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2010 DIGILAW 1004 (MP)

Ramswarup v. State of M. P.

2010-10-01

PRAKASH SHRIVASTAVA, SHANTANU KEMKAR

body2010
ORDER Shantanu Kemkar, J. 1. Heard Learned Counsel for the parties on I.A. No. 2775/10. 2. Through this application a prayer has been made by Petitioner for issuance of directions to the Central Bureau of Investigation (for short CBI) or other independent agency to conduct investigation into the disappearance of Dilip S/o Devising Patidar, from the custody of the Anti Terrorism Squad (for short ATS), Mumbai. 3. The Petitioner has filed this Writ Petition under Article 226 of the Constitution of India for production of his brother Dilip Patidar and for further direction to set him free from the custody of ATS, Mumbai. 4. Brief facts necessary for disposal of this I.A. are as under: 5. According to the Petitioner in the intervening night of 10-11th November, 2008 the members of ATS, Mumbai with the assistance of Sub Inspector of Police Station Khajrana, Indore of M.P. Police had taken Petitioner's brother Dilip Patidar, to Mumbai in connection with the investigation of Malegaon Bomb Blast Case'. The Petitioner has alleged neither the Police Officers of ATS Mumbai nor Sub Inspector of Police Station Khajrana, Indore informed the Petitioner or the family members of said Dilip as to for what purpose and at which place he is being taken. It has been further alleged that it is only on 20.11.2008 when Dilip contacted his cousin Alkesh at Indore and informed him that he is being kept in the custody of ATS, Mumbai, his whereabouts were came to the knowledge of the Petitioner. When his phone call to his cousin revealed that he is under some undue pressure from the ATS, Mumbai the family members of Dilip became worried. It has been alleged that on 21.11.2008 the present Petitioner (brother of Dilip Patidar) received a call from the ATS Mumbai on Dilip's wife mobile phone asking them to send Dilip to Mumbai for recording of his statement. The Petitioner and Dilip's wife Padma were shocked to hear the message as Dilip had not returned since the intervening night of 10-11th November, 2008, after he was being taken by the ATS, Mumbai. All these circumstances led to filing of the present habeas corpus petition against the Respondents on 24.11.2008. 6. On being noticed the returns have been filed by the State of Madhya Pradesh and by ATS Mumbai. 7. All these circumstances led to filing of the present habeas corpus petition against the Respondents on 24.11.2008. 6. On being noticed the returns have been filed by the State of Madhya Pradesh and by ATS Mumbai. 7. On going through the averments made in the petition, the return and the various reports submitted from time to time it is revealed that undisputedly a team of ATS, Mumbai had taken Dilip from his house at Indore to Mumbai in the intervening night of 10 - 11th November 2008. It is also revealed that he was taken to Mumbai as he was one of the witnesses sighted in the 'Malegaon bomb blast case'. As per the stand taken by the ATS, Mumbai after taking Dilip to Mumbai his statement was recorded in their office at Mumbai on 13.11.2008. Thereafter he attended the office of ATS Mumbai upto 18.11.2008. According to ATS, Mumbai Dilip was required to give his statement before Metropolitan Magistrate at Mumbai and for that proof about his identity was necessary. Therefore, the ATS, Mumbai asked him to bring his identity proof from Indore and come back to Mumbai. He left the office of ATS on 18.11.2008 and thereafter he did not come back. Thus the stand of the ATS is that he was never in their custody and at his own he left the office of ATS on 18.11.2008. It is their stand that Dilip being not in their custody no question of his production arises. 8. On 2.4.2009 this Court taking note of the mobile phone call details produced before it directed Superintendent of Police, Indore to make investigation with a view to find out the whereabouts of the alleged detenu Dilip Patidar. The ATS, Mumbai was also directed to extend full support and co-operation as may be demanded by the M.P. State Police and supply all necessary documents and information which are in their possession to the Superintendent of Police, Indore to facilitate the investigation in finding out the whereabouts of Dilip Patidar. The Superintendent of Police, Indore was directed to submit a detailed report alongwith affidavit within a period of one month. 9. Thereafter, the case was adjourned from time to time for submission of the report. Ultimately on 13.7.2009 the report submitted by the Superintendent of Police, Indore was taken on record. The Superintendent of Police, Indore was directed to submit a detailed report alongwith affidavit within a period of one month. 9. Thereafter, the case was adjourned from time to time for submission of the report. Ultimately on 13.7.2009 the report submitted by the Superintendent of Police, Indore was taken on record. Additional report to show what steps were taken by the M.P. Police and what assistance was solicited from ATS, Mumbai was directed to be submitted by this Court vide order dated 13.7.2009. 10. On 19.8.2009 the Senior Superintendent of Police, Indore filed reply and affidavit. Alongwith affidavit documents have been filed by the SSP, Indore to show that umpteen attempts have been made by the officers of the State Government to find out the whereabouts of missing person namely Dilip Patidar. On that date in the presence of Nitin Thakre, Assistant Inspector of ATS, Mumbai the Additional Advocate General appearing for the State of Madhya Pradesh made a categorical statement that information regarding all these issues was sought from ATS, Mumbai vide letter dated 1.7.2009, but no information was sent by the ATS, Mumbai. It was stated by him that Sub inspector, Ajay Markam and D.S. Parmar were sent to collect the information, but ATS, Mumbai resources reveal that they had ho knowledge of the issue. A further categorical statement was made by Additional Advocate General for State of Madhya Pradesh that despite directions of this Court Mumbai Police specially the ATS, Mumbai is not helping them. A prayer was made that the third and fourth Respondents be summoned or they be asked to file detailed affidavit. 