KHALID RIAZ v. I. G. P. , PORT BLAIR — 1996 DIGILAW 152 (CAL)

S. N. MALLICK, J. ( 1 ) IT is the case of the writ petitioner that on 2. 5. 95 he lawfully married one Sangita Chibber, the daughter of the respondent No. 7 according to Muslim law before the Registrar of the Muslim Marriage at Port Blair and it is alleged that the said Sangita Chibber embraced Islam at the time of marriage and a muslim name Shanin was given to her. It is also alleged that both of them are majors and the marriage was consummated on the very date. On 3rd May, 1995 the respondent No. 7 the father of the said Sangita Chibber alongwith other Police Officers came to the residence of the petitioner and forcibly took away his wife Sangita Chibber alias Shanin inspite of his stif resistance. Thereafter the petitioner sent a letter dated 3. 5. 1995 to the respondents No. 1 to 6, the local Police Officers containing very many allegations regarding his marriage with Sangita according to Muslim law with the following prayer : -"under the circumstances and for the reasons mentioned above, I humbly request you to kindly intervene in the matter immediately and to restore the custody of my wife. I also request you to kindly take necessary action in the matter to ensure that my wife be not Laken to mainland or to other places from away from Port Blair by any person. If the custody of my wife is not restored to me. Immediately I shall be compelled to proceed further for recovery of my said wife. Kindly do the needful for restoration of the custody of my wife to me. " ( 2 ) NO action was taken by the Police authorities in respect of the said letter Annexure 'c' to the writ application on the otherhand he was taken into custody in connection with the police case started by the Aberdeen Police Station, Port Blair under sections 109/365/366 of the Indian Penal Code. ( 3 ) IT is the case of the petitioner that the respondent No. 7 being a police officer of the rank of Deputy Superintendent of Police lodged baseless complaint of kidnapping the legally married wife of the petitioner and forced her to make certain statement against him. ( 3 ) IT is the case of the petitioner that the respondent No. 7 being a police officer of the rank of Deputy Superintendent of Police lodged baseless complaint of kidnapping the legally married wife of the petitioner and forced her to make certain statement against him. It is alleged that his alleged wife the said Sangita is in illegal custody of the respondent No. 7 and unless she is produced before this Court and kept in neutral custody she may suffer Irreparable loss and injury. According to the writ petitioner by such action taken by the respondents No. 1 to 7 his rights under Article 14 and 19 of the Constitution of India have been grossly violated only on the ground of religion and he is being treated with discrimination. It Is also stated by the writ petitioner in paragraph 20 of his writ application that his wife may be brought before this Court to say that she was forcibly taken away on 2. 5. 1995 by the police officials of the Aberdeen Police Station from his lawful custody. ( 4 ) ACCORDING to the writ petitioner the police authorities i. e. the respondents No. 1 to 6 have no right to forcibly take away his wife from his lawful custody and that by doing so they have violated the principles of natural justice and Article 14 and 19 of the Constitution of India. It is also asserted by the writ petitioner that no inquiry had been made by the police respondents on the basis of his written complaint as per annexure 'c'. Accordingly his prayers are as follows :- (A) a writ and/or order/orders and/or directions in the nature of a writ of mandamus directing the respondents, each one of them, to cause an enquiry and to lake appropriate steps under the law against the erring police officers who took away the legally married wife of the petitioner by force on 2nd of May, 1995. (b) a writ and/or order/orders and/or directions in the nature of a writ of certiorari to produce all the relevant records of this case so that justice may be done. (b) a writ and/or order/orders and/or directions in the nature of a writ of certiorari to produce all the relevant records of this case so that justice may be done. (c) Rule Nisi in terms of prayers (a) and (b); (d) an ad interim order directing the respondents, specially the respondent No. 7 to produce Shanin alias Sangita Chhibber, the legally married wife of the petitioner to produce before this Hon'ble Court and to allow her to remain in neutral custody. (e) any other or further order/orders as to your Lordships may seem fit and proper. " ( 5 ) MR. S. K. Mondal, the learned advocate appearing for the respondents No. 