Case BriefsHigh Courts

Allahabad High Court: The Full Bench of Sanjay Yadav, Mahesh Chandra Tripathi and Siddhartha Varma, JJ., in a very significant ruling expressed that:

“…writ of Habeas Corpus is not maintainable against the judicial order or an order passed by the Child Welfare Committee under the J.J. Act.”

Instant writ petition was listed in the reference made by the Division Bench of this Court, in order to consider the various provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 and the law laid down by various Courts.

Following issues were framed by the Division Bench:

“(1) Whether a writ of habeas corpus is maintainable against the judicial order passed by the Magistrate or by the Child Welfare Committee appointed under Section 27 of the Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home?;

(2) Whether detention of a corpus in Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home pursuant to an order (may be improper) can be termed/viewed as an illegal detention?; and

(3) Under the Scheme of the Juvenile Justice (Care and Protection of Children) Act, 2015, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and as such, the proposition that even a minor cannot be sent to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home against his/her wishes, is legally valid or it requires a modified approach in consonance with the object of the Act ?”

Ancillary Issues

Bench noted that apart from the above framed issues there were some ancillary issues attached in cases of elopement of minor girls ad on recovery, sending them to Nari Niketan/Protection Home/Care Home.

Run-away Marriages

Large number of habeas corpus petitions are filed by the parents/guardians or alleged husband for production of their wards or wife, who leave their parental houses in “run-away marriages”.

Court while dealing with habeas corpus petitions are required to ensure that the person whose production is sought is not illegally detained.

Further, elaborating more on the above aspect, Bench expressed that difficulty arises in the cases where the minor girl has entered into matrimonial alliance and is steadfast in her resolve to continue to cohabit with the partner of her choice. —- At times, the girl is even on family way.

On perusal of Section 11 and 12 of the Hindu Marriage Act, it would be seen that contravention of the prescribed age under Section 5(iii) of the Act would not be given as a ground on which the marriage could be void or voidable.

Child Marriage Restraint Act, 1929 aims to restrain performances of child marriages but does not affect the validity of a marriage, even though it may be in contravention of the age prescribed under the Act. Performance of such marriage punishable under the law with imprisonment which can extend up to three months and with a fine. Even Section 12 of the Act provides to issue an injunction to prevent performance of any child marriage.

Supreme Court while considering the provisions of the Child Marriage Restraint Act has observed that contravention of the provisions of the said Act would only lead to punishment and marriage would not be void.

Now coming back to the issues framed, Court addressed the first issue in the following manner:

Nature and scope of the habeas corpus writ has been considered by the Constitution Bench of the Supreme Court in Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674.

In dealing with a petition for habeas corpus, High Court has to see whether the detention on the date, on which the application is made to Court, is legal, if nothing more has intervened between the date of application and the date of hearing …”Ref. A.K. Gopalan v. Government of India, AIR 1966 SC 816.

High Court expressed that: writ of habeas corpus lies against the order of remand made by a court of competent jurisdiction. 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 or wholly illegal manner.

In Serious Fraud Investigation Office v. Rahul Modi, (2019) 5 SCC 266 the Supreme Court cancelled bail granted by the Delhi High Court to Rahul Modi and Mukesh Modi accused of duping investors of several hundred crores through a ponzi scheme run by their Gujarat based other co-operative societies. Both the accused were released by the Delhi High Court in a habeas corpus writ petition even though they were remanded to judicial custody under the orders of a competent court.

Proceeding further to analyse the questions, Bench opined that the Magistrate or the Committee in case directing the girl to be kept in protective home under the J.J. Act the Magistrate or the Committee, should give credence to her wish.

In order to bring more clarity on the matter, Bench referred to the decision of Supreme Court in Raj Kumari v. Superintendent Women Protection House, 1997 (2) A.W.C. 720, wherein it was held that a minor cannot be sent to Nari Niketan against her wishes and the same preposition of law is being incorporated in the orders passed by this Court while entertaining the Habeas Corpus Writ Petition of minor girl, who has been detained in Nari Niketan by a judicial order.

