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2014 DIGILAW 1100 (ALL)

RAMESH CHAND v. STATE OF U. P.

2014-04-04

KARUNA NAND BAJPAYEE

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JUDGMENT Hon’ble Karuna Nand Bajpayee, J.—This Habeas Corpus Writ Petition has been filed making allegations that petitioners No. 1 to 5 are under illegal detention of respondent No. 4. 2. It has been alleged that petitioners were initially working in a brick kiln but at the gun point they are being forced to work with respondent No. 2 and their lives were in danger. Annexure-1 annexed with the application is an application which makes elaborate allegations as to how the persons detaining the petitioners are having arms and how with all the criminal intentions they have disallowed the aforesaid petitioners to move out and are being guarded constantly. Extreme torture being inflicted to the detained persons has been apprehended. It has also been alleged that as the police has not registered the FIR. therefore, the petitioners had to file the present writ petition. 3. Learned AGA placing reliance on certain cases submitted in rebuttal that the allegations submitted by the counsel and the facts as revealed from the record, constitute commission of criminal offences and it is the primary duty of the police to register the FIR in the matter. If the petitioners have any grievance from the refusal of the police to register the FIR, they have a statutory remedy available and can always move the Court of Magistrate under 156(3) of Cr.P.C. They can also bring a proper complaint against the alleged accused persons. The contention is that the refusal to register the FIR does not automatically makes the Habeas Corpus writ petition maintainable. There are many offences wherein a person is kidnapped or abducted or illegally detained and is kept under wrongful confinement but that does not go to mean that in all such cases the filing of a habeas corpus writ petition would become justified or maintainable. The scope and ambit of habeas corpus petition has its own limitations as constraints. 4. It may be apt to give reference to two decisions given by this Court. In the case of Madhav Das Agrawal and another v. State of U.P. and others, 2007(3) JIC 170 (All), a habeas corpus petition was filed seeking the production of the corpus and then the release of the same on the basis of the allegations that the corpus was under illegal detention. That was case in which FIR had already been lodged. That was case in which FIR had already been lodged. After considering the facts of the case the Court had to occasion to observe as follows: “9. I have considered the contentions raised by the rival sides. In this case the FIR of the Petitioner No. 1 has been registered at the police station. The petitioner, therefore, has a remedy in appropriate forum in getting his FIR investigated and bring culprits to book. In every case of kidnapping or abduction in which FIR has been registered the proper remedy is to get the FIR investigated and not the habeas corpus petition. No doubt writ is an extraordinary remedy and alternative remedy is no bar in exercising power under Article 226 of the Constitution of India but that does not mean that alternative remedy be completely ignored altogether and this Court should deal every matter under Article 22 of the Constitution. 10. This habeas corpus petition is dismissed. Petitioner may seek remedy in appropriate forum if he so desires.” 5. In another case of Dharambir v. State of U.P. and others, 2011(74) ACC 708, the matter involved certain circumstances which gave an additional complexion to the facts of the case. It was also a habeas corpus petition but after this Court proceeded in the matter and issued process to seek the production of the corpus with the object to secure the release of detenue it was subsequently discovered that the allegations lacked factual basis and were launched designedly even though they were entirely frivolous. The Court expressed its judicial frown in the manner as the institution of the judiciary was put to grave and serious abuse. Taking a serious view of the matter contempt proceedings were directed to be drawn up against the guilty person apart from the direction to file a complaint under Section 340 Cr.P.C. and the criminal proceedings which were also ordered by the Court. After delving into entire factual aspects of the case the Court had the occasion to observe as follows: “18. The above statement and what has been found by the investigating officer in the case in hand reflects on a serious conspiracy to malign not only the respondents but also to illegally put the judicial system into motion on a cause which actually did not exist and thereby the entire system has been misused by the petitioner. 19. The above statement and what has been found by the investigating officer in the case in hand reflects on a serious conspiracy to malign not only the respondents but also to illegally put the judicial system into motion on a cause which actually did not exist and thereby the entire system has been misused by the petitioner. 19. Whatever has been stated in the counter-affidavit and its enclosures have not been disputed by the petitioner though opportunity was given to the petitioner to file its reply but he has filed a simple affidavit today throwing him to the mercy of the Court. This Court cannot shut its eyes to the fact that false allegations made by the petitioner has not only put in motion the law enforcement machinery of the entire District to react in a matter where there was no reason for them to unnecessarily persuade the petitioner who was never abducted. The date on which the petitioner filed this writ petition, his relative, associates, the deponent of the affidavit, they all knew this fact that whatever they are writing or stating is false. Neither there is any kidnapping nor any illegal detention. The petitioner has not only approached this Court with unclean hands, but has been successful to some extent in misusing the process of law and harassment of the responsible officers of the State, who could have utilized their valuable time for other productive work. In the garb of mercy, this Court cannot leave the deliberate and intentional attempt on the part of a person(s) to misled not only this Court but also to abuse the entire process of judicial system making a mockery of process which is basically meant for upholding majesty of the fundamental right of personal life and liberty. Not only the petitioner is, therefore, guilty of playing fraud upon this Court but here is a fit case where this Court should pass an order which may discourage others also to resort for a similar/same adventure in future.” 6. Not only the petitioner is, therefore, guilty of playing fraud upon this Court but here is a fit case where this Court should pass an order which may discourage others also to resort for a similar/same adventure in future.” 6. If this Court instead of allowing or directing the police to perform its primary duty to investigate and secure the release of allegedly detained persons in matters where the respondents are demonstrably guilty of committing cognizable offences, usurps the police functioning and undertakes the same exercise on its own, the hazard of abuse of Court’s process and the peril of being put to an ill-use by mischievous elements would be difficult to rule out. 7. I am in agreement with the submissions made by learned AGA that the allegations brought forth do disclose on a prima facie basis the commission of the criminal offences. The petitioners are at liberty to adopt the right course. If a person has been wrongfully confined it is the duty of the police to enquire into the matter in accordance with law and also to get him released from the clutches of the offenders. If the petitioners move an application before S.S.P., it is directed that he shall take adequate steps in accordance with law. 8. In the light of the aforesaid observations the petition stands dismissed as such.