Allahabad High Court
Mohd. Shoaib Thru Next Friend Gaurav ... vs State Of U.P.Thru Prin.Secy. Home And ... on 23 January, 2020
Bench: Anil Kumar, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 9 Case :- HABEAS CORPUS No. - 36848 of 2019 Petitioner :- Mohd. Shoaib Thru Next Friend Gaurav Kumar Kashyap Respondent :- State Of U.P.Thru Prin.Secy. Home And Ors. Counsel for Petitioner :- Atul Benjamin Solomon,Alok Singh Chauhan Counsel for Respondent :- G.A. Hon'ble Anil Kumar,J.
Hon'ble Virendra Kumar Srivastava,J.
Heard Sri Atul Banjamin Solomon, learned counsel for the petitioner and Sri S.P.Singh, learned Additional Government Advocate.
By means of present writ petition, petitioner has prayed the following main relief:-
" Issue a writ, order or direction in the nature of Habeas Corpus commanding the opposite parties to produce the petitioner and set him on liberty."
Learned Additional Government Advocate submits that the petitioner has been released on bail, so the relief, as claimed in the writ petition, cannot be granted in the instant writ petition.
Learned counsel for the petitioner while opposing the arguments raised by learned Additional Government Advocate, submits that this Court on 21.12.2019 has passed the order which reads as under:-
"This Bench has been constituted to hear this petition under the order passed by the Hon'ble Senior Judge on 20.12.2019.
Supplementary affidavit filed on behalf of the petitioner is taken on record.
Petitioner is a lawyer and has filed this writ petition through his next friend, Shri Gaurav Kumar Kashyap who is also an Advocate.
Allegations in the petition are that on 17.12.2019 the City Magistrate, Lucknow by passing an order under Section 107/116 of the Code of Criminal Procedure required the petitioner to furnish security for which the date fixed by the City Magistrate in the said order is 23.12.2019. It has further been averred in the petition that on 18.12.2019 the petitioner was served with an order passed by the Station House Officer, Police Station- Aminabad under Section 149 Cr.P.C. prohibiting him that he shall neither organize nor participate in any agitation or procession which may violate Section 144 of the Cr.P.C. which had been promulgated.
Learned counsel appearing for the petitioner has stated that in the intervening night of 19-20.12.2019 at 00:00 hours certain police personnel took the petitioner out of his house and since then his whereabouts are not known.
Today, supplementary affidavit has been filed, wherein, an application dated 20.12.2019 by wife of the petitioner has been annexed which is addressed to the Senior Superintendent of Police. Through said application wife of the petitioner had inquired as to whereabouts of her husband. In the application it has also been stated by the petitioner's wife that the petitioner was kept under house arrest since 5.30 p.m. on 18.12.2019 and that the police had taken him out of his residence at around 11.45 p.m. in the night informing the petitioner that he had been summoned by the Circle Officer, however, from the said point of time whereabouts of the petitioner are not known.
In the aforesaid facts and circumstances, it has been contended by the learned counsel for the petitioner that detention of the petitioner by the police is unlawful and as such this Court may pass appropriate orders issuing a writ of habeas corpus setting the petitioner free.
On the other hand learned Additional Government Advocate on the basis of instructions received from Station House Officer, Police Station- Aminabad, Lucknow has stated that petitioner was arrested at 08.45 a.m. on 20.12.2019 from Clarks Avadh Tiraha, Lucknow, as he was wanted in connection with Case Crime No. 0600 of 2019, registered under Sections 147, 148, 149, 152, 307, 323, 504, 506, 332, 353, 188, 534, 436, 120-B, 427 I.P.C, Section 3, 4 of the Prevention of Damage to Public Property Act, 1984 and Section 7 of the Criminal Law (Amendment) Act, 1932. He has further stated that said First Information Report was lodged in relation to an incident which had occurred on 19.12.2019 at 13.15 p.m. and said incident potentially created lawlessness. Learned Additional Government Advocate has further stated that various persons indulged in violent agitation which led to disruption of public order.
Refuting the submissions made by the learned A.G.A., it has been stated by learned counsel appearing for the petitioner that as a matter of fact petitioner was not part of the agitation or the incident in respect of which the First Information Report was lodged at Police Station Hazratganj on 19.12.2019 and further that by posting a police picket in front of the house of the petitioner, he was virtually arrested in his house. These allegations have been leveled in the application said to have been submitted by wife of the petitioner to the Senior Superintendent of Police, as well.
In the instructions submitted by the S.H.O., P.S. Aminabad, Lucknow to the Office of the learned Government Advocate it has been stated that some information as mentioned in Para 6 of the petition, was given by some one in the house of the petitioner at Dial 112 in the intervening night of 19-20.12.2019, however, no specific information was furnished.
Instructions contained in the letter of S.H.O., P.S.- Aminabad, dated 21.12.2019 are taken on record.
