Madhya Pradesh High Court
Smt. Tara Bai vs State Of M.P. And Ors. on 5 July, 2004
Equivalent citations: 2004CRILJ4096, 2004(3)MPHT456
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
ORDER A.K. Shrivastava, J.
1. The petitioner, being the mother of one Rajendra Pasi, has knocked the door of this Court by filing a writ petition in the nature at habeas-corpus under Articles 226/227 of the Constitution of India.
2. In the writ petition it has been pleaded by the petitioner that Rajendra Pasi is her son who was illegally arrested by the police officers of the Police Station House, Ranjhi, on 1-11-2003 along with his two brothers namely Surendra Pasi and Santosh Pasi. According to the petitioner, said Rajendra Pasi was arrested in the following cases :--
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Sr. No. Crime No. Offences under Sections
--------------------------------------------------------------------------------- 1 566/2003 341, 294, 327, 506, 323 and 34 of IPC.
2 567/2003 341, 294, 324, 506-latter part, 327 and 34, IPC 3 568/2003 353, 332, 186, 294, 506-latter part and 34, IPC
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It is said on behalf of the petitioner that though all the three sons of the petitioner were arrested and applications for bail were submitted on their behalf, however, except Rajendra Pasi, her other two sons namely Surendra Pasi and Santosh Pasi were produced before the Judicial Magistrate Class-1, Jabalpur and, accordingly, they were enlarged on bail by the said Magistrate on 3-11-2003. It has been putforth by the petitioner that though Rajendra Pasi was arrested, but he was not produced before the Magistrate. A notice dated 2-11-2003 was issued by respondent No. 4 namely Laxmi Tiwari serving on the post of ASI of Police Station, Ranjhi to one Deepak Chandna, s/o Jeevan Lal Chandna that Santosh Pasi and Rajendra Pasi have been arrested in the cases, the details whereof we have already mentioned hereinabove. The said notice has been placed on record as Annexure P-2. Deepak Chandna to whom notice Annexure P-2 was issued, has also sworn on affidavit that on 2-11-2003 when he went to serve the food to Rajendra Pasi and Santosh Pasi in the Police Station House, Ranjhi, at that time said notice (Annexure P-2) was given by respondent No. 4 Shri Laxmi Tiwari, ASI.
3. The contention of Shri Vasant Danial, learned Counsel for the petitioner, is that since the date of arrest of Rajendra Pasi he was not found and traceable, he was also not produced before the Court. According to the learned Counsel, there is apprehension to the petitioner that her son Rajendra Pasi has been subjected to custodial death or her son Rajendra Pasi be produced in the Court and may be released from illegal detention.
4. Refuting the case of the petitioner, by filing counter affidavits of Shri C.N. Dubey, Station House Officer, Police Station, Ranjhi, L.K. Tiwari, Assistant Sub Inspector, Police Station, Ranjhi and Dr. S.W. Naqui, Superintendent of Police, it has been contended by Shri R.S. Patel, learned Additional Advocate General that against Surendra Pasi, Rajendra Pasi, Santosh Pasi and Rajendra Tiwari the above said cases were registered, the police party went to arrest accused persons, however, it succeeded to arrest only Surendra Pasi and Santosh Pasi on 2-11-2003. The other two persons namely Rajendra Pasi and Rajendra Tiwari managed to escape taking advantage of large number of persons gathered on the spot. It has been emphatically denied that Rajendra Pasi was ever arrested. It has also been denied that Santosh Pasi, Rajendra Pasi and Surendra Pasi were arrested from the house of the petitioner on 1-11-2003. According to the respondents, Rajendra Pasi is absconding and is avoiding his arrest. It has also been contended in the counter affidavit that in the night of 1-11-2003 constable No. 1330 Chaturbhuj Singh and Constable No. 897 Bhagatram were on patrolling duty. At about 11.30 p.m. when they reached near Durga Mandir, they noticed that some persons have assembled there. On being inquired by these constables they were informed by one Rakesh Sethi that Rajendra Pasi, Santosh Pasi, Surendra Pasi and Rajendra Tiwari were attempting to extort money from him and on his refusal he was beaten by them. These constables gave advice to Rakesh Sethi to lodge the report of the incident. Thereafter these four miscreants came and encircled the constables and started showering filthy abuses to them and on being resisted by them, they assaulted these police constables.
