Gujarat High Court
Nagjibhai Ranchhodbhai Jadav (Mochi) vs State Of Gujarat on 13 February, 2023
Author: N.V.Anjaria
Bench: N.V.Anjaria
NEUTRAL CITATION
R/SCR.A/1858/2021 JUDGMENT DATED: 13/02/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1858 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NAGJIBHAI RANCHHODBHAI JADAV (MOCHI)
Versus
STATE OF GUJARAT
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Appearance:
MR A.A. ZABUAWALA with MS. NAYNAVATI S JETHVA(10030) for the
Applicant(s) No. 1
DELETED for the Respondent(s) No. 6
MR DHAVAL M BAROT(2723) for the Respondent(s) No. 4,5
NOTICE NOT RECD BACK for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 2
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 13/02/2023
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NEUTRAL CITATION
R/SCR.A/1858/2021 JUDGMENT DATED: 13/02/2023
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ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Heard learned advocate Mr.A.A.Zabuawala for the petitioner, learned Additional Public Prosecutor Mr.Manan Mehta for the respondent Nos.1 to 3 and learned advocate Mr.Dhawal Barot for respondent Nos.4 and 5.
2. By filing this Special Criminal Application, the petitioner has prayed for issuance of writ of habeas corpus directing the respondent Nos.2 and 3 to produce son of the petitioner named Jigarkumar Nagjibhai Jadav (Mochi) and to handover the custody of the corpus to the petitioner.
3. Briefly stated, it is the case of the petitioner that his son after passing his 10th standard examination, took admission at respondent No.4 school Jagruti Uttarbuniyadi Vidhyamandir, at Village Davas, Taluka Disa, District Banaskantha, in the year 2011. He used to stay in the hostel. It was stated that son came home to enjoy the Nagpanchmi festival for twenty-five days and then went back to hostel on 19.9.2011 to attend the school.
3.1 It was further stated that on 10.10.2011, one Jitubhai Chorasiya, who was friend of the petitioner, informed the petitioner telephonically that the class-teacher of the son Jigarkumar had informed him that the son of the petitioner had not gone to attend the examination. The petitioner stated that thereafter he telephoned to the class-teacher but the class- teacher was not available. The petitioner inquired from the hostel by contacting Gruhpati.
Page 2 of 16 Downloaded on : Sun Sep 17 21:49:17 IST 2023NEUTRAL CITATION R/SCR.A/1858/2021 JUDGMENT DATED: 13/02/2023 undefined 3.2 The petitioner thereafter registered a complaint at Deesa (Rural) Police Station. It was stated that instead of registering the complaint, the statement of the petitioner was recorded, later missing case No.29 of 2011 was registered with the police station. The petitioner stated that despite the follow-up and even after addressing letter to the Home Minister, nothing concrete yielded. The petitioner thereafter filed the present habeas corpus petition. It was contended that it was the duty of the respondent authorities to protect the life of the corpus and to ensure his safety.
3.3 Notice was issued by the court on 15.2.2021. In the subsequent proceedings before the court, the court gave directions to the police authorities to intensify the efforts to trace the boy missing since 2011. In order dated 24.2.2021, the court recorded that the Administrator of the hostel as well as the Principal of the school were also present through video conference. The court observed that the investigation may be done by the police officer through the assistance of central agency which issued Aadhar Card and that such agency which is Unique Identification Authority of India (UIDAI), time to time reports were to be submitted by Investigating Officer- Superintendent of Police, Banaskantha detailing the steps taken in the process of investigation.
3.4 Pursuant to the order and observations of this court, affidavit-in-reply came to be filed by the competent authority of UIDAI, Mumbai, who submitted that in the instant case only name and date of birth of the missing person was provided to the Page 3 of 16 Downloaded on : Sun Sep 17 21:49:17 IST 2023 NEUTRAL CITATION R/SCR.A/1858/2021 JUDGMENT DATED: 13/02/2023 undefined authority, without furnishing his aadhar card number. It was the stand taken by the UIDAI that as the authority could disclose identity information and authentication records only of an aadhar number holder, subject to the provisions of the Act and Regulations framed thereunder, furnishing aadhar related details of the intended aadhar number holder on the basis of the name and date of birth of the person, was not feasible.
