Allahabad High Court
Abhishek Kumar Singh Thru Nest Friend ... vs State Of U.P. Thru Addl.Chief Secy. Home ... on 14 December, 2021
Bench: Rakesh Srivastava, Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 2 A.F.R. Case :- HABEAS CORPUS No. - 29158 of 2021 Petitioner :- Abhishek Kumar Singh Thru Nest Friend Shubhangi Singh Respondent :- State Of U.P. Thru Addl.Chief Secy. Home And Ors. Counsel for Petitioner :- Sushil Kumar Singh Counsel for Respondent :- G.A. Hon'ble Rakesh Srivastava,J.
Hon'ble Shamim Ahmed,J.
(Per : Hon'ble Shamim Ahmed, J.)
1. Heard Shri Jyotindra Mishra, learned Senior Advocate, assisted by Shri Sushil Kumar Singh, learned counsel for the petitioner and Shri Shiv Nath Tilhari, learned Additional Government Advocate.
2. This habeas corpus petition has been filed seeking the following reliefs:
(i) issue a writ, order or direction in the nature of ''Habeas Corpus' declaring the petitioner's arrest/ detention bad in law, consequently a writ of Habeas Corpus be issued and the petitioner be set at liberty forthwith.
(ii) issue any other suitable order or direction which this Hon'ble Court may deem fit, just and proper under the circumstances of the case may also be passed in favour of the petitioner.
(iii) allow the petition of petitioner with cost.
3. Learned counsel for the petitioner submits that the petitioner is challenging his arrest and detention by the respondents on 09.12.2021 at about 05.00 hours, which was made unlawfully without following the provisions of Section 41-A of the Criminal Procedure Code by issuing and giving a notice under the said provision.
4. It has been submitted on behalf of the petitioner that he is a practicing advocate at Civil Court as well as the High Court at Lucknow since 2001. In the year 2017, with respect to an incident relating to Mrs. Sandhya Srivastava, the then Chief Judicial Magistrate, Lucknow an FIR dated 25.03.2017 was registered bearing FIR No. 149 of 2017, under Sections 147, 149, 504, 506, 186, 353, 354, 341, 228 I.P.C. and Section 7 of Criminal Law Amendment Act, P.S. Wazirganj, District Lucknow against two named accused, Anurag Trivedi and Saifi Hasan Mirza and 25 to 30 unknown advocates/ persons. It was submitted that there is no allegation against the petitioner in the said FIR and that serious allegations had been made only against Anurag Trivedi and Saifi Hasan Mirza. The contents of the FIR are being reproduced hereinbelow:
