3. The facts in brief are required to be considered before we consider the prayer made on behalf of the petitioner.
4. The facts in brief are that Seema Devi, as per her own case, willingly got married to Chhote Lal. The marriage, however, has not been accepted by Vishambhar, father of Seema Devi, therefore in abuse of process of the law and process of the court, Vishambhar initiated criminal proceedings vide Case Crime No.058 of 2016, under Sections 363, 366 I.P.C., Police Station Bihar, District Unnao alleging that his daughter Seema Devi has been kidnapped by Chhote Lal and others. Seema Devi, Chhote Lal and two others being aggrieved by initiation of the criminal proceedings, approached this court by way of filing Writ Petition No.8453(M/B) of 2016 : Smt. Seema Devi and others Vs. State of U.P. And otthers for quashing criminal proceedings initiated vide Case Crime No.058 of 2016(supra).
5. This court heard the matter on 21.4.2016 and passed the following order in Writ Petition No.8453(M/B) of 2016 :-
"1. The petition seeks issuance of a writ in the nature of certiorari quashing First Information Report bearing Case Crime No. 058 of 2016, under Sections 363/366 Indian Penal Code, Police Station Bihar, District Unnao.
2. Contention of learned counsel for the petitioners is that petitioner no. 1 got married to petitioner no. 2 of her free will. Petitioner no. 1 has not been kidnapped, therefore, offence has not been committed. Respondent no. 4 has not accepted the marriage of petitioners 1 and 2, therefore, impugned criminal proceedings have been initiated in abuse of process of the law and process of the court.
3. Issue notice to serve respondent no. 4 returnable on 13.5.2016.
4. List on 13.5.2016.
5. Till the next date of listing, the petitioners shall not be taken in custody.
6. Investigating officer is directed to ensure that statement of petitioner no. 1 is recorded under Section 164 Criminal Procedure Code and she is also medically examined.
7. Let counter affidavit be filed."
6. As per the pleadings in this Habeas Corpus petition, allegedly the police took the petitioner Seema Devi and her husband Chhote Lal in custody/detention on 26.4.2016 from their residence in village Ram Khera, Police Station Bihar, District Unnao. During the evening hours of the said day, copy of order dated 21.4.2016 above extracted was shown to the police whereupon Chhote Lal was released from custody, however, detention of Seema Devi was maintained.
Chhote Lal approached Superintendent of Police, Unnao with application dated 30.4.2016 for release of his wife Seema Devi. The said communication has been placed on record as Annexure No.4. Seema Devi, the petitioner, however, was not released. This has been specifically pleaded in paragraphs 9 to 11 of the writ petition.
7. Being aggrieved by continued detention of Seema Devi, the present petition has been filed, which was heard for the first time on 9.5.2016. On 9.5.2016, the following order was passed :-
"1. In this petition for issuance of a writ in the nature of Habeas Corpus, it has been pleaded that the petitioner has been confined in illegal custody of respondent no. 3, de hors the observations of the court recorded in order dated 21.4.2016 rendered in Writ Petition No. 8453 (MB) 2016, Smt. Seema Devi and others Vs. State of U.P. and others.
2. List on 13.5.2016 along with Writ Petition No. 8453 (MB) 2016, Smt. Seema Devi and others Vs. State of U.P.
and others.
3. Station House Officer, Police Station Bihar, District Unnao is directed to remain present and produce the petitioner in court.
4. Let copy of this order be conveyed to Superintendent of Police Unnao.
5. Learned Government Advocate shall ensure compliance of the order"
8. Short counter affidavit of Shri Pramod Kumar Dubey, Sub- Inspector, Police Station Bihar, District Unnao, has been filed in Court with the plea that the victim of offence in Case Crime No.058 of 2016(supra) was recovered on 26.4.2016. Her statement was recorded under Section 161 Code of Criminal Procedure, 1971(for short 'Cr.P.C.'). Thereafter, the victim/the petitioner was referred for medical examination to Chief Medical Officer, Unnao. Age of the petitioner has been found to be 19 years, as is evident from Annexure No.SCA-1.