4. Thereafter on 11.1.2022 the court considered how to put into play the provisions of Aadhar Act and passed the following detailed order, extracting the relevant, "6. The report which has been submitted by Mr. Tarun Duggal, Superintendent of Police, Banaskantha at Palanpur indicates that all possible attempts have been made to find out the missing person, however, no whereabouts since found. The Hostel Administration said that the boy since had left on 01.10.2011, he was under the impression that he has chosen not to return since the examination was starting from 07.10.2011. As he did not appear, the class teacher had intimated the parents and then it was realized that he was missing.
According to him, the Information Security Division, UIDAI had been intimated to inquire as to whether any Aadhaar Card has been issued in case of the present petitioner.
6.1. One of the witnesses had confined that the missing person was talking a lot about Brahma Kumaries and it was inquired at Mount Abu. According to this organization, the person who is volunteered to serve the organization, the consent of the parents is always obtained. There is a possibility of his having joined or forced to Page 4 of 16 Downloaded on : Sun Sep 17 21:49:17 IST 2023 NEUTRAL CITATION R/SCR.A/1858/2021 JUDGMENT DATED: 13/02/2023 undefined have joined some organization and his biometric informations, if available, alone can establish his identity or can pave a way for identifying the corpus.
6.2. All other details as to how the attempts have made to search him have been given. The use of social media and other platforms also have been made for getting the details.
4.1 The court proceeded to observe by noticing the provisions of Aadhar Act, "8. In the present case, we could notice the concerted efforts made by the Superintendent of Police and the team formulated by him for finding the missing boy who is unavailable from the year 2011. He was missing from the hostel itself. By the time the parents reached this Court, it is quite a time which has lapsed. Therefore, the difficulties experienced by the police force has been expressed in the report submitted to this Court. The last report indicates as to why there is a specific need for the biometric as well as demographic details of the missing boy.
9. We notice the provisions of Aadhaar Act, more particularly, Section 28 which provides...
9.1. Section 29 also restricts the sharing of information which provides that no core... 9.2. Section 33 will be vital for this Court to consider where after availing opportunity of hearing to the authority and to the concerned Aadhar Number Holder, the disclosure of information including the identity information and the authentication Page 5 of 16 Downloaded on : Sun Sep 17 21:49:17 IST 2023 NEUTRAL CITATION R/SCR.A/1858/2021 JUDGMENT DATED: 13/02/2023 undefined record made pursuant to the order of the Court not inferior to that of a Judge of the High Court shall be in respect of the disclosure of the information contained under sub-section (2) or sub-section (5) of Section 28 or sub-section (2) of Section 29. Thus, not only the order will be necessary for this information to be provided, but, the same shall have to be done after availing the opportunity of hearing to the authority and to the concerned Aadhaar Number Holder.
9.3. It is thus quite clear that Section 33 permits the disclosure of the information which had been prohibited to be divulged under sub-sections (2) and (5) of Section 28 and sub-section (2) of Section 29. This, of course, shall need to be done after availing an opportunity of hearing.
9.4. Sub-section (2) of Section 33 provides that nothing contained in sub- section (2) or sub-section (5) of section 28 and clause (b) of sub-section (1), sub-section (2) or sub-section (3) of section 29 shall apply in respect of any disclosure of information, including identity information or authentication records, made in the interest of national security in pursuance of a direction of an officer not below the rank of Secretary to the Government of India specially authorized in this behalf by an order of the Central Government. Proviso to this provides that every direction issued under this sub-section, shall be reviewed by an Oversight Committee consisting of the Cabinet Secretary and the Secretaries to the Government of India in the Department of Legal Affairs and the Department of Electronics and Information Technology, before it takes effect. The second proviso to this provides that any direction issued under this sub-section shall be valid for a period of Page 6 of 16 Downloaded on : Sun Sep 17 21:49:17 IST 2023 NEUTRAL CITATION R/SCR.A/1858/2021 JUDGMENT DATED: 13/02/2023 undefined three months from the date of its issue, which may be extended for a further period of three months after the review by the Oversight Committee.
9.5. There is a penalty also prescribed...
10. In ordinary circumstances and as categorically provided by both the provisions i.e. Section 28 and Section 29 for the purpose of securing and maintaining authentication of all information, there is a restriction of sharing the information...
