writ of habeas corpus as a writ with an extraordinary scope and flexibility of application.
13. According to Dicey, Introduction to the Study of Law of the Constitution7, Macmillan and Co., Ltd., (1915): "if, in short, any man, woman or child is, or is asserted on apparently good grounds to be deprived of liberty, the court will always issue a writ of habeas corpus to anyone who has the aggrieved person in his custody to have such person brought before the court and if he is suffering restraint without lawful cause, set him free."
14. In Greene vs. Home Secretary8, it has been observed:
"Habeas corpus is a writ in the nature of an order calling upon the person who has detained another to produce the later before the court, in order to let the court know on what ground he has been confined and to set him free if there is no legal jurisdiction of imprisonment."
15. The nature and scope of a writ of habeas corpus was considered in extenso in a Constitution Bench decision in Kanu Sanyal v. District Magistrate, Darjeeling & Ors.9, wherein it was observed that a writ of habeas corpus is essentially a procedural writ dealing with machinery of justice with the object to secure release of a person who is illegally restrained of his liberty. It was stated thus:-
"4. It will be seen from this brief history of the writ of habeas corpus that it is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty. The writ is, no doubt, a command addressed to a person who is alleged to have another person unlawfully in his custody requiring him to bring the body of such person before the Court, but the production of the body of the person detained is directed in order that the circumstances of his detention may be inquired into, or to put it differently, "in order that appropriate judgment be rendered on judicial enquiry into the alleged unlawful restraint". The form of the writ employed is "We command you that you have in the King's Bench Division of our High Court of Justice -- immediately after the receipt of this our writ, the body of A. B. being taken and detained under your custody -- together with the day and cause of his being taken and detained -- to undergo and receive all and singular such matters and things as our court shall then and there consider of concerning him in this behalf". The italicized words show that the writ is primarily designed to give a person restrained of his liberty a speedy and effective remedy for having the legality of his detention enquired into and determined and if the detention is found to be unlawful, having himself discharged and freed from such restraint. The most characteristic element of the writ is its peremptoriness and, as pointed out by Lord Halsbury, L.C., in Cox v. Hakes (supra) "the essential and leading theory of the whole procedure is the immediate determination of the right to the applicant's freedom" and his release, if the detention is found to be unlawful. That is the primary purpose of the writ; that is its substance and end. ..."
16. The question as to whether a writ of habeas corpus can be granted in a situation where the person has been committed to jail custody by a competent court and the order of detention prima facie was not without jurisdiction or wholly illegal, was examined in Col. Dr. B. Ramachandra Rao v. The State of Orissa & Ors.10, and it was held that the position in this regard is well settled and a writ of habeas corpus cannot be granted in such a situation.
17. The aforementioned position that a habeas corpus petition cannot be entertained when a person is committed to judicial custody or police custody by a competent court by order which prima facie does not appear to be without jurisdiction nor is wholly illegal, was reiterated in Manubhai Ratilal Patel v. State of Gujarat & Ors.11. Referring to P. Ramanatha Aiyar's Law Lexicon12 and the decisions in Secy. of State for Home Affairs v. O'Brien13, Ranjit Singh v. State of Pepsu14, Greene v. Secy. of States for Home Affairs, Kanu Sanyal v. District Magistrate, Darjeeling, Ummu Sabeena v. State of Kerala15 and Col. B. Ramachandra Rao v. State of Orissa, it was observed as follows:-
"11. ... The writ of habeas corpus has always been given due signification as an effective method to ensure release of the detained person from prison. In P. Ramanatha Aiyar's Law Lexicon (1997 Edn.), while defining "habeas corpus", apart from other aspects, the following has been stated:
"The ancient prerogative writ of habeas corpus takes its name from the two mandatory words habeas corpus, which it contained at the time when it, in common with all forms of legal process, was framed in Latin. The general purpose of these writs, as their name indicates, was to obtain the production of an individual."
