The High Court of Allahabad dismissed an admissable habeas corpus petition seeking release and quashing of proceedings against petitioners. The court held the petition was not maintainable as the petitioner was in judicial custody., ruling that proper remedies lie within the legal framework for bail applications.
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Neutral Citation No. - 2023:AHC:132451-DB
Court No. - 67
Case :- HABEAS CORPUS WRIT PETITION No. - 556 of 2023 Petitioner :- Dharna Garg And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Prashant Vyas,G.A.,Kanchan Sharma Counsel for Respondent :- G.A.,Pradeep Kumar Mishra
Hon'ble Rahul Chaturvedi,J. Hon'ble Mohd. Azhar Husain Idrisi,J.
Heard Sri Prashant Vyas and Sri Nitin Kumar Agrawal, learned counsel for the petitioners, Sri Vinay Saran, learned Senior Counsel assisted by Sri Pradeep Kumar Mishra, learned counsel for the opposite party no.4 and 5 as well as learned A.G.A.
By means of the present habeas corpus petition, the prayer sought by the petitioner is as follows :-
(i) Issue a order or direction in the nature of habeas corpus thereby directing immediate release of the petitioner no.2 in respect of the First Information Report dated 09.02.2021 lodged as case crime no.0106 of 2021 under sections 420, 467, 468, 471, 406 and 120B IPC Police station-Surajpur District-Central Commissionerate, Gautam Budh Nagar.
(ii) To quash all the consequential proceedings in relation to the First Information Report of case crime no.0106 of 2021 under sections 420, 467, 468, 471, 406, 120B IPC, police station-Surajpur, District-Central Commissionerate, Gautam Budh Nagar.
Submission made by learned counsel is that petitioner no.1-Dharna Garg is still absconding out of the clutches from the police custody whereas petitioner no.2-Rishu Kumar is in jail since 04/05.05.2023.
The next contention is that petitioner no.1, since absconding has moved third anticipatory bail having Application No.3121 of 2023 which is pending before this Court and 17.07.2023 is the next date fixed whereas petitioner no.2-Rishu is in judicial custody since 04/05.05.2023 and his bail application having no.26754 of 2023 is pending before this Court in which counter affidavit has been called for. Thus, it is argued that Rishu, by no stretch of imagination, could be said to be in the illegal confinement of the local police authority.
Learned counsel for the petitioner has relied upon the judgment of co-ordinate Bench of this Court in the case of "Surendra Tiwari Vs. State of U.P." whereas in the latest judgment of this Court in
the case of Km. Rachna and another Vs. State of U.P. and ors. in Habeas Corpus Petition No.362 of 2020 decided on 08.03.2021, it has been specifically mentioned that if a person is in judicial custody, he cannot be said to be in illegal custody and the proper course would be to invoke proper remedy available under the law.
After perusal of the entire material on record and in the light of the aforesaid judgment of this Court, we are not inclined to entertain the present petition as the same is not maintainable.
Accordingly, the present habeas corpus petition stands DISMISSED at the admission stage.
Order Date :- 5.7.2023/Sumit S
Digitally signed by :- SUMIT SRIVASTAVA High Court of Judicature at Allahabad
3 issues framed by the court
Whether a habeas corpus petition is maintainable when the petitioner is in judicial custody.
Whether the petitioner in illegal confinement.
Whether bail applications are pending before the court.
Colour shows how this judgement treated each authority
Surendra Tiwari Vs. State of U.P.Referred¶11
Surendra Tiwari Vs. State of U.P.
Km. Rachna and another Vs. State of U.P. and ors.Followed¶12
Habeas Corpus Petition No.362 of 2020, cmd. Rashna and another Vs. State of U.P. and ors.
Dharna Garg
Rishu Kumar
State of U.P.
Rahul Chaturvedi
Mohd. Azhar Husain Idrisi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
