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2015 Supreme(Pat) 358
IN THE HIGH COURT OF JUDICATURE AT PATNA
V.N. SINHA, AHSANUDDIN AMANULLAH, JJ.
Balinder Singh - Petitioner
Versus
The State of Bihar through its Chief Secretary & Ors. - Respondents
Criminal Writ Jurisdiction Case No. 277 of 2013
Decided On : 22-05-2015
Advocate Appeared:
For the Petitioner: Mr. Prem Kumar Jha, Mr. Rajesh Kumar Jha, Mr. Mukesh Mishra, Mr. Nishant Kumar Jha
For the Union: Mr. Sanjay Kumar, A.S.G.
For the COAI: Mr. Naveen Chawla, Mr. Rajesh Ranjan
For the B.S.N.L.: Ms. Renuka Sharma
For Respondent: Mr. Rajesh Ranjan, Mr. Manoj Kumar Ambastha, Mr. Tripurari Nath Ambastha, Mr. Rajeev Kumar Singh, Mr. Amresh Sinha
For the State: Mr. Ashok Kumar Keshri, AAG-XI, Mr. Priyadershi Matri Sharan, AC to AAG-XI
Headnote:Constitution of India-Article 226-Telegraph Act, 1885-Section 4-Writ petition seeking command for recovery of army constable who was kidnapped and is traceless since two years-Mobile calls made by ransom callers revealed activation of connection on fake name and address-Investigation in case cannot proceed further as identity, address proof of ransom callers have been found fake and investigation has reached a dead end-Mere change of Investigating Agency will not enable other Investigating Agency to trace ransom caller and without him it will be impossible for investigator to reach victim through fake identity, address proof of ransom caller-Mobile connection shall be activated only after requirement of filing up of Consumer Application Form (CAF) and copies of documentary proof as per requirement have been fulfilled by customer and subscriber details have been updated in subscriber database of licensee-In order to take care of security concern of people constituting nation, person accepting CAF at point of sale on behalf of licensee has to be satisfied about genuineness of identity, address proof appended with CAF failing which security, human right concern of people stands compromised which cannot be permitted-Central Government while granting licence has to safeguard in public interest, interest of nation-Requirement to confirm genuineness of identity, address proof from authority which has issued same would come within reasonable restriction envisaged under sub-clause (6) of Article 19 of Constitution-Transfer of case to the Central Bureau of Investigation will not serve any purpose at all-Special Investigation Team directed to proceed with investigation by trying to locate accused by his photograph, conclude the same and submit final police report in Court within a reasonable time. (Paras 9, 19, 20 to 24)
V.N. Sinha, J.
Instant writ petition was filed on 18.03.2013 to command the Respondent 1st Party i.e. State of Bihar and its functionaries to recover Constable Vivek Kumar bearing No. 6500526 (A.S.H.) in 1(A.T.) Battalion, Bangalore and to produce him before the Court as he went missing and became traceless on 14.03.2011 while travelling from Bangalore to Aurangabad via Howrah Railway Station. Further prayer in the writ petition is to direct the authorities of the State to complete the police investigation of Jamhore P.S. Case No. 39/11 dated 02.05.2011 registered for the offences under Sections 363, 365, 34 of the Penal Code against Respondent Nos. 8 to 11 and to submit charge-sheet to enable the court below to expeditiously proceed with the trial of the offences found true during investigation.
2. Prosecution story, as set out in the written report of the informant, on the basis of which Jamhore P.S. Case No. 39/11 has been registered, is that Vivek Kumar, son of petitioner served as Constable bearing No. 6500526 (A.S.H.) in 1(A.T.) Battalion, Bangalore and was returning from Bangalore to Aurangabad via Howrah. He telephonically informed his family members on 14.03.2011 at 10.58 A.M. that he has reached Howrah. On 15.03.2011 Vivek Kumar again called his family members and informed them that he is calling from Patna and that he shall be reaching home by Budh Purnima Express. Vivek Kumar did not reach home whereafter written report dated 02.05.2011 was submitted to the Officer-in-Charge, Jamhore Police Station, Aurangabad, Respondent No. 7 informing him that Vivek Kumar has not reached home till date giving further information about his mobile IMEI No. 359355036397600 and SIM No.07357419804 through which Vivek Kumar contacted his family members on 14, 15.03.2011 from Howrah, Patna Railway Station(s). In the written report further information was given that the aforesaid mobile set and SIM was used by one Arjun Kumar Singh, son of Jai Singh and Mukesh Kumar, son of Govind Singh, both residents of Village Mehiyan Police Station Tandwa, District Aurangabad on 16.03.2011. In the written report suspicion raised that aforesaid Arjun Kumar Singh and Mukesh Kumar have abducted Vivek Kumar, who is unmarried, in collusion with Govind Singh, son of Late Ramadhar Singh, Dipak Kumar Singh, son of Jitendra Singh while Vivek Kumar was coming out from Anugrah Narayan Road Railway Station. In the writ petition it has further been averred that writ petitioner and the informant of the case contacted G.R.P., Varanasi and learnt that the belongings of Vivek Kumar were recovered from a train compartment at Varanasi and on that basis attempt was made to lodge First Information Report with G.R.P., Varanasi but the request not entertained. Petitioner and the informant thereafter represented before the Senior Superintendent of Police, Gaya, who instructed G.R.P. Gaya under Memo No. 1387/C dated 31.03.2013 to take the required action but G.R.P. Gaya also failed to lodge the First Information Report. Officer-in-Charge, G.R.P. Gaya, however, procured print out of the mobile set of the victim and found SIM No. 9661084147 used in the mobile set of the victim on 16.03.2011. In the light of the print out Officer-in-Charge, G.R.P. Gaya contacted the subscriber of SIM No. 9661084147 and learnt that the said SIM belongs to one Anurag Singh, who later deposited the said mobile set to Police Station, Sector-12, Bokaro. Petitioner also requested the Commanding Officer 1 TRG BTN ASC Centre (North) under his letters dated 22.03.2011, 24.03.2011 to trace out his missing son. Army Headquarters ASC Centre (North) also requested Superintendent of Police, Gaya to lodge First Information Report indicating that Vivek Kumar while travelling from Bangalore to Aurangabad went missing. Under letter dated 08.04.2011 Army Headquarters ASC Centre (North) requested the authorities to trace the person who withdrew the amount from the account of Vivek Kumar through ATM card on
