Muslim & Another vs State Of U.P. & 7 Others
2017 Latest Caselaw 4759 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 52
 

 
Case :- HABEAS CORPUS WRIT PETITION No. - 41455 of 2017
 

 
Petitioner :- Muslim & Another
 
Respondent :- State Of U.P. & 7 Others
 
Counsel for Petitioner :- Raj Narayan Gupta,Pankaj Kumar Shukla
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Rajul Bhargava,J.

1. Heard Sri Pankaj Kumar Shukla, learned counsel for the petitioners and learned AGA for the State- respondents.

2. The instant habeas corpus petition has been filed by petitioner no. 1 (father of the corpus) with the following prayer:

a. Issue habeas corpus and commanding the respondent no. 1, 2, 3 and 4 to produce the corpus / petitioner no. 2 before this court from the illegal confinement/ release from the respondent no. 5 to 8 or from anywhere as alive or dead.

b. Issue a habeas corpus and direct to the Central agency to take over the investigation from the State machinery and produce the corpus before this court from the illegal confinement/ release from the respondent no. 5 to 8 or from anywhere as alive or dead.

c. Issue any other suitable, order and punish and fixed accountability upon the responsibility of State machinery from non recovery the corpus in the course of investigation as alive or dead.

d. Issue any other suitable order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.

3. The brief facts of the case is that the petitioner no. 2 (corpus) is minor son aged about 12 years as on 7.4.2014 of petitioner no. 1. It has been averred in the petition that the corpus was found missing from the house and he was searched at several places but his whereabouts could not be traced out. Thereafter a missing report was lodged at Police station Hafizganj, District Hapur on 7.11.2014 at about 10.20 pm . The said FIR was registered as Case Crime No. 170/2014 u/s 363 IPC against unknown persons in which it was stated that the son of the petitioner no. 1 was found missing from the house at about 10.00 am and he was searched in neighboring village and his whereabouts were also inquired from the relative of petitioner no. 1 but he was not found.

4. After two days, on 9.11.2014 the petitioner no. 1 received a call on his mobile no. 8057877991 from an international number +100605606 by which a ransom of Rs. 6 lacs was demanded for release of his son (corpus) and the petitioner no. 1 immediately gave this information to respondent no. 4- S.O/SHO, P.S. Hafizpur/ the investigating officer of the case. The I.O. thereupon verified the detail of the aforesaid mobile and obtained call detail report and the said call detail report was taken down by him in the case diary, which revealed that some persons of his village namely Gulrej, Parvej, Amir, Muntajir and Ehtasam were in touch and had conversation on the aforesaid international number. The details have been disclosed by the I.O. in Parcha no. 28 of the case diary dated 29.11.2015 annexed as annexure -2 to the writ petition.

5. It is submitted by learned counsel for the petitioner that since the aforesaid persons, who have been arrayed as respondent nos. 5 to 8 to the writ petition, were in constant touch with the international mobile number and all aforesaid persons are also residing in the same village, as that of the petitioner he has full faith and belief that they are involved in the kidnapping of his son and in collusion with the person who had demanded ransom from the international mobile number of Saudi Arab.

6. It has also alleged that the accused Gulrej, who is the brother of Parvej, was working in Saudi Arab and international mobile number belongs to him from where the demand of ransom to release the petitioner no. 2 was made.

7. The grievance of petitioner no. 1 merely is that despite giving all evidence and circumstance towards the involvement of respondent no. 5 to 8 in the abduction / kidnapping of his son, the police did not conduct fair investigation and did not make sincere efforts to trace out his missing son.

8. In this behalf he also made a complaint to the higher police authority that the local police is not properly conducting the investigation and has not been able to recover his son though he is missing since 7.11.2014. The said complaint was made by him against the private respondents, who seems to have been involved in kidnapping of his minor son (corpus).

9. The petitioner no. 1 thereafter came to know that the Investigating Agency has submitted final report dated 7.12.2016 before the concerned court. In the said report it is stated that in order to trace out the son of petitioner no. 1, pamphlets were distributed at several places; the publication was also made in the news papers and the said news about missing of the corpus was aired on Doordarshan and Akashwani. The corpus was searched at shelter home/ children home at Meerat, Ghaziabad and the suspected accused were also interrogated thoroughly but no reliable evidence could be collected and the same was submitted to the Court.

10. Thereafter the petitioner no. 1 filed a protest petition before the concerned court and the court being not satisfied with the manner of investigation had directed for further investigation of the case by the competent officer vide order dated 18.4.2017.

11. It has been stated in the petition that the petitioner no. 1 has also approached this Court by way of filing three writ petitions wherein several directions were issued to the police for expediting the investigation and consequently necessary directions were issued to the police. However, despite the said directions the police has not collected any material as to whether the corpus was dead or alive. He levelled allegations against the local police that it was under the influence of respondent nos. 5 to 8 and the entire investigation has been done in the most cursory manner and they have not taken any effective steps to arrest the suspected accused- respondent nos. 5 to 8 or to recover the victim from their clutches.

