Patna High Court
Mansur Alam vs The State Of Bihar Through ... on 30 August, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.468 of 2021
Arising Out of PS. Case No.-194 Year-2012 Thana- BASANTPUR District- Siwan
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MANSUR ALAM S/O KAYAMUDDIN HUSSAIN R/o village- Pandauli,
P.S.- Basantpur, District- Siwan
... ... Petitioner/s
Versus
1. THE STATE OF BIHAR THROUGH DISTRICT MAGISTRATE,
DISTRICT- SIWAN. Bihar
2. SUPERINTENDENT OF POLICE, DISTRICT- SIWAN Bihar
3. THANA PRABHARI, P/S- BASANTPUR, DISTRICT- SIWAN Bihar
4. Superintendent of Police, Economic Offence Unit, Patna, Bihar Bihar
5. Superintendent of Police, Nigrani Anveshan Bureau, Patna, Bihar Bihar
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Ajeet Singh
For the State : Mr. Md. Nadim Seraj, GP 5
For the E.O.U. : Mr. V. N. P. Sinha, Sr. Adv.
Ms. Soni Shrivastava
For the Vigilance : Mr. Anil Singh
Mr. Arvind Kumar
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CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA
JUDGMENT AND ORDER
C.A.V.
Date : 30-08-2023
This writ application has been filed for a direction to
the respondents to complete the investigation of Basantpur Police
Station Case No. 194 of 2012, dated 03.08.2012, registered for the
offences punishable under Sections 363/365 of the Indian Penal
Code, lodged by the petitioner, who is father of the kidnapped
minor boy (aged about 5 years) and further direction to the
Patna High Court CR. WJC No.468 of 2021 dt.30-08-2023
investigating agency to locate his son and file report before the
competent court.
2. The prosecution case, as per the First Information
Report, is that on 02.08.2012, at about 10 AM, the victim boy,
namely, Riyaz Alam, son of the petitioner, aged about 5 years,
wheatish complexion, height 2.5 feet, wearing red-coloured half
pant and red and blue-coloured half T-shirt), went missing from
his own house. The petitioner, along with his relatives and
friends, started searching for the boy and in the process of
search, it came to their knowledge from the villagers of the
Khajuhari village, which is at a distance of about 7 KM from
the house of the petitioner that at about 04:30 PM, two
persons, on a red-coloured Passion Pro motorcycle, were
seen taking a child forcefully by shutting his mouth, who
was crying to return back to his mother and when the
villagers raised hulla, the motorcyclists moved towards the
east direction and took the way of Meera Tola Bazaar Road,
which is next to Singhasani Mandir, and fled away.
3. The grievance of the petitioner is that the Police has
not taken appropriate action towards recovery of the kidnapped
minor boy. He has expressed his agony saying that he has been
running from pillar to post for recovery of his minor son, but
Patna High Court CR. WJC No.468 of 2021 dt.30-08-2023
nobody is taking care of his request. In this connection, he has
submitted a representation to the District Magistrate, Siwan, on
22.08.2012, and also to the Deputy Chief Minister, Bihar on
23.08.2012 (Annexure '2' series to the writ application) and
further to the Superintendent of Police, Siwan, on 20.02.2020, the
Director General of Police, Bihar, on 06.03.2020 and also to the
Chief Minister, Bihar, on 17.02.2020 (Annexure '5' series to the
writ application).
4. Learned Counsel for the petitioner argued that the
petitioner's brother, Khursid Alam, informed the police, on
03.08.2012, that on 02.08.2012, at night hours, a phone call
made from Mobile Phone No. 9955473345, which was received on
the home mobile Phone No. 9955757272 of the informant-
petitioner, saying that the child was with him and the caller
directed to come to Singhasini fair (Mela) and when the relatives
of the informant reached at Singhasini fair (Mela), they made a
phone call on the same mobile phone, wherein it was told that he
was at Vakhri Mela (fair). Thereafter the relatives of the minor boy
tried to contact that person, but the attempts of the relatives went
in vain. It is further submitted that the police arrested the owner of
the Mobile Phone No. 9955473345, namely, Sanjay Yadav who
was later on released upon interrogation.
