Diwakar Rai vs The State Of Bihar
2021 Latest Caselaw 3574 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Criminal Writ Jurisdiction Case No.382 of 2020
             Arising Out of PS. Case No.-42 Year-2020 Thana- MANJHI District- Saran
     ======================================================

Diwakar Rai Son of Late Kamla Rai, a resident of Village- Tajpur Phulwariya, P.S.- Manjhi, District- Saran.

... ... Petitioner Versus

1. The State of Bihar

2. The D.G.P., Patna, Bihar.

3. The Superintendent of Police, Saran.

4. The Sub- Divisional Police Officer, Saran.

5. The Station House Officer, Manjhi, Saran.

6. The Investigating Officer of Manjhi P.S. Case No. 42/20 Manjhi

7. Ankit Singh Son of Suresh Singh, a resident of Village- Tajpur Phulwariya, P.S.- Manjhi, District- Saran.

8. Ravi Kumar Singh Son of Binod Singh, a resident of Village- Tajpur Phulwariya, P.S.- Manjhi, District- Saran.

... ... Respondents ====================================================== Appearance :

For the Petitioner : Mr. Harish Kumar, Advocate For the Respondent-State: Mr. Prabhu Narayan Sharma, AC to AG For the respondent no.8: Mr. Chandra Mohan Jha, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH and HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH) Date : 22-07-2021

In the present application, the petitioner has prayed

for issuance of a writ in the nature of habeas corpus for release

of his son Raja Rai.

2. The petitioner submitted a written report on

19.02.2020 at 10.30 a.m. to the Station House Officer (for short

'SHO') of Manjhi Police Station, Saran alleging therein that on Patna High Court CR. WJC No.382 of 2020 dt.22-07-2021

09.02.2010 at about 7 p.m., one Ankit Singh son of Suresh

Singh and one Ravi Kumar Singh son of Binod Singh, both

residents of village- Tajpur, P.O. Phulwariya (Tajpur), P.S.-

Manjhi, District- Chapra came to his house. His son Raja Rai,

aged about 21 years, went together with them. As Raja Rai did

return to his house till late at night, he started search for him.

He inquired from his relatives, but failed to get his clue. When

he wanted to inform the police, he was being threatened.

3. On the basis of the aforesaid written report,

Manjhi P.S. Case No.42 of 2020 dated 19.02.2020 was

registered under Sections 363 and 365 of the Indian Penal Code

against Ankit Singh and Ravi Kumar Singh and investigation

was taken up.

4. Since the petitioner's son Raja Rai could not

be traced by the police, the instant habeas corpus writ petition

has been filed before this Court.

5. Mr. Harish Kumar, learned counsel for the

petitioner submitted that the petitioner has reasonable doubt that

his son is under illegal confinement of the accused persons

named in the first information report (for short 'FIR'). He

contended that the police are not taking any action for recovery

of the victim. According to him, the police are acting in Patna High Court CR. WJC No.382 of 2020 dt.22-07-2021

collusion with the FIR named accused persons which can be

inferred from this fact that victim has not been recovered yet in

spite of the institution of the FIR long back.

6. Initially, a counter affidavit was filed on

behalf of the SHO of Manjhi Police Station, Saran. In the

counter affidavit, he has stated that the investigating officer,

namely, Jagarnath Kumar was conducting the investigation in

the case as per guidelines issued from the CID Department.

During investigation, statements of the witnesses under Section

161 of the Code of Criminal Procedure were recorded. The call

detail record of the mobile number of the victim had also been

obtained from which it appeared that the victim had his mobile

at his home and was being used by his family members. The

investigating officer of the case regularly tried to trace out and

recover the victim. He raided multiple locations for recovery of

the victim but the victim could not be recovered. It is also stated

in the counter affidavit that both the accused persons were

arrested in connection with Baniyapur P.S. Case No.42 of 2020

instituted under Section 30(a) of the Bihar Prohibition and

Excise Act on 10.02.2020. It also transpired during investigation

that earlier the victim Raja Rai was arrested in Manjhi P.S. Case

No.292 of 2016 for the offence committed under the Bihar Patna High Court CR. WJC No.382 of 2020 dt.22-07-2021

Prohibition and Excise Act. The supervision note of the

Superintendent of Police also manifests that the accused persons

and the victim of the case are involved in illegal trade of liquor.

