Under which circumstances the high court may issue writ of Habeas Corpus and certiorari against judicial order?

 Pronouncing upon the issue whether a writ of Habeas

Corpus would lie against an order of remand under Section 167,

by referring to the decision in case of Manibhai Ratilal Patel Vs.

State of Gujarat and ors, (2013) 1 SCC 314 which had taken a view that a writ of Habeas Corpus shall not be entertained when a person is committed to judicial custody or police custody by the Competent Court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical or wholly illegal manner, reference was made to a decision in case of SFIO Vs. Rahul Modi, 2019(5) SCC 260 which had laid down the position of law as below:-

“19 The law is thus clear that in a Habeas Corpus proceedings,

a Court is to have regard to the legality or otherwise of the detention

at the time of return and not with reference to the institution of the

proceedings”.

It is in this background the circumstances in which the writ

of Habeas Corpus shall lie, were clearly stipulated in the following

words:-

“If the remand is absolutely illegal or the remand is afflicted with the vice of lack of jurisdiction, a Habeas Corpus petition would indeed lie. Equally, if an order of remand is passed in an absolutely mechanical manner, a person affected can seek the remedy of Habeas Corpus. Barring such situations, Habeas Corpus petition will not lie.”

36] We have no hesitation in coming to a conclusion that in the

present case, both the conditions are clearly attracted, as the

remand of the CCL, by three distinct orders passed by the Board is absolutely illegal as the impugned order, are afflicted with vice of lack of jurisdiction and further orders of remand being passed by the Board, in an absolutely mechanical manner, without

considering the most significant and pivotal fact that the CCL

continue to be on bail and there is no cancellation or revocation of the order, enlarging him on bail.

37] The act of the respondent therefore, squarely fall within the

parameters laid down in Gautam Navlakha (supra) for

entertaining a writ in the nature of Habeas Corpus. 

Looking to the manner in which the entire matter has been

dealt with by the Investigating Agency and also the various orders passed by the Board upon the application preferred by it, we must clearly express that this is one of the fit case where we shall exercise our jurisdiction by issuing a writ in the nature of Habeas Corpus, as prayed for in prayer clause (a) and issue a writ in the nature of certiorari for quashing the subsequent orders remanding the CCL to Observation Home.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.2372 OF 2024

Pooja Gagan Jain v. State of Maharashtra

CORAM : BHARATI DANGRE &

MANJUSHA DESHPANDE, J

DATED : 25th JUNE, 2024.

JUDGMENT :- (PER BHARATI DANGRE, J.)

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Whether writ of Habeas Corpus will be maintainable against Judicial order or Child Welfare Committee’s order under J.J. Act?

 Once corpus is minor and the girl had refused to go with her parents, then in such situation arrangement has to be made. Her interest is paramount and before proceeding to pass order for custody of the minor, the welfare of the minor has to be kept in mind. The wish of minor and the wish/desire of girl can always be considered by the Magistrate concerned/Committee and as per her wishes/desire further follow up action be taken in accordance with law under the J.J. Act.{Para 78}

79. Thus, it is evident that a writ of habeas corpus would not be mintainable, if the detention in custody is pursuant to judicial orders passed by a Judicial Magistrate or a court of competent jurisdiction or by the Child Welfare Committee. Suffice to indicate that an illegal or irregular exercise of jurisdiction by the Magistrate passing an order of remand or by the Child Welfare Committee under J.J. Act cannot be treated as an illegal detention. Such an order can be cured by way of challenging the legality, validity and correctness of the order by filing an appropriate proceeding before the competent appellate or revisional forum under the statutory provisions of law but cannot be reviewed in a petition seeking writ of habeas corpus.

80. We accordingly come on our conclusions in respect of question nos. 1, 2 and 3 for determination as follows:—

Question No. 1:“(1) Whether a writ of habeas corpus is maintainable against the judicial order passed by the Magistrate or by the Child Welfare Committee appointed under Section 27 of the Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home?;

Answer : If the petitioner corpus is in custody as per judicial orders passed by a Judicial Magistrate or a Court of Competent Jurisdiction or a Child Welfare Committee under the J.J. Act. Consequently, such an order passed by the Magistrate or by the Committee cannot be challenged/assailed or set aside in a writ of habeas corpus.

Question No. 2:“Whether detention of a corpus in Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home pursuant to an order (may be improper) can be termed/viewed as an illegal detention?”

