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Allahabad High Court · body

2017 DIGILAW 287 (ALL)

OM PRAKASH GUPTA v. STATE OF U. P.

2017-01-20

HARSH KUMAR

body2017
JUDGMENT Hon’ble Harsh Kumar, J.—Heard Sri R.O.V.S. Chauhan, learned counsel for petitioners, Sri Anoop Trivedi, learned counsel for respondent Nos. 4 to 6, Sri D.C. Srivastava, learned counsel for respondent No. 7 and learned AGA for the State, and perused the record. 2. Learned counsel for the petitioners contended that the petitioner No. 1 is father of petitioner No. 2 Ronak Jindal, who had taken admission in B.Tech in S.R.M. Institute of Science & Technology, Ghaziabad on 22.5.2015; that the corpus joined the class from 17.7.2015 and since after one month he went to his home at Karauli, Rajasthan during vacation and on returning back after 7 days on 17.8.2015 joined the hostel of S.R.M. College ‘F’ Block, Room No. 216; that on 24.8.2015 he talked to petitioner No. 1 through mobile phone and since, thereafter, petitioner No. 1 tried his best inspite of which, the corpus petitioner No. 2 could not be traced out; that the petitioner No. 1 made complaint at police station Ghaziabad and lodged F.I.R. at case crime No. 196 of 2015 against two unknown persons under Section 365 IPC; that it was stated in the F.I.R. that “as per information given by friends of corpus, he left the hostel on 24.8.2015 between 12:00 to 2:00 p.m. and after taking tea at a tea stall opposite Samrat Hotel with two other boys, he booked a room in Samrat Hotel at 5:49 p.m. and from the room of hotel, he called him on phone and told that he is staying in Samrat Hotel and is in great distress, so the petitioner No. 1 may come to fetch him, upon which the petitioner No. 1 immediately left his village Karauli, Rajasthan and tried to contact his son on phone, which was reporting to be switched off since last 3 days and his son is not traceable; that his son had left the hotel at 9:00 p.m. saying he is going to take dinner, but did not return and it appears that his son has been kidnapped by the above mentioned two boys”; that despite repeated orders in criminal case as well as by this Court, the corpus has not been traced out; that sincere efforts have not been made by the police authorities; that despite lodging of F.I.R., the writ for habeas corpus is not barred and the appropriate orders are required to be issued directing respondent Nos. 4 to 6 as well as respondent No. 7 to produce the corpus Ronak Jindal before the Court and hand over him to the petitioner No. 1; that since the corpus was studying in S.R.M. Institution of Science & Technology and was living in hostel of the institute, it will be deemed that he is in wrongful confinement of respondent Nos. 4 to 6 and since he had booked a room in Hotel Samrat, it will also be deemed that the corpus is in unlawful confinement of respondent No. 7 also. 3. Per contra, learned AGA submitted that the petitioner himself has lodged F.I.R. regarding kidnapping of the corpus by two unknown boys, without there any whisper or complaint of raging with corpus, so the question of unlawful confinement of corpus by respondent Nos. 4 to 7 or any of them does not arise; that the police authorities have left no stone unturned in search of the corpus, but still he could not traced out; that the petitioner himself has not provided the name of any of the two boys against whom the F.I.R. was lodged for kidnapping the corpus; that the petition for habeas corpus is misconceived in view of the law laid down in the case of Sakiri Vasu v. State of U.P., 2008 (2) SCC 409 . 4. Sri Anoop Trivedi, learned counsel for respondent Nos. 4 to 6 contended that in the entire petition or annexures filed with the petition viz. F.I.R. and copies of various applications given to higher authorities regarding search of the petitioner No. 2, there is even no whisper that the corpus is in unlawful confinement of respondent Nos. 4, 5 or 6 or any of them; that at the most, the allegations made against respondent Nos. 4 to 6 may mean that there was carelessness on their part, because of which the petitioner No. 2 the corpus could manage in leaving the college campus and booked a room in the hotel; that there is no whisper of