7. Subsequently, a counter affidavit on behalf

of the Superintendent of Police, Saran duly sworn by the Deputy

Superintendent of Police, Head Quarter, Saran, Chapra has been

filed in which it has been stated that the issue of recovery of

victim has been taken up seriously by the police. The

Superintendent of Police has constituted a five-member special

investigation team (SIT) headed by the Special Police Officer,

Sadar for recovery of the victim Raja Rai with necessary

direction. He has directed that the SHO, Manjhi, Saran to take o

the charge of investigation of Manjhi P. S. Case No.42 of 2020

himself. Accordingly, the SHO, Manjhi has taken over the

charge immediately.

8. It is further contended in the said counter

affidavit that on the basis of scientific investigation such as

analysis of the call detail record and tower location of mobile

numbers of the accused persons and suspects of the case,

multiple raids have been conducted, but unfortunately the victim

has not been recovered till date.

9. Later on, a supplementary counter affidavit Patna High Court CR. WJC No.382 of 2020 dt.22-07-2021

duly sworn by the Superintendent of Police, Saran has been

filed in which he has stated that a detailed and up-to-date report

was called for from the SHO, Manjhi, who is the investigating

officer of the case. He has submitted his comprehensive report

regarding the latest status of investigation as well as the steps

taken for recovery of the victim. The report submitted by the

SHO has been annexed as Annexure-A to the supplementary

counter affidavit. A perusal of the said report would show that

in course of investigation it was found that the named accused

persons Ravi Kumar Singh and Ankit Singh together with Raja

Rai had gone to attend a tilak ceremony at village- Singahi. In

the tilak ceremony, the accused persons and the alleged victim

resorted to celebratory firing, which created pandemonium.

When they came to know that the police are likely to arrive,

they fled away from the village Singahi and went to Singahi

Chawar. At that place, in a discharge from the country made

pistol the victim sustained injury in his temple as a result of

which he died.

10. The SHO has further stated in his report that

the FIR named accused Ravi Kumar Singh and Ankit Singh

have confessed their guilt in their statement regarding the said

incident and on their confession, the country made pistol has Patna High Court CR. WJC No.382 of 2020 dt.22-07-2021

also been recovered from the place of occurrence. He has stated

that the accused persons also confessed that the maternal uncle

of the accused Ravi Kumar Singh, namely, Amit Singh has

disposed of the body of the victim Raja Rai. He has stated that

during investigation when Amit Singh son of Badan Singh was

arrested on 09.03.2021, he confessed that he had put the body of

Raja Rai in a jute bag and threw the same in the mainstream of

river Ghaghra from Jai Prabha Setu.

11. The SHO has further stated in his report that

efforts were made to trace and recover the body of the deceased

Raja Rai. In this regard, inquiries were made from several

fishermen, but the body could not be recovered. He has reported

that since the incident took place about a year back and the

stream of river Ghaghra merges the river Ganges, the police are

finding it difficult to recover the jute bag in which the body of

the deceased Raja Rai was packed.

12. Referring to the aforesaid report of the SHO,

the Superintendent of Police, Saran stated in his affidavit that

the investigation of the case is going on in proper direction and

efforts are still on for recovery of the body of Raja Rai.

13. Mr. Prabhu Narayan Sharma, learned counsel

for the State submitted that instant writ petition in the nature of Patna High Court CR. WJC No.382 of 2020 dt.22-07-2021

habeas corpus is misconceived. He contended that a writ of

habeas corpus can only be issued when there is assertion of

wrongful confinement. In the present case, what has been

asserted in the FIR is that the son of the petitioner went together

with the respondent nos. 7 and 8 and did not return back till late

at night. He submitted that a missing person report with

suspicion against respondent nos. 7 and 8 was given by the

petitioner to the SHO of Manjhi Police Station after 10 days of

the incident. He contended that a sensitive and committed

investigation is being conducted. The investigation of a criminal

case is confidential in nature. He contended that since it is not a

case of illegal detention, the writ petition ought to be dismissed.

