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Judgment
Sujoy Paul, J.—In both the habeas corpus petitions aforesaid, the petitioners have prayed for production of Ms. Deeksha Sharma (corpus). Accordingly, with the consent of parties, matters are analogously heard and decided by this common order. W.P. No. 8762/2012
This petition is filed by Ku. Khushi minor daughter of Smt. Deeksha Sharma (corpus) through maternal grand father (father of the corpus). In this petition, it is stated that corpus was married with respondent No. 9. Out of the said wedlock, daughter Ku. Khushi was born. It is stated that on 03.09.2012 Vijay Sharma and Vinay Sharma visited the house of Shyam Swaroop Sharma, father of corpus and stated that they want to take the corpus to a doctor. Thereafter, the corpus is not traceable. A report in this regard is lodged in police station on 04.09.2012 (Annexure P-1). In this petition, it is prayed that respondent No. 1, Central Bureau of Investigation (CBI), be directed to take necessary steps to recover the corpus who is in the wrongful confinement of respondents No. 9 to 13.
W.P. No. 7357/2012
This habeas corpus petition is filed by mother-in-law of the corpus. It is stated that the brother of corpus, Shekhar Sharma, approached the corpus when she was at Datia in her husband''s house. The brother of corpus took her without intimating the family members and thereafter she is in the illegal custody of family members of the corpus, i.e., respondents No. 7 to 9. It is prayed that the corpus be released from wrongful confinement of respondents No. 7 to 9 and appropriate action be directed to be taken against them.
In both the petitions aforesaid, the private respondents have stated against each other that the corpus is in wrongful confinement of the other side.
The stand of the Government is that statement of persons were recorded and a preliminary investigation was carried out but the corpus was not found in the custody of private respondents in both the writ petitions.
Shri H.K. Shukla, learned counsel for the petitioner in W.P. No. 8762/2012 relied on Rajender Singh Pathania and Others Vs. State of N.C.T. of Delhi and Others, and R.S. Sodhi Vs. State of U.P. and others, . On the strength of these judgments, it is stated that matter be handed over to the CBI. Learned counsel submits that the police authorities are in connivance with the private respondents and husband of the corpus is a member of ITBP and, therefore, matter be handed over to the CBI.
Shri G.P. Chaurasiya, learned counsel for the petitioner in W.P. No. 7357/2012, submits that he has no objection if the matter is directed to be handed over to the CBI so that corpus can be recovered.
The CBI in turn through its counsel Shri Varun Kaushik has taken a stand that in view of judgment of the Supreme Court reported in State of West Bengal and Others Vs. The Committee for Protection of Democratic Rights, West Bengal and Others, , matter cannot be directed to be handed over to the CBI in a routine manner. Unless the ingredient for doing the same are satisfied, it cannot be handed over to the CBI. He submits that in the present case those ingredients are unavailable and State Police can very well undertake the exercise of search and recovery of the corpus.
I have heard the learned counsel for the parties and perused the record.
This Court has issued notices and pursuant to that a summary enquiry was conducted by the police authorities. They found that corpus is not in the custody of private respondents of both the petitions. In Ramkishan Pal Vs. State of M.P. and others, , a Division Bench of this Court has opined that writ of habeas corpus can be issued against the private party also but for that there should be a prima facie proof that the corpus is still alive and is in illegal custody or detention of a private person. In habeas corpus jurisdiction, Court can only make summary enquiry about the illegal detention and illegal custody of a person. In the case of West Bengal (supra), the Apex Court opined as under:-
...........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 or international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with the limited resources, may find it difficult to properly investigate eve serious cases and in the process loss its credibility and purpose with the unsatisfactory investigations.......
In the present case, there is no material or specific pleading in these petitions which establishes that State Agencies are in connivance with the private parties. In absence of any material and specific pleading in this regard, in a routine manner, matter cannot be handed over to the CBI. The test laid down for handing over the matter to the CBI by the Apex Court is not satisfied by the petitioners of both the petitions. Accordingly, the judgments cited by Shri H.K. Shukla, learned counsel for the petitioner, are of no assistance to him in the facts and circumstances of the present case.
A Division Bench of this Court in 2011 (4) MPLJ 609 (Lakhan Singh Rajput Vs. State of Madhya Pradesh and others) has opined that a writ of habeas corpus petition could not be converted into a petition of investigation in regard to search of a missing person. In para 12 and 13 of this judgment reads as under:-
From the aforesaid judgments of Hon''ble the Supreme Court and Division Bench judgment of this Court in Shriram Gupta (supra), it is clear that writ of habeas corpus can only be issued when there is an assertion of wrongful confinement. The habeas corpus petition could not be converted into a petition of investigation in regard to search of a missing person. However, it is also to be remembered that personal liberty of a person is an important right and the police has duty to search out the missing person and also take all efforts to find out whereabouts of the missing person, especially in cases where the girls are minor or the corpus is a lady because there is a possibility that the girl or lady may be killed, kidnapped or may be sold out for illegal trafficking, hence, the onus on the police in such cases is heavy and it is the duty of police Authorities to take all efforts to find out whereabouts of the corpus and produce the same before the Court.
In this view of the aforesaid facts, petition of the petitioner is disposed of with the following directions:-
(1) That the police Authorities shall take all the steps to search out the missing person and it shall also take help from other wings of the police specially the C.I.D. wing.
(2) 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 he or 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 and looking to age of the corpus whether she is minor or major pass appropriate order of custody of the corpus.
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.