12. In Secy. of State for Home Affairs v. O'Brien, it has been observed that: (AC p. 609) "... It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I. It has through the ages been jealously maintained by the courts of law as a check upon the illegal usurpation of power by the executive at the cost of the liege."
13. In Ranjit Singh v. State of Pepsu, after referring to Greene v. Secy. of States for Home Affairs, this Court observed that: (Ranjit Singh case, AIR pp. 845-46, para 4) "4. ... the whole object of proceedings for a writ of habeas corpus is to make them expeditious, to keep them as free from technicality as possible and to keep them as simple as possible."
The Bench quoted Lord Wright who, in Greene case, had stated thus: (AC p. 302) "... The incalculable value of habeas corpus is that it enables the immediate determination of the right to the applicant's freedom."
Emphasis was laid on the satisfaction of the court relating to justifiability and legality of the custody.
14. In Kanu Sanyal v. District Magistrate, Darjeeling, it was laid down that the writ of habeas corpus deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty.
15. Speaking about the importance of the writ of habeas corpus, a two-Judge Bench in Ummu Sabeena v. State of Kerala has observed as follows: (SCC p. 786, para 15) "15. ... the writ of habeas corpus is the oldest writ evolved by the common law of England to protect the individual liberty against its invasion in the hands of the executive or may be also at the instance of private persons. This principle of habeas corpus has been incorporated in our constitutional law and we are of the opinion that in a democratic republic like India where Judges function under a written Constitution and which has a chapter on fundamental rights, to protect individual liberty the Judges owe a duty to safeguard the liberty not only of the citizens but also of all persons within the territory of India. The most effective way of doing the same is by way of exercise of power by the court by issuing a writ of habeas corpus."
In the said case, a reference was made to Halsbury's Laws of England, 4th Edn., Vol. 11, para 1454 to highlight that a writ of habeas corpus is a writ of highest constitutional importance being a remedy available to the lowliest citizen against the most powerful authority.
16. Having stated about the significance of the writ of habeas corpus as a weapon for protection of individual liberty through judicial process, it is condign to refer to certain authorities to appreciate how this Court has dwelled upon and expressed its views pertaining to the legality of the order of detention, especially that ensuing from the order of the court when an accused is produced in custody before a Magistrate after arrest. It is also worthy to note that the opinion of this Court relating to the relevant stage of delineation for the purpose of adjudicating the legality of the order of detention is of immense importance for the present case.
17. In Col. B. Ramachandra Rao v. State of Orissa, it was opined that a writ of habeas corpus is not granted where a person is committed to jail custody by a competent court by an order which prima facie does not appear to be without jurisdiction or wholly illegal."
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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 and Kanu Sanyal, 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. 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."
18. A similar view was taken in Saurabh Kumar v. Jailor, Koneila Jail & Anr.16, wherein it was opined that writ of habeas corpus would not be maintainable against a judicial order remanding a person to custody. It was observed as follows:-
"22. The only question with which we are concerned within the above backdrop is whether the petitioner can be said to be in the unlawful custody. Our answer to that question is in the negative. The record which we have carefully perused shows that the petitioner is an accused facing prosecution for the offences, cognizance whereof has already been taken by the competent court. He is presently in custody pursuant to the order of remand made by the said Court. A writ of habeas corpus is, in the circumstances, totally misplaced. ..."
19. The aforesaid view was again reiterated in the decision in State of Maharashtra & Ors. v. Tasneem Rizwan Siddiquee17, and a petition seeking a writ of habeas corpus was held to be not maintainable in a case of a police custody pursuant to remand order passed by a jurisdictional Magistrate.
