Research › Search › Judgment

Rajasthan High Court · body

2016 DIGILAW 1096 (RAJ)

Krishan v. Director General of Police

2016-08-01

DINESH CHANDRA SOMANI, MOHAMMAD RAFIQ

body2016
JUDGMENT : These matters raise the question whether habeas corpus petition would be maintainable in a case where the first information report has been registered with the police station on the allegation that wife/son/daughter of the petitioner has gone missing or has been abducted/kidnapped/taken in custody by someone or has voluntarily accompanied any person? 2. It is alleged in Habeas Corpus Petition No. 159/2016 that wife and daughter of the petitioner have been kidnapped by Respondents No. 4 and 5 therein. The petitioner went to Police Station Khetri for lodging FIR, but it was not registered and ultimately, he made a representation to Superintendent of Police, Jhunjhunu as well as District Collector, Jhunjhunu. Thereafter, he again approached Superintendent of Police, Jhunjhunu. The petitioner has placed on record copy of the admission card of his daughter alleging that her date of birth is 20.06.2000. It is only thereafter that the police lodged FIR No. 219/2016 at Police Station Khetri, District Jhunjhunu for offences under Sections 363 and 366 IPC. Learned counsel for the petitioner has cited judgment of Division Bench of this Court rendered at Principal Seat at Jodhpur in Pukha Ram Vs. State of Rajasthan & Others (D.B. Habeas Corpus Petition No. 6834/2007 decided on 14.07.2008) and submitted that habeas corpus petition in that case was entertained even after application under Section 98 Cr.P.C. was filed before the court of Judicial Magistrate concerned and the petitioner failed to secure custody of his daughter. 3. In Habeas Corpus Petition No. 158/2016, it is alleged that the son of the petitioner, Jai Singh was abducted on 18.04.2016 by accused Dhanraj, Ram Singh, Mahendra @ Rajaram, Bhagwandas, Shivram, Gorelal, Bhagwan Singh and Rajendra. She approached police station Masalpur, District Karauli, but S.H.O. did not register FIR. Then, she submitted representation to Superintendent of Police, Karauli on 27.05.2016, but when no heed was paid, she filed criminal complaint in the Court of Additional Chief Judicial Magistrate, Karauli, who forwarded the same to police station for investigation under Section 156(3) Cr.P.C. It is thereupon that FIR No. 97/2016 for offence under Section 323, 341, 342 and 365 IPC was registered with police on 02.07.2016. 4. Learned counsel for the petitioners argued that hebeas corpus petitions are filed in a situation where the police does not take timely action to recover the corpus. 5. Mr. 4. Learned counsel for the petitioners argued that hebeas corpus petitions are filed in a situation where the police does not take timely action to recover the corpus. 5. Mr. Anurag Sharma, learned Additional Advocate General argued that habeas corpus petitions could not be entertained in a case where first information report has been registered and the police is conducting the investigation. It is argued the investigation by the police, as per the provisions of Code of Criminal Procedure, as it is subject to supervision of Judicial Magistrate concerned, who otherwise also holds power under Section 97 Cr.P.C. to direct search of any place or premise and under Section 98 Cr.P.C. to secure custody and direct restoration of the abducted female. 6. Mr. Anurag Sharma, learned Additional Advocate General cited judgment of the Supreme Court in Sakiri Vasu Vs. State of Uttar Pradesh & Others, (2008) 2 SCC 409 , wherein the Supreme Court has dealt with the powers of the Judicial Magistrate and observed that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police concerned under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) Cr.P.C. before the concerned Magistrate. Upon filing of such an application, the Magistrate concerned can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. Such power of Magistrate is independent power and he can also under the same provision monitor the investigation to ensure a proper investigation. 7. Mr. Anurag Sharma, learned Additional Advocate General also cited judgment of Allahabad High Court in Smt. Seeta Devi and etc. Vs. Mata Pher and Another, 1998 Cri.L.J. 645, in which case also it was held that if the wife of the petitioner has been confined by her parents, husband should pursue remedy provided under Section 97 and 98 Cr.P.C. Learned Additional Advocate General also cited judgment of this Court in Guddi Devi Vs. State of Rajasthan & Others, 2011 (3) WLC (Raj.) 251. State of Rajasthan & Others, 2011 (3) WLC (Raj.) 251. 8. Mr. B.N. Sandu, learned Additional Advocate General submitted that Division Bench of this Court recently in Girdhari Agarwal Vs. State of Rajasthan & Others (D.B. Civil Writ Petition (Habeas Corpus) No. 127/2013 decided on 25.07.2016) has taken the view that habeas corpus petition would not be maintainable in cases where the first information reports are registered and the police is conducting the investigation. 9. This Court is inundated with large number habeas corpus petitions where first information reports have been registered and the police is investigating the matter, but the complainant, being not satisfied with the pace of investigation, invariably approach this Court invoking remedy of habeas corpus petition only with a view to securing a direction to the police to recover the missing/abducted person, who can be his/her son, daughter or wife, who might have gone with someone at his/her will or abducted by someone or whose whereabouts are not known. Object of filing of such habeas corpus petition apparently is to ensure that effective investigation is carried out by the police and such person is immediately recovered, so as to ascertain his/her wishes. As rightly held by Co-ordinate Bench of this Court in Girdhari Agarwal (supra), these habeas corpus petitions cannot be entertained by this Court only because the police is not investigating the matter properly. 