12. When the matter taken up before this Court on 7.9.2017 learned counsel for the petitioners stated that after the order for further investigation was passed by the concerned court on 18.4.2017 the petitioner has come to know that the police has again submitted a final report stating that the incident is very old and whereabouts of the victim could not be traced out, therefore learned counsel for the petitioner was allowed time to find out as to what action was taken by the Magistrate after submission of the final report for the second time.

13. In this regard, the petitioner no. 1 has filed a supplementary affidavit annexing therewith order dated 11.9.2017 passed by ACJM-II, Hapur whereby the final report dated 10.4.2017 has been rejected and the court has again directed for further investigation by any competent Investigating Agency and that the result of investigation be placed before the court on 9.10.2017 for further action. Certified copy of the order has been annexed as annexure -1 to the supplementary affidavit.

14. Learned AGA has raised a preliminary objection with regard to the maintainability of the present habeas corpus petition as there is no allegation or averment in the entire writ petition that the corpus/ petitioner no. 1 has been illegally detained or in wrongful confinement of respondent nos. 5 to 8 or by anyone.

15. From the aforesaid facts however it is abundantly clear that the petitioner no. 1 has simply raised suspicion about the involvement of respondent nos. 5 to 8 in the abduction / kidnapping of his son based on the fact that the private respondents, who are residents of the village of petitioner no. 1, have been in touch and in conversation on the international mobile number. It may be noted that the petitioner no. 2 has failed to provide any material evidence on record that his son Waseem (corpus) is under any illegal custody or confinement by respondent nos. 5 to 8.

16. A bare reading of the prayer made in the petition is also too vague and sweeping whereby the respondent nos. 1 to 4 (State of U.P. and other police authority) for commanding them to produce the corpus from illegal confinement/ release from the respondent nos. 5 to 8 or from anywhere as alive or dead by invoking jurisdiction under Article 226 of the Constitution of India.

17. It is well settled without any doubt that personal liberty of a person is of paramount importance for upholding the fundamental right of a person. The writ of 'habeas corpus' is a prerogative writ of the highest constitutional importance, being a remedy available to the meanest against the mightiest. It is acclaimed as a palladium of liberty of the common man. Despite the paramount importance and the high efficacy of the writ of Habeas Corpus, its scope is circumscribed. The writ of Habeas Corpus is designed to afford immediate relief from illegal confinement or restraint and is used for the vindication of the right to personal liberty by scrutinizing the legality of the restraint. It is a process devised in the main for obtaining deliverance from unlawful detention, and its great object is the liberation of those who may be kept under wrongful restraint or captivity.

18. The writ of Habeas Corpus is available not only to a person detained in public custody, but also to any illegal restraint of freedom in private life. It can be issued not only for release from detention by the State but also for release from private detention. But prima facie, there should be a proof of illegal custody or detention against the person.

19. A writ of habeas corpus is normally issued to person/ persons, who are keeping another person in illegal custody and not to all and sundry. A criminal case is not normally investigated in writ jurisdiction and as in the present case, the investigation is going on though under the orders of the Magistrate for further investigation, regarding which, a date is already fixed before the concerned court as noted above on which the competent officer has been directed to place result of further investigation directed for the second time. Therefore in every case in which the investigation is going on specially with regard to a missing person, it is not the matter necessarily to be monitored by the High Court in writ jurisdiction specially when the averments made in the writ petition are sweeping and thus an order for roving inquiry without any substantial material on record cannot be passed in a routine manner in the exercise of its jurisdiction.

20. I may be constrained to observe that every missing complaint is sought to be converted into a writ of habeas corpus but a writ of habeas corpus is not for such purpose. A writ of habeas corpus cannot also be issued on mere surmises, speculation or for conducting a roving inquiry into all and sundry matters.

21. I have noticed that of late in respect of every missing person and more so in the case of minors, there is a tendency to come up to the High Court by filing a writ of habeas corpus and impleading the State, all its officials starting from the Chief Secretary right up to the police Inspector whether there is any involvement or necessity to implead them or not. I have also noticed that in such matters, the police evince much more interest in the investigation though they perhaps ordinarily would have done and quite naturally as the matter is before the High court and even their reputation being at stake, may put in better efforts. But, with all that many a times, it is nothing but a wild goose chase as frantic, depressed, helpless parents no doubt approach this court with some ray and hope, but unless it is definite a person is in the illegal custody of another person, a writ of habeas corpus does not issue from this court.

22. In the circumstances as noticed above, it becomes obvious that writ jurisdiction of this court particularly, for issue of a writ of habeas corpus is being more and more misused and even abused sometimes which only brings down the efficacy of the writ jurisdiction of this court and the very efficacy of the constitutional remedy, a very valuable special remedy provided to the citizen and such a valuable remedy gets diluted with such petitions being presented before the High Court where in even the petitioner will be aware of all possible love angle between the missing person and some other third person and also proceeding his attempt on the criminal side by filing a complaint etc., which is also registered.

23. In the circumstances, there is no need to keep this writ petition pending before this Court as no specific averments of illegal detention or custody has been made at all in the petition.

24. The writ petition is dismissed reserving liberty to the petitioner no. 1 to pursue his rights and remedies in accordance with law, which is apparent from the fact that he has already approached concerned Magistrate before whom the final report has been placed twice by the police and the same is subjudice before the ACJM-II, Hapur.

Order Date :- 21.9.2017

Dhirendra/