raging or any mismanagement of the institute and no carelessness may be imputed on respondent Nos. 4 to 6; that in view of the averments made in F.I.R., there is no question of any amount of carelessness on the part of respondent Nos. 4 to 6; that in view of the averments made in F.I.R., there is no question of any amount of carelessness on the part of respondent Nos. 4 to 6 or any of the college or hostel staff and under any imagination, the corpus may not be presumed to be in unlawful confinement of respondent Nos. 4 to 6 or any of them; that the respondent Nos. 4 to 6 have been wrongly and unnecessarily impleaded in the petition and are being harassed unnecessarily; that the corpus is not in custody of respondent Nos. 4 to 6 and they may not be able to produce him before the Court. 5. 4 to 6 or any of them; that the respondent Nos. 4 to 6 have been wrongly and unnecessarily impleaded in the petition and are being harassed unnecessarily; that the corpus is not in custody of respondent Nos. 4 to 6 and they may not be able to produce him before the Court. 5. Sri D.C. Srivastava, learned counsel for respondent No. 7 contended that the respondent No. 7 has no concern with the custody of corpus; that the respondent No. 7 is only a Manager of Hotel Samrat, where any person may come and book a room for desired period and stay on the requisite charges; that as any other customer, the petitioner No. 2 Ronak Jindal is alleged to have booked a room in the hotel of respondent No. 7 on 24.8.2015 at 5:49 p.m., who was accompanied with two boys (as stated in F.I.R.) and is alleged to have contacted the petitioner No. 1 on phone from the room of hotel; that it has also been stated in the F.I.R. that Þegksn; esjk iq= gksVy esa 9 cts [kkus ds fy, dgdj x;k Fkk mlds ckn og okil ugha vk;k gS gesa ,slk vans'kk gS fd gekjs iq= dk mDr nksuksa yM+dksa us vigj.k dj fy;k gSÞ that a person, who books a room for stay, is not bound to have dinner in the hotel and may leave for dinner or otherwise to any place of his choice and hotel authorities do not interfere in movements of its customers; that it appears that the son of petitioner No. 1 had gone for dinner outside the hotel and is not alleged to have come back to the hotel; that the petitioner has not made any whisper about the corpus petitioner No. 2 being in unlawful confinement of Manager of Hotel Samrat and there can be no presumption of unlawful custody of the corpus by respondent No. 7; that even no carelessness may be imputed on respondent No. 7 for permitting the corpus petitioner No. 2 Ronak Jindal to leave the hotel room for having a dinner outside, as the hotel management is not supposed to keep vigil on movements of his customers; that the respondent No. 7 has been unnecessarily made party and is being harassed unnecessarily; that since the corpus petitioner No. 2 Ronak Jindal is not alleged to be in wrongful confinement of the respondent No. 7, the petition for habeas corpus is legally not maintainable and is liable to be dismissed. 6. Upon hearing the parties counsel and perusal of record, I find that undisputedly, the petitioner No. 2, the corpus son of petitioner No. 1 had gone to take studies of B.Tech in S.R.M., Institution of Science & Technology, Ghaziabad and was living in Hostel ‘F’ Block, Room No. 216 of S.R.M. Institution of Science & Technology, Ghaziabad and is missing since 24.8.2015. As per the case of petitioner, the corpus left the hostel in afternoon on 24.8.2015, booked a room in nearby Samrat Hotel and left the hotel for dinner outside at about 9 p.m. and is missing since then and so it was suspected that he has been kidnapped by two unknown boys, who were accompanying him. In the whole petition or in any of the F.I.R. or applications moved to various higher authorities as well as upto Parliament, there is no whisper that the corpus is in unlawful confinement of the respondent Nos. 4 to 6 or the college/hostel authorities or in unlawful confinement of respondent No. 7, the Manager of Samrat Hotel. The total case taken by the petitioner No. 1 in the petition as well as her arguments advanced by the learned counsel is that the son of petitioner after leaving the college and hostel at 2:00 p.m. on 24.8.2015 booked a room in Samrat Hotel wherefrom he called his father, the petitioner No. 1 for fetching him, is missing, since after 9:00 p.m. when he left the hotel for dinner outside with two boys accompanying him, for which college/hostel authorities as well as Hotel Manager are liable for the carelessness committed by them. The respondent Nos. 4 to 7 contended that they have no knowledge of the whereabouts of the corpus petitioner No. 2 and undoubtedly he is not in their custody and they can have no reason to keep him in their unlawful confinement. 