11. On the basis of the aforesaid submissions made by Additional Advocate General of State of M.P., Shri Nitin Thakre, Assistance Inspector from ATS, Mumbai was put to notice and Respondents No. 3 and 4 were directed to make search about whereabouts of Dilip and they were also directed to file the affidavit in relation to the efforts made by them. The Commissioner of Police, ATS, Mumbai was also directed to be informed that in case appropriate steps are not taken by him then this Court may direct his personal appearance. 12. The Commissioner of Police, ATS, Mumbai was also directed to be informed that in case appropriate steps are not taken by him then this Court may direct his personal appearance. 12. Thereafter since no effective steps were found to have been taken by the Respondents, the Division Bench keeping in view the previous orders passed by it from time to time deemed it proper to constitute a committee in the interest of all parties concerned for the purpose of making investigation about the inquiry from probing the whereabouts of missing person Dilip. On the basis of suggestions of counsel appearing for ATS, Mumbai and the Additional Advocate General for the State of M.P. the Division Bench constituted a committee for the said purpose vide order dated 5.11.2009 consisting of Senior Superintendent of Police, Indore, a local representative of ATS, Indore (not below the rank of Additional S.P.), one representative of ATS, Mumbai (not below the rank of ACP) and Superintendent of Police, Bhopal. The Committee was directed to make the inquiry/investigation to the best of their ability, sincerity and devotion and was directed to submit its detailed report to enable this Court to pass appropriate orders in the light of report so submitted. 13. It is revealed from the record that committee so constituted submitted a report dated 5.11.2009 giving some call details about the mobile phone of the missing person. Thereafter the matter was adjourned from time to time enabling the Respondents to make sincere efforts about the search and production of the missing person. However, all attempts were found to be futile. 14. Ms. Ritu Bhargava, Learned Counsel for the Petitioner argued that in view of the stand taken by the Respondents in their reply and the reports about the investigation submitted by them from time to time it is clear that there are no sincere efforts on the part of the police of State of Madhya Pradesh and also on the part of ATS, Mumbai and the State of Maharashtra. She submitted that undisputedly Dilip Patidar was picked up from his residence by ATS, Mumbai with the assistance of the local police. In the circumstances the Committee constituted by this Court consisting of ATS, Mumbai and the local police officers will not bring any result. She submitted that undisputedly Dilip Patidar was picked up from his residence by ATS, Mumbai with the assistance of the local police. In the circumstances the Committee constituted by this Court consisting of ATS, Mumbai and the local police officers will not bring any result. She submits that from the facts as have been emerged a very strong prima facie case and involvement in the disappearance of Dilip exists against the ATS, Mumbai. She argued when ATS, Mumbai has taken Dilip to Mumbai it is for them to answer where the Petitioner's brother is. She submitted that the Petitioner and the wife of Dilip are entitled to know the circumstances which led to the disappearance of Dilip and as to whether he is alive or dead. She also argued when the action of ATS, Mumbai is under clouds it would be hardly expected from local police and by the Committee consisting of ATS Officers to investigate the matter freely and fairly. She submitted that this is a fit case for ordering investigation by an independent agency like CBI, which is not under control or influence of the two State Governments and ATS, Mumbai. To support the prayer for CBI investigation she placed reliance on the order passed on 11.11.2008 by a Division Bench of this Court at Principal Seat, Jabalpur in the case of Ram Vilas Jat v. Central Bureau of Investigation and Ors. W.P. No. 11986/2008 as also the judgment of the Supreme Court in the case of State of West Bengal and Ors. v. Committee for Protection of Democratic Rights, West Bengal and Ors. - (2010) 3 SCC 571 . 15. On the other hand Learned Counsel appearing for the Respondents have argued that the investigation is being going on effectively and there is no need to direct the CBI to investigate into the matter. 