Learned Additional Government Advocate has also submitted that on being arrested on 20.12.2019 petitioner was produced before the Magistrate who has remanded him to Judicial Custody and pursuant thereto he is lodged in Jail.
The extract of the General Diary, P.S. Hazraganj recorded at 10.14 a.m. on 20.12.2019 states that after arresting the petitioner, he was sent for his medical examination to Civil Hospital.
In the aforesaid circumstances, we call upon the learned A.G.A. to file a comprehensive affidavit in reply to the averments made in the petition as also to the facts mentioned in this order. The affidavit to be filed by the learned A.G.A. shall also contain a true copy of the arrest memo and documents revealing the fact that petitioner on his arrest was sent to the Civil Hospital and was medically examined. The affidavit to be filed under this order by the learned A.G.A. shall be served upon the learned counsel for the petitioner by 24.12.2019.
Rejoinder affidavit or reply by the petitioner shall be filed by the next date of listing.
It is specifically directed that right of visitation to family member(s)/ lawyer(s) of the petitioner shall be made available by jail authorities and other police authorities as per law.
List this case on the opening of the Court i.e. 02.01.2020 as fresh"
This Court on 02.01.2020 has passed the following orders:-
"Heard Sri A. B. Solomon, learned counsel for the petitioner as well as A.G.A. Sri S. P. Singh, who has already given copy of the counter affidavit to the petitioner on 24.12.2019. The rejoinder affidavit prepared by Sri S. B. Solomon has been handed over to the A.G.A. today in the Court itself.
Counter and rejoinder affidavits as well as objection filed today by the respective parties are taken on record.
After hearing both the parties it appears that there are some facts on which A.G.A. wants to seek instructions and verify the same. For example, the contention of the petitioner is that he was not picked up from Clarks Awadh Tiraha as has been shown in the counter affidavit and was picked up much earlier i.e. in the night of 19/20.12.2019 at 11.45 P.M. He has further submitted that there are number of CCTV cameras installed at Clarks Awadh Tiraha, whose footage ought to have been taken into account while asserting that the petitioner was picked up at 8.45 A.M. The message sent by the wife of the petitioner may also be taken into account and the instructions may be made available.
On the request of Additional Government Advocate put up this case tomorrow immediately after fresh.
Since this is a habeas corpus petition and life and liberty of the petitioner is at stake, it is expected that the A.G.A. will be fully prepared on this issue."
Accordingly, learned counsel for the petitioner submits that the matter may be decided in the light of subsequent developments. In this regard, he has placed reliance on the judgment of the Hon'ble the Supreme Court in the case of of Shri D.K.Basu V.s State of West Bengal reported in 1997 AIR(SC) 610.
We have heard learned counsel for the parties and gone through the record.
From perusal of pleadings as well as the relief claimed by the petitioner in the writ petition, the undisputed position which emerge out is that by means of instant writ petition petitioner has prayed for writ of Habeas Carpus for release of petitioner/ Mohd. Shoaib Further, on the basis of arguments raised by the parties the petitioner was taken remand and subsequently, on an application moved by the petitioner, he was granted bail.
Further in regard to the order passed by this Court which are quoted herein above, learned counsel for the petitioner has raised arguments for taking adequate action against the officer concerned on the basis of judgment which was rendered by Hon'ble Apex court in the case of Shri D.K.Basu (supra). The arguments raised by learned counsel for the petitioner cannot be accepted because in this regard there is no pleading in the writ petition. As per settled proposition of law if there is no pleading in respect to the fact and relief in the writ petition, the same cannot be considered in view of law laid down by Hon'ble the Apex Court in the case of Siddu Venkappa Devadiga Vs. Rangu S. Devadiga and others reported in AIR 1977 SC 890.
Further in the State of Maharashtra Vs. Tasneem Rizwan Siddiqui reported in (2018) 9 SCC 745, Hon'ble Supreme Court while relying on Saurabh Kumar through his father Vs. Jailer, Koneila Jail (2014) 13 SCC 436 and Manubhai Ratilal Patel Vs. State of Gujrat (2013) 1 SCC 314 has held as under:-
"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.(2014) 13 SCC 436, and Manubhai Ratilal Patel Vs. State of Gujarat and Ors.(2013)1 SCC 314. 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 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 23rd 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"
So far as the reliance placed by learned counsel for the petitioner in the case of D.K.Basu (supra) is concerned, petitioner cannot derive any benefit in his favour because the the petitioner was arrested ,was sent to judicial custody and later on bailed out in pursuance of judicial order, so the Habeas Corpus under Article 226 of the Constitution of India is not maintainable .
In view of the above the writ petition lacks merits and is dismissed.
(Virendra Kumar Srivastava,J.) (Anil Kumar,J.) Order Date :- 23.1.2020 dk/