5. In the counter affidavit, it has been set-forth that at 11.35 p.m. ASI L.K. Tiwari received telephonic information regarding the above said incident, which was recorded in the Roznamcha Sanha No. 99 (Document A) and thereafter ASI Tiwari immediately moved on aforesaid message to patrolling mobile and directed them to reach at the spot. He also along with ASI Mishra immediately rushed to the spot. On reaching at the spot the police persons found that all the aforesaid persons were scuffling and beating the constables Chaturbhuj and Bhagatram. Immediately, Santosh Pasi and Surendra Pasi were caught, however, Rajendra Pasi and Rajendra Tiwari managed to escape taking advantage of large crowd gathered on the spot. Santosh Pasi and Surendra Pasi were brought to the police station and return of police force (Vapasi) was recorded at Roznamcha Sanha No. 105, dated 2-11-2003 (Document B). Thereafter on the basis of information supplied by Rakesh Sethi, an FIR (Document C) was registered against aforesaid four persons including Rajendra Pasi at Crime No. 567/2003. Similarly on the basis of information given by Constable Chaturbhuj and Bhagatram, FIR (Document D) was recorded at Crime No. 568/2003. The injured persons namely Constable Chaturbhuj, Constable Bhagatram and Rakesh Sethi were sent for medical examination on 2-11-2003. The medical reports are Documents E, F and G. The arrested Santosh Pasi and Surendra Pasi were also sent for medical examination and their reports are Documents H and I.
6. Combating the averments made in the petition, it has been further stated in the counter affidavit that beside the above said two incidents committed by above said four persons, they also attempted to snatch money from one Sheru at about 10,45 p.m. and on his resistance he was beaten, as a result of which Sheru lodged a report in Police Station, Ranjhi at 11.05 p.m. on 1-11-2003 and on the basis of which a case was also registered against the above said four persons. Injured Sheru was also sent for medical examination who was examined at 2.30 a.m. on 2-11-2003, a copy of medical report is Document J.
7. On going through Para 18 of the counter affidavit of C.N. Dubey, it is gathered that on 2-11-2003 at about 8.30 a.m. Deepak Chandna came to meet arrested Surendra Pasi and Santosh Pasi and he brought break-fast and tea for them. The arrested persons informed ASI L.K. Tiwari that Deepak Chandna is the person of their closed acquaintance and, therefore, notice of arrest was given to said Deepak Chandna by ASI L.K. Tiwari. According to the respondents, by mistake instead of "Surendra Pasi" name of "Rajendra Pasi" was mentioned as person arrested by the police and indeed by taking the advance of this human error, the petitioner is taking unfair advantage. Similar type of counter affidavit has been given by L.K. Tiwari, respondent No. 4. Respondent No. 1, Superintendent of Police, has also given an affidavit after examining the entire matter departmentally. In his affidavit, it has been categorically stated by him that Rajendra Pasi was never arrested, indeed Santosh Pasi and Surendra Pasi were arrested and Rajendra Pasi and Rajendra Tiwari managed to escape taking the advantage of crowd assembled at the spot. On these premised reasonings, according to the respondents, since Rajendra Pasi has not been arrested and he is absconding, no case is made out for invoking the jurisdiction for issuance of writ of habeas corpus and there is no merit in the petition.
8. We have given our bestowed consideration to the arguments advanced by learned Counsel for the parties. According to our considered view, the case putforth by the respondents has merit. The whole trouble arose on account of human error committed by respondent No. 4, ASI Laxmi Tiwari while issuing notice (Annexure P-2) in which by mistake instead of Surendra Pasi, he wrote Rajendra Pasi. It is no more in dispute that Surendra Pasi, Rajendra Pasi and Santosh Pasi are the real brothers and are the sons of Puranlal Pasi. If the contention raised on behalf of the petitioner is accepted that petitioner's all three sons were arrested in the night of 1-11 -2003 then why notice of arrest was given to Deepak Chandna in regard to Santosh Pasi and Rajendra Pasi only and why not for her third son Surendra Pasi who was also arrested. This itself go to show that at the spot only two persons were arrested and they are Santosh Pasi and Surendra Pasi. However, on account of human error and by slip of pen instead of naming "Surendra Pasi" the name of "Rajendra Pasi" has been mentioned in Annexure P-2. On going through two Roznamchas (Documents A and B) it is revealed that Santosh Pasi and Surendra Pasi were caught at the spot, however, other two accused persons namely Rajendra Pasi and Rajendra Tiwari escaped as they flee away from the spot. If the contention of the petitioner is accepted that her all three sons including Rajendra Pasi were arrested from her house then why the name of Surendra Pasi is missing from the notice (Annexure P-2). The reason is as clear like a noon day that on account of human error, instead of writing Surendra Pasi the name of "Rajendra Pasi" has been written and the petitioner is taking undue advantage of this error and trying to make mountain of a mole hill. The petitioner is unsuccessfully trying to twist the facts and trying to take undue advantage by applying Annexure P-2 as a trump-card. We are not hesitating to state so because it has become clear like a noon day that under the garb of human error committed by respondent No. 4 in Annexure P-2 the petitioner has tried and has unsuccessfully put an attempt to manufacture the writ of habeas-corpus as a weapon of attack and to obtain illegal advantage.
