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Madhya Pradesh High Court · body

2018 DIGILAW 64 (MP)

Lalji Agariya v. State of M. P.

2018-01-16

J.K.MAHESHWARI

body2018
ORDER 1. This petition under Article 226 of the Constitution of India has been filed seeking a writ in the nature of habeas corpus on account of illegal detention of petitioner's daughter namely Ku. Pramila aged 19 years. As alleged, the corpus was missing about 14 months back from the date of submitting missing information on 23.9.2010 to which a Gum Insan report was registered at Sanha No. 17/2010 in Police Station Morba. 2. The incriminating facts available on record are that on 28.4.2009 an FIR was lodged by Ku. Pramila regarding commission of rape against one Kamleshwar wherein a charge sheet was filed making him accused on 30.4.2009 and he was arrested on 16.6.2010. Meaning thereby, after the registration of FIR against Kamleshwar, the girl is missing. The statements of father and mother of the girl were recorded which indicate that thereafter to save Kamleshwar the respondents No. 4 and 5 have made efforts to obtain an affidavit of the girl in his favour alleging that it was Kratlal who was having intimacy with the girl and she wrongly projected the name of Kamleshwar. On perusal of the statements of various persons it is clear that Kamleshwar is a near relative of respondent Nos. 4 and 5, however, looking to the statements of father and mother of the girl it is apparent that after the said affidavit the girl is not traceable though admittedly she visited in the vehicle belongs to respondents No. 4 and 5. 3. This Court, looking to all the aforesaid circumstances, was of the opinion that primary allegation of sections 363 and 366 of the Indian Penal Code are made out, however, the FIR was registered, but, nothing has been brought on record to indicate that challan has been filed against respondents No. 4 and 5. The net result of all these facts is that neither the offence registered against Kamleshwar to which challan has already been filed could be decided in absence of the corpus nor any concrete evidence could be brought against respondents No. 4 and 5. 4. The respondents-State has filed various returns; some in the shape of return, some in the shape of status report and some in the shape of explanation of the orders of the Court. It is a case wherein twice the Superintendent of Police was present before this Court and sought further time to search the girl. 4. The respondents-State has filed various returns; some in the shape of return, some in the shape of status report and some in the shape of explanation of the orders of the Court. It is a case wherein twice the Superintendent of Police was present before this Court and sought further time to search the girl. This Court issued directions to take appropriate steps against the erring officers to which show cause notices have been issued to the concerned officers and copy of which have also been produced. Some of the irregularities committed by the police are required to be noticed by this Court which may be relevant to arrive at a final decision in the matter. In the present case a Gum Insan report was registered at Sanha No. 17/2010 on 23.9.2010, but nothing is available on record to indicate that as to why the photograph of the missing girl was not obtained by the police immediately. In the returns and the status reports various documents have been filed to demonstrate that the girl was searched out at various places, but, without photograph of the girls what was the purpose of the said search is not explained. However, somewhere in the year 2012, the investigation diverted on the statement of Indrakali wife of Munna Badi that the corpus was residing with Munna Badi and in this respect she produced a photograph of Munna Badi with the corpus. The police had to ascertain from the parents of the missing girl as to whether the said photographs was of missing girls and thereafter the police had to proceed in the matter. Later it was found that the said photograph was not of the corpus. When this case was listed in 2012, the return was filed for the first time on 14.12.2012. Thereafter, the case could not be listed, hence, the steps could not be taken and after two and a half years, when the case was listed, some status reports showing the dates of progress in the said investigation has been filed. 5. After looking to various documents, when this Court issued directions then only the police authorities woke up and submitted some reports. But, the result is that a girl aged 19 years is still missing and is not traceable till today. 