High Court considered an issue as to whether there is any authority for detention of the corpus with any person in law.

Can Magistrate direct the detention of a person?

Corpus was detained in the Nari Niketan under the directions of the Magistrate, the first thing to be determined is – whether the Magistrate can direct the detention of a person in the situation in which the petitioner is. To which the answer was no the magistrate has no absolute right to detain any person at the place of his choice or any other place unless the same could be justified by some law and procedure.

Detention at Nari Niketan

Elaborating further, Bench expressed that no law has been quote with regard to whether the Magistrate may direct detention of a witness simply because she does not like to go to any particular place. Hence, in such circumstances, the direction of the Magistrate that she shall be detained at Nari Niketan is absolutely without jurisdiction and illegal.

It is the paramount responsibility of the Committee to take all necessary measures for taking into account the child’s wishes after making due enquiry, which contemplates under Section 36 of J.J. Act and take final decision.

Therefore, Bench stated that in case corpus is in Women Protection Home pursuant to an order passed by the Child Welfare Committee, which is neither without jurisdiction nor illegal or perverse, the detention of the corpus cannot be said to be illegal and in case petitioner is aggrieved with the Child Welfare Committee or Magistrate’s order, petitioner is at liberty to take recourse or remedy of an appeal or revision under Sections 101 and 102 of the J.J. Act.

In the present matter, Bench observed that the petitioner corpus was 17 years, one month and 8 days old, hence was directed to be placed in Women Protection Home, since she came under the ambit of a child as defined under Section 2(12) of the J.J Act.

Once corpus is minor and the girl had refused to go with her parents, then in such situation arrangement has to be made. Her interest in paramount.

Therefore, wish of minor and the wish/desire of girl can always be considered by the Magistrate concerned/Committee and as per her wishes/desire further follow up action be taken in accordance with law under the J.J. Act.

Conclusion

Issue 1: 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.

Issue 2: An illegal or irregular exercise of jurisdiction by a Magistrate or by the Child Welfare Committee appointed under Section 27 of the J.J. Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home cannot be treated illegal detention.

Issue 3: Under the J.J. Act, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and the Magistrate/Committee must give credence to her wishes. As per Section 37 of the J.J. Act the Committee, on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child’s wishes in case the child is sufficiently mature to take a view, pass one or more of the orders mentioned in Section 37 (1) (a) to (h).

[Rachna v. State of U.P.,  2021 SCC OnLine All 211, decided on 08-03-2021]


Advocates before the Court:

For the Petitioner: Avinash Pandey, Amicus, Sri Shagir Ahmad

For the Respondent: G.A., JK Upadhyay

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Sharad Kumar Sharma, J., while addressing a habeas corpus petition observed that,

The intimacy of marriage, including the choice of partner, which individual make, on whether or not to marry and whom to marry are the aspects which exclusively lies outside the control of the State or the Society.

Habeas Corpus to be issued

Issuance of Habeas Corpus has been sought on the ground that detenue has been wrongly confined by respondents 4 and 5 who are the mother and brother of detenue.

Settled legal preposition laid down by High Courts of Country:

“..a consensual relationship between a common sex is not barred and it is held not to be an offence under the law.”

Detenue is a major and had been enjoying a consensual relationship with the petitioner since the year 2016.

It has also been specified that the continuance of a consensual relationship between the persons belonging to the same sex is not in debate in the present petition.

Questions raised

whether two adult persons of same gender can be permitted to be in a relationship?

whether they can be permitted to live together?

whether the liberty of a person, who had attained majority can be curtailed?

Soni Gerry v. Gerry Douglas, AIR 2018 SC 346

Supreme Court in the above matter had observed that “it needs no special emphasis to state that attaining the age of majority in an individual’s life has its own significance.

