The Allahabad High Court has dismissed Shaishta Parveen’s habeas corpus petition on behalf of the two minor sons of Atiq Ahmed.
The Division Bench of Justice Vivek Kumar Birla and Justice Surendra Singh-I passed this order while hearing a Habeas Corpus petition filed by two minor sons of Atiq Ahmed.
The petition has been filed with the following prayers:-
“(i) Issue a writ, order or direction in the nature of writ of Habeas Corpus commanding and directing the respondents to produce the corpus before the Court and set them at liberty forthwith.
(ii) Issue a writ, order or direction in the nature of writ of Habeas Corpus commanding and directing the respondents may also be directed to satisfy the Court for the illegal detention of the petitioners.”
The petition has been filed by minor sons (corpus) of Ateeq Ahmad, Ex-MP under the guardianship of their natural guardian and real mother Shaishta Parveen.
It is claimed that the petitioner no 1-Ahzam Ahmad and the petitioner no 2-Aaban Ahmad are students of Class-XII and Class-IX respectively and both the petitioners are minor.
It has been disclosed in the petition that father of the petitioners, namely, Ateek Ahmad is in jail since 2017 and real uncle of the petitioners, namely, Khalid Azeem @ Ashraf is also in district jail Bareilly since 2020. The minor sons (corpus) are living with their mother.
It is alleged that on 24.2.2023 at about 06:00 P.M. police of Police Station Khuldabad, Dhoomanganj and Puramufti came to the house of the petitioners without lady police and forcibly and illegally entered in the house of the petitioners by breaking the doors arrested the petitioners without showing any summon, warrant or any other document and police personnels also misbehaved with the petitioners as well as with their mother. The allegation is that the police personnels of Police Station Dhoomanganj, Puramufti and Khuldabad forcibly arrested the petitioners and have taken them in their illegal custody without disclosing any reason for their arrest and that the petitioners are innocent and are not wanted in any criminal case. The allegation is that the police authorities have illegally detained the petitioners without any authority since 24.2.2023.
It is also alleged that the petitioners are in detention till today i.e 3.3.2023 (till the date of filing of the present petition).
It is alleged that the petitioners are being kept in some undisclosed location by the police and are being mentally and physically tortured without any authority of law or any other reason and thus, the petitioners are being deprived of their personal life and liberty provided under Article 21 of the Constitution of India, which clearly provides that the same cannot be affected except in accordance with the procedure established by law.
Fact regarding lodging of the first information report dated 25.2.2023 being Case under Sections 147, 148, 149, 302, 307, 506, 34 and 120-B IPC, Section 3 of Explosive Act and Section 7 of Criminal Law Amendment Act, Police Station Dhoomanganj, District Prayagraj regarding incident of murder of one Umesh Pal, who was eye witness in the murder case of Raju Pal, wherein father of the petitioners Ateek Ahmad and real uncle Khalid Azeem @ Ashraf are main accused has also been disclosed with a categorical statement that the petitioners are not accused in the aforesaid crime.
It has been stated that the police authorities have arrested the petitioners without any warrant on the night of 1.3.2023, however, the Court found that in the petition it has been stated that the petitioners were arrested on 24.2.2023 at 06:00 P.M.
The supplementary affidavit is a copy of the application dated 27.2.2023 filed by the mother of the petitioners Shaishta Parveen before the Chief Judicial Magistrate, Allahabad regarding alleged illegal detention of the petitioners, namely, Ahzam Ahmad and Aaban Ahmad and prayed that a report be summoned from the Police Station Dhoomanganj in respect of the petitioners as to whether the petitioners are named in any crime so that necessary legal action may be taken.
The supplementary affidavit is the report dated 2.3.2023 submitted by the Police Station Dhoomanganj that there is no GD entry in respect of the petitioners in the said police station and the alleged first information report being Case is being investigated by In-charge Inspector Dhoomanganj, who is out of the police station.
