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2003 DIGILAW 1485 (AP)

R. Gopal v. Union of India

2003-12-01

B.SESHASAYANA REDDY, J.CHELAMESWAR

body2003
( 1 ) (PETITION under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a direction orders or a Writ more appropriately one in the nature of a writ of Habeas Corpus and Direct the Respondents herein to produce the detenu No. 14648305-L R Gopal S/o R. Reddiar aged 20 years before this Honble Court and set him at liberty. And Pass such other direction, order or orders that may be deemed to be just and proper in the circumstances of the case and also in the interest of justice by this Honble Court.) b. Seshasayana Reddy, J. 1. This will petition is filed under Article 226 of the Constitution by S. No. 14648305-LRECIT R. Gopal seeking direction to the respondents to produce him before the court and set him at liberty. The father of the writ petitioner has given his sworn affidavit in support of the application. ( 2 ) THE writ petition averments in brief are: S. No. 14648305-L RECTT R. Gopal has been enrolled in the Indian Army in the Corpos of EM as a Cook on 10-1-2002 and had undergone his initial training at 1 Training Battalion of 1 EME Centre, Secunderabad (AP) since the date of his joining service till 23. 8. 2002 on which day he had been transferred to ASC Centre (North) Gaya (Bihar) for training. After 23. 8. 2002 there had been no communication from the detenu and this made the members of the family of the detenu to enquire his whereabouts from the office of R-2 and R-3. But their enquiries did not give any fruitful result. The deponent went to the office of R-3 and made enquiries with R-5 in the month of November, 2002 but he did not receive any satisfactory reply from him. Later he approached the office of R-2 and met R-4 and made enquires with him regarding the whereabouts of the detenu, R-4 also did not give any positive reply. On the other hand the officer subordinate to R-4 have insisted him to receive the belonging at the detenu without revealing the whereabouts of the detenu. The respondents failed to give the deponent information regarding the whereabouts of the detenu and it made the deponent to believe that the respondents kept the detenu in their illegal custody and confinement. On the other hand the officer subordinate to R-4 have insisted him to receive the belonging at the detenu without revealing the whereabouts of the detenu. The respondents failed to give the deponent information regarding the whereabouts of the detenu and it made the deponent to believe that the respondents kept the detenu in their illegal custody and confinement. Hence, this writ petition. ( 3 ) INITIALLY this writ petition was filed against R-1 to R-5. This Court by order dated 22. 7. 2003 directed the petitioner to implead the Superintendent of Police, Howrah City, West Bengal State and the Superintendent of Police, Goya City, Bihar State as party respondents to this writ petition and accordingly they came to be arrayed as R6 and R7. ( 4 ) COUNTER affidavit sworn to by Sunil Kumar, Colonel, Commanding Officer, I Training Battalion 1 EME Centre has been filed on behalf of R-1 to R-5. ( 5 ) THE averments in the counter in brief are: the petitioner was enrolled in the Corps of EME (Electronics and Mechanical Engineers) on 31-1-2002 under unit headquarters quota and he underwent six weeks Basic Military Training at 1 Training Battalion 1 EME Centre, Secunderabad from 27-2-2002 to 12-4-2002. Thereafter he was kept in 1 Training Battalion 1 EME Center, Secunderabad from 13-4-2002 to 22-8-2002 for awaiting detailment for Cook Trade Training with other recruits at ASC Centre (North) Gaya. While undergoing training he remained absent without leave and suffered punishment for seven days R1 in the military custody. He was sent to ASC Centre (North) Gaya on 23. 8. 2002 as per Movement Order dated 23. 8. 2002 along with nine other recruits and he was the party in charge being senior most recruit of the party. He along with nine other recruits left Secunderabad Railway Station for ASC Centre (North) Gaya by Falaknama Express on 23-8-2002 at 1750 hours and reached Howrah Railway Station at 2200 hours, where he along with other nine recruits boarded Howrah-Jodhpur Express for Gaya at about 2300 hours on 24-8-2003. The co-recruits found him missing when the train stopped at Jahaja Railway Station at about 5. 00 hours on 25-8-2002. On reaching Gaya Railway Station, the recruits reported the matter about his missing to the Movement Control Officer, Gaya and to Army Central Corps (North) Gaya. The co-recruits found him missing when the train stopped at Jahaja Railway Station at about 5. 00 hours on 25-8-2002. On reaching Gaya Railway Station, the recruits reported the matter about his missing to the Movement Control Officer, Gaya and to Army Central Corps (North) Gaya. Since he failed to report at ASC Centre (North) Gaya by 26-8-2002, ASC Centre (North) Gaya sent telegram dated 3-9-2002 to his father and also reported by signal to 1 EME center, Secunderabad. The intimation of his missing has been conveyed to his brother Rectt. R. Sekhar (for short Sekhar) who was in training in 1 EME center, Secunderabad. Sekhar was granted leave for ten days on 17-9-2002 for the purpose of proceeding to ASC Centre (North) Gaya to make enquires regarding the whereabouts of his brother. Sekhar obtained the statements of co-recruits of his brother, who traveled along with his brother on 23. 