Research › Search › Judgment

Orissa High Court · body

2004 DIGILAW 265 (ORI)

Ibrahim Alikhan v. State of Orissa

2004-06-18

A.S.NAIDU

body2004
JUDGMENT A. S. NAIDU, J. — The guardian of a minor girl approaches the portals of this Court seeking issuance of a writ of Habeas Corpus directing the opposite parties to produce Khatija Khatun @ Pinu, and to take appropriate action against the culprits who have kidnapped the minor girl. 2. The petitioner asserts that he is the guardian of Pinu, aged 17 years, who happens to be the daughter of his elder broth¬er Yusuf Alli Khan. It is stated that his elder brother died leaving behind his widow and minor daughter under the care of the petitioner. While the matter stood thus, on 23.11.2000 in the mid day Pinu who had gone to tailor’s shop for getting her clothes stitched, did not return home. All the endeavour made by the petitioner, other relatives and friends to trace out the minor girl ended in vain. Having failed to trace out his niece, the petitioner filed an F.I.R. in the Balasore Town police sta¬tion on 23.11.2000 in the evening itself. On the basis of the said F.I.R., P.S. Case No.313 of 2000 was registered under Sec¬tion 363/34, IPC. The petitioner further asserts that a group of culprits are operating sex scandal in the district of Balasore and their modus operandi is to kidnap minor girls and involve them in the flesh trade. The petitioner alleges that though he approached the authorities on several occasions and met the concerned police officer and higher officers in the police admin¬istration, they have utterly failed either to trace out the victim girl or to inform the petitioner about her whereabouts. Under such eventualities, the petitioner has no other way out but to file the present application for issuance of a writ of Habeas Corpus. 3. On 2nd March, 2001 this Court directed the State-opposite parties to publish the fact of missing of the minor girl Pinu along with her photo and also telecast the said fact in Television. Though there was some delay in carrying out the aforesaid order, at last on 14.5.2001 learned counsel for the State produced two Oriya newspapers, namely, ‘Ajikali’ and ‘Dhwani Pratidhwani’ wherein the news about the missing of Pinu was published. Affidavits were also filed in this Court indicating the progress of investigation. Though there was some delay in carrying out the aforesaid order, at last on 14.5.2001 learned counsel for the State produced two Oriya newspapers, namely, ‘Ajikali’ and ‘Dhwani Pratidhwani’ wherein the news about the missing of Pinu was published. Affidavits were also filed in this Court indicating the progress of investigation. On 20th November, 2003 after perusing the affidavits and reports submitted by the Inspector-in-charge, Balasore Town Police Station to the Superin¬tendent of Police, Balasore, this Court was prima facie of the view that the steps taken by the investigating agency were not very satisfactory. However, without interfering with the investi¬gation, this Court directed the Inspector-in-charge of Balasore Town Police Station to appear in person before this Court with relevant case diary and all other papers connecting the case and satisfy the Court about the progress of investigation. In re¬sponse to the said direction, the concerned officer appeared before this Court and submitted that in spite of all possible steps inside the State as well as outside, the victim girl could not be traced out. It is also stated in the affidavit that the victim was in love with one Jhuna @ Prakash Das and it appears she has eloped with her lover. The allegation of kidnapping of minor girl was also repudiated. It was asserted that the date of birth of the girl was 1st June, 1981 and as such by the date she was found missing she was 19+ and was a major. In the affidavit it was further averred that all steps required to be taken for tracing out the girl were in fact sincerely taken but in vain. On behalf of the State, it was submitted that as the girl has become major and her whereabouts could not be traced out, and at the other hand it was revealed that she had eloped with her lover Prakash Das, the investigating officer had submitted a final report on 17.5.2002 in consonance with Section 173 of the Code of Criminal Procedure after completion of investigation in G.R. case and the matter is pending in Court. Learned counsel for the State further submitted that as final report has already been submitted in Court, where G.R. Case is pending, if the petitioner so desires, he can work out his remedies as stipulated under the Code of Criminal Procedure and the present writ application is thus not maintainable. 4. Learned counsel for the State further submitted that as final report has already been submitted in Court, where G.R. Case is pending, if the petitioner so desires, he can work out his remedies as stipulated under the Code of Criminal Procedure and the present writ application is thus not maintainable. 