Telangana High Court
WP/40151/2014 of Vadiakonda Sateesh, Vs The State of Telangana on 30 December 2014
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
THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTISENGUPTAANDTHE HON’BLE SRI JUSTICE SANJAY KUMARWRIT PETITION No.40151 of 2014
DATE: 30.12.2014
Between:Vadlakonda Sateesh,Karimnagar District.AndThe State of Telangana,Rep. by its Principal Secretary,Department of Home,Secretariat Buildings, Hyderabad and others … Petitioner … Respondents This Court made the following:
THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTISENGUPTAANDTHE 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 HabeasCorpus on the following facts:
The alleged detenu is said to be the wife of the petitioner and itis the admitted case of the petitioner that she has gone away from himand started living with the fifth respondent. For that purpose, thepetitioner has lodged an FIR under Sections 497 and 109 I.P.C andthe mother of the alleged detenu has lodged a separate FIR under thehead Woman Missing. We are not looking into the complaint of themother of the alleged detenu right now. We are looking into thecomplaint of the petitioner only.
It is a clear case of alleged adultery. Therefore, the question ofdetention of the alleged detenu by the unofficial respondent does notarise.
Learned counsel for the petitioner has relied upon the judgmentof the Supreme Court in the case of Mohd. Ikram Hussain v. TheState of Uttar Pradesh[[1]]and submits that the unauthorised detentionby private individual is also can be taken care of in writ jurisdiction forissuance of writ of Habeas Corpus.
From this judgment, we have noticed that factually, the Hon’bleAllahabad High Court entertained application under Article 226 of theConstitution of India and Section 491 of the Code of CriminalProcedure, 1898 (hereinafter referred to as ‘Code, 1898’) in case of alleged detention of a person by private individual. At that time, theHigh Court under Section 491 of the Code, 1898, was conferred withspecific 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 habeascorpus:-
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(1) Any High Court may, whenever it thinks fit, direct—(a) that a person within the limits of its appellatecriminal jurisdiction be brought up before the Court tobe dealt with according to law; (b) that a person illegally or improperly detained inpublic or private custody within such limits be set atliberty;
(c) that a prisoner detained in any jail situate withinsuch limits be brought before the Court to be thereexamined as a witness in any matter pending or to beinquired into in such Court; (d) that a prisoner detained as aforesaid be broughtbefore a Court-Martial or any Commissioners for trialor to be examined touching any matter pending beforesuch Court-Martial or Commissioners respectively;(e) that a prisoner within such limits be removedfrom one custody to another for the purpose of trial;and (f) that the body of a defendant within such limits bebrought in on the Sheriff’s return of cepi corpus to awrit of attachment.
(2) The High Court may, from time to time, frame rules toregulate the procedure in cases under this section.regulate the procedure in cases under this section.
(3) Nothing in this section applies to persons detained underthe ‘Bengal State Prisoners Regulation, 1818 (3 of1818), ‘Madras Regulation II of 1819, or ‘BombayRegulation XXV of 1827, or the State Prisoners Act,1850 (34 of 1850), or the ‘State Prisoners Act, 1858 (3of 1858).the ‘Bengal State Prisoners Regulation, 1818 (3 of1818), ‘Madras Regulation II of 1819, or ‘BombayRegulation XXV of 1827, or the State Prisoners Act,1850 (34 of 1850), or the ‘State Prisoners Act, 1858 (3of 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 tobe brought into Court was questioned on the ground of want ofjurisdiction and for irregularity in the exercise of thatjurisdiction. The High Court acted with jurisdiction. The writ ofhabeas corpus issues not only for release from detention bythe State but also for release from private detention. AtCommon Law a writ of habeas corpus was available to the husband for regaining the custody of his wife if she waswrongfully detained by anyone from him without her consent.What amounts to wrongful detention of the wife is, of course, aquestion for the Court to decide in each case and differentcircumstances may exist either entitling or disentitling ahusband to this remedy. There was also no materialirregularity vitiating the order for inexpediency is not the samething as irregularity and all that has been pointed out is that theHigh Court acted without sufficient enquiry and deliberation.We shall say something about this because this criticism isperhaps justified.
According to us, repelling contention of the learned lawyer forthe petitioner that Hon’ble Apex Court did not lay down the law thatunder 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 heldsuch power of High Court under Section 491 of the Code, 1898, wasdiscretionary one. According to us, it was so, and it would appear fromthe words “may” used in the said section.
In view of above discussion, we hold that this judgment of theHon’ble Apex Court is not an authority to conclude writ of habeascorpus can be issued by the High Court under Article 226 of theConstitution 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 presentCode of 1973 without corresponding power of High Court to issue writof Habeas Corpus in case of private detention. That apart on merit inthis case, writ of Habeas Corpus cannot be entertained.
We therefore dismiss the Writ Petition.
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K.J. SENGUPTA, CJ
Date: 30.12.2014Note:- LR copy to be marked: Yes/Nova _________________SANJAY KUMAR, J