Tasim And Another vs State Of U.P. And 9 Others
2021 Latest Caselaw 11051 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 81
 
Case :- HABEAS CORPUS WRIT PETITION No. - 577 of 2021
 
Petitioner :- Tasim And Another
 
Respondent :- State Of U.P. And 9 Others
 
Counsel for Petitioner :- Rajesh Shukla
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Shamim Ahmed,J.

Heard Sri Satendra Narayan Singh, Advocate holding brief of Sri Rajesh Shukla, learned counsel for the petitioners as well as learned A.G.A. for the State and perused the record.

This habeas corpus writ petition has been filed by the father of the corpus, Tasim, petitioner no. 1 with the following prayer :

"(i) Issue a writ, order or direction in the nature of habeas corpus petition directing the respondent nos. 2 and 3 to produce the corpus (Tabbassum) before this Hon'ble Court who is in the illegal custody of the respondent nos. 4 to 10. So that the legal custody of the corpus (Tabbassum) be handed over to her father i.e. petitioner no. 1.

(ii) Issue a writ, order or direction in the nature of habeas corpus petition, directing the respondent nos. 2 and 3 to provide protection to the petitioners from respondent nos. 4 to 10 whenever it is required by the petitioners.

(iii) Issue any other order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the instant case."

Learned counsel for the petitioners submits that the petitioner no. 2, Tabbassum (corpus) has herself informed the petitioner no. 1 that she is in illegal custody of respondent nos. 4 to 10 and she requested the petitioner no. 1 to get her out from the illegal custody of the respondent nos. 4 to 10. Thereafter, the father of the corpus i.e. petitioner no. 1 has himself met the respondent nos. 4 to 10 and requested them to let the petitioner no. 2 go along with him but they refused the same and said to him by threatening that he can do whatever he want. Thereafter, petitioner no. 1 has lodged first information report registered as Case Crime No. 0191 of 2021, under Sections 363 and 366 I.P.C. at Police Station-Thana Bhawan, District-Shamli with regard to abduction of his daughter by the respondent nos. 4 to 10. The petitioner no. 1 is a labour and he used to proceed for his work in the morning and comes back in the evening. The respondent no. 4, Amir son of respondent no. 10, Khurshid has abducted his daughter who is a minor girl with the help of other accused persons. Learned counsel for the petitioners submits that petitioner no. 1 has sent an application on Jan Sunwai portal on 24.06.2021 and 26.06.2021 and a direction was given to S.H.O. of Police Station Thana Bhawan, District Shamli by S.S.P. for taking necessary action and in this regard a report was also submitted on 26.07.2021. On 01.07.2021, the petitioner no. 1 came to know that S.H.O. of Police Station Thana Bhawan, District Shamli has decided the matter and submitted report dated 30.06.2021. He further submits that petitioner no. 1 again sent an application online complaining that his daughter has been abducted and anyhow she could not be traced out. In this regard, a direction was given to SHO of Police Station Thana Bhawan, District Shamli for investigating the matter. He further argued that the daughter of the petitioner no. 1 could not be traced out whether she is alive or not. The respondent nos. 4 to 10 have not arrested despite several complaints made by the petitioner no. 1 against them and the minor girl of the petitioner no. 1 has yet not been traced out.

Learned counsel for the petitioner further argued that the petitioner no. 1 has moved Criminal Misc. Writ Petition No. 5831 of 2021 (Tasim Vs. State of U.P. & 9 Ors.;) with the prayer that this Court may graciously be pleased to direct the respondent no. 2 to supervise the investigation and direction may also be given to the respondent no. 3 to arrest the accused persons in pursuance of the first information report dated 25.06.2021. The Hon'ble Court vide order dated 02.08.2021 passed in Criminal Misc. Writ Petition No. 5831 of 2021 (Tasim Vs. State of U.P. & 9 Ors.;) dismissed the same with the following observation :

"Heard learned counsel for the petitioner and the learned A.G.A.

This writ petition has been filed praying for the following reliefs:

"(a) Issue a writ, order or direction in the nature of Mandamus directing the respondent no.2 to supervise the investigation and direction may be given to respondent no.3 to arrest the accused of the First Information Report dated 25.6.2021 as Case Crime No.0199 of 2021, under Section 363 and 366 I.P.C. Police Station-Thana bhawan, District-Shamli.

(b) Issue a writ, order or direction in the nature of Mandamus to direct the concerned authorities to conclude fair investigation in the aforesaid First Information Report within the time as prescribed by this Hon'ble Court."

Learned counsel for the petitioner submits that the investigating officer is not properly investigating the matter and collusively not taking action against the accused.

Be that as it may, the petitioner has a remedy under Section 156(3), Cr.P.C. to move an appropriate application before the concerned Magistrate. This legal position has also been clarified by this court vide judgment dated 27.01.2021 in Criminal Misc. Writ Petition No.15692 of 2020 (Ajay Kumar Pandey vs. State of U.P. and others).

In view of the aforesaid, we do not find any good reason to entertain this writ petition. Therefore, without expressing any opinion on merits of the case of the petitioner, this writ petition is dismissed leaving it open to the petitioner to move an appropriate application before the concerned Magistrate under Section 156(3), Cr.P.C. In the event such an application is filed by the petitioner, it is expected that the concerned Magistrate shall proceed in accordance with law."

Per contra, learned A.G.A. submits that the jurisdiction lies with the Magistrate in view of the provision of Section 190 read with Section 156 of Cr.P.C. and the Magistrate shall proceed in accordance with law. He further suggests that the petitioner no. 1 may approach before the concerned Magistrate regarding the latest progress of the case and he may also apprised the learned Magistrate that the matter may be expedited, the learned Magistrate may proceed in the matter in accordance with law, hence the present habeas corpus writ petition is not maintainable at this stage and referred the provision of Section 190 and 156 Cr.P.C. which is reproduced hereinbelow :

"190. Cognizance of offences by Magistrates.

(1)Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-

(a)upon receiving a complaint of facts which constitute such offence;

(b)upon a police report of such facts;

(c)upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2)The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try.

156. Police officer' s power to investigate cognizable case.

(1)Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2)No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3)Any Magistrate empowered under section 190 may order such an investigation as above- mentioned."

Considering the arguments as advanced by the learned counsel for the parties and after perusal of record, this Court finds that there is a force in the submission made by learned A.G.A. that the petitioner no. 1 has a remedy under Section 190 read with Section 156 of Cr.P.C. to approach before the concerned Magistrate for redressal of his grievance and this court also vide order dated 2.8.2021 in the case of Tasim (supra) directed the petitioner no. 1 to approach before the concerned Magistrate under Section 156(3) Cr.P.C. for redressal of his grievances.

From the persual of the record, it appears that the complaint of petitioner no. 1 with regard to abduction of his minor daughter, the same was forwarded to the concerned police station but nothing has done in the matter whereas a direction was issued to the S.H.O. of concerned police station to investigate the matter expeditiously and submit his report forthwith and if the petitioner no. 1 is not satisfied with the progress of the investigation, he may apprise the learned Magistrate with this fact and he may move appropriate application in the case for further direction to be issued in accordance with law by the learned Magistrate.

Thus, in view of the above, the remedy, if any, for the petitioner is to approach the concerned Magistrate in respect of his grievance, the present habeas corpus writ petition before this Court is not maintainable.

With the above observation and direction, the present habeas corpus writ petition is being finally disposed of.

Order Date :- 3.9.2021

SA