1 to 6 and 8 has contested the writ application on their behalf without filing any affidavit in opposition. He however, does not admit any of the allegations made in the writ application except the fact that a police case under section 109/365/366 of the IPC has already been initiated against the writ petitioner which is pending investigation before the Court of the learned Chief Judicial Magistrate, Port Blair. ( 6 ) THE respondent No. 7 the father of Sangita Chibber has filed an affidavit in opposition. It is his case that although his daughter was major at the relevant time, the petitioner forcibly married her against her will and consent according to Muslim law. He denies, that he alongwith other police officers raided the house of the petitioner and forcibly took away Sangita as alleged by the petitioner. It is stated that the police after recovering Sangita brought her to police station alongwith the petitioner, that on seeing him her daughter started weeping and that after completing certain formalities the police officer concerned handed over Sangita to him and he brought her back to his house. It is further stated that Sangita, was so mentally up set on that dale that she could not give any statement before the Magistrate on 3. 5. 1995 but on 4. 5. 1995 she gave her statement before the Chief Judicial Magistrate, Port Blair which was recorded under section 164 of the Cr. P. C. ( 7 ) THE respondent No. 7 further states that he is not a police officer in the rank of Deputy Superintendent of Police but he is holding the rank of Police Radio Officer on deputation. 5. 1995 she gave her statement before the Chief Judicial Magistrate, Port Blair which was recorded under section 164 of the Cr. P. C. ( 7 ) THE respondent No. 7 further states that he is not a police officer in the rank of Deputy Superintendent of Police but he is holding the rank of Police Radio Officer on deputation. According to respondent No. 7 that the writ petitioner has committed an offence by kidnapping her daughter Sangita with the intention to compel her to marry him against her will. It is also stated that she was forcibly taken away by the writ petitioner on 2. 5. 1995 and to compel her to marry the petitioner against her will. ( 8 ) IN the affidavit in reply the petitioner has challenged and denied the allegations made by the respondent No. 7 in his affidavit in opposition and his specific case is that even if Sangita made the statement under section 164 of the Cr. P. C. before the Magistrate it was made on the pressure of her father and still she is legally married wife of the petitioner, and under law she cannot be separated front him. In paragraph 15 of the affidavit in reply the petitioner prayed that the respondent No. 7 may be directed to produce the wife of the petitioner before this Court to say whether she is willing to stay with her father or to come with her husband. To the writ petition a purported marriage certificate in Urdu has been annexed as Annexure 'b' without any authorised translated copy to English. Exhibit A to the writ petition is a purported letter written by Sangita to the Deputy Superintendent Police, South Andaman, Port Blair dated 2. 5. 1995 stating that she is getting married to the petitioner on that very date on her own will. In affidavit in reply the petitioner has annexed certain photographs showing him and the daughter of the respondent No. 7 and a letter dated 23. 4. 1995 purportedly written by Sangita to him. ( 9 ) IN pursuance of the repeated prayers made by the petitioner in his writ application and in the affidavit in reply, the earlier Circuit Bench by its order dated 20. 9. 1995 directed the respondent No. 7 to produce Sangita Chhibber in Court on the next date. 4. 1995 purportedly written by Sangita to him. ( 9 ) IN pursuance of the repeated prayers made by the petitioner in his writ application and in the affidavit in reply, the earlier Circuit Bench by its order dated 20. 9. 1995 directed the respondent No. 7 to produce Sangita Chhibber in Court on the next date. Sangita Chibber was however, produced and she appeared before this Court on 17. 11. 1995 and made the statement singed by her. In that statement she says as follows:-"i have no connection with Mr. Khalid Riaz, and that I do not want to reside with Mr. Khalid Riaz. Neither the Police nor my father took me away forcibly. I have not married Mr. Khalid Riaz. "in this writ application Mr. A. S. Roy, the learned Advocate appearing for the petitioner submitted that he was appearing for the first time on behalf of Mr. N. N. Adhikari as Mr. N. N. Adhikari could not attend this Circuit Bench and that he was not conversant with the facts of the case. But it appears from the order book that Mr. A. S. Roy appeared for the petitioner before the earlier Bench on 28. 