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2013 DIGILAW 358 (CAL)

Banshidhar Mondal v. STATE OF WEST BENGAL

2013-06-20

JAYANTA KUMAR BISWAS, SUBAL BAIDYA

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Judgment :- Jayanta Kumar Biswas, J. The petitioner in this W P under art.226 of the Constitution of India dated March 30, 2011 is seeking the following principal relief:- “(a) A writ in the nature of Hebeas Corpus commanding the respondents to produce Mallika Mandal physically before this Hon’ble Court so that she may be released.” Advocate for the petitioner has submitted as follows. The petitioner has given information to the officer in charge of Canning police station that the eighth and ninth respondents kidnapped the petitioner’s around seventeen-year old daughter. Though the officer registered an FIR No.81 of 2011 dated February 23, 2011 under ss.363/366A IPC, the officer investigating the case has not taken steps for recovering the kidnapped girl. Hence the officer should be asked to submit report so that a habeas corpus writ may be issued. A habeas corpus writ is to be issued only when it is found that a person is illegally imprisoned by the respondent concerned. Power under art.226 is not to be exercised on the basis of a habeas corpus petition in an effort to recover a kidnapped person. Seeking reports from the police will amount to overseeing the investigation made by an officer according to the provisions of the Code of Criminal Procedure, 1973. The officer is under a statutory obligation to submit report to the criminal court competent to take cognizance of the offences. In this case there is nothing before us from which we can conclude that the eighth and ninth respondents have been illegally imprisoning the petitioner’s daughter. It is for the officer investigating the criminal case instituted on the basis of the petitioner’s information to track down the eighth and ninth respondents and the girl. The criminal court is competent to decide the question of custody of the girl, if necessary. In our opinion, the petitioner’s remedy, if any, is before the criminal court. For these reasons, we dismiss the W P saying that nothing herein shall prevent the petitioner from approaching the criminal court. No costs.