Patna High Court CR. WJC No.468 of 2021 dt.30-08-2023
5. The petitioner has lodged two First Information
Reports; one is Basantpur Police Station Case No. 194 of 2012,
dated 03.08.2012, with regard to kidnapping of the son of the
petitioner, who is still traceless, and second, on 13.02.2020,
bearing Basantpur Police Station Case No. 61 of 2020,
registered for the offences punishable under Sections
447/384/307/504/506/120(B)/ 34 of the Indian Penal Code and
Section 27 of the Arms Act against accused persons, namely Ajeet
Kr Singh @ Pappu Singh, Ashok Kumar Singh, and two other
persons. In the said First Information Report, it is alleged that two
persons came on motorcycle at the house of the
petitioner/informant and shot at him with the intention to kill him
at the instance of accused persons, namely, Ajeet Kr Singh @
Pappu Singh and Ashok Kumar Singh. It has further been alleged
that the said two named accused persons are also accused in
Basantpur Police Station Case No. 102 of 2008, registered for the
offences punishable under Sections 302/ 201/120-B) of the Indian
Penal Code, but due to their political connections and financial
power, the police is sitting tight over the matter. It is relevant to
mention here that the named accused Ajeet Kumar Singh @ Pappu
Singh filed an intervener application to be added as a party,
which was rejected by this Court, vide order dated 08.02.2023.
Patna High Court CR. WJC No.468 of 2021 dt.30-08-2023
6. This writ application came to be filed in this Court on
12.03.2021 i.e. after about eight years seven months from the date
of kidnapping of the child. It was taken up for consideration for
the first time on 21.09.2022. It is pertinent to mention that the
police have already submitted Final Form, bearing No. 87 of
2020, dated 30.04.2020, in the present Basantpur Police Station
Case no. 194 of 2012, wherein occurrence has been found true but
neither the accused persons could be identified nor the child has
been recovered. The final form has been submitted by the
police before filing of the present writ application, in the
year 2021 itself.
7. A learned Co-ordinate Bench of this Court, taking
note of the fact that it is a case of kidnapping of five-years old son
of the petitioner, directed the Superintendent of Police, Siwan,
(respondent nos. 2) to file counter affidavit giving details of the
action taken so far.
8. It is relevant to mention here that the petitioner has
prayed for proper investigation in two cases, the first one is
Basantpur Police Station C ase No. 194 of 2012, lodged for the
kidnapping of five-year child of the informant against unknown,
and the second one is Basantpur Police Station Case No. 61 of
2020, lodged with regard to the attempt made by the named
Patna High Court CR. WJC No.468 of 2021 dt.30-08-2023
accused persons to kill the petitioner. Since the said two cases are
of different nature and not related to each other, Learned Counsel
was directed to restrict his prayer to either of the one First
Information Report in the present writ application. In light of the
said circumstances, learned Counsel for the petitioner has
restricted his prayer only with regard to Basantpur Police Station
Case No. 194 of 2012.
9. During the pendency of this writ application, as many
as four counter affidavits have been filed. Pursuant to the order,
dated 21.09.2022, a counter affidavit has been submitted on
05.11.2022 stating that final form in Basantpur Police Station Case
No. 194 of 2012 has been submitted, wherein the occurrence has
been found true but the accused persons have not been identified.
The alleged involvement of suspect Sanjay Yadav was
investigated, but no evidence was found against him. It is said that
Sanjay Yadav is engaged in farming and cattle raising and has no
criminal antecedent. It is further stated that all possible steps have
been taken for the recovery of the kidnapped child. The case has
been supervised by the Superintendent of Police, Siwan and Sub
Divisional Police Officer, Maharajganj and thereupon specific
directions were given to the Investigating Officer regarding the
search of the kidnapped child, but no clue has been found.
Patna High Court CR. WJC No.468 of 2021 dt.30-08-2023
10. The counter-affidavit, dated 05.11.2022, reflects
dismal performance of the investigating agency, this Court, vide
order dated 09.11.2022, directed the Superintendent of Police,
Siwan, to remain personally present before this Court along with
the records of the case to show as to what steps have been taken so
far.
11. Pursuant to the order, dated 09.11.2022, a
Supplementary counter affidavit has been filed by the
Superintendent of Police, Siwan, on 21.11.2022, which mainly
relates to Basantpur Police Station Case No. 61 of 2020. On
30.11.2022, the Superintendent of Police, Siwan, was present
before this Court with incomplete case diary of Basantpur Police
Station Case No. 194 of 2012, which showed that there was no
case diary written during the year 2015- 2019, i.e. for a period of
about 4 years 7 months. This Court pointed out to the
Superintendent of Police, Siwan that while the case diary written
on 10.02.2015 is up to paragraph 115, thereafter the case diary
starts from 06.09.2019 and the paragraph numbers are showing
from 53 onwards which was totally incoherent and would not
inspire confidence of this Court. The Superintendent of Police,
Siwan, was granted time to arrange his records and address the
Court on the next day.
