Balan P.K. vs State Of Kerala & Ors.

Peaceful sleep of the civilian is at the cost of sleepless nights, vigilance and sacrifice of the soldier. The civilian society of the Nation in return, owes a responsibility to stand by the soldier who protects them, in case he faces a crisis in personal life. Here is a case where the police force of three States and a premier Armed Force of Tripura are not able to trace out a soldier, who disappeared into mystery fourteen years back.

The petitioner is the father of Mr.Subash Chandra Bose, a rifle man employed with the Tripura State Rifles, a paramilitary force. The above Jawan went missing since 04.04.2012 while on return train journey from Kerala to Guwahati, after enjoying a month’s leave at his native place at Vengoor. After the petitioner had seen off his son at the Ernakulam railway station on 03.04.2012, he is said to have received a telephone call from his son from an unfamiliar mobile number on the next day that the train had reached Visakhapattanam and that he was not feeling well. The petitioner’s son is also said to have informed through phone that the petitioner need not get worried since he is capable of taking care of himself and able to travel upto Tripura, his place of work. However, on 10.04.2012, the Commandant of Tripura State Rifles called upon the petitioner and informed him that his son had not reported back at office on completion of the leave period. Thereafter, the petitioner had been running from pillar to post to find the whereabouts of his son. The petitioner had filed complaints before the Sub Inspector of Police, Railway Police Station, Ernakulam on 13.04.2012 about the missing of the above Jawan. He had also approached various authorities including the Director General of Police, Agartala, Inspector General of Police, Agartala, Inspector General of Police, Ernakulam Range, Ministry of Home Affairs etc. but of no avail. Finally, the petitioner had approached this Court with this writ petition filed on 29.10.2012 for issuing appropriate directions to the authorities concerned for taking effective steps to trace out his missing son. On 08.01.2013, this Court directed the second respondent to depute any competent police officer to get the details of the Railway Police Station, Visakhapatnam, and to find out whether the investigating agency there had taken any positive steps in finding out the missing person. On the basis of the report so received, the necessary directions were also issued to the State police at Visakhapattanam to conduct the required investigations to trace out the missing person. However, the Visakhapattanam Police expressed their helplessness and finally closed the investigation as undetected. This Court had also called for a report from the third Battalion of Tripura State Rifles about the action taken for tracing out the petitioner’s son. However, the above Force also could not make any breakthrough in the above effort. Now, after the elapse of more than 14 years from the date of missing of his son, whom he dedicated for the protection of the Nation, the petitioner is knocking the doors of this Court for a CBI investigation in pursuance of his fervent efforts, at least to know what had happened to his son.

Heard the learned counsel for the writ petitioner, the learned Government Pleader representing the State of Kerala and the learned Special Public Prosecutor representing the CBI.

The learned Government Pleader representing the State of Kerala submitted that the State Government has no objection in handing over the investigation to the CBI. However, the learned Special Public Prosecutor for CBI opposed the request in the above regard for two reasons. Firstly, it is contended that this Court lacks territorial jurisdiction to direct CBI enquiry in respect of the missing of the petitioner’s son from some places from Visakhapattanam to Guwahati. Secondly, it is pointed out that there is only very rare possibility of tracing out the missing person or gathering any information about his disappearance after the long lapse of 14 years.

The first objection raised by the learned Special Public Prosecutor against the lack of territorial jurisdiction of this Court to intervene in the matter related to this case, is prima facie unacceptable. It is to be noted that the petitioner’s son went missing enroute his train journey from Ernakulam to Guwahati. True that, the petitioner is said to have received a call from his son on 04.04.2012 from an unknown number that he was not feeling well, and that he was still confident to take care of himself and to reach Tripura, his workplace. The contention of the CBI that the above aspect would reveal the missing said to have happened at some places from Visakhapattanam to Guwahati which would oust the jurisdiction of this Court, is legally untenable. The basic concept of criminal jurisprudence about the jurisdiction of the Courts in respect of an offence committed during journey or voyage is contained in Section 183 Cr.P.C which has been rewritten as Section 203 of the Bharatiya Nagarik Suraksha Sanhita, 2023. As per the above provision of law, if an offence is committed in the course of performing a journey or voyage, it may be enquired into or tried by a Court through or into whose local jurisdiction the person by or against whom the offence was committed, passed in the course of that journey or voyage. When the above analogy of law is applied to the case on hand, it is well within the ambit of powers of this Court to exercise its writ jurisdiction under Article 226 of the Constitution Of India in connection with the missing of the petitioner’s son during the course of his train journey from Ernakulam to Guwahati.

As regards the second objection about the rare chances of making any breakthrough in finding out the missing person or the reason for his disappearance, due to the long elapse of 14 years from the date of his disappearance, a premier investigating agency like CBI is not expected to take a negative pessimistic attitude in a case like this. It is true that the golden hours in a case of missing of a person to take prompt action for retrieval is 48 hours to 72 hours. But, in a case like this, where a paramilitary Jawan who had been guarding the borders of our Nation went missing without any leads, and his hapless father has been toiling his health, time and money for the past 14 years running after various authorities, hopeful of them taking some effective steps in unravelling the mystery behind the disappearance of his son, this Court cannot shut its doors against him, when he requests for CBI enquiry as a last resort. This is especially so, in view of the fact that the petitioner has been seeking the intervention of this Court in this issue by filing this writ petition within six months from the date of disappearance of his son. Therefore, this case has to be taken as one of the rarest cases where the powers under Article 226 of the Constitution of India have to be exercised for directing an investigation by the CBI into the disappearance of the petitioner’s son.

In the result, the writ petition stands allowed as follows: