HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved. Court No. - 32 Case :- HABEAS CORPUS WRIT PETITION No. - 34743 of 2011 Petitioner :- Subhash And Another Respondent :- State Of U.P. And Others Petitioner Counsel :- Apurva Hajela Respondent Counsel :- Govt.Advocate Hon'ble Sudhir Agarwal,J.
1. This writ petition of Habeas Corpus has been filed seeking a direction to the respondents to produce the corpus of Sri Subhash before the Court so that he may be set at liberty.
2. The case stated in the writ petition constituting factual matrix is that respondent no. 3 Sri Neeraj Kishore Mishra is a person against whom several criminal cases are pending including those under heinous offence i.e. under Sections 302, 307, 323, 504 , 506 IPC. He has also been convicted under the U.P. Control of Goondas Act. Criminal antecedents of respondent no. 3 have been shown in Annexure No. A-1 to the writ petition and the order passed by the District Magistrate, Etah for his externment from the jurisdiction of Police Station, Patiyali for a period of six months in exercise of power under Section 3 of the U.P. Control of Goondas Act has been filed as Annexure No. A-2 to the writ petition.
3. One Late Ram Vilas, brother of the petitioners used to work as household servant at the residence of Naresh Mishra, Ex. Block Development Officer since early childhood. Naresh Mishra being childless, used to treat Ram Vilas as his son. The daughter of Naresh Mishra married with respondent no. 3. Later on respondent no. 3 developed a feeling that Naresh Mishra will give his entire property and assets to Ram Vilas as a consequence whereof Ram Vilas was killed and all evidence in this regard were erased. Respondent no. 3 is highly influential person having connection with ruling political party and is also a member of Higher Education Service Selection Board. Due to the aforesaid influence of respondent no. 3, no steps were taken by the police against him, despite the complaints made by petitioners in this regard. Further in order to pressurize the petitioners, respondent no. 3 kidnapped petitioner no. 1 from his home and threatened his family members. Petitioners and other family members approached the local authorities but none has paid any heed to their grievance. Smt Anita daughter of late Banwari Lal real sister of the petitioner also filed an application under Section 156(3) Cr.P.C. in the Court of Chief Judicial Magistrate, Kanshiram Nagar which was registered as Criminal Application No. 412 of 2011 whereupon police report has been summoned but no order for registering F.I.R. against respondent no. 3 has been passed thereon.
4. In the circumstances, petitioners have sought a writ of habeas corpus with a direction to the respondents to produce the corpus of Sri Subhas in the Court.
5. The question is whether in the aforesaid facts and circumstances a writ of habeas corpus would lie..
6. On one hand, clear case of petitioners is that petitioner no. 1 has been kidnapped by respondent no. 3 and thereby had committed an offence under Section 363 IPC though there is nothing on record to show that any report in regard to alleged kidnapping has been lodged by petitioner no. 2 or any other relatives of the petitioners. No date, time or place of alleged kidnapping by respondent no. 3 is mentioned in the entire writ petition. Application filed by the petitioners' real sister under Section 156(3) Cr.P.C., copy whereof has been placed on record as Annexure No. 3 to the writ petition, is dated 1.6.2011 and there also nothing has been stated about alleged kidnapping of petitioner no. 1 by the respondent no. 3. It is not the case of the petitioners that despite any information given to the police authorities about the alleged kidnapping of petitioner no. 1 by the respondent no. 3 they have not taken any action.
7. On such vague allegations can this court assume a private respondent guilty of having committed an offence and direct him to do something which would immediately result in permitting him guilty of an offence without any material on record and without any trial. This is not the concept of the writ of habeas corpus. It has to be a wrongful confinement whether private custody or by person of authority. In case of wrongful deprivation of personal liberty a writ of habeas corpus is applicable and available. It is prerogative process for securing liberty of the subject by affording an effective means of immediate release from wrongful detention. However, it is an extraordinary remedy and cannot be granted for mere asking. It cannot be resorted to level a person guilty of an offence in a casual and routine manner. Whether petitioner no. 1 actually has been kept in detention or wrongful confinement by respondent no. 3 or he has actually been kidnapped at all, is a matter of examination based on relevant facts for which requisite pleadings and material are lacking in the present case.
8. In AIR 1984 SC 571 Sebastian M. Hongray Vs. Union of India, Hon'ble Apex Court has held that a petition for habeas corpus even if moved under Article 32 of the Constitution of India, ordinarily the court would not issue ex-parte a writ of habeas corpus unless the urgency of the situation so demands or issuing of a notice of motion is likely to result in defeat of justice. Court will also be reluctant to issue a writ of habeas corpus ex-parte where the fact of detention may be controverted and it may become necessary to investigate the case.
9. This Court in 2007 (59) Allahabad Criminal Cases 202 Madhav Das Agarwal & another Vs. State of UP and others held that in every case of kidnapping or abduction, the proper remedy is to lodge an FIR and get it investigated and not to issue a writ of Habeas corpus. It has also been held when a writ of habeas corpus is to be issued against a private party, prima facie proof that detenue is alive or is in illegal custody of private person is necessary. (See AIR 2000 (NOC) 309 MP Ram Kishan Pal Vs. State of M.P. and another).
10. Learned counsel for the petitioners placed reliance on the decisions of Hon'ble Apex Court in AIR 1964 SC 1625 Mohd. Ikram Hussain Vs. State of UP; AIR 1976 SC 1207 A.D. M. Jabalpur Vs. Shivakant Shukla; AIR 1956 SC 108 Smt Vidya Verma Vs. Dr. Shiv Narain Verma; AIR 1982 SC 938 Madhu Bala Vs. Narendra Kumar and AIR 1960 SC 93 Gohar Begum Vs. Suggi @ Nazma Begum & others, inorder to contend that a writ of habeas corpus can be issued against a private authority when some body is illegally detained or confined by such person. As a matter of exposition of law, proposition as such admits no exception but in none of the judgements it has been said that whenever commissioning of an offence is alleged, the court will presume the same to have happened and shall issue an order implicating thereby a private person. Moreover, in absence of any specific pleading and proper material on record bare allegations and that too without any details can be acted upon by the court, mechanically, is not the exposition of law laid down in any of the above authorities. Therefore, all these authority have no application in this matter.
11. It is true that normally in a writ of habeas corpus the Court may not resort to a technical approach and much stress on pleadings may not be placed yet the Court has to be satisfied regarding allegations made in the writ petition that the alleged detention is actually subsist. Where the allegations in the writ petition are so vague as not to generate any confidence, in my view, in case like this a writ of habeas corpus ought not be issued as it would amount to an abuse of the process of law.
12. In view of the above discussion, I do not find any interference is called for in this writ petition.
13. The writ petition is dismissed accordingly.
Order Date :- 29.6.2011 RKS/