The supplementary affidavit is a copy of the orders dated 28.2.2023, 3.3.2023 and report dated 4.3.2023 submitted by the In-charge Inspector Police Station Dhoomanganj to the effect that the applicant Shaishta Parveen is named in the first information report dated 25.2.2023 in a triple murder case and her sons petitioner nos 1 and 2 herein were found in Chakia Kasari Masari area and they have been sent to Child Protection Home on 2.3.2023.
During the course of arguments it also transpired that Shaishta Parveen, mother of the petitioners, through whom this petition had been filed, is absconding and is also carrying an award of Rs 25,000 on her head.
It is alleged in the petition that the police authorities have arrested the petitioners without any warrant and are being detained illegally without there being any order of competent court / Magistrate and there is a clear violation of Section 50 CrPC in the case. Crux of submission of counsel for the petitioners is that the detention of the petitioners is a clear violation of their constitutional as well as statutory rights.
A preliminary objection was raised by Manish Goyal, Additional Advocate General assisted by A.K. Sand, AGA-I that the petition is not maintainable as the petitioners have already invoked provisions of Section 97 CrPC and have approached the competent court i.e the court of Chief Judicial Magistrate, Allahabad and the corpus are in Child Protection Home. Submission, therefore, is that as the petitioners have already invoked the alternative effective statutory remedy, and moreso, when the stand taken by the police authorities that the petitioners are in Child Protection Home, therefore, on the ground of already invoked effective statutory remedy and also in view of Full Bench decision in the case of Rachna and another vs. State of UP and others, AIR 2021 ACR 109 (FB), the Habeas Corpus petition is not maintainable.
Replying to the same, counsel for the petitioners D.S. Mishra, Senior Counsel, submitted that as there is a violation of Article 21 of the Constitution of India, therefore, existence of alternative remedy would not be a bar.
On a pointed query by the Court that if this argument is to be raised, he must specify under which provision the mother of the petitioners Shaishta Parveen has moved an application before the Chief Judicial Magistrate, Allahabad, which is being pursued, wherein several orders have already been passed, if the said application has not been filed under Section 97 CrPC? We specifically note that no reply to the said question was given by the Senior Counsel, the Court said.
The Court found that it is a settled law that mention of incorrect provision or non-mentioning of the provision by itself does not render the proceedings invalid and therefore, preliminary objection that the petitioners have already approached the competent court under Section 97 Cr.P.C by filing effective statutory remedy is upheld. Article 21 clearly provides that no person shall be deprived of his life or personal liberty except “according to procedure established by law”.
“In the case, the stand taken by the State while raising preliminary objection to the petition was that the petitioners are in Child Protection Home, therefore, even if at this stage, it is not clear as to how the petitioners have reached Child Protection Home, one thing is clear that administration of criminal justice is operating, which is the procedure established by law (although with this stand of the State, Full Bench decision in Rachna (supra) would cover the issue involved, including preliminary objection).
It is clearly reflected from the record that the petitioners have already invoked provisions of Section 97 CrPC before the competent court of law i.e Chief Judicial Magistrate having jurisdiction over the matters. Thus, they have availed the effective statutory remedy and thus, have put the criminal administration of justice into motion and as per settled law writ of habeas corpus cannot be issued to set the same at knot.
To sum up, it can be said that the petitioners have already invoked provisions of Section 97 CrPC, hence administration of criminal justice has already come into play and the same cannot be set at knot by simultaneously invoking extra-ordinary remedy under Article 226 of the Constitution of India, which may be a remedy of right but as per settled law cannot be issued as a matter of course. Moreover, when corpus are in Child Protection Home, the writ petition would not be maintainable as per the law settled by Full Bench decision in Rachna (supra).
Consequently, in view of the discussions made hereinabove preliminary objection raised by the State that the petition is not maintainable as the petitioners have already invoked provisions of Section 97 CrPC and have approached the competent court is upheld,” the Court observed while dismissing the petition.