9. Statement of the petitioner/victim has been recorded under Section 164 Cr.P.C. in which she did not support the prosecution case, rather has endorsed the fact that she was in love with Chhote Lal. Her parents were resisting her marriage with Chhote Lal, therefore, she left her house of her sweet will, met Chhote Lal outside and got married to him. Statement recorded under Section 164 Cr.P.C. is appended as Annexure No.SCA-2.
10. The short counter affidavit further makes it evident that High School marksheet of the petitioner has also been collected by the investigator in the course of investigation, according to which date of birth of the petitioner has been found to be 18.7.1993. It has been demonstrated that the petitioner has attained the age of majority.
11. Interestingly, document Annexure No.SCA-3 has been filed with the counter affidavit which is order dated 10.5.2016. The order indicates that the investigator filed an application before Judicial Magistrate, Purwa, Unnao with the plea that Seema Devi be given in appropriate custody. The custody was not contested by any other person. The magistrate has recorded in the order that the documents accompanying the application indicate date of birth of Seema Devi to be 18.7.1993. As per medical examination also, she has been found to be more than 19 years. In her statement recorded under Section 164 Cr.P.C., she has declared her age as approximately 20 years. The Magistrate has ruled that because Seema Devi has attained the age of majority, she is free to go anywhere, therefore the application is liable to be dismissed and is dismissed. It has further been provided in the order that it should be ensured that Seema Devi is transported to the place where she wants to go.
12. In para 7 of the affidavit filed by the investigating officer, it has been stated that the victim of offence was safely handed over to Chhote Lal on 10.5.2016 in the presence of two witnesses. Supurdagi Nama was also prepared which is enclosed as Annexure No.SCA-4.
13. It appears that on receipt of the copy of order dated 9.5.2016, Seema Devi was released from detention on 10.5.2016.
14. The counter affidavit filed by the investigating officer to which a detailed reference has been made hereinabove, is absolutely silent as regards the place of confinement of Seema Devi from 26.4.2016 till 10.5.2016. The facts asserted in the writ petition that Seema Devi was taken in custody on 26.4.2016 and had not been released till passing of the order by this Court on 9.5.2016, have not been denied in the counter affidavit filed on behalf of investigating agency. It is therefore evident and clearly demonstrated that Seema Devi was kept at some undisclosed place by the police officials w.e.f. 26.4.2016 till 10.5.2016, when she was produced before the Magistrate.
15. The counter affidavit further indicates that an attempt was made by the police officials to justify custody of Seema Devi by way of producing her before the Magistrate on 10.5.2016 on the ruse that her custody is required to be delivered to the proper person, as noticed above, however, the Magistrate found that it was a clear cut case wherein Seema Devi has attained the age of majority and is required to be released to live as per her own wish.
16. The irrefutable facts and circumstances as they emanate from the pleadings in the writ petition and accompanying documents, and the counter affidavit and accompanying documents demonstrate that the petitioner was a witness in Case Crime No.058 of 2016(supra) being the alleged kidnappee. In deference to order dated 21.4.2016 passed in Writ Petition No.8453 (M/B) of 2016 (supra) (above extracted), Seema Devi was required to be medically examined and her statement was required to be recorded under Section 164 Cr.P.C. in pursuance to effective investigation. The documents establish that on 26.4.2016, Seema Devi and her husband Chhote Lal were taken in custody from their village. Order dated 21.4.2016 passed by this Court in Writ Petition No.8453 (M/B) of 2016(supra) ( above extracted) was shown to the police officers. Chhote Lal was released on the same day during the evening hours, however, detention of Seema Devi was continued till 10.5.2016 in a place not disclosed by the police officers. It is only when order was passed by this Court that Seema Devi was released and produced before this Court.
17. On release of the petitioner, although technically, cause of action does not survive, however, we find that in this part of the country, the investigating officers have been misusing their legal authority provided under the Code of Criminal Procedure for investigation of the cases, and witnesses are detained for continued period.
