HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 52 Case :- HABEAS CORPUS WRIT PETITION No. - 44529 of 2016 Petitioner :- Smt. [ENTITY] & Another Respondent :- [ENTITY] & 3 Others Counsel for Petitioner :- [ENTITY] Counsel for Respondent :- G.A. Hon'ble [ENTITY],J.
Heard learned counsel for the petitioners and learned A.G.A. for the State.
The instant petition has been filed on behalf of the corpus, by her next friend claiming himself to be the husband of the corpus against father of the corpus respondent no.4 in addition to performa respondents. The ground for seeking liberty of corpus is that she has been illegally detained against her wishes by her father. It is further submitted that though corpus in her statement recorded under [SECTION] [ACT] has not made any allegation against the next friend and she showed her reluctance to go with respondent no.4 and preferred to go Nari Niketan but illegally the magistrate has handed over her custody to her father respondent no.4.
Sri [ENTITY], Advocate, learned counsel appearing for the petitioners submits that the matter did not end there. After taking her into custody, respondent no.4 has disappeared alongwith his daughter and though police authorities and the next friend are continuously searching for her but inspite of having given undertaking to produce corpus before the trial court, the respondent no.4 and the corpus have left the address and it has come knowledge of the next friend that the respondent no.4 is trying to re-marry her against her wishes.
From the progress report filed on behalf of the proforma respondents, it transpires that at the time of incident, as her school certificate she was minor and her date of birth was 5th August, 1999. According to proforma respondents, being minor, she was produced before the Chief Judicial Magistrate, Etawah, who gave the corpus in the custody of respondent no.4.
On behalf of the petitioners, question is raised that the respondent no.4 has not complied with the undertaking furnished before the court below and inspite of issue of non-bailable warrant, he is not traceable to depose in the Sessions trial instituted in the matter wherein on his First Information Report, petitioner no.2 was chargesheeted.
The Court has to remain objective and within the jurisdiction, which is being invoked by the petitioners. Under [SECTION] when complaint is made that an individual has been illegally detained by a private individual and not by the State the maintainability of the habeas corpus has been examined by the Hon'ble Apex Court in the case of Smt.[ENTITY] through next friend [PRECEDENT], wherein the [ACT]al Bench of the Apex Court has observed the following:-
"6. As the question that arises here has been discussed at length in two earlier decisions of this Court we need not examine the matter in any detail. The fundamental right that is said to be infringed is the one conferred by [SECTION]: the right to personal liberty. In [PRECEDENT] four of the six learned Judges who were in that case held that the word "law" in [SECTION] referred to State-made law and not to law in the abstract. They rejected the contention that this was thesame as the due process clause in the American [ACT]. One learned Judge dissented and one expressed no opinion on this point. [ENTITY], J. (as he then was ) said at p.74 that as a rule constitutional safeguards are directed against the State and its organs and that protection against violation of rights by individuals must be sought in the ordinary law; and [ENTITY], J. dealing with the question of Preventive detention said at pp.120-121 that [SECTION] protects a person against preventive detention by the executive without the sanction of a law made by the legislature.
7. This principle was applied to [SECTION] and [SECTION] by a Bench of five Judges in [PRECEDENT] who held that violation of rights of property by a private individual is not within the purview of these Articles, therefore, a person whose rights of property are infringed by a private individual must seek his remedy under the ordinary law and not under [SECTION]. [SECTION] not directly involved but the learned Judges referring to [SECTION] at page 60.
"It is clear that it is a declaration of the fundamental right of private property in the same negative form in which [SECTION] declares the fundamental right to life and liberty. There is no express reference to the State in [SECTION]. But could it be suggested on that account that article was intended to afford protection to life and personal liberty against violation by private individuals? The words 'except by procedure established by law' plainly exclude such a suggestion"
They held that the language of [SECTION] was similar and decided that [SECTION] did not apply to invasions of a right by a private individual and consequently no writ under [SECTION] would lie in such a case. For the same reasons we hold that the present petition which is founded on [SECTION] does not lie under [SECTION]. it is accordingly dismissed."
Though the above quoted observation has been in reference to seeking of remedy under [SECTION] of the [ACT] and considering the boarder scope of [SECTION], it may be deliberated upon whether in such eventuality as came before the Hon'ble Apex Court a person can enforce statutory right of another person by seeking this extra-ordinary remedy. Though to this question, answer has been given in the past and the settled legal position is that where the liberty of an individual has been curtailed by another private person and it confers any right to make another person to raise grievance in such eventuality that person has to seek his remedy before the forum provided by that law who complain.
Here the position is not so murky. The corpus was handed over in pursuance of a judicial order passed by the Chief Judicial Magistrate and she still has not attained majority. Obviously, petitioner no.2 has a right to challenge the correctness of that order by way of revision or invoking jurisdiction under [SECTION] by [SECTION] [ACT] but the petitioner no.2 has not taken resort to these provision and by way of habeas corpus, he wants to falsify the records of the Court wherein it has been entered that the abducted person has been handed over to her father. This is not permissible in law. Only on this ground, I find the present petition is not maintainable, hence, it is dismissed.
The Registrar General of this Court is directed to return back the demand draft of Rs.15,000/- deposited in terms of order of this Court dated 17.9.2016 in favour of petitioner no.1 (Smt.[ENTITY] w/o [ENTITY] D/o [ENTITY]) after due verification.
Order Date :- 27.10.2016 SKD