udy rgjhj fgUnh okfnuh Vkbi'kqnk iszf"kdk] la/;k JhokLro] eq[; U;kf;d eftLVsªV] y[kuÅ lsok eas] Fkkuk/;{k othjxat y[kuÅ fo"k;&vf/koDrk vuqjkx f=osnh] lSQh fetkZ ,oa muds 25&30 lkfFk;ksa }kjk xkyh fn;s tkus o vHknz O;ogkj fd;s tkus ds dkj.k muds fo:) izFke lwpuk fjiksVZ ntZ djds dk;Zokgh fd;s tkus gsrq egksn; fuosnu gS dy fnukad 24-3-2017 dks eSa U;k;ky; le; ij ekuuh; tuin U;k;k/kh'k] egksn; ds foJke d{k ls vkt gkssus okyh ekuhVfjax lsy dh ehfVax ij ppkZ djds vius foJke d{k esa vk jgh Fkh rHkh vius dk;kZy; ,oa U;k;ky; d{k dk njoktk cUn ns[kdj eSus vius LVkQ jkds'k ckcw ls iwNk fd ;g njoktk cUn D;ksa gS rHkh vf/koDrk vuqjkx f=osnh us esjs ikl vkdj dgk fd eSaus cUn djok;k gS] bl ij eSus iwNk D;ksa] rHkh vf/koDrk us dgk fd vki us jtuh'k feJk]¼vij eq[; U;kf;d eftLVsªV] izFke½ ds ;gk¡ ls Qkby eaxok;h gS D;k eSus dgk fd gk¡ eaxok;h gS] ysfdu vki fdl gd ls eq>ls ;g iwN jgs gS rc bl ij ogka [kM+s ,d vU; vf/koDrk lSQh fetkZ us dgk ;s mik/;{k gS] rHkh vuqjkx f=osnh us lhuk Bksddj dgk fd eSa vf/koDrk gw¡] vki us ml dksVZ ls Qkby D;ksa eaxk;h blds ckn yxHkx 25&30 vf/koDrk us eq>s ?ksj fy;k] esjk xuj bj'kkn mu yksxksa dks gVkrk jgk] ijUrq vuqjkx f=osnh us yxHkx ph[krs gq, eq>ls dgk eknjpksn lkyh Hkz"Vkpkj dk vM~Mk cuk j[kk gS eSa rqjar gh okil eqM+dj pSEcj dh vksj tkus yxh] esjs ihNs&ihNs vuqjkx f=osnh ,oa lSQh fetkZ rFkk muds lkFk 25&30 vf/koDrk ek¡ cgu dh xkyh nsrs gq, ,oa ;g dgrs gq, fd j.Mh] lkyh rq>s NksMs+axs ugha ns[krk gw¡ dSls ukSdjh djrh gS] fdlh eftLVsªV dks dk;Z ugha djus nsaxs vkx yxk fn;k tk;sxk ns[krk gw¡ gkbZdksVZ vkSj ftyk tt rFkk rw vf/koDrkvksa dk D;k m[kkM+ ysxk rFkk ftUnk o eqnkZckn ds ukjs yxkrs gq, lHkh eftLVsªV U;k;ky;ksa ,oa dk;kZy;ksa dks cUn djk fn;k x;k 'kksj ljkcs] ukjsckth ds dkj.k U;k;ky;ksa ,oa dk;kZy;ksa esa dk;Z djus dk ekgkSy Hkh ugha jg x;k esjs pSECkj esa vk tkus ij Hkh pSEcj ds njokts ij 25&30 vf/koDrk vkdj ukjs ckth ,oa tksj&tksj ls eknjpksn] j.Mh vkfn xkyh nsus yxs esjs }kjk rqjar ekuuh; tuin U;k;k/kh'k] egksn;] o ofj"B iqfyl v/kh{kd] y[kuÅ dks nwjHkk"k ls lwpuk nh xbZ egksn; vki dks voxr djkuk gS fd vf/koDrk vuqjkx f=osnh eq0 v0 la0 349@2016 varxZr /kkjk 395 Hkkjrh; naM fo/kku] Fkkuk dSljckx] y[kuÅ dk oknh gS rFkk o eqdnek vijk/k la[;k 351@2016] vUrxZr /kkjk 395@353@504@506 Hkkjrh; naM fo/kku ,oa yksd lEifRRk {kfr fuokj.k vf/kfu;e] Fkkuk dSljckx] y[kuÅ ,oa eqdnek vijk/k la[;k 348@2016 vUrxZr /kkjk 395@397@332@353 Hkkjrh; naM fo/kku ,oa yksd lEifRRk {kfr fuokj.k vf/kfu;e ,oa 7 fdz0 ykW0 ,esaMesUV vf/kfu;e] Fkkuk dSljckx] y[kuÅ rFkk eqdnek vijk/k la[;k 350@2016 vUrxZr /kkjk 395@397@307@332@353@426 Hkkjrh; naM fo/kku ,oa yksd lEifRRk {kfr fuokj.k vf/kfu;e] Fkkuk dSljckx] y[kuÅ esa vfHk;qDr gS vf/koDrk vuqjkx f=osnh ,oa lSQh fetkZ rFkk muds lkfFk;ksa }kjk lcls igys rks U;k;ky; d{k cUn djok;k x;k mlds ckn dk;kZy; cUn djokdj okndkfj;ksa ds le{k esjs lkFk vHknz O;ogkj fd;k x;k] ftlls U;k;ky; dh xfjek izfrdwy :i ls izHkkfor gqbZ vf/koDrkvksa dk mDRk d`R; vR;Ur ihM+knk;d rFkk U;kf;d xfjek dks Bsl igqapkus okyk gS] ftlls dy iwjs fnu eSa ekufld lnes esa jgh] ftlds dkj.k rqjUr izFke lwpuk fjiksVZ ugh fy[kk ikbZ vf/koDrkvksa dk mDr d`R; vkijkf/kd izd`fr dk