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2006 DIGILAW 17 (RAJ)

Durga Lal v. State of Rajasthan

2006-01-03

DALIP SINGH, V.K.BALI

body2006
Judgment V.K. Bali, J.-Durga Lal, the petitioner herein, through present writ filed by him under Articles 14, 21 and 226 of the Constitution of India prays that a direction be issued to the respondents to produce his wife Smt. Pholiya, Smt. Kali wife of Chhitar and Smt. Gyarsi W/o Prabhat before this Court by effecting their recovery from the unlawful detention of Respondent Nos. 5, 6 and 7. It is case of the petitioner that he is husband of Smt. Pholiya, aged 35 years. Smt. Kali is wife of his younger brother Chhitar and Smt. Gyarsi is wife of his another younger brother Prabhat. All of them were living peacefully in their village Maggi, tehsil Ramgarh, Distt. Jaipur. They belong to Bavaria caste which come in Scheduled Caste and belong to very poor down trodden status in the society. Kailash, Forest Guard, Maggi, Manaya, Forest Guard, Maggi and Radha Kishan, Forest Guard, Maggi, Respondents No. 5, 6 and 7 respectively, who are Government employees used to harass them. Their modus operandi was to keep young unmarried girls of poor families of Bavaria community in order to have forcible sexual intercourse with them and on protest of parents of the girls, they used to give threats that they will be killed. The said respondents are stated to be powerful persons of the village, whom the police would lend a helping hand. They kidnapped Smt. Pholiya, Smt. Kali and Smt. Gyarsi on 25.08.2005 at gun point. When entreaties of the petitioner, both oral and in writing, brought no tangible result, the present writ was filed for the relief , as already indicated above. .2. Pursuant to the notice that was issued by this Court, the respondents have entered defence and seriously opposed prayers made in the petition, by filing written statement wherein it has been inter alia pleaded that on 09.08.2005, FIR No. 2195/49 was registered at Forest Department under Sections 44, 49-A and 49-B of the Wild Life Protection Act, 1972 against Heera and others, details of whom have been given in Para 2 of the written statement. Copy of the FIR has been annexed with the written statement as Annexure R-1. During the course of investigation, Durga Bavaria was arrested on 011.2005 at 4 PM by the Regional Forest Officer, Raisar, in connection with the aforesaid FIR. Copy of the FIR has been annexed with the written statement as Annexure R-1. During the course of investigation, Durga Bavaria was arrested on 011.2005 at 4 PM by the Regional Forest Officer, Raisar, in connection with the aforesaid FIR. On registration of FIR aforesaid, accused Durga was arrested and his two brothers namely Dholiya @ Prabhat and Chhitar are absconding alongwith their wives Smt. Lali, Smt. Gyarsi and wife of petitioner Smt. Phooli @ Pholiya. The three brothers named above are co-accused of skin-smuggler. Sansar Chandra and accused Dholiya @ Prabhat and Chhitar are wanted in the aforesaid case. Apart from this, petitioner and his family were involved in criminal cases as mentioned below : .(i) FIR No. 97/1995 under Section 16/54 of the Excise Act registered at Police Station Jamuaramgarh and Charge-sheet No. 38/1995 filed against Laliya son of Onkar Bawaria, resident of Village Mahangor (father of the petitioner). .(ii) FIR No. 115/1997, under Section 307, IPC registered at Police Station Andhi and Charge-sheet No. 66/1997 filed against accused Durga son of Laliya Bawaria (petitioner). .(iii) FIR No. 141/2001, under Sections 341, 323, IPC registered at Police Station Andhi and Charge-sheet No. 78/2001 filed against accused Kalia son of Laliya Bawaria (brother of petitioner). .(iv) FIR No. 142/2001 under Sections 341, 323, IPC registered at Police Station Andhi and Charge-sheet No. 79/2001 filed against accused Prabhat son of Laliya Bawaria (brother of petitioner). 3. It is then pleaded that no one contacted Police Station, Andhi to lodge any complaint regarding so called illegal detention of Smt. Phooli @ Pholiya, Smt. Lali and Smt. Gyarsi. However, after receipt of notice of the present petition, SHO Police Station Andhi enquired into the matter and contacted Laliya @ Lala Ram son of Onkar @ Onkariya and Smt. Rukma Devi wife of Laliya @ Lala Ram (father and mother of petitioner), Ram Kishore @ Ram Kuwar son of Laxmi Narayan, Ramkishore son of Bhura Das, Rekha Ram, son of Hanumana Ram and Smt. Kamli Devi wife of Narayan and recorded their statements. On enquiry, it came on record that accused Prabhat and Chhitar alongwith their wives have absconded from the house in their bid to escape arrest in FIR No. 2195/49 and it was only with a view to pressurize police/forest department so that they might not be able to take any effective steps to arrest them, that the present petition has been filed. During enquiry of the present petition, an application was submitted by Jagdish Prasad, Sarpanch, Gram Panchayat Mahangi, Panchayat Samiti Jamwa Ramgarh, Distt. Jaipur with regard to the whereabouts of the alleged detenues. Respondents have annexed with the written statement copies of the statements of Laliya @ Lala Ram, Smt. Rukma Devi, Ramkishore @ Ram Kuwar, Ramkishore son of Bhoora Das Swami, Rekha Ram and Smt. Kamli. It is then pleaded that the allegations made against the police and forest department are absolutely false, concocted and with an oblique motive to make out a case of mala fide. 4. From narration of the facts as given above, it cannot be said to be a straight forward case of illegal detention of the alleged detenues by the respondents. The limited scope in a petition for habeas corpus is to find out as to whether the alleged detenues are indeed in illegal confinement or detention of anyone, be it the concerned authorities or even any person. It is positive case of the respondents that male members of family of the petitioner are involved in serious crime connected with Sansar Chandra, an infamous person dealing with poching of preserved animals. Male members with a view to avoid police dragnet are escaping with their wives. The male members have not arrested so far, and they have successfully avoided their arrest. The two cross versions pleaded and argued with equal vehemence present a situation of highly disputed questions of fact. Present case, thus manifest serious dispute on facts and the same cannot be determined in writ jurisdiction under Article 226 of the Constitution of India. Be that as it may, present does not appear to be a straight case of illegal confinement or detention of the alleged detenues by the concerned respondents. Present case, thus manifest serious dispute on facts and the same cannot be determined in writ jurisdiction under Article 226 of the Constitution of India. Be that as it may, present does not appear to be a straight case of illegal confinement or detention of the alleged detenues by the concerned respondents. There is no merit in the petition and the same thus derserves to be dismissed with liberty to the petitioner to vindicate his stand in an appropriate Forum where it might be possible to record evidence and return a finding on the crucial question on which as mentioned above, there is a serious dispute. 5. With the observations made above, this petition is dismissed.