A person is entitled to make his or her choice

“…daughter is entitled to enjoy her freedom as the law permits and the courts shall not assume the role of a super guardian being moved by any kind of sentiments of the mother or egotism of the father.”

In the present case, while observing the Supreme Court’s decision as stated above, it is to be noted that 

even if parties who are living together belonging to the same gender are not competent to enter the wedlock, still they have the right to live together even outside the wedlock.

Adding to the above-stated position — live-in relationship has now being recognized by the legislature itself, which has found its place under the provisions of protection of women from Domestic Violence Act.

Another aspect to be noted is that it is essential to remember that the song of liberty is to be sung with sincerity and at the exclusive choice of an individual is appropriately respected and conferred its esteemed status as the constitution guarantees.

Bench in view of the above stated that,

consensual cohabitation between two adults of the same sex cannot be illegal, far or less a crime because its a fundamental right which is being guaranteed to the person under Article 21 of the Constitution of India.

Matters like the present one, it is exclusively the statement recorded of the detenue, who is said to be wrongfully confined and who is said to be having a consensual or a lesbian relationship with the petitioner, which becomes of prime importance, to be considered while parting with the judgment.

Petitioner had in the first instance conceded about her relationship with the petitioner and expressed her decision to live together. Adding to the sid, she also expressed that she has been illegally detained by her mother and brother.

On 8th June, 2020 when detenue’s statement was against recorded she stated that she was not willing to continue living in a consensual relationship with the petitioner. Further, she added that she had no pressure from her mother or brother.

Since the contradiction in statements appeared, Court directed the respondent’s 4 and 5 along with detenue to file their affidavits with their statements.

Again on 11th June, 2020 when the detenue appeared before the Court, she by way of reiteration submitted that she is making the statement consciously and at her free will, that she wants to lead her independent life and does not want to continue with the consensual relationship with the petitioner.

Thus, in view of the above statements, in Court’s opinion, the writ of habeas corpus would not be tenable and thus it was dismissed. [Madhu Bala v. State of Uttarakhand, 2020 SCC OnLine Utt 276 , decided on 12-06-2020]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: Ali Mohammad Magrey, J. allowed the application filed by the petitioner to free him from detention.

The petitioner filed a Habeas Corpus petition against the order of detention, passed by the Respondent 2 who is the District Magistrate Baramulla, in exercise of powers conferred in him under Clause (a) of Section (8) of the Jammu and Kashmir Public Safety Act, 1978 (“The Act of 1978”). It was submitted that the detaining authority had failed to apply its mind to the fact whether the preventive detention of the detenue was imperative, notwithstanding his release on bail in substantive offences. It was also submitted that such order was passed on the dictates of the sponsoring agency, i.e. the Officer who had prepared the police dossier and no attempt had been made by the Respondent 2 to scan and evaluate it before issuance of the order of detention. 

The Respondents submitted that the detaining authority had complied with the requirement of Clause 5 of Article 22 read with Article 21 of the Constitution of India. The detenue did not file any representation against the order of detention. The detenue was involved in two different cases for the commission of offences punishable under the ULA(P) Act and the Ranbir Penal Code (RPC). 

The Court emphasized the issues that since the detenue was released on bail in the FIRs that formed the baseline of the order of the detention, therefore, an order of detention could have been passed under such circumstances or not. The Court relied on the law laid down by the Supreme Court in paragraph No. 24 of the judgment delivered in the case of Sama Aruna v. State of Telangana, AIR 2017 SC 2662”:

“24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No. 221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows: 

“6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carryon his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.” 