16. Shri Vaibhav Bagade, Learned Counsel for the State of Maharashtra and ATS, Mumbai has argued that the Petitioner and the wife of missing person Dilip are having full knowledge about the whereabouts of the missing person and in order to divert the ATS, Mumbai from making further investigation in the "Malegaon Bomb Blast Case" in which the missing person may also be involved, this habeas corpus petition has been filed. Placing reliance on the mobile phone call details he argued that Dilip Patidar made mobile phone calls to his wife and as such she has knowledge as to where her missing husband is. 17. Refuting the said allegations Learned Counsel for the Petitioner submitted that the call details on the basis of which it has been alleged that the Petitioner or Padma wife of missing person are in contact with missing person are baseless and cannot be relied upon. She argued that the calls on which reliance has been made were not received from mobile of missing person, but it was the attempt made by the missing persons' wife Padma to contact her husband. She further argued that if the Petitioner or the wife of the missing person were any having any intention to hide Dilip they would not have filed the habeas corpus petition or at least they would not have made a request for investigation through CBI in the matter. She further argued that the ATS, Mumbai in order to cover up its misdeeds is avoiding CBI investigation. She further submitted that in view of the involvement of ATS, Mumbai the police of State of Madhya Pradesh and the Committee consisting officers of ATS, Mumbai is not making the investigation in proper way. 18. On 9.9.2010 we had directed learned Dy. Advocate General of the State of M.P. to make available the case diary in regard to the complaint made by the Petitioner about the missing person, but very surprisingly he on instructions stated that no FIR about the complaint of missing person has been registered as yet. He submitted that on the basis of a request made by ATS, Mumbai seeking assistance for taking Dilip with them for making inquiry from him the Rojnamcha entries (Annexure R-l and R-2) were recorded in the intervening night of 10-11th November 2008. He submitted that even though no FIR has been registered, the matter is being investigated as per the directions issued by this Court from time to time. 19. Having gone through the order sheets recorded by this Court from time to time, the progress reports submitted by the M.P. Police and by the ATS, Mumbai we are of the view that there is no proper investigation regarding disappearance of Dilip and no proper efforts being found to be made to search him. 19. Having gone through the order sheets recorded by this Court from time to time, the progress reports submitted by the M.P. Police and by the ATS, Mumbai we are of the view that there is no proper investigation regarding disappearance of Dilip and no proper efforts being found to be made to search him. Admittedly, Dilip Patidar was taken by ATS, Mumbai being witness to 'Malegaon Bomb Blast Case. The stand taken by the ATS, Mumbai that on 18.11.2008 he was asked to bring his identity card and for that he left Mumbai and thereafter he did not return, prima facie does not appear to be plausible. As would be clear from the order sheet dated 19.8.2009 recorded by this Court the ATS, Mumbai was reported to be not cooperating in the investigation conducted by the Senior Superintendent of Police, Indore. In view of the allegation against the ATS, Mumbai it may not be possible for the Committee which also consists of ATS, Mumbai Officers to make a proper inquiry about the whereabouts of the missing person. 20. In the case of Ram Vilas Jat (supra) Division Bench of this Court considering the judgment of Supreme Court in the case of Secretary, Minor Irrigation and Rural Engineering Services, U.P. v. Sahngoo Ram Arya - AIR 2002 SC 2225 and in the case of Sakiri Vasu v. State of U.P. - (2008) 2 SCC 409 has observed that it is now well settled by the Supreme Court that under Article 226 of the Constitution the High Court has the power to direct an investigation by the C.B.I, but the power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is a need for such investigation. In the case of State of West Bengal and Ors. (supra) the Supreme Court has held that the High Courts are authorized under Article 226 of the Constitution of India to issue directions, orders or writs to any person or authority including any Government to enforce fundamental rights and for any other purpose. In the case of State of West Bengal and Ors. (supra) the Supreme Court has held that the High Courts are authorized under Article 226 of the Constitution of India to issue directions, orders or writs to any person or authority including any Government to enforce fundamental rights and for any other purpose. It has been held that the words "life" and "personal liberty" are used in Article 21 as compendious terms to include within themselves all the varieties of life which go to make up the personal liberties of a man and not merely the right to the continuance of a person's animal existence. All those aspects of life, which make a person live with human dignity are included within the meaning of the word "life". The State has duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. Article 21 in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. In certain situations even a witness to the crime may seek for and shall be granted protection by the State. The right to life and personal liberty is paramount. Being protectors of civil liberties of the citizens, the Supreme Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly. Therefore, a direction by the High Court in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. 21. 21. In view of the aforesaid pronouncement of this Court as well as of Supreme Court and having regard to the poor progress, the fact that the allegations are against the ATS, Mumbai, the stand taken by the Additional Advocate General of Madhya Pradesh as would be clear in the interim order of this Court passed on 19.8.2009 about non-cooperation in the investigation by the ATS, Mumbai, we are satisfied that this is a fit case for issuing directions to the CBI to take over the investigation. 22. We accordingly direct the fifth Respondent CBI to conduct investigation regarding disappearance of Dilip Patidar S/o Devi Singh Patidar who was taken by ATS, Mumbai to Mumbai. We also direct the State of M.P., State of Maharashtra and the ATS Mumbai to cooperate fully with the CBI in the investigation of the matter. 23. The case be listed for further orders after eight weeks.