18. A word may be said in regard to the scope of a writ of habeas corpus.
19. A writ of Habeas Corpus is one of what are called the "extraordinary", "common law", or "prerogative writs", which were historically issued by the English Courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The due process for such petition is not simply civil or criminal, because they incorporate the presumption of non-authority. The official who is the respondent must prove his authority to do or not to do something.
20. A writ of Habeas Corpus is known as "the great and efficacious writ in all manner of illegal confinement", being a remedy available to the meanest against the mightiest. It is a summons with the force of a court order; it is addressed to the custodian (a prison official for example) and demands that the prisoner be taken before the court, and that the custodian to present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian is acting beyond his or her authority, then the prisoner must be released. Any prisoner, or another person acting on his or her behalf, may petition the court, or a judge, for a writ of habeas corpus.
21. There can be no doubt that personal liberty is a precious right, therefore, the writ of Habeas Corpus provides a prompt and effective remedy against illegal detention. By this writ, the Court directs the person or authority who has detained another person to bring the body of the detenue before the Court so as to enable the Court to decide the validity, jurisdiction or justification for such detention. The principal aim of the writ is to ensure swift judicial review of alleged unlawful detention of liberty or freedom of the prisoner or detenu.
22. Since issuance of the writ is in context of liberty of a citizen, we would like to highlight the essence, relevance, and importance of 'liberty'.
23. 'Personal Liberty' means liberty relating to or concerning the person or body of the individual and it is, in this sense, antithesis of physical restraint or coercion. 'Personal Liberty' means a personal right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit legal justification. The negative right constitutes the essence of personal liberty.
24. It is very difficult to define the term 'liberty'. It has many facets and meanings. The philosophers and moralists have praised freedom and liberty but this term is difficult to define because it does not resist any interpretation. The term 'liberty' may be defined as the affirmation by an individual or group of his or its own essence. It needs the presence of three facts, firstly, harmonious balance of personality, secondly, the absence of restraint upon the exercise of that affirmation and thirdly, organization of opportunities for the exercise of a continuous initiative.
25. It can be found that 'liberty' generally means the prevention of restraints and providing such opportunities, the denial of which would result in frustration and ultimately disorder. Restraints on man's liberty are laid down by power used through absolute discretion, which when used in this manner brings an end to 'liberty' and freedom is lost. At the same time, 'liberty' without restraints would mean liberty won by one and lost by another. So 'liberty' means doing of anything one desires but subject to the desire of others.
26. Life and liberty are the most prized possessions of an individual. The inner urge for freedom is a natural phenomenon of every human being. Respect for life, liberty and property is not merely a norm or a policy of the State but an essential requirement of any civilized society.
27. All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental for their proper existence and no other right can be enjoyed without the presence of a right to life and liberty. Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be worth living. That is why 'liberty' is called the very quintessence of a civil existence. (Vide Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others : (2011) 1 SCC 694.
28. Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law.
29. When a right is so guaranteed, it has to be understood in relation to its orbit and its infringement. Conferring the right to life and liberty imposes a corresponding duty on the rest of the society, including the State, to observe that right that is to say, not to act or do anything which would amount to infringement of that right, except in accordance with the procedure prescribed by law. In other words, conferring the right on a citizen involves the compulsion on the rest of the society, including the State, not to infringe that right. When right to personal liberty is guaranteed and the rest of the society, including the State, is compelled or obligated not to violate that right and if someone has threatened to violate it and the person whose right is so threatened resorts to Article 226 of the Constitution, the court is required to protect the right.
30. In context of investigation of a criminal case, ordinarily, the procedure established by law has been provided under the Cr.P.C. The respondents have not been able to show from the Cr.P.C., any provision under which a witness could be taken in custody, and detained for the purposes of investigation of the case as has been done in the present case.
31. It is the admitted position that Seema Devi is the prime witness to endorse or deny the factum of kidnapping. For the said purpose and for considering whether she was taken from the custody of her guardian, a direction was issued on 21.4.2016 by this Court in Writ Petition No.8453 of 2016(supra) that statement of Seema Devi be recorded under Section 164 Cr.P.C. and she be medically examined. So as to carry out the order or so as to conduct investigation, as per law, by no figment of imagination could Seema Devi be kept in confinement for a period of 15 days as has been done by the respondents, who appear to be totally oblivious to the right to liberty of the petitioner.
