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2006 DIGILAW 814 (MP)

Ram Kishan Pal v. State of M. P.

2006-07-05

A.K.GOHIL, SUBHASH SAMVATSAR

body2006
ORDER Gohil, J. -- 1. Petitioner has filed this habeas corpus petition under Article 226 of the Constitution of India for producing the corpus of petitioner's 8 years old daughter Ku. Asha. It is contended in the petition that she was abducted by the respondents and was detained by respondent No. 11 Mahesh Upadhyaya. Anand brother of Ku. Asha was also abducted, but any how he could manage his liberty from the custody of the respondents after eight years. 2. The contention of the State is that after investigation they have found that Ku. Asha is dead and the same is the stand of the learned counsel for respondent No. 11. The death certificate has also been produced by tile State. 3. The contention of learned counsel for the petitioner is that Ku. Asha is still alive and is in the custody of the respondents. On this contention the reply of the State is that they have already interrogated Sulekha, Birendra, Dhirendra those who are sons of Santu and Raj Kumar Rathore with whom Anand was residing at Nasik and has also interrogated Dr. Santilal. From the aforesaid evidence, the police has found that Ku. Asha is dead. But learned counsel for the petitioner is not accepting the fact that Ku. Asha is dead in the custody of the respondents. 4. A criminal trial is pending against respondent No. 11 Mahesh Upadhyaya for abduction of Ku. Asha. Learned counsel for the petitioner has also contended that in this trial police has not added some other persons as accused, those who were involved in abduction of Ku. Asha and Anand. If it is so, petitioner is free to take appropriate steps in accordance with law. 5. This is a habeas corpus petition. No doubt, the habeas corpus petition can be issued against the private party also but for that there should be a prima facie proof that she is still alive or in illegal custody or detention of a private person. In this case there is a dispute between the parties on the question whether the detenue is alive or not and whether she is in illegal custody with the respondents. In such petitions, prima facie it is required to be seen and to find out whether detenue is under illegal custody or not. Admittedly, the petitioner has not produced any prima facie proof or document before this Court that Ku. In such petitions, prima facie it is required to be seen and to find out whether detenue is under illegal custody or not. Admittedly, the petitioner has not produced any prima facie proof or document before this Court that Ku. Asha is still alive, it is his presumption being father of the daughter. On a preliminary enquiry, the police has found that she is dead, which the counsel for the petitioner is not in a position to accept. 6. If there is a dispute on this factual question, then naturally it requires detailed enquiry and investigation. Such a dispute cannot be enquired or resolved by a summary enquiry in this petition for habeas corpus. It is settled position under the law that in habeas corpus petition Court can only make summary enquiry about the illegal detention and illegal custody of the person. A detailed enquiry cannot be conducted by this Court, which required detailed investigation by police. It is true that the purpose of habeas corpus petition is an immediate determination of the right of the detenue's freedom and the object of the proceedings is to provide expeditious remedy looking to the wrongful confinement of detenue. Looking to the dispute of a peculiar nature in this case the Court cannot grant immediate relief and the writ cannot be allowed because the question of the existence of the man to be released is under cloud. Police has conducted preliminary enquiry but still the intensive and detailed investigation is required to be conducted by the police. 7. In view of the aforesaid discussion, at this stage no useful purpose would be served by keeping this petition pending. In view of the aforesaid facts and circumstances, this habeas corpus petition is disposed of with a direction that police shall continue investigation in criminal case of abduction and illegal detention of Ku. Asha and shall conduct further investigation in the matter. The present petitioner is free to produce the evidence that she is still alive. If such evidence is produced, it is directed that the police shall also conduct investigation on those lines and shall communicate result of the same to the petitioner. 8. Accordingly, the petition stands disposed of with the aforesaid directions.