gS] tks fd lEiw.kZ U;k; O;oLFkk ds fy, ?kkrd gS ftl ij ;Fkk'kh?kz vadq'k yxk;k tkuk vko';d gS vr% fuosnu gS fd bl izdj.k ,oa mijksDr vf/koDrkx.k vuqjkx f=osnh ,oa lSQh fetkZ o muds lk{kh vf/koDRkkvksa ds }kjk fd;s x;s vijk/k o muds fo:) vkijkf/kd bfrgkl dks n`f"Vxr j[krs gq, ;Fkksfpr /kkjkvksa esa eqdnek iathd`r dj dk;Zokgh djsa lknj Hkonh;k SD vaxszth gLrk{kj viBuh;] 25-3-17 ¼la/;k JhokLro½ eq[; U;kf;d eftLVsªV] y[kuÅ fnukad 25-3-2017 uksV& rgjhj dh udy eq> dk0 29] 'kSYksUnz izrki flag }kjk v{kj'k% dEI;wVj ls Vkbi fd;k x;k dk;eh dk0 fnus'k iky flag ds }kjk fd;k x;kA
5. The learned counsel for the petitioner submitted that Anurag Trivedi and Saifi Hasan Mirza were arrested with respect to the aforesaid FIR No. 149 of 2017. After investigation, the Investigating Officer submitted charge sheet on 24.05.2017 and the learned Magistrate also took cognizance on the charge sheet and the trial of the case is pending in the court of Additional Chief Judicial Magistrate, C.B.I., (Ayodhya Matter), Lucknow. Furthermore, statements of Smt. Sandhya Srivastava, informant and the witnesses, namely, Shri Ram Kripal (Clerk of C.J.M. Office, Lucknow), Shri Sarju Prasad (Junior Assistant of C.J.M. Office, Lucknow), Constable Shri Irshad Ullah Khan (Gunner/ Security Personnel of C.J.M., Lucknow), Shri Rakesh Kumar (Case Clerk of C.J.M. Court, Lucknow) and Ms. Deepali Srivastava (Junior Clerk of the Court of C.J.M., Lucknow) were also recorded under Section 161 Cr.P.C. on 29.03.2017.
6. The learned counsel submitted that on 30.10.2021, when the trial was in progress against the named accused Anurag Trivedi and Saifi Hasan Mirza in the court of Special Chief Judicial Magistrate/CBI (Ayodhya Prakaran), Lucknow, an incident took place between Piyush Srivastava, Advocate, and his colleagues with another group of Advocates. Due to the clashes and tussle which ensued, Piyush Srivastava, Advocate and his colleagues sustained injuries. An FIR with respect to this incident was registered on 30.10.2021 vide Case Crime No. 368 of 2021, under Sections 147, 323, 504, 506 I.P.C. Shri Piyush Srivastava filed a writ petition before this Court bearing Writ Petition No. 25848 (MB) of 2021. In the said writ petition this Court passed orders on 15.11.2021, 17.11.2021, 23.11.2021 and 30.11.2021. The orders dated 17.11.2021 and 23.11.2021, being relevant, are being reproduced hereinbelow:
Order dated 17.11.2021 In pursuance of the order passed by this Court Sri Somen Verma, Deputy Commissioner of Police, West Zone, Lucknow, Sri Raj Kishore Pandey, Station House Officer, Police Station Wazirganj and Sri Tej Prakash Singh, the Investigating Officer are present in person.
Supplementary affidavit dated 15.11.2021 as well as the supplementary affidavit filed today are taken on record.
