The Allahabad High Court while dismissing a habeas corpus petition observed that the counsel for the petitioner without annexing the bail rejection order has made a passing reference, so as to justify his conduct. When a counsel is invoking the extraordinary jurisdiction of the Court, he must come with clean hands.
The Division Bench of Justice Rahul Chaturvedi and Justice Mohd Azhar Husain Idrisi passed this order while hearing a habeas corpus petition filed by Golu @ Arun Patel.
The prayer sought by the petitioner is that:-
“(i) A writ, order or direction in the nature of habeas corpus to direct the respondents to produce the corpus namely, Golu @ Arun Patel before the Court and to set free the corpus namely Golu @ Arun Patel at his own liberty in pursuance of the F.I.R dated 16.02.2023 registered as Case under Sections 4,5 and 6 of the Prevention of Immoral Trafficking Act, Police State-Jaipura, District-Varanasi.
(ii) An order or direction for compensation in favour of the petitioner and against the respondents.
(iii) To pass an order of disciplinary enquiry against the erring officer.
(iv) Any other writ order or direction, which the Court may deem fit and proper under the facts and circumstances of the case.
(v) Award the cost of the petition in favour of the petitioner and against the respondents.”
Thus, from the prayer sought, it is apparent that the only prayer is sought is a direction to the respondent authorities to produce the corpus of petitioner Golu @ Arun Patel before the Court and thereafter to set free the corpus Golu @ Arun Patel at his own liberty, who is in judicial confinement pursuant to the FIR dated 16.02.2023 in case under Sections 4, 5 and 6 of the Immoral Traffic (Prevention) Act 1956, P.S Jaitpura, District Varanasi. There is neither any prayer nor any pleadings to this effect that the alleged judicial remand is absolutely illegal or suffers from the vice of lack of jurisdiction or has been passed in absolutely mechanical manner by the court concerned.
Moreover, now the petitioner is facing the regular trial and thus canvass that the judicial remand is farfetched.
On 16.02.2023 around 13.38 hours one Habiburrehman has lodged an FIR against unknown person for the incident said to have been taken place on 12.02.2023 under Section 363 IPC at P.S Jaitpura, District Kashi (Police Commissionerate Varanasi) with the allegation that the informant is residing at adjacent lane, nearby Kohinoor Garden in a tenanted accommodation.
Informant’s daughter on 12.02.2023 went from her home without informing anybody and since then her whereabouts were not traceable and thus prayed that the police may help in searching for his daughter.
After lodging of the FIR the police has inquired from the informant Habiburrehman but the victim was recovered after 15 days. In her 161 Cr.P.C statement was recorded.
In this 161 Cr.P.C, dated 25.02.2023, she declares that her age is 16 years and she further states in her 161 Cr.P.C statement that she left her home on her own, without any information or knowledge to any of the family members in order to earn money. She went to Cantt Railway Station Varanasi and started searching for work for her. At the Station she met with one Prakash. Prakash has made an offer that he would provide service at Indore, M.P and asked her to purchase a ticket for Indore. For this purpose, she contacted one Golu, her own old acquaintance. Golu and her father came to the station and took her home. She remained silent when the question was put by the I.O as whether any sexual abuse were done by Prakash or not. She further states that all during these 15 days she remained at Varanasi Station.
Thereafter, the I.O of the case has brought her before the Magistrate for recording her statement under Section 164 Cr.P.C dated 27.02.2023, in which, she discloses that her age is 17 years and she further states that on her own she left her home, as the condition of the home were not congenial on account of financial distress & paucity. She went to the railway station to get herself engaged in some work,so that she may earn money. At the station, she met with two ladies and a manPrakesh, the ladies did not disclose their names or identity and all of them have made an offer to accompany her to Indore, so that they may arrange a good service for her.
Consequently, she joined their company and thereafter, all of them administered her ‘Beer’ and some other ‘intoxicant’, so that she got unconscious. Not only this, they have taken her to some nearby hotel, where Prakash got her to engage in sexual activities with some unknown persons. Not only this, Prakash and his wife compulsorily make her, as a subject of the sexual activities with some unknown person and in flesh trading while sending her in a number of hotels and virtually they have thrown her in the “so called profession” of prostitution for 15 days.
In the ‘Majeed Bayan’ of Habiburrehman, after inquiring from her daughter, she disclosed her pathetic & ordeal experience during these 15 days. She has given every minutest detail of suffering faced by her to her father. In which she has almost reiterated the 164 Cr.P.C version with necessary details in it. Many other characters were inserted in her story as she was dumped into the market of flesh trading.
The Court observed that,
Thus, the exercise of jurisdiction clearly shows that the Magistrate performs a judicial act. The order of remand, which is a judicial act, as we perceive does not suffer from any infirmity. It is a well accepted principles that a writ of Habeas Corpus is not to be entertained when a person committed to the judicial custody or the police custody by a competent court by an order, which prima facie does not appear without jurisdiction or passed in absolutely mechanical manner or wholly illegal as has been stated in judgement in B Ramachandra Rao(supra) & Kanu Sanyal(supra). The court is required to scrutinize the legality or otherwise of the order of detention which has been passed unless the court is satisfied the person has been committed to the jail custody by virtue of an order that suffer from vice of lack of jurisdiction or absolute illegality a habeas corpus writ petition cannot be granted. It is apposite to note that the investigation, as has been dealt with in various authorities of the courts, is neither an inquiry or a trial. It is within the exclusive domain of the police to investigate and is independent of any control by the Magistrate. The sphere of activities is clear cut and well demarcated, thus we are of the considered opinion that the prayer sought by means of the Habeas Corpus writ petition could not be granted in favour of the petitioner.
In the light of the above judgements, when there is a no prayer with regard to the alleged judicial remand is ex-facie defective or illegal by the aforesaid any of the vices, we cannot allow the Habeas Corpus writ petition in favour of the petitioner.
As it is evident from the prayer, that only limited remedy is sought to the extent that the personal presence of the petitioner may be ordered and he is sat at liberty. There is no whisper with regard to the fact that the alleged remand by the Magistrate suffers from any of the vices enumerated above. Even assuming for the sake of argument that the said judicial remand order suffers from any of the vice mentioned above the apt remedy is to challenge the said order first by invoking proper remedy for the same and then to approach the Court.
The Court noted that that the petitioner’s bail application has already been rejected by the concerned court by order dated 11.07.2023, he ought to have invoked the powers of the Court under Section 439 Cr.P.C for filing the bail application but instead of invoking the same, counsel for the petitioner has wrongly advices the petitioner to move a instant Habeas Corpus writ petition without challenging the judicial remand order, which clearly indicates the professional incompetence of the counsel for the petitioner. Not only this, the counsel during this marathon argument of two days never divulged this important aspect of this issue, that petitioner’s bail application was rejected on 11.07.2023. When a counsel is invoking the extraordinary jurisdiction of the Court, he must come with clean hands. We are of the opinion that the counsel for the petitioner without annexing the bail rejection order has made a passing reference, so as to justify his conduct.
Thus, the Court are not at all inclined to grant the desired prayer to the petitioner on the aforesaid reasons and ground hereby rejected the Habeas Corpus petition with the cost of Rs 50,000/- (Rs Fifty Thousand Only), which the petitioner shall deposit with the Registrar General, High Court, Allahabad within a period of one month.