11. Disclosure of information here is for the purpose of saving the life and ensuring the protection of human being. The request has come from the senior officer who is presently the Superintendent of Police in the district where the missing complaint has been lodged by the parents who hail from socioeconomic strata where they hardly have any means or knowledge of the legal procedure. To ensure the best and the concerted efforts in finding the person even after a decade, this is an endeavour to make use of the demographic as well as biometric information.
11.1. This Court noticed that the disclosure is not permitted under the law. Availing an opportunity to the authority concerned which this Court has already done and learned Additional Solicitor General has argued extensively. So far as the person who can be said to be the concerned Aadhaar Number Holder for being a major shall need to be heard himself, this is in relation to a person who is not found. The parents are aggrieved by the fact that the authority concerned protecting law and order has failed even to trace him. The parents are before this Court making a request to the Page 7 of 16 Downloaded on : Sun Sep 17 21:49:17 IST 2023 NEUTRAL CITATION R/SCR.A/1858/2021 JUDGMENT DATED: 13/02/2023 undefined Court and therefore, even if the provision provides for hearing the Aadhaar Number Holder, it is not feasible in the given circumstances to fulfill this requirement and instead the parents being the nearest relatives and are concerned with the safety and security of their son, when have been already heard and at their instance the police authority has initiated the actions, that compliance is to be construed.
11.2. The only question is with regard to the directions to be issued. Being conscious that these are the information which are ordinarily not to be parted and there are huge restrictions understandably for protecting rights of individual and their privacy in sharing these information. What possible use can be made of it, if not for saving the very life of a person whose audience is made compulsory. Again, it is a right of the parents as individuals and citizens of this country to ensure the safety and well-being of their son and they have chosen to approach this Court under Article 226 and have made a request for these informations to be shared by the UIDAI to the senior officer of the police for a targeted use of the same after having made all possible efforts to find out the person.
4.1.1 The court found invocation of Section 33 to be necessary for the purposes of effective investigation, "12. This, According to this Court, is a fittest case to permit divulgence of informations under Section 33. It also would be necessary for the Court to direct the sharing of biometric information, if available.
12.1. The question also has arisen is that the parents are illiterate and are not in a position to divulge the information with Page 8 of 16 Downloaded on : Sun Sep 17 21:49:17 IST 2023 NEUTRAL CITATION R/SCR.A/1858/2021 JUDGMENT DATED: 13/02/2023 undefined regard to Aadhaar. The Superintendent of Police is therefore requested to make a request to the UIDAI, Delhi. The present authority of UIDAI which is before this Court also can assist the cause whether the Aadhaar Card is issued or not. Once the answer is in affirmation from the data available, let the senior officer i.e. the Superintendent of Police himself will be in touch with the officer of UIDAI. These details are to be shared with the Superintendent of Police who is of IPS cadre and with requisite seriousness has supervised this task of tracing the corpus.
13. Accordingly, this request of the Superintendent of Police, Banaskantha is allowed. The authority itself is under the statutory obligation to ensure the confidentiality of the information collected from the residents under Section 28(2) and all informations of Aadhaar Number Holder stored in CIDR shall be reveled and disclosed to the Superintendent of Police. The identity information and the authentication records of the Aadhaar Number Holder so also the biometric information shall be used by the Superintendent of Police himself and he can divulge it to limited number of officers in his team which shall not be more than two to three. He shall ensure that the information which had been stored for the purpose of Aadhaar Number Holder are being divulged for tracing the corpus and for the purpose of identification, if in case these information in any manner, can make breakthrough. The Deputy Director, Regional Office, Mumbai, shall be in touch with the Superintendent of Police.
14. Noticing the exceptional circumstances which have emerged in this case, the Court is required to direct the Page 9 of 16 Downloaded on : Sun Sep 17 21:49:17 IST 2023 NEUTRAL CITATION R/SCR.A/1858/2021 JUDGMENT DATED: 13/02/2023 undefined divulging of such information.
15. Let the details be provided within two weeks. After having once received these information, the efforts shall be intensified by the officer concerned to trace the corpus."
