Smt. Khatun @APPELLANT@Hash State of Rajasthan & Ors

By way of this petition, the petitioner is seeking directions to the State to produce his son Mohd. Shabir alleged to have been abducted by the

respondents no.4 to 11.

The petitioner herein filed a complaint in the court of Judicial Magistrate, Sujangarh against the respondents no. 4 to 11 herein alleging commission

of offences under Section 346, 365, 368 & 120 B IPC. The Magistrate referred the matter to the police for investigation under Section 156(3) Cr.P.C.

The police registered an FIR being No.4 dated 16.1.17 for commission of offences under Section 420, 365, 368, 346, 120 B IPC and the investigation

commenced.

Essentially, the grievance of the petitioner in the petition is that the police did not investigate the matter fairly and reasonably and proceeded to

submit the negative Final Report before the court of competent jurisdiction.

During the investigation, it has come on record that Mohd. Shabir had gone to Jaipur to meet his sister Jahida and brother in law Kadir, he stayed

there for two days and thereafter, left for his village Charwas but did not reach there.

Learned Government Advocate submitted that pursuant to the order dated 20.11.17 passed by this court, the FR submitted was taken back and the

matter is being investigated by the police, however, even after serious efforts being made, missing person Mohd. Shabir could not be traced out. It is

submitted that matter shall be investigated by the police fairly and reasonably but in any case, in absence of the specific case being set out regarding

illegal detention, the petition seeking writ of habeas corpus is not maintainable. Learned Government Advocate submitted that in the proceedings for

writ of habeas corpus, this court would not like to monitor the investigation of a criminal case and therefore, the writ petition deserves to be dismissed.

In support of the contention, learned Government Counsel has relied upon a Bench decision of this court in the matter of ‘Poona Ram vs. The State

of Rajasthan & Ors.’ [D.B.Habeas Corpus (Writ) Petition No.106/16, decided on 1.8.16].

On the other hand, the counsel for the petitioner contended that the investigation was not being conducted by the police fairly and therefore, this

court granting indulgence to the petitioner, directed the police authorities to conduct proper investigation and produce the corpus before this court and

therefore, the question of the petition being dismissed as not maintainable, does not arise.

We have considered the rival submissions and perused the material on record.

It is well settled that the object of issue of writ of habeas corpus is to secure release of a person who is illegally detained. The illegal detention

alleged can always be inquired into by the writ court. But then, unless the person is found to be in illegal custody or detention, a writ of habeas corpus

cannot be issued.

In the instant case, the petitioner has not levelled specific allegation regarding illegal detention of Mohd. Shabir against any particular person rather,

in the petition filed, she has raised a grievance regarding the investigation being not made by the police fairly and reasonably.

In Poona Ram’s case (supra), a Bench of this court while considering the identical issue held that the writ petitions styled as ‘Habeas

Corpus’ aggrieved by alleged laxity in the investigation are not maintainable and the remedy lies before the concerned Magistrate. The court while

relying upon the decision of the Supreme Court in ‘Sakiri Vasu vs. State of Uttar Pradesh’, 2008(2) SCC 409, observed:

“In (2008) 2 SCC 409 Sakiri Vasu V/s State of Uttar Pradesh and ors., it has been observed as follows:-

“15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the

Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the

police to do the investigation properly, and can monitor the same.

As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and

for this purpose he can monitor the investigation to ensure that the investigation is done property (though he cannot investigate himself). The High

Court should discourage the practice of filing a writ petition or petition under Section 482 CrPC simply because a person has a grievance that his FIR

has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies

under Section 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) CrPC before the Magistrate or by

filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC.

It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High

Court should not ordinarily interfere.â€​

That this Court at the present stage cannot interfere with the statutory powers of the police to investigate or the manner for the same was noticed in

(1985) 1 SCC 317 State of West Bengal and ors. V/s Sampat Lal and ors. observing at para 22 that investigation is a matter for police under the

scheme of the Code and interference by the Court into the police investigation had never been approved referring to King-Empror V/s Khwaja Nazir

Ahmad (AIR 1945 PC 18).

In (1995) 3 SCC 601 Director, Central Bureau of Investigation and ors. V/s ‘Niyamavedi’ represented by its member K. Nandini, Advocate

and ors. it has been observed that the Court should refrain from any observations which may amount to interference at a pre-mature stage of

investigation and may even derail the investigation or demoralize the investigation observing:

“…..Of late, the tendency to interfere in the investigation is on the increase and courts should be wary of its possible consequences. We say no

more …...â€​

We therefore decline to interfere with this application styled as “Habeas Corpus Petitionâ€​ which is a complete misnomer.

Before we part with the order it is considered proper to sound a word of advice to the police that the present order may not be construed as a

justification, excuse or laxity by it in investigating the matter opining that after all the High Court refused to entertain the petition. In that event, the

concerned police officials will necessarily have to bear the consequences and brunt of law apart from disciplinary action if circumstances may

warrant.

We therefore grant liberty to the petitioner to move before the Magistrate concerned who shall act in accordance with law.â€​

In view of the discussion above, in the considered opinion of this court, the petition preferred by the petitioner seeking writ of habeas corpus is not

maintainable.

This court has already issued directions vide order dated 18.12.17 to the Superintendent of Police, Churu to monitor the investigation and no further

indulgence can be granted to the petitioner in the instant case.

Accordingly, the petition is disposed of. The petitioner shall be at liberty to avail the appropriate remedy available under the law in respect of the

grievance raised in the petition.