4. We have heard learned counsel for the parties at length. We have also perused the case diary presented before us by the learned counsel for the State. Admittedly, the victim girl who is missing since 23.11.2000 has not been traced out till today by the investigating agency. The case diary reveals that the investigating agency has examined number of persons of the locality. Some materials are available to show that the victim girl had fled away with Jhuna @ Prakash Das of Mansingh Bazar who was her lover. The investigating agency has failed to trace out the said man and to arrest him till today. The way the investiga¬tion has progressed, throws a cloud of suspicion on the eagerness of the prosecution agency to trace out the girl or the alleged accused. This fact also gets fortified from the order of this Court dated 15.5.2001. For the sake of brevity, the said order is quoted hereinbelow: “The Officer-in-charge of the Balasore Town Police Station is personally present in Court and files an affidavit on behalf of opposite party No.2 along with the Xerox copy of two newspapers wherein the photograph of the victim girl has been published. It is stated in the affidavit that the third copy of the photograph has been supplied on 6.4.2001 whereafter it was forwarded to the Superintendent of Police, C.I.D., Crime Branch, Cuttack which has since been published in the newspapers “Aji Kali” and ‘Dhwani Pratidhwani”. But, probably no one outside Balasore has heard of these newspapers, leave aside reading them. Accordingly, steps should be taken to publish the photograph of the victim girl in one vernacular newspaper having wider circulation in the State. Since the photograph has also been sent to the D.I.P.R.O., it should be flashed in Doordarshan without any further delay. The Superintendent of Police, Balasore, should ensure that steps are taken to proceed with the investigation effectively and expe¬ditiously and that should be under his supervision. Since the photograph has also been sent to the D.I.P.R.O., it should be flashed in Doordarshan without any further delay. The Superintendent of Police, Balasore, should ensure that steps are taken to proceed with the investigation effectively and expe¬ditiously and that should be under his supervision. Ratikanta Behera should further be examined and efforts should also be made to examine Santosh Kumar Dash of Jhinkiria of Sadar P.S., Balasore (uncle of Jhuna) and efforts should be made to find out the details of other relatives from whom also infor¬mation be collected about Jhuna. Manoj Mallick should also be examined and information be called so as to ascertain the possi¬ble places where said Jhuna may be frequently visiting. A memo along with some letters stated to have a bearing on the case, have been placed before the Court by the counsel for the petitioner, copy whereof is handed over to the State Counsel in Court. During the course of investigation the I.O. may also take this aspect into consideration. Call this matter on the 20th of June, 2001 on which date the status report should be submitted by the Superintendent of Po¬lice, Balasore.” It is rather surprising that in spite of specific directions issued by this Court, the investigating agency did not rise to the occasion. The investigation itself reveals that it has been conducted in a perfunctory manner. It also surprises us as to how the investigating agency submitted final report when the whereabouts of the victim girl, who was alleged to have been kidnapped is not known, or in other words the police had failed to trace out the whereabouts of the said girl. The investigating agency has taken the plea that the victim girl has become major. But then as would be evident from the dates, she was born on 1.6.1981 and she was kidnapped on 23.11.2000. Thus, she was hardly 19 years. Though according to law, she has become major, but then kidnapping of young girls cannot be taken lightly only on the ground that the victim girl is a major having attained the age of 19 +. A number of allegations have been received regarding the sex scandal continuing in Balasore district. Thus, she was hardly 19 years. Though according to law, she has become major, but then kidnapping of young girls cannot be taken lightly only on the ground that the victim girl is a major having attained the age of 19 +. A number of allegations have been received regarding the sex scandal continuing in Balasore district. Under such eventualities according to us, the investigating agency should have been a little more vigilant and should have risen to the occasion and at least tried to trace out the victim girl and/or at least ascertain about her safety. Perusal of the affidavit and the case diary clearly reveals that the investigation agency has proceeded in a stereotype manner. The will to trace the victim girl appears to be lacking. Be that as it may, in view of the stand taken by the investigating agency that it has already sub¬mitted final report in the G.R. Case, which is pending in the Court of the learned Magistrate, though we are not very much satisfied the way the investigation was conducted, we dispose of this writ application with a direction that notice as required under Section 173 of the Cr.P.C. be issued to the petitioner, if the same has not been issued till today. On receipt of the said notice, it would be open for the petitioner to file his objection and also file a petition before the learned Magistrate for di¬recting re-investigation in consonance with Sub-section (8) of Section 173 of the Cr.P.C. If such a petition is filed, we are sure the learned Magistrate, after perusing the case diary and other materials available, pass necessary orders in accordance with the Code of Criminal Procedure. SUJIT BARMAN ROY, C.J. I agree. Application disposed of.