14. A counter affidavit has also been filed on

behalf of respondent no. 8.

15. It is contended in the counter affidavit that a

writ petition for violation of rights by private is not

maintainable. It is contended that there is no admission that the

victim Raja Rai is in the custody of respondent no.8. The

criminal case is under investigation. The basic fact of custody is

disputed. The same is incapable of being determined on the

basis of affidavit. It is further contended that in the backdrop

that the custody of the victim being disputed no writ could lie Patna High Court CR. WJC No.382 of 2020 dt.22-07-2021

for parting with the custody.

16. We have heard learned counsel for the

parties and carefully perused the materials on record.

17. On perusal of the materials on record, we do

not find any reason to doubt the fairness in investigation of the

police case. The way in which the police have conducted the

investigation so far shows that sincere efforts have been taken

by them to trace the victim.

18. Insofar as the question of maintainability of the

present application is concerned, we need to first examine the

meaning and scope of a writ of habeas corpus.

19. The Latin phrase habeas corpus means

literally that "you", that is, the person with custody over the

prisoner, must "have the body" of the prisoner produced in court

at the place and time ordered by a judge. The writ of habeas

corpus provides individuals with protection against arbitrary

and wrongful imprisonment.

20. The meaning of the term habeas corpus is

"you must have the body". In Halsbury Laws of England, 4th

Edition, Vol.11, p.1452, p.768, it is observed:

"The writ of habeas corpus ad subjiciendum" which is commonly known as the writ of habeas corpus, is a prerogative Patna High Court CR. WJC No.382 of 2020 dt.22-07-2021

process for securing the liberty of the subject by affording an effective means of immediate release from the unlawful or unjustifiable detention whether in prison or in private custody. It is a prerogative writ by which the queen has a right to inquire into the causes for which any of her subjects are deprived of their liberty. By it the High Court and the judges of that Court, at the instance of a subject aggrieved, command the production of that subject, and inquiry into the cause of his imprisonment. If there is no legal justification for the detention, the party is ordered to be released. Release on habeas corpus is not, however, an acquittal, nor may the writ be used as a means of appeal."

21. Habeas corpus ad subjiciendum means "that

you have the body to submit or answer."

22. May in his Constitutional History of England

(1912), Vol.II, p.130, described writ of habeas corpus as "the

first security of civil liberty". Blackstone called the writ of

habeas corpus as "the great and efficacious writ in all manner of

illegal confinement."

23. Julius Stone in Social Dimensions of Law

and Justice, (1966), p.203 described the writ of habeas corpus

as a picturesque writ with an extraordinary scope and flexibility Patna High Court CR. WJC No.382 of 2020 dt.22-07-2021

of an application.

24. According to Dicey (A.V.Dicey),

Introduction to the Study of Law of the Constitution, Macmillan

and Co., Ltd., p.215(1915): "if, in short, any man, woman or

child is, or is asserted on apparently good grounds to be

deprived of liberty, the court will always issue a writ of habeas

corpus to anyone who has the aggrieved person in his custody to

have such person brought before the court and if he is suffering

restraint without lawful cause, set him free."

25. In Greene vs. Home Secretary, (1941) 3 All

ER 388, it has been observed:

"Habeas corpus is a writ in the nature of an order calling upon the person who has detained another to produce the later before the court, in order to let the court know on what ground he has been confined and to set him free if there is no legal jurisdiction of imprisonment."

26. The prerogative writ of habeas corpus ad

subjiciendum is the most renowned contribution of English

common law to the protection of human member.

27. In India, the jurisdiction to issue prerogative

writs came with the establishment of the Supreme Court by

regulating Act of 1773. The charter of 1774 gave power to each Patna High Court CR. WJC No.382 of 2020 dt.22-07-2021

of the justices of the Supreme Court of Calcutta to issue a writ

of habeas corpus. The three Supreme Courts in Calcutta,

Bombay and Madras by the Act of Parliament in 1861 were

abolished and High Courts were established and the power to

issue writs of habeas corpus was inherited by them. This power

to issue writ of habeas corpus was taken away from 1875 and

new power of the High Court arose under Section 491 of the

Code of Criminal Procedure, 1898 to issue statutory directions

in the nature of habeas corpus. By Articles 32 and 226, the

Supreme Court and all the High Court got jurisdiction to issue

writ of habeas corpus throughout their respective territorial

jurisdiction when the Constitution came into force.

