Sri D.S. Dinesha Shetty vs Thimmashetty and Others

Shylendra Kumar, J.—The second round of writ litigation before this court for issue of a writ in the nature of habeas corpus by father in respect of his nine year old missing son who it is averred has been missing from 6.4.2008 who had left his home at Jagenahalli Village, Shanivarasanthe Hobli, Nidtha Post, Somwarpet Taluk, Kodagu District, had gone to the neighbouring forest for grazing cattle.

While in the first round of writ litigation before this court in WP [HC] No. 7 of 2009, only the State of Karnataka, the Superintendent of Police, Madikeri, Kodagu District, the Deputy Superintendent of Police, Kushalnagar, Kodagu District, the Circle Inspector, Somavarpet Police Station, the Sub-inspector of Police, Shanivarasanthe Police Station had been impleaded as respondents, for a good measure, in the present round of writ litigation, as many as seven private individuals are also arrayed as respondents on the suspicion that one amongst these seven persons might have kidnapped the son of the petitioner.

It is also on record that Shanivarasanthe Police had initially registered a missing complaint in Crime No 40 of 2008, but have later registered crime No. 34 of 2008 for the offence punishable under sections 302, 201, 114 read with section 149 IPC against Natesh, Dinesh and three others on 24.3.2008; that the grievance of the petitioner is that inspite of such complaint being registered, the Police have not made any headway, have neither traced the son of the petitioner nor have brought to book the culprits etc., and therefore the present writ petition with the following prayer:

WHEREFORE, the petitioner most humbly prays this Hon''ble Court be pleased to issue a writ in the nature of HABEAS CORPUS against the respondents to secure and produce the body of Mr. Mohankumar S/o D. S. Dinesha and this petitioner before this Hon''ble Court and pass such other orders as this Hon''ble Court deems fit to grant in the circumstances of the case, in the interest of justice.

This petition has a long history though in our limited understanding and experience, a writ of habeas corpus is not one to linger on unendingly before the court as the very purpose will be defeated unless the matter is looked into on priority basis and suitable orders passed.

We have heard Smt. Padmavathi, learned counsel for the petitioner and Sri. H. S. Chandramouli, learned SPP for the State and we are apprised that no notice had been ordered in respect of respondents 1 to 7.

Respondent - State on their part had filed one status report on 5.4.2011, but only to come up with submission on 21.4.2011 that the Investigating Officer who was investigating the case had been trapped in a graft, case and case files were left with him and in this state of confusion, the Superintendent of Police himself had taken over the investigation and had sought for some time. Another status report was placed before this court on 23.5.2011, yet another on 6.6.2011 which were all noticed by this court on 8.6.2011 to observe that the investigation was in progress and two more weeks was granted to the respondents to trace the missing boy as per order passed on 8.6.2011. One more status report followed on 22.6.2011 only to indicate that investigation was in progress all along and nothing positive to the satisfaction of the petitioner.

The formality of filing status report has continued thereafter also on 25.7.2011, 29.8.2011, 19.9.2011, 12.10.2011 and the present counsel for the petitioner came to the scene on 2.11.2011 in place of erstwhile counsel for the petitioner.

We had passed further orders on 18.11.2011 and 28.11.2011 reading as under:

DVSKJ & CFKSJ:

18.11.2011

List this matter on 28.11.2011 as requested by Sri. H. S. Chandramouli, learned SPP to enable both learned counsel to make submissions regarding the possibilities for issue of a writ of habeas corpus in a situation where a person who has gone missing is not found, in the illegal custody of any named person who is arrayed as respondent in the petition."

DVSKJ & CRKSJ:

28.11.2011

Neither the learned counsel for the petitioner nor the State Public Prosecutor are ready to make submissions on the aspect of the order that we had passed on the last occasion which reads as under:

List this matter on 28.11.2011 as requested by Sri H. S. Chandramouli, learned SPP to enable both learned counsel to make submissions regarding the possibilities for issue of a writ of habeas corpus in a situation where a person who has gone missing is not found, in the illegal custody of any named person who is arrayed as respondent in the petition.

but they request the matter to be called next week.

List on 8.12.2011.

It is in this background, the matter has come up before the court today for further orders and we have heard Smt. Padmavathi, learned counsel for the petitioner and Sri. H. S. Chandramouli, learned SPP appearing for the respondents 8 to 13.

Except for submitting that the Police are not either making commensurate efforts or have been dragging their feet etc., and therefore they should be suitably directed, no other submission is made by learned counsel for the petitioner.

Sri. Chandramouli, learned SPP on his part submits that efforts on the part of the respondents - Police had even come in for appreciation by this court on earlier occasions and there is no reason to doubt their sincerity and ability to achieve some positive result and learned SPP assures this court that Police will be able to do so within a short time.

A writ of habeas corpus is for producing a person before the court who is in illegal or forceful custody of any other person. A writ should be issued to such person who is holding another person by illegal restraint etc. The present petition in respect of nine years old boy missing, who had gone to the nearby forest area along with cattle to graze them and bring back ever since the year 2008, is not suitably remedy in such matters and while the petitioner had lodged a missing complaint earlier and later on suspicion some persons might have harmed the boy etc., still it will not qualify for issue of a writ of habeas corpus by this court. It is not necessary for this court to either to comment upon or evaluate the performance of the Police in this writ petition while investigating in a criminal case. We have no material nor any reason to doubt the bonafides of the Police who are also clueless about lost person and perhaps are only putting up a brave front because the matter is before this court.

Be that as it may, we do not find any occasion to issue a writ of habeas corpus in the present circumstances and therefore this writ petition is dismissed.