20. The question with regard to maintainability of a petition seeking a writ of habeas corpus against a judicial order remanding accused to custody again came up for consideration in Serious Fraud Investigation Office v. Rahul Modi And Another Etc.18, and it was held that the act of directing remand of accused is a judicial function and challenge to order of remand is not to be entertained in a habeas corpus petition. Referring to the earlier decisions in Manubhai Ratilal Patel v. State of Guajarat, Kanu Sanyal v. Distt. Magistrate, Darjeeling, B. Ramachandra Rao v. State of Orissa, Sanjay Dutt v. State19, Saurabh Kumar v. Jailor, Koneila Jail and State of Maharashtra v. Tasneem Rizwan Siddiquee, following observations was made in the judgement:-
"20.1. In Manubhai Ratilal Patel v. State of Gujarat a Division Bench of this Court extensively considered earlier decisions in the point including cases referred to above. It also dealt with an issue whether habeas corpus petition could be entertained against an order of remand passed by a Judicial Magistrate. The observations of this Court in paras 20 to 24 and para 31 were as under: (SCC pp. 323-324 and 326) "20.After so stating, the Bench in Kanu Sanyal case opined that for adjudication in the said case, it was immaterial which of the three views was accepted as correct but eventually referred to para 7 in B. Ramachandra Rao wherein the Court had expressed the view in the following manner: (SCC p. 259) ''7. ... in habeas corpus proceedings the 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.' Eventually, the Bench ruled thus: (Kanu Sanyal case, SCC p. 148, para 5) ''5. ... The production of the petitioner before the Special Judge, Visakhapatnam, could not, therefore, be said to be illegal and his subsequent detention in the Central Jail, Visakhapatnam, pursuant to the orders made by the Special Judge, Visakhapatnam, pending trial must be held to be valid. This Court pointed out in B. Ramachandra Rao v. State of Orissa (SCC p. 258, para 5) that a writ of habeas corpus cannot be granted "5. ... where a person is committed to jail custody by a competent court by an order which prima facie does not appear to be without jurisdiction or wholly illegal".'
21. The principle laid down in Kanu Sanyal, thus, is that any infirmity in the detention of the petitioner at the initial stage cannot invalidate the subsequent detention and the same has to be judged on its own merits.
22. At this juncture, we may profitably refer to the Constitution Bench decision in Sanjay Dutt v. State wherein it has been opined thus: (SCC p. 442, para 48) ''48. ... It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order.' * * *
31. ... 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 Court20 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 B. Ramachandra Rao and Kanu Sanyal, 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. 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."
20.2. In Saurabh Kumar v. Jailor, Koneila Jail the issue was dealt with in para 13 of the leading judgment as under: (SCC p. 440)
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 9-4-2014, called for from the Court of the 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 of 2013 pending before the Court of the learned Additional Chief Judicial Magistrate, Dalsingsarai."
Thakur, J. (as the learned Chief Justice then was) who agreed with the leading judgment authored by Ramana, J., also dealt with the matter in para 22 of his concurring opinion as under: (Saurabh Kumar case, SCC p. 442) "22. The only question with which we are concerned within the above backdrop is whether the petitioner can be said to be in the unlawful custody. Our answer to that question is in the negative. The record which we have carefully perused shows that the petitioner is an accused facing prosecution for the offences, cognizance whereof has already been taken by the competent court. He is presently in custody pursuant to the order of remand made by the said Court. A writ of habeas corpus is, in the circumstances, totally misplaced. 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."
20.3. A Bench of three learned Judges of this Court in State of Maharashtra v. Tasneem Rizwan Siddiquee concluded as under: (SCC pp. 751-52, paras 10-12) "10. 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 Saurabh Kumar v. Jailor, Koneila Jail and Manubhai Ratilal Patel v. State of Gujarat. It is no more res integra. In the present case, admittedly, when the writ petition for issuance of a writ of habeas corpus was filed by the respondent on 18-3-2018/19-3-2018 and decided by the High Court on 21-3-201821 her husband Rizwan Alam Siddiquee was in police custody pursuant to an order passed by the Magistrate granting his police custody in connection with FIR No. I-31 vide order dated 17-3-2018 and which police remand was to enure till 23-3-2018. 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.