The petitioner, Piyush Srivastava, Shailendra Kumar Misra and Ms Suchita Singh have filed this writ petition praying inter alia the following relief:
i) Issue a writ, order or direction in the nature of mandamus commanding any responsible administrative or judicial officer to be appointed by the Hon'ble Court to conduct a thorough inquiry into the incident dated 30.10.2021 at about 4.30 p.m. adjacent to Gate No. 6, old High Court, Kaiserbagh, Lucknow and punish the culprits and pass other appropriate orders, in the interest of justice.
The petitioners are advocates practicing at Lucknow. On 30.10.2021 they filed a bail application in connection to FIR No. 581 of 2018 in the court of Special Additional Chief Judicial Magistrate, Central Bureau of Investigation (Ayodhya Prakaran), Lucknow. The said application was taken up at 1 pm and was allowed and the accused persons were ordered to be enlarged on bail.
It is alleged that at about 1.30 pm Satish Kumar Verma, the complainant in the case, claiming himself to be an advocate practicing at Collectorate, Lucknow accosted the petitioners and asked them not to file bail bonds of the accused persons. At about 3 pm Shailendra Kumar Misra verified the bail bonds as well as the sureties and about 4 pm the accused persons were released on bail.
It is alleged that at about 4.40 pm the same day, 30 to 40 advocates surrounded the petitioners near Gate No. 6, Old High Court Building and hurled abusive language and badly assaulted the petitioners. A first information report was also lodged with the Wazirganj police station. In support of their allegation the petitioners have brought on record some photographs and a video CD recording of the incident.
It is stated that it is not safe to perform lawful duties in the District Courts of Lucknow as violence with litigants, police personnel and lawyers has become the rule of the day. In order to demonstrate the rising violence in court campus, the petitioners have brought on record a first information report dated 25.3.2017 lodged by the then Chief Judicial Magistrate, Lucknow against Anurag Trivedi, Saifi Mirza and others complaining about the violent behaviour of the lawyers.
We have heard the petitioners who have appeared in person and Sri H.P. Srivastava learned Additional Chief Standing Counsel at some length.
This court cannot sit and watch the unprofessional and unruly behaviour of the lawyers as a mute spectator and is duty bound to ensure that the citizens do not face any difficulty in accessing justice. Any effort to obstruct the rule of law has to be curbed with a heavy hand.
In this background, the Deputy Commissioner of Police is directed to hold an inquiry and identify the persons who are involved in the incident. While doing so it would be open to him to take help of the averments made in the writ petition as well as the photographs and CD annexed with the writ petition. The District Judge, Lucknow, the President of Lucknow Bar Association and Central Bar Association are directed to extend all help to the Deputy Commissioner of Police in identifying the culprits.
The Deputy Commissioner of Police shall submit a comprehensive report regarding the unfortunate incident and also the details of the action taken in connection with the first information report dated 25.03.2017 in a sealed cover to this Court by the next date fixed.
It is strange that on the report of the Chief Judicial Magistrate, no arrest has been made although the charge-sheet is alleged to have been filed.
The District Judge, Lucknow is directed to send a comprehensive report regarding the incident of 30.10.2021 wherein he shall also state the action taken on the reference made by the Chief Judicial Magistrate In the affidavit filed by the petitioners today the petitioners have stated that they are being extended threat by the advocates involved in this case.
In the circumstances, the Deputy Commissioner of Police is directed to provide armed security to the petitioners, namely, Piyush Srivastava, Shailendra Kumar Mishra and Ms. Suchita Singh.
All the officers who are present today shall appear again on the date fixed.
Let the case be listed on 23.11.2021.
The Senior Registrar is directed to communicate this order to the District Judge, Lucknow.
And then Order dt. 23.11.2021 In pursuance of the order passed by this Court Sri Somen Barma, Deputy Commissioner of Police, West Zone, Lucknow, Sri Raj Kishore Pandey, Station House Officer, Police Station Wazirganj and Sri Tej Prakash Singh, the Investigating Officer are present in person.