Answer : An illegal or irregular exercise of jurisdiction by a Magistrate or by the Child Welfare Committee appointed under Section 27 of the J.J. Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home cannot be treated an illegal detention.

Question No. 3:“Under the Scheme of the Juvenile Justice (Care and Protection of Children) Act, 2015, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and as such, the proposition that even a minor cannot be sent to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home against his/her wishes is legally valid or it requires a modified approach in consonance with the object of the Act?”

Answer : Under the J.J. Act, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and the Magistrate/Committee must give credence to her wishes. As per Section 37 of the J.J. Act the Committee, on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child's wishes in case the child is sufficiently mature to take a view, pass one or more of the orders mentioned in Section 37 (1) (a) to (h).

81. Thus, all the three issues referred for determination are answered, accordingly. 

In the High Court of Allahabad

(Before Sanjay Yadav, Mahesh Chandra Tripathi and Siddhartha Varma, JJ.)

Rachna and Another  Vs State of U.P.

Habeas Corpus Writ Petition No. 362 of 2020

Decided on March 8, 2021,

Citation: 2021 SCC OnLine All 211

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Whether police can further investigate the criminal case even without the permission of Magistrate?

 Their Lordships in the case of State of

Andhra Pradesh vs. A.S. Peter (supra) have in the context of section 173 of

Code of Criminal Procedure held that the law does not mandate taking prior

permission of Magistrate for further investigation. Their Lordships further

held that carrying out further investigation even after filing of chargesheet, is

a statutory right of the police. A distinction also exists between further

investigation and reinvestigation. It is observed that whereas reinvestigation

without prior permission is necessarily forbidden, further investigation is not.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION STAMP NO. 4278 OF 2020

IN

CRIMINAL WRIT PETITION STAMP NO. 4132 OF 2020

Arnab Manoranjan Goswami  Vs The State of Maharashtra & Ors.

CORAM : S. S. SHINDE & M.S. KARNIK, JJ.

PRONOUNCED ON: NOVEMBER 09, 2020.

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Whether jail authorities can detain prisoner in jail if the court has directed them to produce him before the court?

 Section 269 (c) of the Cr.P.C. prescribes that where a person in respect of whom an order is made under Section 267, requiring attendance of a prisoner before a particular court, is in custody for a period that would expire before expiration of the time required for complying with the order and for taking him back to the prison in which he is confined or detained, in those circumstances, the officer in charge of the prison must abstain from carrying out the Court's order and instead, should send a statement of reasons to the concerned court for the said absence. [See order dated 15/05/2020 passed in W.P. (Crl.) 802/2020: Vinod Bansal Vs. State & Anr.,]

9. Also the Allahabad High Court in Dharampal and another Vs. State of U.P. and another, MANU/UP/0349/1981 has held as under:-

"9. A consideration of the aforementioned provisions indicate that the requisition under S. 3(2), Prisoners (Attendance in Courts) Act, 1955, and S. 267(1), Cr.P.C. can be addressed to Supdt., of a District jail who is already holding a prisoner under an authority of law. The requisition by itself does not authorise the detention of any person. It merely requires the officer in charge of the prison (1) to produce the detenu before the requisitioning Court on the date fixed by it and (2) after the purpose of requisition is over, to take him back and to keep him in custody in accordance with the writ or direction issued by the Court which had authorised his detention in jail. As laid down in S. 55, Prisons Act, 1894, during the period the prisoner is away from the prison in pursuance of the requisition, he would throughout be deemed to be in the custody of the prison and would be subject to all the same incidents as if he were actually in prison.

10. The requisitions issued by the criminal Courts in Haryana, therefore, did not authorise the Supdt., District Jail, Meerut, to keep the two petitioners in his custody. They merely required the Supdt., to produce the two petitioners before the concerned courts only if the Supdt., was entitled to keep them in his custody under some valid authority. Since the various requisition orders did not authorise the Supdt., District Jail, Meerut to keep the two petitioners in custody and the moment the petitioners had been admitted to bail in all the criminal cases in connection with which their detention in District Jail, Meerut had been authorised, the authority of the Supdt., District Jail, to keep the petitioners under detention came to an end and the petitioners' detention after being released on bail, became illegal and without authority of law. The requisitions received from the criminal Courts at Haryana under S. 3, Prisoners (Attendance in Courts) Act, 1955 or under S. 267 Cr.P.C. could not confer any valid authority on the Supdt., of jail to kept the petitioners under detention and render his custody in District Jail, Meerut valid."

