Allahabad High Court
Ojas Tripathi Thru. His Mother Smt. ... vs State Of U.P. Thru. The Prin. Secy. Home, ... on 20 December, 2023
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:84373
Court No. - 13
Case :- HABEAS CORPUS WRIT PETITION No. - 284 of 2022
Petitioner :- Ojas Tripathi Thru. His Mother Smt. Richa Tripathi
Respondent :- State Of U.P. Thru. The Prin. Secy. Home, Lko. And Others
Counsel for Petitioner :- Maneeshi Srivastava,Nisha Srivastava
Counsel for Respondent :- G.A.,Apoorv Dev,Ram Kushal Tiwari,Shashank Singh
Hon'ble Karunesh Singh Pawar,J.
(Application No.11 of 2023)
1.This is an application for recall of order dated 22.11.2023, filed by Ms. Nisha Srivastava, learned counsel for the petitioner.
2.Heard Ms. Nisha Srivastava, learned counsel for the petitioner, learned A.G.A. for the State and Mr. Apoorv Dev, learned counsel for private respondents.
3.Learned counsel for the petitioner has submitted that one counsel of the petitioner Mr. Maneeshi Srivastava could not reach the court for personal reasons and she was busy in other court and as such, she could not appear in the Court. Hence, the case was decided ex parte. It is submitted that due to ex parte decision of this Court, merit of the case could not be considered which has caused prejudice to the petitioner.
4.Per contra, learned counsel appearing for the private respondents Mr. Apoorv Dev has disputed the contention and submitted that the application for recall is mis-conceived as the learned counsel for the petitioner was very well present during argument, although it was wrongly transcribed in the first line of the order that none has appeared on behalf of the petitioner. The said contention has also been recorded in order dated 18.12.2023 passed by this Court.
5.This Court is not going to enter into rival claims of the parties' counsel as to whether the petitioner was represented through counsel or not; rather in the interest of justice, considering the anxiety of the petitioner that merit of the case has not been looked into, this Court proceeds to look into the merit of the case once again.
6.It is contended on behalf of the petitioner that in 2021, the husband of the deponent Ms. Richa Tripathi died. Till the date of his death, the detenu was very much present with her. She further submitted that the statement of the detenu before this court on 11.9.2023 that the deponent has only met him in the year 2020 and in July this year is incorrect. It is submitted that since the birth of the detenu, he was with his mother, deponent of this petition. Attention of the court has been invited towards photograph annexed with the petition.
It is submitted that only a first information report No.544 of 2021 under section 306/34 I.P.C., P.S. Sunlight Colony, district South East (Delhi) is lodged. No charge-sheet has been filed against her as yet. It is not disputed between the parties that the first information report No.544 of 2021 (supra) has been lodged against the deponent Richa Tripathi and investigation is going on. It is also not disputed that case No.1575 of 2021 under Domestic Violence Act filed by the deponent Richa Tripathi before the Civil Judge (Senior Division), FTC-II, Pratapgarh is pending where visiting rights were granted to the deponent.
In case No.02 of 2022 under section 20 read with section 21 of the Hindu Adoption and Maintenance Act, 1956 filed by the grandparents of the detenu in the court of Principal Judge, Family Court (South East) Saket Court, New Delhi is pending. The detenu appeared before this court on 11.9.2023 and this court found from the interaction from the detenu who is 11 years old that he is happy with his grand parents and does not want to go with his mother and as per statement of the detenu, deponent of this petition met him only in the year 2020 and in July this year. This statement of the detenu has been disputed by the deponent.
7.This Court has perused the photograph as well as other material filed by private respondents which show that the detenu is being duly taken care of by his grand parents and is receiving quality education. The petition contains disputed question of facts for which thorough investigation/enquiry is required. The deponent of the petition has already availed remedy under Domestic Violence Act where visiting rights has been provided to her, coupled with the fact that another petition No.02 of 2022 under section 20 read with section 21 of the Hindu Adoption and Maintenance Act, 1956 filed by the grandparents of the detenu in the court of Principal Judge, Family Court (South East) Saket Court, New Delhi is pending, therefore, in view of the law laid down by Supreme Court in Jose Antonio Zalba Diez Del Corral alias Jose Antonio Zalba versus The State of West Bengal and others Writ Petition (Crl.) No.318 of 2020, the petition for habeas corpus is not maintainable once remedy has already been availed by a party.
The mother of the detenu is charged with offence under section 306/34 I.P.C. for abetment to commit suicide of her husband, hence in view of the judgment in Nil Ratan Kundu versus Abhijit Kundu (2008)9 SCC 413, character of the mother seeking custody becomes relevant before granting her custody of the child.
8.The Supreme Court in Tejaswini Gaud versus Shekhar Jagdish Prasad Tewari (2019)7 SCC 42 (paras 18 and 19) has held that where thorough enquiry is needed, habeas corpus writ jurisdiction cannot be exercised. Hence, considering the overall welfare of the detenu, the fact that visiting rights has already been provided by the court of Civil Judge (Senior Division), district Pratapgarh and a first information report under section 306/34 I.P.C. as referred to above, has been registered and investigation is going on where the deponent mother is the prime accused and one more suit for custody under Hindu Adoption and Maintenance Act, 1956 is pending at New Delhi, I am of the opinion that the contention of the learned counsel for the petitioner that merit of the matter has not been touched is utterly mis-conceived. There appears to be no error at the face of the record in the judgment dated 22.11.2023 so as to recall/review the judgment(supra).
9.Besides, the only reason assigned in the recall application by the petitioner's counsel that she was busy in some other court and the other counsel could not reach the court for some personal reasons cannot be a ground to recall a final judgment which has been passed after perusing the record and pleadings made in the petition, unless there is some plausible reason to recall the order. In case she was busy in some other court, she should have made some alternate arrangement which she could not do.Hence, the court proceeded with the case to decide on the basis of the pleadings made in the petition and after hearing the other side. However, as observed above, this court has considered the submission of the petitioner's counsel considering her anxiety and find no substance in the application.
10.In view of the discussion made above, I find no reason to recall the judgment dated 22.11.2023 passed by this Court.
11.The recall application is accordingly rejected.
Order Date :- 20.12.2023
kkb/