7. Learned counsel for the petitioner has relied on three judgments of the Apex Court passed in the cases of Dushyant Somal v. Sushma Somal, AIR 1981 SC 1026 , V. Ravi Chandran v. Union of India and others, (2009) 9 SCC 111 and Cherukuri Mani W/o Narendra Chowdari v. Chief Secretary, Government of Andhra Pradesh and others, AIR 2014 SC 2090 . It was submitted that in the case of Dushyant Somal v. Sushma Somal (supra), the Apex Court held that “True, alternate remedy ordinarily inhibits a prerogative writ. But it is not an impassable hurlde. Where what is complained of is an impudent disregard of an order of a Court, the fact certainly cries out that a prerogative writ shall issue”. 8. On going through the above case law of Dushyant Somal v. Sushma Somal (supra), it is clear that in the above case between husband and wife it was the case of wife Smt. Sushma Somal that out of her two children son was removed from her custody by her husband in September, 1977 and she recovered custody of her son by order passed under the Guardians and Wards Act, but again on 27.10.1980, her husband forcibly took away the son, regarding which she lodged report against her husband. In this case, the Delhi High Court issued a writ of habeas corpus directing her husband to produce her son, wherein the husband Dushyant Somal denied even the kidnapping of the child and in such circumstances, not only maintainability of the writ was upheld, but the sentence of three months imprisonment and Rs. 500/- fine was also imposed on the husband, by the Apex Court. 9. In the case of V. Ravi Chandran v. Union of India and others (supra), after the order of Family Court, State of New York giving visitation right to the husband, the wife left New York to be settled in Chennai and on writ for habeas corpus, despite efforts made by police officers and officials of different States, the minor child as well as respondent No. 6, the wife of petitioner who was said to be mentally unstable and running round with child one State to another could not be traced out and the C.B.I. was directed to investigate the matter. 10. In the case of Cherukuri Mani W/o Narendra Chowdari v. Chief Secretary, Government of Andhra Pradesh and others (supra), the petition for habeas corpus was filed against the State with the allegations that the Collector and District Magistrate of East Godavari have unlawfully detained her husband under the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, wherein the maintainability for writ for habeas corpus was upheld. 11. 11. With due regards the law laid down by the Apex Court in above three case laws relied by the petitioner, it is clear that irrespective of nature of custody decided by Court in all the three cases, the custody of corpus with respondent was not disputed as against the facts of this case, where custody of corpus petitioner No. 2 with respondent Nos. 4 to 7 or any of them is not even alleged. In the circumstances, the above case laws have no applicability to the facts of this case. In view of the law laid down in the case of Sakiri Vasu v. State of U.P. (supra), I find that the writ is not remedy and the applicant may pursue his remedy before criminal Courts or as advised. 12. In view of the discussions made above, I have come to the conclusion that the petitioner has failed to show any sufficient ground for enabling this Court, to issue a writ of habeas corpus directing respondent Nos. 4 to 7 or any of the respondents to produce the corpus the petitioner No. 2, whose whereabouts are still not known. 13. The petition is dismissed accordingly. The petitioner No. 1 will be at liberty to seek his remedy before the Magistrate concerned or as advised to him.