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2013 DIGILAW 365 (CAL)

Rabi Sardar v. STATE OF WEST BENGAL

2013-06-24

JAYANTA KUMAR BISWAS, SUBAL BAIDYA

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Judgment : The Court:- The petitioner in this WP under art.226 of the Constitution of India dated June 14, 2013 is seeking the following principal relief:- “a) A writ of Habeas Corpus ad subjiciendum commanding the respondent nos. 12 to 15 to produce the petitioner’s minor girl child namely Aparna Sardar.” The case stated in para.10 of the WP is quoted below:- “10.That your petitioner further states that he further wrote a letter to the Chief Minister, West Bengal and on 18.08.2012 filed an application under section 156(3)of the Code of Criminal Procedure under Section 362/363/373/ 120B of the Indian Penal Code before the Learned Chief Judicial Magistrate, Alipore against the private respondents, but till date the police of the Diamond Harbor Police Station has not started any enquiry into the matter, not arrested any of the accused, not produced any report before the Learned Chief Judicial Magistrate, Alipore in compliance to its order nor the respondent no.8 has filed any report before the Human Rights Commission.” The eighth respondent referred to in para.10 of the WP is as follows: “8. The Superintendent of Police, South 24-Parganas, P.O. and P.S. Alipore, Kolkata700027.” And the twelfth-fifteenth respondents referred to in prayer(a) of the WPare as follows:- “12. Suklu Molla, son of Bhombol Molla. 13. Bhombol Molla. 14. Bablu Molla, son of Bhombol Molla 15. Mamata Bibi, wife of Bhombol Molla Respondents no.12 to 15 are resident of Village – Bunorhat, Police Station- Diamond Harbour, District – South 24-Parganas, Pin-743368.” Advocate for the petitioner has submitted as follows. In November 2011 the petitioner’s minor daughter was kidnapped by the private respondents. The police registered a case No.350 of 2011 dated November 15, 2011 under ss.365/366/372 IPC. In December 2011 the child was recovered. On January 3, 2012 the Child Welfare Committee gave the petitioner custody of the child. It was again kidnapped by the private respondents on February 3, 2012. Pursuant to a s.156(3) CrPC order the police registered a fresh case under ss.362/363/373/120B IPC, but have not arrested the accused and recovered the child. A habeas corpus writ is to be issued only when it is found that a person is in illegal detention of anyone. A habeas corpus petition, in effect, for overseeing an investigation by the police on the basis of a duly registered FIR and recovery of a kidnapped person through such investigation is not maintainable. A habeas corpus writ is to be issued only when it is found that a person is in illegal detention of anyone. A habeas corpus petition, in effect, for overseeing an investigation by the police on the basis of a duly registered FIR and recovery of a kidnapped person through such investigation is not maintainable. The criminal court statutorily empowered to oversee the actions of the police taken on the basis of the FIR, issue arrest warrant, authorize custody of arrested accused and the recovered person, if necessary, etc. is to do that. For these reasons, we dismiss the W P saying that nothing herein shall prevent the petitioner from appearing before the criminal court overseeing the actions of the police and making submissions for an effective completion of the ongoing investigation.