The Court held that the detenue could not have been detained after taking recourse to the provisions of “The Act of 1974” when he was already on bail. While discussing the duty of the State to follow the law of the land so as to safeguard the rights of the citizens the Court exclaimed that:

The State could have exercised its right to knock at the doors of a higher forum and seek the reversal of the orders of bail so granted by the competent Court(s). This single infraction knocked the bottom out of the contention raised by the State that the detenue can be detained preventatively when he was released on bail. It cuts at the very root of the State action. The State ought to have taken recourse to the ordinary law of the land. 08. Life and liberty of the citizens of the State are of paramount importance. A duty is cast on the shoulders of the Court to enquire that the decision of the Executive is made upon the matters laid down by the Statute and that these are relevant for arriving at such a decision. A citizen cannot be deprived of personal liberty, guaranteed to him/her by the Constitution, except in due course of law and for the purposes sanctioned by law.”

In view of the above-noted facts, the instant petition was allowed and the impugned order of detention of the petitioner stood to be quashed. [Shabir Ahmad Mir v. State of J&K, 2019 SCC OnLine J&K 882, decided on 05-11-2019]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: Dhiraj Singh Thakur, J. allowed a petition to direct the CBI to take charge of the present case.

The petitioner filed a Habeas Corpus Petition seeking appropriate direction to respondents to produce her son, who went missing in the custody of respondents. Petitioner also prayed for referring the investigation into the matter by the constitution of a Special Investigation Team (SIT) or in the alternative to refer the matter to the Central Bureau of Investigation (CBI).

The petitioner’s son, Shakeel Ahmed, went missing on his way to Zairat at Kaliar Sharief in Roorkie, Uttrakhand under the custody of the respondents. The matter was investigated initially by the appropriate Police Station, as an FIR under Section 364 RPC was filed. The investigating officer recorded the statement of witnesses under Section 161 of CrPC and called the accused persons to the Police Station and interrogated them. However, no fruitful result was obtained pursuant to which, the investigating officer closed the case. The matter was again reopened by the Zonal Police Head Quarter and a Special Investigation Team (SIT) was formed by the Senior Superintendent of Police. However, the SIT also failed to arrive at any conclusion and was clueless about the disappearance of the son of the petitioner.

The respondents contended that the matter if referred to Crime Branch, should also involve the territorial jurisdiction between the two States i.e. the State of Jammu and Kashmir and the State of Uttrakhand.

The High Court allowed the appeal and was of the view that since the investigation would involve the areas beyond the territorial jurisdiction of the State of J&K where the Crime Branch cannot have any jurisdiction, it would be appropriate to refer the matter for investigation to the CBI under Section 364 of RPC. The Court also held that “it cannot be a silent spectator to the disappearance of the son of the petitioner who needs to be recovered and the matter investigated at the earliest.”[Sabza Begum v. State of J&K, 2019 SCC OnLine J&K 666, decided on 08-07-2019]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: This Habeas Corpus petition was filed before the Bench of Ali Mohammad Magrey, J., for quashing of a detention order passed by District Magistrate by which detenu was detained.

Mir Shafaqat Hussain, learned counsel on behalf of petitioner submitted that detenu can make a representation to the Detaining Authority, is a valuable constitutional right guaranteed under Article 22(5) of the Constitution of India and is a right under section 13(1) of the Jammu and Kashmir Public Safety Act, 1978 but the same was denied. Mir Suhail, Addl. Advocate General stated that detenu’s activities were prejudicial to the security of the State as well as the public order. Detaining him would prevent him from indulging in such acts was approved by the Government and the State Advisory Board constituted under Section 14 of PS Act.

High Court found substance in the arguments of the petitioner. On the point where detenu was not communicated the ground of detention it was found that grounds of detention were in English language and it was not suggested from the file before the Court if the grounds were explained to the detenu in a language understood by him. Thereby, depriving detenu of the right to make representation against the same. Detenu’s constitutional right was infringed as the Detaining Authority failed to mention in the detention order about petitioner’s right to make representation which renders the impugned order invalid. Therefore, impugned detention order was quashed and direction to release the detenu was passed. [Ajaz Ahmad Sofi v. State of J&K, 2019 SCC OnLine J&K 408, Order dated 03-05-2019]