The petitioners Piyush Srivastava, Shailendra Kumar Mishra and Ms. Suchita Singh are present.
Sri Arvind Kumar, Advocate has filed his vakalatnama along with counter affidavit on behalf of respondent no. 6. The same is taken on record.
A copy of the said counter affidavit has been served upon the counsel for the petitioners as well as Sri H.P. Srivastava, learned Additional Chief Standing Counsel appearing on behalf of State-respondents and Sri Subhash Chandra Pandey, learned counsel representing Bar Council of Uttar Pradesh.
Report dated 18.11.2021 along with photographs (32 in number) filed by Sri Somen Barma as well as the report dated 26.11.2021 submitted by the In-charge District Judge, Lucknow are taken on record.
Sri Somen Barma at the outset prays for a week's further time to complete the investigation and submit a comprehensive report in terms of the order passed by this Court earlier.
Let that be done.
As prayed, list on 30.11.2021.
The officers, who are present today, shall appear again on the date fixed.
7. In pursuance of the orders passed by this Court in Writ Petition No. 25848 (MB) of 2021, further investigation was started in Case Crime No. 149 of 2017, by the orders of the learned Magistrate. The submission of the petitioner is that it was only thereafter, that the statement of the victim-informant, Smt. Sandhya Srivastava, the then Chief Judicial Magistrate, Lucknow was recorded under Section 164 Cr.P.C., wherein she named five accused including namely, Abhishek Singh (present petitioner), Idrisi @ Atmad Husain Idrisi, Advocate, Sharad Yadav, Rajkumar Sharma and Saurabh Singh. Based upon the statement made by the victim-informant, the petitioner was taken into custody by the police on 09.12.2021 and thereafter the learned Magistrate also gave judicial remand of fourteen days vide order dated 10.12.2021. Since then, the petitioner has been confined to jail. The other advocate, Idrisi @ Atmad Husain Idrisi, was also in custody.
8. It was argued on behalf of the petitioner that the petitioner was illegally arrested in connection with the FIR No. 149 of 2017 as Section 41 and 41-A of the Cr.P.C. have not been complied with. Reliance has been placed on the judgments of the Hon'ble Apex Court in the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 and D. K. Basu v. State of West Bengal, (1997) 1 SCC 416. It was further argued that the remand order dated 10.12.2021 passed by the learned Judicial Magistrate is also illegal, as the same has been passed without due application of mind. Violation of fundamental rights guaranteed under Article 21 of the Constitution of India has also been alleged by the petitioner, and a prayer for the release of the petitioner has been made.
9. Per contra, learned Additional Government Advocate has submitted that the present Habeas Corpus petition is not maintainable and the same is liable to be dismissed as the petitioner is a hardcore criminal and is already in custody in pursuance of the judicial order dated 10.12.2021 passed by the learned Judicial Magistrate. It was argued that therefore the petitioner's confinement cannot be said to be illegal. It was also submitted that the allegations made by the then Chief Judicial Magistrate against the accused persons, in the FIR No. 149 of 2017 dated 25.03.2017, are very serious in nature and the conduct of the petitioner and his other associates are condemnable in the eyes of law. Reference was made to another FIR No. 368 of 2021, under Sections 147, 148, 149, 323, 504, 506, 341, 352, 355, 419 I.P.C., Police Station Wazirganj, District Lucknow which was alleged to have been lodged against the petitioner. The learned counsel argued that the petitioner has other remedy for redressal of his grievance, but as the detention is not illegal and the same is in accordance with law, the petitioner cannot take benefit of Section 41 and 41-A Cr.P.C. In view of the above, it was submitted that the present Habeas Corpus petition is liable to be dismissed.