28. Article 21 of the Constitution of India

provides that no person shall be deprived of his life or personal

liberty except according to procedure established by law.

29. A writ of habeas corpus under Article 32 of

the Constitution of India in the Supreme Court is available in

case of violation of fundamental rights guaranteed under Article

21 but it does not relate to interference with the personal liberty

by a private citizen. However, the High Court has jurisdiction to

issue writ of habeas corpus under Article 226 of the

Constitution of India not only for violation of fundamental Patna High Court CR. WJC No.382 of 2020 dt.22-07-2021

rights of freedom but also for other purposes. The High Court

can issue such writ against a private person also.

30. In Union of India vs. Yumnam Anand M. @

Bocha @ Kora @ Suraj, (2007) 10 SCC 190 while explaining

the nature of writ of habeas corpus, the Supreme Court held that

it is writ of right, it is not a writ of course. The application must

show a prima facie case of his unlawful detention. Relevant

para-7 of the judgment reads as under:

"7. Article 21 of the Constitution having declared that no person shall be deprived of life and liberty except in accordance with the procedure established by law, a machinery was definitely needed to examine the question of illegal detention with utmost promptitude. The writ of habeas corpus is a device of this nature. Blackstone called it "the great and efficacious writ in all manner of illegal confinement". The writ has been described as a writ of right which is grantable ex debito justitiae. Though a writ of right, it is not a writ of course. The applicant must show a prima facie case of his unlawful detention. Once, however, he shows such a cause and the return is not good and sufficient, he is entitled to this writ as of right."

31. In Dushyant Somal vs. Sushma Somal, Patna High Court CR. WJC No.382 of 2020 dt.22-07-2021

(1981) 2 SCC 277, the Supreme Court observed that a writ of

habeas corpus is not to be issued as a matter of course. It further

observed that clear grounds must be made out for issuance of

such writ.

32. In Kanu Sanyal vs. Distt. Magistrate, (1973)

2 SCC 674 , the Supreme Court held that while dealing with a

writ of habeas corpus, the Supreme Court held that it is

essentially a procedural writ. It deals with the machinery of

justice, not the substantive law. The object of the writ is to

secure release of a person who is illegally restrained of his

liberty.

33. In Swapan Das vs. the State of West Bengal

& Ors. 2013 SCC Online Cal 11681, the High Court Calcutta

held as under:

"A habeas corpus writ is to be issued only when the person concerning whose liberty the petition has been filed is illegally detained by a respondent in the petition. On the basis of a habeas corpus petition the power under art.

226 is not to be exercised for tracing a missing person engaging an investigating agency empowered to investigate a case under the Code of Criminal Procedure, 1973. The investigation, if in progress, is to be overseen by the criminal court. Here the petitioner is Patna High Court CR. WJC No.382 of 2020 dt.22-07-2021

asking this court to direct the police to track down his missing son.

For these reasons, we dismiss the writ petition."

34. Similarly, in Sulochana Bai vs. State of

M.P. & Ors, 2008 (2) MPHT 233, the High Court of Madhya

Pradesh observed as under:

"12. We have referred to the aforesaid decisions only to highlight that the writ of habeas corpus can only be issued when there is assertion of wrongful confinement. In the present case, what has been asserted in the writ petition is that her father-in-law has been missing for last four years and a missing report has been lodged at the Police Station. What action should have been taken by the Police that cannot be the matter of habeas corpus because there is no allegation whatsoever that there has been wrongful confinement by the police or any private person. In the result, the writ petition is not maintainable and is accordingly dismissed."