9. Shri Vasant Daniel, learned Counsel for the petitioner, by drawing out attention to Para 19 of the counter affidavit of Shri C.N. Dubey, Station House Officer, has pressed this contention that in this para also it has been written that Rajendra Pasi was arrested on 2-11-2003. The argument as advanced by learned Counsel for the petitioner though appears to be quite attractive but on deeper scrutiny found it to be devoid of any substance. Right from very beginning in the counter affidavit, it is being said that Rajendra Pasi was never arrested and he managed to escape by taking advantage of crowd gathered at the spot. Immediately before to this para, in Para 18 it has been specifically pleaded that while preparing notice of arrest dated 2-11-2003 (Annexure P-2) by mistake instead of Surendra Pasi name of Rajendra Pasi was mentioned as person arrested by the police. According to us, the averments made in the counter affidavit are to be read as whole and this Court would not confine to read, only a single word. On going through the entire counter affidavit, singular infringe which can be drawn is that Rajendra Pasi was never arrested and, therefore, the argument of learned Counsel for the petitioner is rejected.
10. We also directed learned Additional Advocate General to produce the case diary of Police Station, Ranjhi of above said cases and they were produced before us. We have perused them. On going through these case diaries, it is gathered that on 2-11-2003 Rajendra Pasi managed to escape as he fled from the spot and he is still absconding. The petitioner herself by filing an application (LA. No. 480-W/2004) for taking the additional documents on record has submitted a notice issued in the names of Santosh Pasi, Surendra Pasi and Rajendra Pasi, all sons of Puranlal Pasi, i.e., her sons, issued by SDM, Ranjhi, Distt. Jabalpur in which a case under Sections 111, 107 and 116(3), Cr.PC has been registered against them on the complaint of Rakesh Kumar s/o Late Kishan Lal. This notice is dated 16-1-2004. Thus, there remains no doubt that Rajendra Pasi is absconding and avoiding his arrest from the police. He is not a missing person or was taken into the custody, by the police.
11. A writ of habeas-corpus is granted and allowed only if the person or the authority against whom the writ is sought has illegally put a person in wrongful confinement. It is well settled in law that the High Court will stray its hands in issuing the writ of habeas-corpus when on scrutiny it is found that the person has not been illegally detained. The writ of habeas-corpus is in the nature of an order calling upon the person who has detained another to produce latter before the Court in order to let the Court know on what ground he has been confined and to set him free if there is no legal justification for the imprisonment, but if it is found that the person is not in the confinement or has been detained or if he himself is escaping and avoiding his arrest, the writ of habeas-corpus can not be issued.
12. The maker of our Constitution must not have thought while framing the Constitution that the citizen of our country would misuse the prerogative writ of habeas-corpus in this negative form. According to our considered view, to protect the right to life and to restrain the citizen from illegal restrainment and confinement and/or detention, the provision of writ of habeas-corpus has been incorporated under Article 226 of the Constitution of India. But it can not be exercised in the negative manner as in the present case it is being tried to be exercised by the petitioner, which can not be allowed, and if it is allowed, then it would amount to throttling the aim and object of the writ of habeas-corpus.
13. Ordinarily, we would not have imposed exemplary costs, but in the peculiar facts and circumstances, just to take advantage of human error committed by respondent No. 4 while preparing Annexure P-2 and writing "Rajendra Pasi" in it, that error has been used as a weapon and is being exercised in a negative form, in our view, this is a fit case to impose exemplary costs of Rs. 5,000/-.
14. In the result, the petition is found to be devoid of any substance and the same is hereby dismissed with costs which is quantified to Rs. 5,000/-(Rs. Five thousand only). The case diary of above said three crime numbers are hereby returned.