Patna High Court CR. WJC No.468 of 2021 dt.30-08-2023
12. On 01.12.2022, the Superintendent of Police, Siwan
produced the case diary with some more pages. This time, page
nos. 19 to 26, which were xerox copies, was placed in between the
pages of the case diary of 10.02.2015 and 06.09.2019. In some of
the pages, case number was written as Mahila Police Station Case
No. 194 of 2012, whereas in some of the pages, it was mentioned
as Basantpur Police Station Case No. 194 of 2012. This Court
found that from page no. 27 onwards, the paragraph numbers have
been changed by prefixing '1' before the paragraphs, which were
earlier existing, meaning thereby that paragraphs '53', '54' and
'55' and so on and so forth have been shown as paragraphs '153',
'154' and '155' onwards. When this Court called upon
Superintendent of Police, Siwan, to explain as to how can he do so
overnight in the carbon copy of the case diary and why it should
not be taken as an interpolation of the records, the Superintendent
of Police, Siwan, submitted that it was done by mistake and he was
sorry for that.
13. Since there appeared interpolation of the records and
discrepancies in the case diary, the Superintendent of Police,
Siwan, was directed to go through the record of the case and to
take a view whether further investigation is required or it would be
fit one for this court to direct re-investigation of the case. Further
Patna High Court CR. WJC No.468 of 2021 dt.30-08-2023
Superintendent of Police, Siwan, was directed to be present and
apprise this court with his view on the next date of hearing. In light
of the said direction, a report, vide letter no. 8758, was submitted
by the Superintendent of Police, Siwan, on 07.12.2022, wherein
with regard to Basantpur Police Station Case No. 194 of 2012, it
has been stated that the investigating officer has sent application
for CIG (Criminal Intelligence Gazette) publication. The
photograph of the kidnapped child was published in the newspaper
and also attached at several places in the town. Secret agents were
also deployed and all possible attempts were made for search of
the kidnapped child, but the child could not be recovered. In the
said case, final form has been submitted vide Final Form No. 87
of 2020, dated 30.04.2020, stating the offence to be true. Further it
has been stated that at several places in the case diary, infirmities
have been found and in that regard, show cause has been served
and proceedings have been initiated upon the erring investigating
officers.
14. This Court, vide order, dated 01.12.2022, also called
for the entire records of the Basantpur Police Station Case No.
194 of 2012 from the court of learned Chief Judicial Magistrate,
Siwan, and further directed the petitioner to add Economic
Offience Unit, Bihar and Anti-Corruption Bureau, which is said to
Patna High Court CR. WJC No.468 of 2021 dt.30-08-2023
be under the Department of Vigilance, Government of Bihar, as
party-respondents. Thereafter, vide order, dated 22.12.2022 the
Economic Offience Unit, Patna, Bihar, was handed over the
investigation of two cases, i.e. Basantpur (Lakdi Naviganj)
Police Station Case No. 164 of 2022 and Basantpur (Lakdi
Naviganj) Police Station Case No. 213 of 2021, wherein
swindling/misappropriation of huge public money is involved.
In pursuance of the said order, a counter affidavit has been filed
on behalf of the Superintendent of Police, Economic Offience
Unit, Bihar (Respondent No. 4) on 22.04.2023. The aforesaid
counter affidavit is not relevant as it is not with regard to
kidnapping of the petitioner's son.
15. Vide order, dated 08.02.2023, a complete legible
copy of the case diary of Basantpur Police Station Case. 194 of
2012 was called for from the court of learned Chief Judicial
Magistrate, Siwan. In the meantime, the Investigating Officer was
directed to submit a report as to what steps were taken to recover
the kidnapped son of the informant positively before the next date
of hearing and further the concerned Investigating Officers were
directed to remain present before the Court on the next date of
hearing.
Patna High Court CR. WJC No.468 of 2021 dt.30-08-2023
16. On 02.03.2023, out of ten Investigating Officers,
nine were present and the remaining one was present before this
court on 23.03.2023. On 04.07.2023, this Court queried about the
steps having been taken for recovery of the kidnapped child by the
police during the course of investigation, for which three weeks
time was prayed and granted to file supplementary counter
affidavit.