2. 1996 and also on 29. 2. 1996. Anyway Mr. Roy has submitted that in disposing of this application the Court is to look after the social justice and the matter involved in a liberal way. The contention of Shri Roy cannot be disputed. In my opinion in this writ application there is hardly any scope for Mr. Roy to emphasise social justice and liberalisation of attitude. Be that as it may the undisputed fact is that a criminal case has been initiated against the petitioner under section 109/ 365/366 of the I. P. C. which is still pending in the Court of the local Chief Judicial Magistrate. Furthermore, admittedly there is a 164 statement made by the said Sangita the daughter of the respondent No. 7 duly recorded by the Magistrate against the petitioner. Even in this Court the said Sangita has categorically made statement which I have already quoted. It speaks for itself. And this fact cannot be ignored for the purpose of the writ application, because she is appearing before this Court under Court's direction on the insistance of the writ petitioner. Even in this Court the said Sangita has categorically made statement which I have already quoted. It speaks for itself. And this fact cannot be ignored for the purpose of the writ application, because she is appearing before this Court under Court's direction on the insistance of the writ petitioner. It may be re-called that apart from the statement made in the writ petition and in the affidavit in reply the petitioner has prayed in his writ application an interim order for direction upon the respondent No. 7 to produce Sangita in Court. ( 10 ) IN view of the pendency of the criminal case this Court while dealing with the writ application containing allegations which form the very basis the Criminal prosecution of the petitioner cannot make any comment or pass any order which play prejudice the prosecution of the petitioner in any way in the subjudice criminal case. Whether Sangita is the legally married wife of the petitioner or whether any offence under section 109/365/366 of the IPC Were committed by the petitioner or not, are to be considered by the Criminal Court of competent jurisdiction where the case is pending. The petitioner made prayer to direct the respondents to cause an enquiry and to take appropriate steps under the law against the erring police officers for having illegally taken away his legally married wife on 2. 5. 1995. ( 11 ) IN view of the pendency of the aforesaid criminal case such a prayer can never be allowed by the writ Court while the entire matter is to be decided for the offences allegedly committed by the petitioner by the competent Criminal Court according to law. I have already quoted the prayer made by the petitioner, in his petition dated 3. 5. 1995 addressed to the respondent No. l to 6. It has been submitted by Shri A. S. Roy that the police authorities should be directed to take action on the basis of the said letter which is annexure 'c' to the writ application. ( 12 ) WHEN the police is already in a seisin of the matter and already petitioner is facing the prosecution under section 109/365/366 of the IPC such a direction would be fully unwarranted in law and such prayer could have made before the learned Magistrate concerned. ( 12 ) WHEN the police is already in a seisin of the matter and already petitioner is facing the prosecution under section 109/365/366 of the IPC such a direction would be fully unwarranted in law and such prayer could have made before the learned Magistrate concerned. But the fact remains that Sangita who appeared before this Court and gave statement which is on record signed by her which speaks a volume against allegations made by the writ petitioner in the writ application. ( 13 ) MR. A. S. Roy appearing for the petitioner has contended that the proceeding of the writ application should not prejudice the rights and contentions of the prosecution and defence before the Trial Court in the pending criminal case. ( 14 ) THIS court only records that the order of this Court while disposing of this writ application shall not influence the mind of the learned Trial Court in disposing of the said criminal case. I must also make it clear that from the materials on record I do not find anything to show or indicate that Articles 14 and 19 of the Constitution of India have been violated in any way against the petitioner or he has been denied any opportunity or right which is entitled to under the principles of natural justice and equity. There is no substance in the writ petition and is dismissed. There will be no order as costs. Petition dismissed .