8. 2002 from Secunderabad to Gaya. A report came to be lodged with Railway Police at Jahaja and Keol regarding missing of the petitioner. A court of enquiry under Section 106 of Army Act and Rule 183 of Army Rules was ordered by ASC Centre (North) Gaya and the petitioner was declared deserter on 29-10-2002 w. e. f. 26-8-2002. The deponent sworn to in support of the writ petition is fully aware of the details about the missing of the petitioner. Pursuant to the declaration by the court of enquiry the petitioner was a deserter, his personal belongings were brought from ASC Centre (North) Gaya to 1 Training Centre Battalion 1 EME Centre, Secunderabad and the deponent being the next of kin was requested to collect the same. The allegation that the petitioner is under illegal detention of the respondents is false. The respondents have taken all actions in accordance with the Army Act and Rules to trace out the petitioner and that the same is informed to his father and his brother. The writ petitioners based on false and fabricated facts and lacks merits and hence deserves to be dismissed. ( 6 ) WHEN the writ petition came up for hearing, the learned Standing Counsel for Central Government submitted that a court of enquiry was conducted as per Sec. 106 of Army Act and Rule 183 of Army Rules and the petitioner was declared as deserter on 29-10-2002 w. e. f. 26. 8. 2002. ( 6 ) WHEN the writ petition came up for hearing, the learned Standing Counsel for Central Government submitted that a court of enquiry was conducted as per Sec. 106 of Army Act and Rule 183 of Army Rules and the petitioner was declared as deserter on 29-10-2002 w. e. f. 26. 8. 2002. As desired by the counsel for the petitioner a copy of the report was directed to be placed before the court for perusal. In compliance with the directions of this court, a copy of the enquiry report has been placed on record. Learned counsel for the petitioner contends that the stand of the respondents is not consistent and therefore there is every reason to believe that they are not placing true facts before the court. He further submits that the petitioner was not competent to be in charge of the recruits sent for training to Gaya. What he means to say is that some senior officer should be placed in charge of the recruits while on journey from Secunderabad to Gaya. He strenuously contends that the petitioner was in the custody of the respondents 1 to 5 from the day he was relieved at 1 Training Battalion 1 EME center, Secunderabad to the date of his reporting at ASC center (North) Gaya and in case the petitioner missed during the journey, it was the responsibility of the respondents to make proper enquires and trace the whereabouts of the detenu. For the disposal of this writ petition we are not required to deal with the point whether the petitioner was competent to be in charge of the recruits while on journey from Hyderabad to Gaya was proper or not. It is suffice to state that the petitioner boarded that train at Secunderabad for Gaya along with none other recruits. As per the Movement Order dated 23-8-2002 ten recruits were detailed for Trade Training of Cook. The movement order reads as follows: movement ORDER1. The undermentioned rects of 1 Trg Bo 1 EME Centre Secunderabad will proceed to attend Trade Trg of Cook (U) course Ser. No. BC20 and 71/2002-03 commencing from 26 Aug 2002 to 08 March 2003 have been allotted by ASC center (North) Gaya recd vide letter No. 6600/bc/70-71/2002-03/tw/st12 (C) dt. 13 Aug. The movement order reads as follows: movement ORDER1. The undermentioned rects of 1 Trg Bo 1 EME Centre Secunderabad will proceed to attend Trade Trg of Cook (U) course Ser. No. BC20 and 71/2002-03 commencing from 26 Aug 2002 to 08 March 2003 have been allotted by ASC center (North) Gaya recd vide letter No. 6600/bc/70-71/2002-03/tw/st12 (C) dt. 13 Aug. 2002:- a) No. 146483051 Rect Cook (U) R Gopal b) No. 14648813f Rect Cook (U) Hari Shanker Singh c) No. 1464881 4k Rect Cook (U) B. K. Nath d) No. 14648817x Rect Cook (U) Manbodh Kumar e) No. 14648824n Rect Cok (U) Murari Rai f) No. 14648827f Rect Cook (U) S. K. Sharma g) No. 14648843y Rect Cook (U) Uddhab Thapa h) No. 14648845k Rect Cook (U) S. Gajapathi Rao i) No. 14648853h Rect Cook (U) Sahwil Kumar j) No. 14648855n Rect Cook (U) Arun Kumar 2. Departure dated and time: 23 Aug, 2002 (A/n) 3. SAO/sqrs w. e. f. 24 Aug, 2002 and ration up to 23 Aug, 2002 4. On arrival at destination they will report to Adjt/sub Maj of ASC Centre (North) Pahapur, Gaya-5. 