17. In light of the order, dated 04.07.2023, an additional
counter affidavit has been filed on behalf of Superintendent of
Police, Siwan, on 31.07.2023. It is stated therein that in
compliance of the said order, dated 04.07.2023, the
Superintendent of Police, Siwan, called for a report along with the
case record from the Station House Officer, Lakri, Naviganj, vide
memo no. 399/legal Cell, dated 06.07.2023. A detailed report, vide
D.R. No. 602/2023, dated 08.07.2023, has been submitted by the
SHO, Lakri, Naviganj which is Annex- R-2/A to the said counter
affidavit. It is stated therein that the Investigating Officer has
deputed a spy as well as local Chawkidar for retrieving the
kidnapped boy. Besides that, the petitioner himself have got paper
publication regarding missing of his minor son on different dates
in Hindi daily Newspaper and also pasted pamphlets at prominent
places. It is further stated in the counter affidavit that the photo of
Patna High Court CR. WJC No.468 of 2021 dt.30-08-2023
the kidnapped boy was also sent for CIG publication, vide Mahila
P.S. DR- 25/15 dated 07.02.2015, but the content of the CIG was
not found and hence in this regard, show cause was issued to the
Investigating Officer, vide memo no. 5560, dated 23.07.2023.
Also, the call details of the mobile number of suspect Sanjay
Yadav were traced, but even after best efforts being made by the
police, no clue was found and thereafter the police submitted final
form.
18. Learned Counsel for the petitioner submits that in
this case, the local police did not act in proper way, which would
be evident from bare perusal of the case diary. In the name of the
investigation, the Investigating Officers have only interpolated the
records in the case diary, wherein re-statement of the informant
(five times) and evidence of some witnesses have been recorded.
The Investigating Officers did not proceed scientifically. The only
thing which has been repeatedly submitted by the Investigating
Officers in several paragraphs of the case diary is that they could
not get any information/clue about the kidnapped boy. On the
information given by the brother of the informant, the
Investigating Officers interrogated suspect, Sanjay Yadav, who
was, later on, said to be not involved in the case as he is a person
of clean antecedent, busy with his farming and cattle raising work.
Patna High Court CR. WJC No.468 of 2021 dt.30-08-2023
19. Learned Counsel submits that the Investigating
Officers did not think it just and proper to take up the investigation
further with the suspect and find out the truth from him.
20. It is submitted that being the protector of civil
liberties of the citizens, this Court, in the given facts of the present
case, may exercise its power and jurisdiction to transfer the
investigation of the present case to an independent agency and or
Crime Investigation Department.
21. On the other hand, respondent-State and the police
officers, who were interacted with this Court, in course of hearing,
have submitted that in this case, the local police has taken proper
steps in course of investigation and even though the recovery of
the kidnapped boy could not be made despite all efforts made to
find out the truth and recovery of the kidnapped child. It is, thus,
their submission that the police has investigated the case from all
angles, but c ould not trace the kidnapped boy and the accused, as
well.
22. I have heard learned Counsel for the parties
concerned and have gone through the materials available on
record.
23. From perusal of the materials available on record, in
my opinion, the local police has not investigated the case with
Patna High Court CR. WJC No.468 of 2021 dt.30-08-2023
desired sensitivity and scientifically, due to which, the petitioner
moved this Court on 12.03.2021.
24. From perusal of the case diary, it is evident that the
Investigating Officers of the case and the supervising authorities
have not made sincere efforts to find out the kidnapped boy or the
accused persons, who have committed this crime. The
Investigating Officers did not examine the telephonic talks which
the alleged suspect had with one person, namely, Beharan Yadav,
who is said to have accompanied the suspect to Vakhari Mela,
wherein the suspect, while making the call to said Beharan Yadav,
mistakenly made the call to the informant. Neither the other
person, namely, Behran Yadav, accompanying the suspect, Sanjay
Yadav, was examined nor the police verified the call details of the
mobile number of said Bahran Yadav, and the police also did not
bother to enquire from the other 15-20 persons who accompanied
the suspect Sanjay Yadav in the fair.
25. The Sub-Divisional Police Officer and the
Superintendent of Police had made supervision at long intervals
without taking care to verify as to whether the previous directions
have been complied with by the Investigating Officers or not.
26. When this Court inquired From the State from where
pamphlets were printed by the police authorities to paste at
Patna High Court CR. WJC No.468 of 2021 dt.30-08-2023
different places in the locality and as to from which agency the
said pamphlets were printed, learned Counsel for the respondent-
State had no answer to that.