IN THE HIGH COURT OF DELHI

W.P. (Crl.) 822/2020

Decided On: 19.05.2020

 Anil Mittal  Vs. State (NCT of Delhi) and Ors.

Hon'ble Judges/Coram:

Manmohan and Sanjeev Narula, JJ.

W.P.(CRL.) 822/2020

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Whether persons of same gender are entitled to lead Live-in Relationship?

But, apart from the question whether two adult persons of the same gender can be permitted to be in relationship and can they be permitted to live together, a larger question arises as to whether the liberty of a person who had attained majority can be curtailed. In the decision of the hon'ble Supreme Court in Sony Gerry V. Gerry Douglas (MANU/SC/0180/2018 : AIR 2018 SC 346) it was observed that;

"it needs no special emphasis to state that attaining the age of majority in an individual's life has its own significance. She/he is entitled to make her/his choice. The Courts cannot, as long as the choice remains, assume the role of parens patriae. The daughter is entitled to enjoy her freedom as the law permits and the Courts should not assume the role of a super guardian being moved by any kind of sentiment of the mother or the egotism of the father. We say so without any reservation."
7. With respect to permitting of 'live-in relationship' the hon'ble Supreme Court in Nandakumar and another V. State of Kerala and others (MANU/SC/0505/2018: AIR 2018 SC 2254) observed that, even if the parties are not competent to enter into the wedlock, they have the right to live together even outside the wedlock. It would not be out of place to mention that 'live-in relationship' is now recognized by the Legislature itself which has found its place under the provisions of the Protection of Women from Domestic Violence Act, 2005.

Based on principles enumerated as above, this court cannot find that the 'live-in relationship' between the petitioner and the alleged detenue will in any manner offend any provisions of law or it will become a crime in any manner. On the other hand, if the jurisdiction vested on this court is not exercised, it will amount to permitting a violation of the Constitutional right to perpetrate.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP (Crl.) No. 372 of 2018

Decided On: 24.09.2018

 Sreeja S.  Vs. The Commissioner of Police, Thiruvananthapuram and Ors.

Hon'ble Judges/Coram:
C.K. Abdul Rehim and R. Narayana Pisharadi, JJ.

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Whether writ of habeas corpus can be issued if the magistrate has given police custody of accused?

 The question as to whether a writ of habeas corpus could
be maintained in respect of a person who is in police custody
pursuant to a remand order passed by the jurisdictional
Magistrate in connection with the offence under investigation,
this issue has been considered in the case of Saurabh Kumar
through his father Vs. Jailor, Koneila Jail and Anr., 1 and
Manubhai Ratilal Patel Vs. State of Gujarat and Ors.2 It
is no more res integra. In the present case, admittedly, when
the writ petition for issuance of a writ of habeas corpus was
1 (2014) 13 SCC 436
2 (2013) 1 SCC 314

filed by the respondent on 18th/19th March, 2018 and decided
by the High Court on 21st March, 2018 her husband Rizwan
Alam Siddique was in police custody pursuant to an order
passed by the Magistrate granting his police custody in
connection with FIR No.I31
vide order dated 17th March, 2018
and which police remand was to enure till 23rd March, 2018.
Further, without challenging the stated order of the
Magistrate, a writ petition was filed limited to the relief of
habeas corpus. In that view of the matter, it was not a case of
continued illegal detention but the incumbent was in judicial
custody by virtue of an order passed by the jurisdictional
Magistrate, which was in force, granting police remand during
investigation of a criminal case. Resultantly, no writ of habeas
corpus could be issued.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1124 OF 2018

The State of Maharashtra & Ors. Vs Tasneem Rizwan Siddiquee 
Dated:September 05, 2018.
A.M. Khanwilkar, J.

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Notes on various types of writs in India

Anything that is issued under an authority is a writ. Orders, warrants, directions etc. issued under authority are examples of writs. There are five major types of writs viz. habeas corpus, mandamus, prohibition, quo warranto and certiorari. Each of them has different meaning and different implications. In India, both Supreme Court and High Court have been empowered with Writ Jurisdiction.

Habeas Corpus

Habeas Corpus literally means ‘to have the body of’. Via this writ, the court can cause any person who has been detained or imprisoned to be physically brought before the court. The court then examines the reason of his detention and if there is no legal justification of his detention, he can be set free. Such a writ can be issued in following example cases:

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