2020 Supreme(Guj) 554

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SONIA GOKANI, N.V. ANJARIA, JJ.
Mukeshbhai Manharlal Khakhar – Appellant
Versus
State of Gujarat – Respondent
Special Criminal Application No. 10941 of 2018
Decided On : 12-06-2020

Point of Law:
In the event of the corpus being found earlier, the officer shall be at liberty to present her before this Court even unscheduled.

Headnote:

Criminal Law – Indian Penal Code, 1860 – Sections 363, 366, 376 – POCSO Act – Section 6 – kidnapped – Seeking To issue a writ of habeas corpus or a writ in the nature of habeas corpus or any other appropriate writ, order or direction and to direct the respondent No. 3 herein to secure the custody of the corpus of missing daughter of the petitioner named Nidhi and further be pleased to direct the respondent No. 3 to produce the corpus of missing daughter of the petitioner named Nidhi, before this Hon’ble Court – Held, Instead of making her pass through the procedural ordeal, let that exercise be not done as the corpus is with the parents and is living with them. We could have asked the corpus to remain present through video conference, however, learned advocate appearing for and on her father’s behalf has confirmed that she is with her parents and hence, such requirement may not be insisted upon. So far as arrest of the accused is concerned, let the C.B.I. continue the investigation in that regard as there is a strong possibility of the accused indulging into more such natured crime and again, it is also not to be forgotten that he is convict of life imprisonment. The inquiry is also necessary as to how surety was taken by the jail authority of a jail inmate. Let that be inquired by the I.G. (Prisons) and necessary action can be taken if any erring officer is found, after following the due procedure – Let the periodical report be submitted to the Registrar General of this Court every eight weeks and such report shall form the part of the record of this matter and if at the end of six months, where-about of the accused-convict is not found, Petitioner shall be at liberty to move this court requesting for further directions in this regard. We also add here that corpus has one year old child with her and as per the say of the learned advocate Ms. Prajapati, corpus was constrained to carry the child in her womb although she was desirous to abort the child, however, now she is willing to give away the child to the Orphanage and hence, the learned advocate stated that she would have requirement of assistance from administration. At this stage, learned counsel Mr. Kodekar ensured that necessary assistance will be rendered to the corpus. If the corpus is so desirous, let the same be communicated to the learned Counsel of C.B.I. within eight weeks – Directions issued – Petition is disposed of.

Facts of the Case:

Petitioner has specifically given information that the respondent no. 4 i.e. Mr. Dhaval Trivedi has lured and enticed and has kidnapped the daughter of the petitioner; however, the FIR is only lodged for the offence punishable under section 366 of Indian Penal Code. Since then the daughter of the petitioner is missing. On various occasions it was found that the daughter of the petitioner and Dhaval Trivedi were together; however, no steps were taken by the respondent officers to trace the daughter of the petitioner. Said Dhaval Trivedi is aged about 46 years and is in the habit of keeping relations with young girls, in fact the girls are lured and enticed and taken away by Dhaval Trivedi and thereafter the whereabouts of girls are not known.

Finding of the Court:

Instead of making her pass through the procedural ordeal, let that exercise be not done as the corpus is with the parents and is living with them. We could have asked the corpus to remain present through video conference, however, learned advocate appearing for and on her father’s behalf has confirmed that she is with her parents and hence, such requirement may not be insisted upon. So far as arrest of the accused is concerned, let the C.B.I. continue the investigation in that regard as there is a strong possibility of the accused indulging into more such natured crime and again, it is also not to be forgotten that he is convict of life imprisonment. The inquiry is also necessary as to how surety was taken by the jail authority of a jail inmate. Let that be inquired by the I.G. (Prisons) and necessary action can be taken if any erring officer is found, after following the due procedure – Let the periodical report be submitted to the Registrar General of this Court every eight weeks and such report shall form the part of the record of this matter and if at the end of six months, where-about of the accused-convict is not found, Petitioner shall be at liberty to move this court requesting for further directions in this regard. We also add here that corpus has one year old child with her and as per the say of the learned advocate Ms. Prajapati, corpus was constrained to carry the child in her womb although she was desirous to abort the child, however, now she is willing to give away the child to the Orphanage and hence, the learned advocate stated that she would have requirement of assistance from administration. At this stage, learned counsel Mr. Kodekar ensured that necessary assistance will be rendered to the corpus. If the corpus is so desirous, let the same be communicated to the learned Counsel of C.B.I. within eight weeks.

Result: Petition is disposed