Smt. Pushpa Devi Sharma vs State of Madhya Pradesh

Heard. This appeal has been filed by the appellant against the order dt. 12.2.2013 passed by the learned Single Judge in W.P. 7357/2012.

A habeas corpus petition was filed for production of corpus-Smt. Deeksha Sharma. In the aforesaid petition, it was pleaded that Mr. Vijay Sharma and Vinay Sharma came to the house of Shyam Swaroop Sharma, father of the corpus and they had taken the corpus to a doctor and thereafter whereabouts of the corpus could not be traced out. Mother-in-law of the corpus also filed a habeas corpus petition and she pleaded that family members and father of the corpus had taken her and thereafter the corpus has been missing.

Learned Single Judge after considering the rival contentions has recorded a finding that there is no evidence or proof to establish the fact that the corpus was in possession of a particular person/private respondent. The police conducted the enquiry and submitted progress report. As per the police authorities, it is not possible to trace out the corpus because it could not be find out that under whose possession the corpus is.

Learned Writ Court after relying on the Division Bench judgment of this court in 2011 (4) MPLJ 609 (Lakhan Singh Rajput Vs. State of Madhya Pradesh and others) disposed of the Writ Petition with the following directions:-

In the opinion of this Court, there is not even a prima facie proof to show that the corpus is in possession of a particular person/private respondent herein in these petitions. A summary enquiry has been conducted by the police and corpus was not found in the custody of private respondents. Thus, nothing more can be done in this habeas corpus jurisdiction. Accordingly, I deem it proper to follow the directions, which were issued by the Division Bench in Lakhan Singh Rajput (supra). Accordingly, the police authorities are directed to take all possible steps to search out the missing person and for that it shall also take help from other wings of police specially the CID wing.

The Police Authorities are also directed to publish photo and personal informations in regard to corpus in newspapers and Doordarshan and publish further information that any person who finds out the missing person the same be informed to police in regard to whereabouts of the missing person. If the corpus be traced out then she shall be produced before the Chief Judicial Magistrate of concerned district. The Chief Judicial Magistrate shall record statement of the corpus and in accordance with statement pass appropriate order of custody of the corpus.

With the aforesaid directions, petitions are disposed of.

In our opinion, the directions issued by the learned Single judge are in accordance with law because when the petitioner failed to satisfy the court that the corpus has been illegally detained by a particular person or group of persons, then the court can not order production of corpus and in regard to missing person the court has issued directions contained in para 14 of the order quoted above. These directions are in consonance with Division Bench judgment of this court in Lakhan Singh Rajput (supra)

Learned counsel appearing on behalf of the appellant has contended that an investigation by CBI, looking to the facts of the case, be ordered because the local police has failed to find out whereabouts of the corpus.

Constitution Bench of Hon''ble Supreme Court in State of West Bengal and Others Vs. The Committee for Protection of Democratic Rights, West Bengal and Others, has held as under in regard to power of the High Court to issue directions in exercise of powers under Article 226 of the Constitution for CBI investigation:-

Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has leveled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.

In view of the principle of law laid down by the Hon''ble Supreme Court, in our opinion, this is not a case where the power could be exercised because Hon''ble Supreme Court has observed that this extraordinary power must be exercised sparingly, cautiously and in exceptional circumstances. In our opinion, this is not a situation, where the power can be exercised by this court.

Hence, the contention of the learned counsel for the appellant to order for CBI inquiry is hereby rejected. However, looking to the facts of the case, this Writ Appeal is disposed of that in addition to the directions issued by the learned Single Judge the matter be also investigated by the CID and for the aforesaid purpose, the case be handed over for investigation to the officer not below the rank of Dy. Superintendent of Police and he shall conduct the investigation and find out whereabouts of the corpus. This court hopes that the investigation be conducted as early as possible on urgent basis looking to the nature of the case. Writ Appeal is disposed of accordingly.