Smt.Renu Malviya @APPELLANT@Hash State Of Rajasthan & Ors

This petition has been filed by the petitioner seeking directions to the respondents for production of her son who went missing on 18.5.17.

The petitioner’s son Kapil Malviya aged about 20 years studying in B.E. (Civil ) Final, on 18.5.17 around 6-6.30 PM went from home for getting

Vodafone Sim reactivated from Vodafone Office situated at Bombay Motor Chauraha, Jodhpur but did not return home thereafter. Even after search

being made by the petitioner and her relatives, he was not traced out and therefore, the petitioner’s brother in law lodged the missing report at

Police Station, Pratap Nagar, Jodhpur. Aggrieved by the inaction of the police in not investigating the matter properly, the petitioner has preferred the

present writ petition.

During the pendency of the petition, the police registered the FIR being No.269 dated 3.7.17 for offence under Section 365 IPC and the

investigation commenced.

On 29.1.18, Mr. Sameer Singh, Deputy Commissioner of Police (West), Commissionerate, Jodhpur made a statement before this court that he is

personally supervising the investigation.

Learned Government Advocate submitted that the case is being investigated by the police, however, even after, serious efforts being made, the

missing child Mr. Kapil could not be recovered. It is submitted that the mater shall be investigated by the police in the supervision of Deputy

Commissioner of Police(West), Jodhpur fairly and reasonably. It is submitted that it is not the case set out by the petitioner that her son has been

illegally detained by somebody and thus, in absence of any specific allegation of illegal detention, the petitioner 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 indefinitely. 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, it is not the case set out by the petitioner that Mr. Kapil is in illegal detention of any specific person rather, in the petition filed,

she has raised a grievance regarding the investigation being not made by the police fairly and reasonably despite her approaching the higher police

officials.

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

deserves to be dismissed as not maintainable.

However, while reiterating the word of advice to the police given by this court in Poona Ram’s case (supra), we direct the respondents to

investigate the matter fairly and reasonably and to make all serious efforts to recover the petitioner’s son Mr. Kapil.

The petition stands disposed of accordingly. The disposal of the petition as aforesaid shall not preclude the petitioner from availing the appropriate

remedy available under the law in respect of the grievance raised in the petition.