32. There is another dimension to this case insomuch as vide order dated 21.4.2016 rendered in Writ Petition No.8453 (M/B) of 2016(Supra), it was specifically directed that the petitioners, including Seema Devi, be not taken in custody. Despite directions of the court, the petitioner was kept in custody for 15 days. It cannot be pleaded that the contents of order dated 21.4.2016 were not known to the police officers because in the petition, as noticed above, it has been specifically pleaded that on showing order dated 21.4.2016, Chhote Lal was released from custody on 26.4.2016. Confinement of the petitioner, however, was continued. It clearly establishes violation of order passed by this Court dated 21.4.2016 (supra).
33. We have come across a number of cases of this nature in which although witness is required to be medically examined and for recording her statement, however, particularly in cases under Sections 363, 366 or 364 I.P.C. where parents of the girl are opposed to the marriage and initiate criminal proceedings making allegations of kidnapping, the witness/kidnappee is taken in custody and is kept as such for weeks together. Thereafter, at times, the custody of the girl is given to the parents, although the girl might be desirous of living in her in-laws' house. The practice of taking witness in custody for recording her statement under Section 164 Cr.P.C. is not contemplated under the Code of Criminal Procedure or any other law for that purpose. Likewise, for conducting ossification test/medical examination, the witness is not required to be kept in custody yet this practice is commonly followed. There being no established procedure of law, the present practice is required to be discouraged and stopped.
34. It stands established that the right to liberty of the petitioner has been violated by keeping her in confinement from 26.4.2016 till 10.5.2016. The confinement was not warranted by law and was not contemplated in procedure established by law. We may add that confining is when a person is enclosed within bounds ; limit or restrict ; to prevent from leaving a place. Even if the movement of a person is limited or restricted to his own house, it would tantamount to his confinement.
35. Considering the illegal custody of the petitioner, vide order dated 13.5.2016, we had directed Station House Officer of the concerned Police Station and Investigating Officer of the case to pay a sum of Rs.10,000/- per day for curtailment of liberty of the petitioner, for fifteen days viz. a total sum of Rs.1,50,000/- to the petitioner. We are alive to the fact that liberty of a person cannot be calculated in terms of money. No panacea can be fixed for liberty of a person. However, so as to compensate the petitioner, the above noted amount was directed to be paid to the petitioner.
36. We had also appointed Shri Brij Mohan Sahai, Advocate as Amicus Curiae to assist the court. Shri Sahai has pointed out that cognizable offences have been committed by the police officers for which they ought to be prosecuted so that appropriate message is sent to the police force in general that liberty of a person is required to be respected. It has been highlighted by Shri Sahai that because the police officers have not acted in accordance with the procedure established by law and have acted whimsically without any legally tenable reason, criminal case be registered forthwith. Shri Sahai has also highlighted that by taking the petitioner in custody, the police officers have also committed Contempt of Court because the action is in conscious violation of order dated 21.4.2016 rendered in Writ Petition No.8453(M/B) of 2016 (supra). Under the circumstances, proceedings be initiated under the Contempt of Courts Act, 1971 for violation of the order of the court.
37. The police officers who are present in court namely, Mr. Amol Ranjan Chaudhary, Station House Officer, Police Station Bihar, District Unnao and Mr. Pramod Kumar Dubey, Sub-Inspector, the investigating officer of the case, however, have tendered unqualified apology with an assurance to the court that such acts would not be repeated. The police officers have tendered the cost amount in the sum of Rs.1,50,000/- in cash so as to compensate the petitioner.
38. The petitioner who is present in court states that in view of the fact that she has been compensated, she would not like to prosecute the police officers. The cost amount has been paid to the petitioner in court.
39. With the aforesaid observations, this petition is disposed of.
40. Let a copy of this judgement be sent to Director General of Police, U.P., Lucknow so that appropriate directions are issued not to confine witnesses for the purpose of investigation of a crime.