4.2 Thus, by aforesaid order, the court required UIDAI, Delhi to divulge the information under Section 33 of the Aadhar Act. The above details of the order shows that intensive exercise were undertaken for tracing the corpus so that the whereabouts of the missing boy of the petitioner could be known.
4.3 Reports dated 1.8.2022 and 3.10.2022 came to be filed by the investigating officers. In order dated 15.11.2022, the court observed that reports after reports were filed by the investigating officers but it was unfortunate that the corpus was not available, and was not traced. It was observed that the District Superintendent of Police, Banaskantha shall look into the matter and file the affidavit. The affidavit dated 22.11.2022 came to be filed by the Superintendent of Police, of which note was taken by the court in order dated 21.11.2022. The officer was directed to continue with the efforts to find out the missing boy.
4.4 About intensive investigative efforts made to trace the son of the petitioner who went missing in the year 2011, the following details were given in affidavit filed on 22.11.2022.
"2. It is stated that the applicant herein informed the Deesa Rural Police Station on 12.10.2011 about his missing son namely Jigar.Page 10 of 16 Downloaded on : Sun Sep 17 21:49:17 IST 2023
NEUTRAL CITATION R/SCR.A/1858/2021 JUDGMENT DATED: 13/02/2023 undefined According to the informant, his son Jigar was studying at Jagruti Uttar Buniyadi Vidhya mandir, Dawas, Taluka: Deesa in Standard 11th. It was a residential school with a hostel facility. The applicant was informed about his missing son by his friend Jitubhai Chorasiya who was informed about the absence of Jigar by his Class Teacher Mr. Laghdhirbhai Desai on 10.10.2011 that Jigar has not appeared in the examination.
3. On receipt of the information of missing person, the police officer concern issued wireless message to all the units of District:Banaskantha. The ASI of the concerned police station recorded statements of all the relevant witnesses but no fruitful information could be traced out. In furtherance of the investigation, the investigating officer published the details of missing person in the local news papers and also broadcasted the details through the electronic & print media across the State of Gujarat. Unfortunately, the said exercise did not yield any result.
4. It is stated that the investigating officer carried out intense and extensive investigation by making all possible attempt to trace out his digital foot prints and other authentications of government documents such as Adhar Card, Election Card etc., It is learnt that the missing person does not have any active sim card on his name. The investigating officer recorded statements of several person including one Hitesh Lakhabhai Galchar who was a colleague of the missing person and happens to be the person who had seen him last before he went missing. According to the statement of Hitesh Galchar, the missing person frequently use to abandon school and hostel. As per his statement, the missing person use to frequently talk about Brahmakumari Organization. On the basis of such statement, the investigating officer carried out extensive search with the nearby centers of Brahma kumari situated in Deesa, Page 11 of 16 Downloaded on : Sun Sep 17 21:49:17 IST 2023 NEUTRAL CITATION R/SCR.A/1858/2021 JUDGMENT DATED: 13/02/2023 undefined Deodar and Patan as well as the main center of the organization situated at Abu Road, Rajasthan. After such extensive search, and from the statement of the authorized person of Brahma kumari organization, it was learnt that the missing person had never gone to any of their centers.
5. In furtherance of the investigation, the investigating officer carried out search at various ashrams and centers of different NGOs to find out the missing person based on certain statements which indicated that the missing person was largely inclined towards spirituality. The investigation was expanded to the State of Rajasthan, Uttarakhand and Uttar Pradesh (UP) by forming six different teams of officers. Even after such an intense investigation, the investigating authority has not been able to find out any foot prints of the missing person.
6. It is stated that as suggested by this Hon'ble Court during the one of the previous proceedings of the present petition, the office of deponent prepared a video message and circulated it on all the social media platforms and the same is also broad casted through various police officers of various districts. The photograph of the missing person and a sketch of his probable face as on today are widely circulated through all local channels and strict surveillance has been arraigned to trace out all possible clause in the direction of finding out the missing person.
