Back
IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, MADHURESH PRASAD, JJ.
Om Prakash Singh son of Late Kanchhi Lal – Appellant
Versus
The State Of Bihar through the Director General Of Police, Bihar, Patna
Criminal Writ Jurisdiction Case No.1087 of 2018
Decided on : 06-09-2021
Constitution of India – Article 226 – Habeas Corpus Petition – Meaning of term habeas corpus is "you must have the body" – Habeas corpus ad subjiciendum means "that you have the body to submit or answer" – Prerogative writ of habeas corpus ad subjiciendum is the most renowned contribution of English common law to protection of human member – Illegal confinement is pre-condition to issue a writ of habeas corpus – Though a writ of right, it is not a writ of course – It is an extra ordinary remedy and cannot be granted on mere asking – It cannot be resorted to in a casual and routine manner – When a writ of habeas corpus is to be issued against a private party, prima facie proof that detenu is alive or is in illegal custody of private person is necessary. (Paras 19, 20, 22 and 25)
Criminal Procedure Code, 1973 – Section 173 – Constitution of India – Article 226 – Habeas Corpus Petition – For production of petitioner's son and to set him at liberty forthwith from illegal detention of private respondents – Case registered against unknown accused persons for kidnapping of his son, aged about 23 years, for ransom – This Court has entertained writ petition and has passed several orders on previous dates – Concern of Court was to ensure that investigation of case is done in proper manner – Police have apprised Court regarding steps taken by them during investigation and have also filed their report in sealed cover – Due to intervention of Court, matter is being supervised by Additional Superintendent of Police and Senior Superintendent of Police themselves – To hold investigation in a cognizable offence is statutory right of police – At stage of investigation, Court has no role to play – However, investigating agency is required to take all necessary steps to conclude investigation and submit its report to Magistrate concerned – If police fail to perform their statutory duty in accordance with law, Court has a bounden statutory obligation to ensure that investigation is conducted in accordance with law – From materials on record, it cannot be said that police have exercised their investigatory power in breach of statutory provisions or they are influenced by external influences – Bonafide of investigation also cannot be doubted – It is true that son of petitioner has not been recovered till date, but that alone cannot be a factor to monitor the case till recovery of victim, especially, when senior police officers are personally looking into the matter and investigation so far as some of accused persons have been completed and charge-sheet has been filed in court – There is nothing on record to infer that police investigation is being influenced by external influences – No useful purpose would be served by keeping writ petition pending before this Court for an indefinite period – Police are investigating the case since more than five years and in the process, they have conducted raids at several locations – Since accused persons who have been arrested and against whom investigation has been completed, would be facing trial before Court of law and their guilt or innocence would be established only after a full-fledged trial, at this stage, it will not be proper for this Court to make any observation on merits of criminal case – However, victim is not in illegal confinement of police or any other known person – Who is responsible for kidnapping son of petitioner and who is wrongfully confining him are matters of investigation and definite opinion in this regard is lacking in present case – In a criminal investigation, what action should have been taken by police that cannot be a matter of habeas corpus because there is no application whatsoever that there has been wrongful confinement by police – Police have arrested so many persons, but victim could not be recovered and they are still struggling to find out person detaining the victim – In instant case, writ of habeas corpus cannot be issued because writ of habeas corpus is festinum remedium and power can only be exercised in clear case – Petition dismissed as not maintainable – However, dismissal of instant case is not to be viewed by police authorities as a license to in any way decrease thrust of investigation – Same is expected to continue in accordance with law with due sensitivity and sincerity and petitioner would be at liberty to avail his remedies before appropriate forum in accordance with law. (Paras 11, 12, 15, 16, 17, 18, 25, 28 to 31)
JUDGMENT :
ASHWANI KUMAR SINGH, J.
The instant application under Article 226 of the Constitution of India has been filed by the petitioner for issuance of a writ of habeas corpus directing the respondent nos. 1 to 5 to produce the petitioner’s son Kaushal Kishore Singh and to set him at liberty forthwith from the illegal detention of the private respondents, who have been made accused during investigation of Patrakar Nagar P.S. Case No. 335 of 2015 registered on 06.11.2015 under Section 364 of the Indian Penal Code in respect of an occurrence of offence which took place on 29.10.2015.
2. The aforesaid Patrakar Nagar P.S. Case No. 335 of 2015 was registered on the basis of written report submitted by the petitioner Om Prakash Singh against unknown accused persons for kidnapping of his son Kaushal Kishore Singh, aged about 23 years, for ransom.
3. While the case was still under investigation, the instant writ petition was filed before this Court on 09.04.2018. Since then, several orders have been passed by this Court directing the police to recover the missing son of the petitioner.
4. By now, the official respondents have filed seven affidavits apprising the Court regarding various steps taken by the police to recover the missing/kidnapped son of the petitioner including two affidavits by the respondent Senior Superintendent of Police, Patna and the Assistant Superintendent of Police, Sadar, Patna.
5. It would be manifest from perusal of those affidavits that during investigation the police apprehended respondent nos. 6 to 9 and submitted charge-sheet against them in the court of jurisdictional Magistrate. So far as the respondent no.10 is concerned, he is still absconding. The processes have been taken against the absconding accused and all coercive measures have been taken to ensure his arrest, but he has not been arrested till date.
6. From the affidavits filed on behalf of the official respondents, it would further appear that raids have been conducted during investigation at several locations to trace the victim and to apprehend the absconding accused, but no fruitful result has surfaced.
7. Mr. Neeraj Kumar, learned counsel appearing for the petitioner submitted that the local police of Patliputra Police Station did not show any interest initially into the investigation of the case. He contended that later on, due to orders passed by the Court, the police have taken certain steps to nab the accused persons and recover the victim, but neither the victim could be recovered nor respondent no.10 has been arrested. According to him, the life of the petitioner’s son is in danger. He further contended that on the basis of materials collected during investigation, even the investigating agency is of the opinion that the victim may be traced in case the respondent no.10 is arrested.
8. On the other hand, Mr. Prabhu Narain Sharma, learned counsel appearing for the State submitted that a sensitive and committed investigation to recover the son of the petitioner is being conducted. He further contended that during investigation the respondent nos.6 to 9 were apprehended and the police have already submitted charge-sheet against them before the court. He contended that the then Superintendent of Police, Patna had appeared on 28.11.2019 before the Court and placed his report in sealed cover. He urged that as the police got some clue regarding the accused Awadhesh Prasad @ Pappu, a team of police force was sent to Delhi in order to apprehend him, but he could not be apprehended. He contended that inspite of best efforts made by the police, the son of the petitioner could not be recovered, and efforts are on to find out his whereabout. He further contended that since the investigation is in progress, it would not be proper to issue a writ in the nature of habeas corpus because it would be impossible to comply with the order.
9. In reply, Mr. Neeraj Kumar, learned counsel for the petitioner submitted that this Court has entertained the application
On 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 Cri....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
