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2024 Supreme(Gau) 818
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH), (ITANAGAR BENCH)
SUSMITA PHUKAN KHAUND, J.
Shri Shoriful Islam - Petitioner
Versus
State of Arunachal Pradesh and Others - Respondents
WP(C) No.477(AP) Of 2022
Decided On : 07-05-2024
For the Petitioner: Mr. K. Taja.
For the Respondents: Mr. T. Ete, Mr. B. Picha, Ms. T. Mossang.
IMPORTANT POINT
A writ of Habeas Corpus cannot be issued in a routine manner and must only be issued in clear cases of illegal detention.
Headnote:
Habeas Corpus - Missing Person - Bengal Easter Frontier Regulation, 1873 - Indian Penal Code, 1860, Sections 355/211/509/506/341/323/34 - The court dismissed the petition for a writ of Habeas Corpus as there was no direct allegation of illegal detention by the police personnel. The petitioner was aggrieved by the police's handling of the victim after she was assaulted, but the court refrained from issuing the writ as the investigation was ongoing and a criminal case had already been registered.
Fact of the Case:
The petitioner filed a petition for a writ of Habeas Corpus or a writ of Mandamus for the release of his missing sister, who was allegedly assaulted and taken by the police but not handed over to proper custody. The police claimed to have made efforts to trace the victim and provided evidence of their actions.
Finding of the Court:
The court dismissed the petition for a writ of Habeas Corpus as there was no direct allegation of illegal detention by the police personnel. The court refrained from issuing the writ as the investigation was ongoing and a criminal case had already been registered.
Issues: The main issue was whether the court should issue a writ of Habeas Corpus for the missing person, considering the police's handling of the victim after the alleged assault.
Ratio Decidendi: The court held that a writ of Habeas Corpus cannot be issued in a routine manner and must only be issued in clear cases of illegal detention. As there were no direct allegations of illegal detention by the police, the court refrained from issuing the writ.
Final Decision: The petition for a writ of Habeas Corpus was dismissed by the court, with no order as to costs.
JUDGMENT :
Heard Mr. K. Taja, learned counsel for the petitioner. Also heard Mr. T. Ete, learned counsel for the respondent Nos. 1 to 4, Mr. B. Picha, learned counsel for the respondent No. 5 and Ms. T. Mossang, learned counsel for the respondent No. 6.
2. The petitioner has filed this application under Article 226 read with Article 227 of the Constitution of India for issuance of a writ in the nature of Habeas Corpus or a writ of Mandamus or a direction of like nature. The petitioner in this case is Shri Shoriful Islam, brother of the missing person ‘X’. Victim ‘X’ (name withheld) is the missing person who is aged about 31 years. A video clipping went viral on social media with footage of a woman being brutally tortured and assaulted by a group of individuals, at Sood village in Yupia. On being queried about the assault, the officials of Popu Hill Police Station came and took the injured lady in the PCR van. The petitioner thereafter came to know that the injured lady is his sister ‘X’ and was taken by the police and so, he went to the Popu Hill Police Station to enquire about his sister. The petitioner was then informed by the Popu Hill police personnel that the police team tried to hand over the injured victim to Laluk Police Station, but they refused to take custody of the victim without any case and they declined to act beyond their jurisdiction. They informed the petitioner that the victim was helped into a train at Yupia train station and the TTE was asked to drop her at Harmuti train station.
3. The petitioner is aggrieved as his sister is still missing on account of apathy of the officials of the Popu Hill Police Station. It was the duty of the police officials to hand over the victim to any NGO or similar institution which would have helped her through the State Commission for Women. The miscreants were not arrested in connection with this case. The whereabouts of the victim woman is unknown. The incident impelled the petitioner to lodge an FIR which was registered as Itanagar Women Police Station Case No. 145/2022 under Sections 355/211/509/506/341/323/34 of the Indian Penal Code, 1860. Even after the FIR-cum-missing report was lodged, no action was taken by the police nor any information was provided to the petitioner about the whereabouts of the victim. The petitioner has prayed to direct the Officer-in-Charge of the concerned Police Station to hand over the custody of the victim ‘X’ to the petitioner and also to direct the police to trace the missing person at the earliest.
4. Initially The State of Arunachal Pradesh, the Superintendent of Police Capital Complex, Itanagar, the Officer-In-Charge, Popu Hill Police Station, the Officer-In-Charge, Women Police Station, Itanagar, were arrayed as respondent Nos. 1, 2, 3 and 4 respectively, but later on, D. Dulom, Inspector, Officer-In-Charge of Popu Hill Police Station and Lady ASI B. Adhikari were impleaded as respondent Nos. 5 and 6 in this case.
5. The respondent Nos. 2, 3, 5 and 6 have filed affidavits-in-opposition contending inter-alia that they are not responsible for the disappearance of the victim ‘X’.
6. The respondent Nos. 3 and 5 i.e. the Officer-in-Charge of the Popu Hill Police Station through his affidavit stated that on 08.11.2022 around 9.10 PM, the victim was brought to the Police Station by the Emergency Response Support System (ERSS) team. She was caught by public for alleged child trafficking at Sood village and she was assaulted. The police was also informed about a woman child trafficker at Sood village. The respondent No. 6, a lady Assistant Sub-Inspector (ASI for short) was called by the respondent No. 3 as the alleged trafficker was a woman and he entrusted her to attend the case. After tracking down the location, the police party of the aforementioned Police Station proceeded to the place of occurrence.
7. When they met the victim ‘X’, she was drenched in muddy water especially on the lower part of her body. She got drenched, when she tried t