35. In Selvaraj vs. the State, Rep. by the

Superintendent of Police, Nagapattinam District, in 2018(3)

MLJ (Cri) 712, a Division Bench of the Madras High Court

observed as under:

Patna High Court CR. WJC No.382 of 2020 dt.22-07-2021

"20. The constitutional Courts across the country predominantly held in catena of judgments that establishing a ground of "illegal detention" and a strong suspicion about any such "illegal detention" is a condition precedent for moving a Habeas Corpus petition and the Constitutional Courts shall be restrained in entertaining such Habeas Corpus petition, where there is no allegation of "illegal detention" or suspicion about any such "illegal detention". Man/Women missing cases cannot be brought under the provision of the Habeas Corpus petition. Man/Women missing cases are to be registered under the regular provisions of the Indian Penal Code and the Police officials concerned are bound to investigate the same in the manner prescribed under the Code of Criminal Procedure. Such cases are to be dealt as regular cases by the competent Court of Law and the extraordinary jurisdiction of the Constitutional Courts cannot be invoked for the purpose of dealing with such Man/Women Missing cases.

21. The Courts have noticed in large number of cases that the Police personnel are spending lot of time by travelling across the Country under the guise of Man/Women missing cases. Certainly such waste of time by the uniformed personnel is a great concern for the State. This apart, such unnecessary Patna High Court CR. WJC No.382 of 2020 dt.22-07-2021

travelling causes large scale expenditures to the State Ex-Chequer, which is to be construed as unnecessary and the tax payer's money has to be spent judiciously and meaningfully. This apart, the efforts taken without any basis causes concern for all concerned and also to the investigating authorities and the State as a whole. Thus, the uniformed Police forces must be used potentially to trace out the cases, where there is a genuine allegation of "illegal detention". Thus, the Police personnel are also bound to apply their mind in such type of cases before commencing their investigation and the investigations are to be conducted meaningfully, in judicious manner and without wasting the tax payers money.

22. As we have elaborately discussed the scope of the Habeas Corpus petitions in such cases of Man/Women missing cases, we are of an undoubted opinion that the Constitutional Courts shall show some restraint in entertaining such Habeas Corpus petitions in relation to Man/Women missing cases.

23. Accordingly, the present Habeas Corpus petition, there is not even an iota of doubt in respect of any "illegal detention" nor any such allegations are made out in the petition. This being the factum of the case, the petitioner has not established any cause for the purpose of entertaining the present Habeas Patna High Court CR. WJC No.382 of 2020 dt.22-07-2021

Corpus petition and accordingly, the same stands dismissed."

36. Keeping in mind the ambit and scope of

habeas corpus writ petition and the decisions rendered by the

Supreme Court and the various High Courts, when we look to

the facts of the present case, we notice that the victim left his

house voluntarily with the respondent nos. 7 and 8 on

09.02.2020 in the evening. As he did not return to his house, his

father submitted a written report to the police raising suspicion

against the respondent nos. 7 and 8. During investigation of the

case, the police came to know that the son of the petitioner Raja

Rai was made accused in Manjhi P.S. Case No. 292 of 2016

registered for the offence punishable under the provisions of

Bihar Prohibition and Excise Act. During investigation, it also

transpired that the victim Raja Rai and respondent nos. 7 and 8

are involved in illegal trade of liquor. It also transpired that

respondent nos. 7 and 8 and the victim had participated in a tilak

ceremony where they resorted to celebratory firing and when

they came to know that the police may arrive, they went towards

Chawar where in the country made pistol of the victim

discharged causing injury to him in his temple as a result of

which he died. The confessional statements of the accused Patna High Court CR. WJC No.382 of 2020 dt.22-07-2021

persons in Manjhi P.S. Case No. 72 of 2020 disclosed that body

of the deceased Raja Rai was concealed in a jute bag and was

thrown in the mainstream of the river Ghaghra, which merges in

the river Ganges. In spite of the efforts made by the police, the

body or the jute bag in which the body was packed could not be

recovered.

37. The aforesaid Manjhi P.S. Case No. 42 of

2020 is still under investigation. An investigation into a criminal

case is confidential in nature. At this stage, the Court has no role

to play. Apparently, it is not a case of illegal detention. The basic

fact of custody even by private person is disputed. The same is

incapable of being determined on the basis of affidavit.

38. Under such circumstances, we are of the

considered opinion that the present writ petition in the nature of

habeas corpus is not maintainable.

39. It is dismissed, accordingly.

(Ashwani Kumar Singh, J)

( Arvind Srivastava, J)

kanchan/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          28.07.2021
Transmission Date       28.07.2021