10. This Court in Girdhari Agarwal (supra) made the following observations:- “The minor son of the petitioner stated to be approximately 14 years of age was chided by his parents for taking out Rs.20/- from the pocket of his grandfather's clothes. The impressionable mind thereafter walked out of the house the same morning at 10.15 AM. The petitioner lodged an FIR under Section 363 IPC on 16.06.2013. Even before the statutory period for investigation could end under Section 167 Cr.P.C., the present application came to be filed styled as a habeas corpus petition. There is no allegation that the minor son of the petitioner was being kept in illegal confinement much less by any named person. Even if this Court was to adopt a lax approach, still the present under any circumstances cannot qualify as a habeas corpus petition. What survives is the alleged police inaction in pursuance of an FIR lodged. There is no allegation that the minor son of the petitioner was being kept in illegal confinement much less by any named person. Even if this Court was to adopt a lax approach, still the present under any circumstances cannot qualify as a habeas corpus petition. What survives is the alleged police inaction in pursuance of an FIR lodged. We are constrained to observe that anxiety of a parent whose child has gone missing, has to be considered with sensitivity but simultaneously we are of considered opinion that the writ petition was filed in utter haste which as events revealed has proved counter productive for reasons to be discussed hereinafter. The order-sheet of the Court reflects that the police is conscious of its duties and is investigating the matter. Counsel for the State submits that police report of the investigation under Section 173 Cr.P.C. was not filed because of the pendency of the present writ petition. In a case of non-cognizable offence, the police has a mandatory duty to register a First Information Report, complete the investigation expeditiously and submit a police report before the Magistrate. This Court never interfered with the investigation and cannot do so. We are at a complete loss to understand how the pendency of the present application was considered as impediment in the police performing its statutory duties which can be interfered with by none. We can do no better than to remind the police of its duties from the observations in State of West Bengal Vs. S.N. Basak, AIR 1963 SC 447 as follows:- “......The powers of investigation into cognizable offences are contained in Chapter XIV of the Code of Criminal Procedure. Section 154 which is in that Chapter deals with information in cognizable offences and s.156 with investigation into such offences and under these sections the police has the statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of the police to investigate cannot be interfered with by the exercise of power under s.439 or under the inherent power of the court under s.561A of Criminal Procedure Code. As to the powers of the Judiciary in regard to statutory right of the police to investigate, the Privy Council in King Emperor v. Khwaja Nazir Ahmad (1) observed as follows:- "The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, a course, subject to the right of the court to intervene in an appropriate case when moved under s.491 of the Criminal Procedure Code to give directions in the nature of habeas, corpus. In such a case as the present, however, the court's functions begin when a charge is preferred before it, and not until then. It has sometimes been thought that a.561A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so, the section gives no now powers, it (1)(1944), L.R. 71. 1. A. 203, 212. only provides that those which the court already inherently possesses shall be preserved and is inserted as their Lordships think, lest it should be considered that the only powers possessed by the court are those expressly conferred by the Criminal Procedure Code and that no inherent powers had survived the passing of that Act". With this interpretation, which has been put on the statutory duties and powers of the police and of the powers of the Court, we are in accord. The High Court was in error therefore in interfering with the powers of the police in investigating into the offence which was alleged in the information sent to the Officer-in-charge of the police station.” With the aforesaid observations, we dispose of this application with directions to the police to submit police report within a maximum period of four weeks from today.” 11. In view of above, habeas corpus petition cannot be entertained only because police is not making satisfactory investigation. If the petitioners are not satisfied with the manner of investigation, they can approach the concerned Magistrate, who has the jurisdiction to supervise the investigation. However, if they are still not satisfied with the pace and fairness of the investigation, they can approach this Court by filing petition under Section 482 Cr.P.C. seeking appropriate direction to the police for fair, proper and effective investigation. However, if they are still not satisfied with the pace and fairness of the investigation, they can approach this Court by filing petition under Section 482 Cr.P.C. seeking appropriate direction to the police for fair, proper and effective investigation. Habeas corpus petitions in the cases where first information reports have already been lodged and police is seized of investigation cannot normally be entertained unless there exists any extraordinary reason to do so. 12. In the view of above discussion, these habeas corpus petitions are dismissed as not maintainable, however, with the aforesaid observations. 13. A copy of this order be endorsed to the concerned Magistrate for needful. 14. Office is directed to place a copy of this order on record of connected petition.