5. They are in possession of their Iden Card, Pay Book and personnel kits. 6. Single journey party wt issued from Secunderabad to Gaya. 7. Military matters will not be discussed with unauthorized persons. ( 7 ) LEARNED Standing Counsel for the Central Government appearing for the respondents contends that the statements of co-recruits of the petitioner are crystal clear that the petitioner missed during the course of journey from Howrah to Gaya and therefore, the assertion of the deponent that the respondents detained the petitioner is only his imagination. The respondents filed the copies of the statements of co-recruits of the petitioner. It appears that the statements of co-recruits of the petitioner were collected by R. Manikyam on 21-9-2002. Under what authority the said R. Manikyam collected the statements of the co-recruits is not explained. E deem it appropriate to refer the relevant portion of the counter affidavit and it reads as follows: it is further submitted that brother of the petitioner Recruit R. Sekar was granted 10 days leave for the purpose of proceeding to ASC Centre (North) Gaya and the father of the petitioner, Recruit R Sekar along with Mr. R. Manickam visited ASC Centre (North Gaya on 21 Sep, 2002. R. Manickam visited ASC Centre (North Gaya on 21 Sep, 2002. It is submitted that the family member of the petitioner had detailed discussion with all the recruits who traveled with the petitioner and obtained their statement also. It is further submitted that Shri. R. Manikyam also lodged complaint regarding missing of the petitioner with Railway Police, Jhajha and Keol. The allegations of the petitioner father that his son is in illegal custody of respondents are false, baseless and merely an after thought. It is submitted that the father of the petitioner was fully apprised of the details regarding missing of the petitioner and steps taken by the respondents to find his whereabouts. ( 8 ) WE are surprised to note that dispute the fact of missing of the detenu bringing to the notice of R-3 on 25. 8. 2002, three seems to be no prompt report to the concerned police regarding missing of the petitioner. It was only in the month of Sep. 2002 after collecting the statements of the co-recruits by R. Manickam a report came to be presented to the in charge Railway Police, Keol. A report also came to be presented to Superintendent of Police. Secunderabad General Reserve Police (Railways) Secunderabad, Superintendent of Police, Howrah City and Superintendent of Police, Gaya, Bihar on 6. 10. 2002 by Lt. Col. Second-in-command for Commanding Officer, 1 Training Battalion 1 EME Centre, Secunderabad. The lethargic attitude of the authorities concerned in reporting the missing of the petitioner while on journey from Howrah to Gaya is glaring on the face of the record. We hope and trust that the concerned authorities would initiate necessary action against the persons responsible for not initiating proper proceedings soon after receiving the report of missing of the petitioner on 25. 8. 2002 itself. Had there been a prompt action, the father of the petitioner would not have been compelled to tap the doors of this court under Article 226 of the Constitution of India. We have gone through the court of enquiry report. The statement of Murari Roy is crystal clear that the petitioner missed from the train on 25. 8. 2002 at about 300 hours. We have gone through the court of enquiry report. The statement of Murari Roy is crystal clear that the petitioner missed from the train on 25. 8. 2002 at about 300 hours. It is useful to refer the relevant portion of the statement of Murari Roy who is one of the recruits traveled along with the petitioner from Hyderabad to Gaya and it reads as follows: when I wake up about 0300 hours the train was running slowly. Then I looked out side though the window. Then I noticed that R. Gopal, standing to Gopal standing at the doorsteps of the next compartment. Then I shouted to Gopal what are you doing there? It is Bihar please come. He told me I am the senior. Your go back to sleep. Then I went to sleep again. At about 0500 hours in the morning the train stopped at Jhajha Railway Station. I, Hari and Arun got up and had tea. Then we went to toilet. We took a cup of tea for Gopal and we got into the train. We waited for Gopal thinking that he may be in the toilet. Then I told everyone that I have seen R. Gopal at 3 A. M. After that we stated looking for R. Gopal. A JCO with his wife and daughter was also there in our compartment. I told the JCO that one of our course mate is missing. The JCO told us dont worry. He will be in the next compartment. We searched the next compartment also we were worried. We got his dress and luggage. When we reached at Gaya we reported to MCO Gaya. ( 9 ) ON thorough examination of the records placed before us, we are in no doubt to conclude that the petitioner missed enroute during the journey from Howrah to Gaya on 25-8-2002. Therefore, the contention of the petitioner that the respondents detained him is not based on any material. Before parting with the case, we observe that this matter requires investigation at the highest level on the lethargic attitude of the officers concerned in not taking prompt action on being informed by co-recruits regarding missing of the petitioner on 25-8-2002 itself. We, therefore, desire that the Chief of Army Staff personally look into this matter and take appropriate action as deemed fit. We, therefore, desire that the Chief of Army Staff personally look into this matter and take appropriate action as deemed fit. ( 10 ) IN the result, this writ petition fails and the same is dismissed subject to the above observation.