7. It is stated that the investigation is currently under process and the office of deponent is making all possible efforts to make substantial progress for tracing out the corpus of missing son of the present applicant. As a step forward, the office of deponent has formed Anti Human Trafficking Unit (AHTU) under the supervision of District Superintendent of Police."Page 12 of 16 Downloaded on : Sun Sep 17 21:49:17 IST 2023
NEUTRAL CITATION R/SCR.A/1858/2021 JUDGMENT DATED: 13/02/2023 undefined 4.5 As per further order dated 22.12.2022, passed by this court, the Director General of Police, State of Gujarat has now been looking into the matter. The Director General of Police filed report dated 28.1.2023 in the proceedings. Giving the details of investigation, it was stated that statements were recorded, about issuance of Aadhar Card and Election Card, inquiries were made and from twelve nationalized banks and the information that whether any bank account was open was collected.
4.6 It was mentioned that upon recording of the co-student's statement, it was learnt that the son of the petitioner was lonely, use to go out of the campus at night at any time, used to talk about supernatural things. The report suggested that since the missing person was reported to be talking about religious institution- Brahmakumaris, the inquiries shall be conducted at that place also.
4.7 The inquiries were made at auto-rickshaws, the truck- drivers and by publishing photographs and posters of the missing boy. A video recording was also circulated with anonymity as per the orders of this court. Inquiries were made in all public places and public fairs. The team of the police went to Haridwar, Rushikesh, Dev prayag and all such religious places and ashram at such places. At the local nearby places also inquiry were made extensively.
4.8 In yet another report dated 13.2.2023, details of further investigation were given. It was stated that details of unidentified dead-bodies were obtained and the missing boy was tried to be traced. On presumption that missing son might have Page 13 of 16 Downloaded on : Sun Sep 17 21:49:17 IST 2023 NEUTRAL CITATION R/SCR.A/1858/2021 JUDGMENT DATED: 13/02/2023 undefined become mentally ill the search was made at Jalaram Seva Trust, Himmatnagar and such other places. The searches were also made amongst the Sadhus on the presumption that the missing son might have renounced the world. The register of undetected persons were also examined. The boy when went missing was aged 19 years.
5. More than twelve years have passed by now. Despite Whatsapp messages, video circulation and all round search at all possible places and amongst all kinds of groups of persons, though the search was made, the corpus has remained untraced, not there is any clue obtained.
5.1 In light of the above facts and developments, it is also to be conspicuously noticed that son of the petitioner went missing in the month of October, 2011. The habeas corpus petition was filed in the year 2021, after passage of ten years. The petitioner moved the police authorities but thereafter remained inactive in respect of the incident of missing of his son for long time. The petitioner filed the petition after a decade. It is not explained as to why after making complaint to the police authorities in the year 2011, the petitioner did not take any legal action. Be as it may.
5.2 As per Section 108 of the Indian Evidence Act, 1872, it is provided that the burden of proving that person is alive who has not been heard of for seven years, is on the person who affirms such act. The Section 108 reads as under.
"Section 108- Burden of proving that Page 14 of 16 Downloaded on : Sun Sep 17 21:49:17 IST 2023 NEUTRAL CITATION R/SCR.A/1858/2021 JUDGMENT DATED: 13/02/2023 undefined person is alive who has not been heard of for seven years- Provided that - the question is whether a man is alive or dead, and it is proved that he has not been hears of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is the person who affirms it."
5.3 In view of long passage of time of ten years after which the petition was filed and when even after intensive efforts by the police authorities to trace the corpus, no concrete information is available, and when more than seven years have passed, keeping in light Section 108 of the Indian Evidence Act, no fruitful purpose would be served in continuing and keeping pending the present proceedings.
6. Looking to the facts obtained and all these circumstances taken cumulatively, the court therefore does not find any justification to keep the present proceedings pending.
6.1 Accordingly, the present proceedings are closed by taking note of the reality that despite long passage of time and even though the extensive efforts have been made to trace the corpus, nothing could be gathered or known.
7. The present Special Criminal Application is disposed of by issuing, however, the following directions.
(i) The Director General of Police, State of Gujarat shall continue to investigate the event of missing of son of the petitioner.
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(ii) The investigation report shall be filed quarterly before this court for one year to be placed on the record of the present proceedings.
(iii) If any actionable facts are detected by the investigating authorities, it will be open and permissible for the petitioner to take recourse to the appropriate legal remedy.
(N.V.ANJARIA, J) (NIRAL R. MEHTA,J) Manshi Page 16 of 16 Downloaded on : Sun Sep 17 21:49:17 IST 2023