10. In support of his submissions, the learned Additional Government Advocate relied upon the judgment of the Hon'ble Apex Court in the case of State of Maharashtra and others v. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745, to argue that a writ of habeas corpus cannot be issued in the present matter, since the petitioner is in police custody in connection with a criminal case under investigation, and the said custody is pursuant to an order of remand passed by a court of competent jurisdiction. It was further contended that the order of remand passed by the competent court has not been challenged, which implies that the detention cannot be said to be illegal. In this regard reliance has been placed on paragraphs 3 and 9 of the aforesaid judgment, which are being reproduced hereinbelow:
"3. The decision of the High Court is assailed essentially on two counts. First, that no writ of habeas corpus could be issued in respect of a person who was in police custody in connection with a criminal case under investigation, pursuant to an order of remand passed by the court of competent jurisdiction. Second, in any case, the High Court should have refrained from making scathing observations against the concerned police officials and the said remarks should be expunged.
xxxx xxxx xxxx
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., (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.I−31 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."
11. Learned Additional Government Advocate further placed reliance on the judgment of Full Bench of this Court in the case of Rachna and others v. State of U.P. and others, 2021 (3) ALJ 322, wherein it has been held that a writ of habeas corpus would not be maintainable if accused is in custody by the order passed by a competent court. He has placed reliance on paragraphs 38 to 41 of the aforesaid judgment which are being reproduced herein below:
"38. In Greene vs. Home Secretary, (1941) 3 All ER 388, it has been observed:
"Habeas corpus is a writ in the nature of an order calling upon the person who has Patna High Court CR. WJC No.1355 of 2019 dt. 05-03-2020 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."
39. In India, by Articles 32 and 226 of Constitution of India, the Supreme Court and all the High Courts got jurisdiction to issue writ of habeas corpus throughout their respective territorial jurisdiction when the Constitution came into force. Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law.
40. In Smt. Maneka Gandhi vs. Union of India & Anr., AIR 1978 SC 597, it has been held by the Apex Court that the procedure established by law as contemplated under Article 21 should be just, fair and reasonable and any unjust, unfair and unreasonable procedure by which liberty of a person is taken away shall destroy such freedom. There is also difference between a writ of Habeas Corpus maintained under Article 32 and under Article 226 of Constitution of India. A writ of habeas corpus under Article 32 of the Constitution of India in the Supreme Court is available in case of violation of fundamental rights guaranteed under Article 21 but it does not relate to interference with the personal liberty by a private citizen. However, the High Court has jurisdiction to issue writ of habeas corpus under Article 226 of the Constitution of India not only for violation of fundamental rights of freedom but also for other purposes. The High Court can issue such writ against a private person also.
41. The nature and scope of the writ of habeas corpus has been considered by the Constitution Bench of the Hon'ble Apex Court in the case of Kanu Sanyal vs. District Magistrate, Darjeeling & Ors., (1973) 2 SCC 674, and it was held:-
"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 Patna High Court CR. WJC No.1355 of 2019 dt. 05-03-2020 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. ..."
12. After considering the arguments advanced by the learned counsel for the parties and after perusal of the record, we find that the petitioner, who is in judicial custody and is confined to jail since 10.12.2021, pursuant to a judicial order passed by the competent court of Judicial Magistrate, the detention of the petitioner cannot be said to be illegal.
13. A writ of habeas corpus is essentially a procedural writ. It deals with the machinery of justice and not the substantive law. The object of the writ is to secure release of a person, who is illegally restrained of his/ her liberty. Further, the present writ petition cannot be entertained as the petitioner is in jail in furtherance of the judicial order passed by the competent court of law. Prima facie, the said judicial order does not appear to be without jurisdiction and has been passed in a legal manner. Since the petitioner is in custody by virtue of a judicial order passed by a Judicial Magistrate, hence it cannot be said to be an illegal detention.
14. In view of the judgment of Hon'ble Apex Court in the case of Tasneem Rizwan Siddiquee (supra) and the judgment of this Court in the case of Rachna and others (supra), the present habeas corpus petition is not maintainable.
15. Accordingly, in view of the discussions and observations made above, the present habeas corpus petition is not maintainable and the same is dismissed.
16. No order as to costs.
Order Date :- 14.12.2021
Mustaqeem
(Shamim Ahmed, J.) (Rakesh Srivastava, J.)