27. This Court has noticed that in course of
investigation, several directions were issued to the Investigating
Officers, but thereafter no care was taken to see whether those
directions were actually carried out or not by them. The
Investigating Officers had not immediately sent even the
photograph of the minor kidnapped boy for uploading the same on
the web portal " trackthemissingchild.gov.in" prepared by the
Ministry of Women and Child Development, Government of India.
No step was taken to send the information for publication to the
concerned department. In report 1, certain directions were issued.
Apparently, there is a serious miss and gap in carrying out the
investigation.
28. The Investigating Officers has recorded that the
brother of the informant had given mobile number of suspect,
Sanjay Yadav, and the Investigating Officers had written for
the CDR of his mobile number. But from paragraph 53 of the case
diary, it appears that the CDR of mobile number of suspect
disclosed by the brother of the informant was not called and the
Investigating Officers have called the CDR of changed mobile
Patna High Court CR. WJC No.468 of 2021 dt.30-08-2023
number of suspect Sanjay Yadav, and the said CDR has also not
been received by the police, as yet.
29. From the discussion based upon the materials
available on record, as mentioned herein above, the facts, which
emerges is that the police did not investigate the present case
regarding the kidnapping of a minor child, aged about five years,
with required sensitivity and the investigation proceeded in a
routine manner, where the Investigating Officers were frequently
changed and altogether ten Investigating Officers have
investigated the present case in piecemeal manner. It also appears
that the directions issued by the supervising officers, from time to
time, were not carried out by the Investigating Officers. The
Superintendent of Police, Siwan, in its counter affidavit, has also
stated that show cause was issued and proceeding has been
initiated against the erring police officers for their lapses. No
serious effort on the part of the Superintendent of Police and other
higher police officers of the police department appears to have
been made by forming special team for nabbing the culprit(s) for
recovery of the kidnapped minor child.
30. This Court has also noticed that for about four-and-
a-half years, no progress in the investigation was made and the
case diary has been written in a routine manner. The investigation
Patna High Court CR. WJC No.468 of 2021 dt.30-08-2023
was not done in right manner and even the C.D.R. of the correct
mobile number of the suspect was not called by the Investigating
Officer.
31. The Supreme Court, in the case of Vinay Tyagi v.
Irshad Ali Alias Deepak and Others, reported in (2013) 5 SCC
762, has held that fair and proper investigation, in criminal
jurisprudence, has twin purpose; firstly, the investigation must be
unbiased, honest, just and in accordance with law; and secondly,
the entire emphasis for a fair investigation has to be to bring out
the truth of the case before the court of competent jurisdiction.
The law is well settled that it is necessary to maintain credibility
and inspire confidence in investigation and where such an order is
required for complete justice, the Constitutional Courts can direct
for re-investigation of the case.
32. Coming back to the facts of the present case,
admittedly, the five-year old child of the informant-petitioner has
been kidnapped from his house. Accordingly, I come to the
conclusion that in the ends of justice and in order to inspire
confidence in the investigation and to find out the kidnapped
minor child, the case (Basantpur Police Station Case No. 194 of
2012, dated 03.08.2012), has to be re-investigated by the Crime
Investigation Department, Bihar. The A.D.G., C.I.D., Bihar is
Patna High Court CR. WJC No.468 of 2021 dt.30-08-2023
directed to nominate an officer not below the rank of
Superintendent of Police to take over the charge of the
investigation of this case forthwith within a period of one week
from today.
33. The Superintendent of Police, Siwan, is further
directed to hand over the entire records of Basantpur Police Station
Case No. 194 of 2012 to the Crime Investigation Department
within a period of one week from today.
34. The Crime Investigation Department is expected to
re-investigate the case expeditiously considering the seriousness of
the case, in which a five-year old minor child has been kidnapped
and is traceless for so many years. The re-investigation of the case
must be completed within a reasonable time frame and this Court
hope and trust that the Crime Investigation Department shall
investigate this case in scientific manner.
35. The learned District Court is also directed not to
proceed further in the matter till the re-investigation of Basantpur
Police Station Case No. 194 of 2012 is completed and the final
form is submitted by the Crime Investigation Department.
36. Let a copy of this order be communicated to the
learned District Court concerned, the A.D.G., C.I.D., Bihar and the
Superintendent of Police, Siwan, through fax, immediately.
Patna High Court CR. WJC No.468 of 2021 dt.30-08-2023
37. With the aforesaid observation and direction, this
application is disposed.
(Anil Kumar Sinha, J.)
Prabhakar Anand/-
AFR/NAFR AFR
CAV DATE 02-08-2023
Uploading Date 30-08-2023
Transmission Date 30-08-2023
