THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No.40151 of 2014 DATE: 30.12.2014 Between:
Vadlakonda Sateesh, Karimnagar District.
… Petitioner And The State of Telangana, Rep. by its Principal Secretary, Department of Home, Secretariat Buildings, Hyderabad and others … Respondents This Court made the following:
THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No.40151 of 2014 Order: (per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) This Writ Petition is filed for issuance of a writ of Habeas Corpus on the following facts:
The alleged detenu is said to be the wife of the petitioner and it is the admitted case of the petitioner that she has gone away from him and started living with the fifth respondent. For that purpose, the petitioner has lodged an FIR under Sections 497 and 109 I.P.C and the mother of the alleged detenu has lodged a separate FIR under the head Woman Missing. We are not looking into the complaint of the mother of the alleged detenu right now. We are looking into the complaint of the petitioner only.
It is a clear case of alleged adultery. Therefore, the question of detention of the alleged detenu by the unofficial respondent does not arise.
Learned counsel for the petitioner has relied upon the judgment of the Supreme Court in the case of Mohd. Ikram Hussain v. The State of Uttar Pradesh[1] and submits that the unauthorised detention by private individual is also can be taken care of in writ jurisdiction for issuance of writ of Habeas Corpus.
From this judgment, we have noticed that factually, the Hon’ble Allahabad High Court entertained application under Article 226 of the Constitution of India and Section 491 of the Code of Criminal Procedure, 1898 (hereinafter referred to as ‘Code, 1898’) in case of alleged detention of a person by private individual. At that time, the High Court under Section 491 of the Code, 1898, was conferred with specific power to issue writ of habeas corpus independent of Article 226 of the Constitution of India and the same is set out hereunder:
491. Power to issue directions of the nature of a habeas
corpus:-
(1) Any High Court may, whenever it thinks fit, direct—
(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law;
(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty;
(c) that a prisoner detained in any jail situate within such limits be brought before the Court to be there examined as a witness in any matter pending or to be inquired into in such Court;
(d) that a prisoner detained as aforesaid be brought before a Court-Martial or any Commissioners for trial or to be examined touching any matter pending before such Court-Martial or Commissioners respectively;
(e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and
(f) that the body of a defendant within such limits be brought in on the Sheriff’s return of cepi corpus to a writ of attachment.
(2) The High Court may, from time to time, frame rules to regulate the procedure in cases under this section.
(3) Nothing in this section applies to persons detained under the ‘Bengal State Prisoners Regulation, 1818 (3 of 1818), ‘Madras Regulation II of 1819, or ‘Bombay Regulation XXV of 1827, or the State Prisoners Act, 1850 (34 of 1850), or the ‘State Prisoners Act, 1858 (3 of 1858).
The Hon’ble Apex Court while noting above provision in paragraph-12 of the report stated as follows:
12. The first order by which Kaniz Fatima was ordered to be brought into Court was questioned on the ground of want of jurisdiction and for irregularity in the exercise of that jurisdiction. The High Court acted with jurisdiction. The writ of habeas corpus issues not only for release from detention by the State but also for release from private detention. At Common Law a writ of habeas corpus was available to the husband for regaining the custody of his wife if she was wrongfully detained by anyone from him without her consent. What amounts to wrongful detention of the wife is, of course, a question for the Court to decide in each case and different circumstances may exist either entitling or disentitling a husband to this remedy. There was also no material irregularity vitiating the order for inexpediency is not the same thing as irregularity and all that has been pointed out is that the High Court acted without sufficient enquiry and deliberation. We shall say something about this because this criticism is perhaps justified.
According to us, repelling contention of the learned lawyer for the petitioner that Hon’ble Apex Court did not lay down the law that under Article 226 of the Constitution of India, writ of Habeas Corpus can be issued in connection with detention by private individual.
Even reading paragraph-18 of the report, the Apex Court held such power of High Court under Section 491 of the Code, 1898, was discretionary one. According to us, it was so, and it would appear from the words “may” used in the said section.
In view of above discussion, we hold that this judgment of the Hon’ble Apex Court is not an authority to conclude writ of habeas corpus can be issued by the High Court under Article 226 of the Constitution of India in case of detention by private individual solely, and without any help or collusion or connivance of the police.
Now, above Code, 1898, is repealed, and replaced by present Code of 1973 without corresponding power of High Court to issue writ of Habeas Corpus in case of private detention. That apart on merit in this case, writ of Habeas Corpus cannot be entertained.
We therefore dismiss the Writ Petition.
K.J. SENGUPTA, CJ SANJAY KUMAR, J Date: 30.12.2014 Note:- LR copy to be marked: Yes/No va
[1] AIR 1964 SC 1625