B. Shangari vs The Director General of Police and Others

M. Chockalingam, J.—Invoking the writ jurisdiction of this Court, one Mrs. B. Shangari, wife of Bakiyanathan, has brought forth this petition seeking for a direction to the 3rd respondent for the production of her husband Bakiyanathan and also one Ganesan, the brother of her husband, before this Court and to set them at liberty.

The affidavit filed in support of the petition is perused. The Court heard the learned Counsel for the petitioner, Counsel appearing for respondents 4 and 5 and also the Additional Public Prosecutor appearing for the State.

The grievance ventilated by the petitioner, as could be seen from the affidavit, is that on 23.01.2009 her husband Bakiyanathan and the brother of her husband Ganesan went to Judicial Magistrate Court No. II, Dindigul, for complying with the condition regarding the anticipatory bail order passed by this Court in Crl.O.P.(MD)No.12622/2008, dated 06.01.2009; that after surrendering and complying the sureties, their Advocate came outside the Court premises to have lunch along with the detenus; that when they were just returning to the Court, the 4th and 5th respondents, along with henchmen and rowdy elements, kidnapped both the detenus and from that time onwards the whereabouts of the detenus are not known; that immediately the Advocate of the detenus sent telegraphic messages to the police officials concerned and also gave a detailed complaint to the 3rd respondent police; that since the concerned police officers have not taken any action against the culprits involved, based on the complaint given by the Advocate of her husband, she gave a telegram and also a detailed complaint to respondents 1 to 3 on 29.01.2009 and even then no action was taken; that already HCP(MD) No. 54/2009 has been filed by the Advocate of her husband and since he is a practising Advocate, he would withdraw the said petition and therefore the present petition preferred by her has got to be considered.

Learned Counsel for respondents 4 and 5 would submit that the present habeas corpus petition has been filed with full of false and untenable allegations; that both the alleged detetus Bakiyanathan and Ganeshan were Goldsmiths by profession; that both of them were acquainted to the 5th respondent since he used to make jewels through them; that one of the alleged detenus by name Ganeshan got a sum of Rs. 2,40,000/- on 17.09.2008 from the 4th respondent for making certain jewels and equally, a sum of Rs. 3,05,000/- was given by the wife of 5th respondent to the other alleged detenu Bakiyanathan on 20.10.2008 but, accordingly jewels were not made and they were giving evasive replies; that when both the 4th and 5th respondents went over to the places of both the alleged detenus, they could not be found; that therefore they gave a complaint to the 3rd respondent police and a case was actually registered and the alleged detenus werea bout to be apprehended; that at that time, they made an application for anticipatory bail in Crl.O.P.(MD)No.12622/2008 before this Court and it came up for orders on 06.01.2009 and accordingly it was ordered granting bail directing them to furnish sureties within 15 days from the date of the said order but. they did not do within the stipulated time; that therefore when the alleged detenus came to Judicial Magistrate No. II, Dindigul, along with their Advocate on 23.01.2009 for surrendering, the Magistrate was not prepared to accept the sureties furnished on that day and accordingly they came out; that at that time, the 4th respondent met them and asked and informed them that the matter could be settled amicably and therefore all of them went to the Bar Association Room and sat there for a talk and as the talk did not fructify, all of them came out and thereafter nothing had happened as alleged; that in order to come out of the clutches of law in Crime No. 1191/2008 pending on the file of the 3rd respondent, this petition has been brought forth vexatiously with all false and untenable allegations and hence it has got to be dismissed.

It is brought to the notice of the Court that one of the alleged detenu Bakiyanathan, the husband of the petitioner, is also present in the Court. According to the Counsel for the petitioner, the said Bakiyanathan was later let off by respondents 4 and 5. He also appeared before the Court. Insofar as the other detenu by name Ganeshan is concerned, learned Additional Public Prosecutor appearing for the State would submit that on the same day i.e. on 23.01.2009 itself, the said Ganeshan appeared before the Police and gave a letter in writing stating that he was neither abducted nor he was kept under illegal detention and he is free and this is also evident from the case records produced by the learned Additional Public Prosecutor for the perusal of the Court.

Now the learned Counsel for the petitioner brought to the notice of the Court that from the counter affidavit filed by respondent Nos. 4 and 5 it is clear that the detenus, when they came out, were taken from outside the court premises to the Bar Association Room. Now, the learned Counsel for respondents 4 and 5 would submit that it is true that there was a talk in the Bar Association but it did not fructify and therefore all of them came out and therefore the petition has got to be dismissed.

After a careful perusal of the entire materials on record and consideration of the submissions made, the Court is of the considered opinion that this petition has got to be dismissed. In the instant case, the first and foremost relevant fact is that a case in Crime No. 1191/2008 on the file of 3rd respondent Police Station came to be registered against both the detenus, namely the husband of the petitioner and his brother under Sections 420 and 506(ii) IPC and the detenus also approached this Court seeking for anticipatory bail and the same was also ordered on 06.01.2009 with a direction to the alleged detenus to surrender before the concerned Magistrate Court within a period of 15 days from the date of the order, but they failed to do so. However, they appeared before the Magistrate only on 23.01.2009 and it appears that the learned Magistrate was not inclined to entertain the surrender of the alleged detenus and execution of bail bonds by furnishing sureties as they did not surrender before the Court within the stipulated time.

So far as the other part is concerned, the 4th respondent took the alleged detenus to the Bar Association Room only for a talk and as the talk did not fructify, all came out. It is pertinent to point out that the habeas corpus petition has been brought forth by the petitioner for production of her husband Bakianathan and his brother Ganeshan. Now, the hsuband of the petitioner is very well available before the Court. Insofar as the other alleged detenu Ganeshan is concerned, the statement made that still his whereabouts are not known cannot be believed. In this connection, it is to be pointed out that on the very day i.e. 23.01.2009, the alleged detenu Ganesan had appeared before the Police and given a letter stating that nothing untoward has happened. The two circumstances, namely one of the alleged detenu Bakianathan, the husband of the petitioner, is now present before the Court and the other detenu Ganeshan has given a letter to the Police that he is free and he is at liberty, would be indicative of the fact that this petition has been brought forth with all false and untenable allegations. It is pertinent to point out that the 4th respondent, who is a practising lawyer, had taken the alleged detenus to the Bar Association Room only for a talk and an amicable settlement. It is also true that the Bar Association President has interfered in the matter to make an amicable settlement but, it did not fructify. Taking advantage of the situation, this petition has been brought forth and the allegations made herein do not make out a case for granting the relief of habeas corpus. In such circumstances, the petition deserves for an order of dismissal as it is without any merit. However, it is made clear that any observation made in this order will not stand in the way of the learned Judicial Magistrate in deciding the criminal case on its own merits.

With the above observation, the habeas corpus petition is dismissed.