5. After looking to various documents, when this Court issued directions then only the police authorities woke up and submitted some reports. But, the result is that a girl aged 19 years is still missing and is not traceable till today. Even after calling the Superintendent of Police twice in the Court, he made excuses for remaining unsuccessful in searching the missing girl. It is not the case of the police department here that as the missing girl was not traceable after a long search, she would have died, therefore, the investigation should be closed by declaring it to be a civil death. In all the returns and status reports the police department is continuously stating that it is their duty to search the girl and produce her before the Court, but, the steps which have been taken by the police for searching the missing girl from the date of receiving Gum Insan report are not sufficient as discussed above. As and when this Court issued stringent directions, the steps have been taken, but it was not towards the duty casted on the police authorities with intent to carry out the directions of this Court. 6. After hearing learned counsel for the parties, it is to observe here that a writ in the nature of habeas corpus under Article 226 of the Constitution of India is a special provision enacted with an intent that the personal liberty of the citizen is paramount and if it alleges about its detention the Court may take cognizance in the matter. The apex Court has described in various judgments regarding scope of Article 21 of the Constitution of India which relates back to a writ in the nature of habeas corpus. Some of the judgments are Manubhai Ratilal Patel v. State of Gujrat and ors reported in (2013) 1 SCC 314 , Ayya Alias Ayub v. State of U.P. and anr. reported in (1989) 1 SCC 374 and Ghulam Sarwar v. Union of India and others, reported in AIR 1967 SC 1335 . 7. In addition to the aforesaid, this Court has experienced in number of cases that the writs in the nature of habeas corpus are pending since last so many years, but, looking to the scope of Article 21 of the Constitution of India, the steps taken by the police department to produce the corpus in the Court are not sufficient. 7. In addition to the aforesaid, this Court has experienced in number of cases that the writs in the nature of habeas corpus are pending since last so many years, but, looking to the scope of Article 21 of the Constitution of India, the steps taken by the police department to produce the corpus in the Court are not sufficient. The directions in this regard have been issued by this Court in Writ Petitions No. 4954/2013, 1072/2017, 18903/2017, 19988/2017, 15790/2017 and 1958/2014. Learned Dy. Advocate General points out that certain guidelines have been issued by the Director General of Police to subordinate authorities as to how in a case of missing girls or boy the investigation ought to be carried out. 8. In respect to all the aforesaid facts, if we examine the factual backdrop of the present case, as described hereinabove, and the legal position in the cases of habeas corpus, it is revealed that in case the jurisdiction has been invoked under Article 226 of the Constitution of India, the corpus must be produced before the Court, but, in the present case, despite elapse of five years from the date of filing of this petition, the corpus could not be recovered and produced. The steps taken by the police department do not appear to be fair, justifiable and sufficient for searching out the missing girl. As and when the directions have been issued by this Court, stapes have been taken otherwise the police was sitting silent in the matter. This Court also cannot ignore the fact that the petitioner himself was not active enough in reporting the matter to the police and to supply the photographs of the missing girl to initiate action in the matter and thereafter to come before this Court immediately after inaction on the part of the police authorities, however, considering all these aspects of the matter, in place of keeping this petition pending any further, it may be disposed of with the following directions: (1) The interim directions issued by this Court to take steps in the matter be carried out by the Police Department and complete the investigation against the respondent No. 4 and to take steps for filing challan within a period of two months from the date of communication of this order. (2) The search of missing girl Ku. (2) The search of missing girl Ku. Pramila be continued as per the guidelines issued by the Director General of Police, as pointed out by the learned Dy. Advocate General, and its outcome be reported on month to month basis to the Registrar (Judicial) of this Court on affidavit of Superintendent of Police, Singrauli. (3) If the girl is not traced out then what recourse is available under the law be intimated to the Registrar (Judicial) of this Court within a period of six months. (4) As directed by this Court, the steps be taken against the erring officials of the police department, who have not investigated the matter properly, with full of devotion well within the prescribed period, as is apparent from the various progress reports after affording due opportunity of hearing to them. The steps taken in this regard be intimated to the Registrar General within a period of six months from High Court of Madhya Pradesh“the date of communication of this order. With the aforesaid observations, this petition stands disposed of.