* * *
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. The first question posed by the High Court, thus, stands answered. In the present case, as on the date when the matter was considered by the High Court and the order was passed by it, not only were there orders of remand passed by the Judicial Magistrate as well as the Special Court, Gurugram but there was also an order of extension passed by the Central Government on 14-12-2018. The legality, validity and correctness of the order or remand could have been challenged by the original writ petitioners by filing appropriate proceedings. However, they did not raise such challenge before the competent appellate or revisional forum. The orders of remand passed by the Judicial Magistrate and the Special Court, Gurugram had dealt with merits of the matter and whether continued detention of the accused was justified or not. After going into the relevant issues on merits, the accused were remanded to further police custody. These orders were not put in challenge before the High Court. It was, therefore, not open to the High Court to entertain challenge with regard to correctness of those orders. The High Court, however, considered the matter from the standpoint whether the initial order of arrest itself was valid or not and found that such legality could not be sanctified by subsequent order of remand. Principally, the issue which was raised before the High Court was whether the arrest could be effected after period of investigation, as stipulated in the said order dated 20-6-2018 had come to an end. The supplementary issue was the effect of extension of time as granted on 14-12-2018. It is true that the arrest was effected when the period had expired but by the time the High Court entertained the petition, there was an order of extension passed by the Central Government on 14-12-2018. Additionally, there were judicial orders passed by the Judicial Magistrate as well as the Special Court, Gurugram, remanding the accused to custody. If we go purely by the law laid down by this Court with regard to exercise of jurisdiction in respect of habeas corpus petition, the High Court was not justified in entertaining the petition and passing the order."
21. The question as to whether a writ of habeas corpus would lie when a person is remanded to judicial custody or police custody, was subject matter of consideration in a recent decision in the case of Gautam Navlakha v. National Investigation Agency22, and after discussing the legal position on the point it was held that only in a situation where the remand is absolutely illegal or the order suffers from the vice of lack of jurisdiction or the same has been passed in an absolutely mechanical manner, the person can seek remedy of habeas corpus and barring such situations, a habeas corpus petition would not lie. It was stated thus:-
"67. 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,. 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."
68. 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 Raoand Kanu Sanyal, 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."
69. 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 v. Rahul Modi 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."
70. 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".
71. 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."
22. Reference may also be had to a Full Bench decision of this Court in the case of Km. Rachna and Another v. State of U.P. and Others23, wherein one of the questions which was referred was as to whether a writ of habeas corpus was maintainable against a judicial order passed by a Magistrate or by the Child Welfare Committee appointed under Section 27 of the JJ Act. The aforementioned question was answered by the Full Bench in the following manner:-
"79. ... If the petitioner corpus is in custody as per judicial orders passed by a Judicial Magistrate or a Court of Competent Jurisdiction or a Child Welfare Committee under the J.J. Act. Consequently, such an order passed by the Magistrate or by the Committee cannot be challenged/assailed or set aside in a writ of habeas corpus. ..."
23. Having regard to the foregoing discussion, the legal position which emerges is that in a case where the custody of the petitioner corpus as been handed over as per a judicial order passed a Judicial Magistrate or a court of competent jurisdiction or a CWC constituted under the JJ Act, the said order cannot be assailed in a petition seeking a writ of habeas corpus.
24. In the present case, the petitioner no.1 having been placed under the care of her father-respondent no.4 pursuant to an order passed by the CWC exercising powers under the JJ Act and the Rules made thereunder, the custody which is presently with the said respondent cannot be said to be illegal and a petition for a writ of habeas corpus would not be entertainable in the facts of the case.
25. Learned counsel for the petitioners has not been able to dispute the aforesaid legal position.
26. No other ground was urged.
27. In view of the aforesaid, this Court is not inclined to exercise its extraordinary jurisdiction under Article 226 of the Constitution, so as to entertain the petition seeking a writ of habeas corpus.
28. The petition thus fails, and is accordingly dismissed.
Order Date :- 6.10.2021 Kirti (Dr. Y.K. Srivastava, J)