Gujarat High Court
Punidevi W/O. Kishanbhai Bisnoi vs State Of Gujarat & 2 on 1 July, 2015
Author: Mohinder Pal
Bench: Mohinder Pal, R.D.Kothari
R/SCR.A/174/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO. 174 of 2015
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PUNIDEVI W/O. KISHANBHAI BISNOI....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR I.H.SYED WITH VISHAL K SEVAK, ADVOCATE for the Applicant(s) No. 1
MR MITESH AMIN PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE MOHINDER PAL
and
HONOURABLE MR.JUSTICE R.D.KOTHARI
Date : 01/07/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE MOHINDER PAL)
1. Petitioner has approached this Court by way of writ petition under Article 226 of the Constitution of India asking for following reliefs:
(A) Your Lordships may be pleased to issue a writ of Habeas Corpus or any other appropriate writ, order or direction in the nature of mandamus, and/or any other appropriate writ, direction or order directing the respondent/s to produce my husband Kishanbhai Sujanaram Bishnoi, from the illegal custody of respondents herein and after ascertaining the true facts, set him free from the illegal custody of respondent/s in Page 1 of 7 R/SCR.A/174/2015 ORDER the interest of justice.
(B) Your Lordship be pleased to directing the respondent/s to take appropriate legal actions in accordance with law.
(C) Your Lordship may be pleased to pass other and further orders, as may be deemed just and proper in the interest of justice.
2. During pendency of the petition, the corpus was produced before this Court. On the basis of his statement, he was sent for medical examination and report of the Doctor was called for. Thereafter, on request made by the Corpus, he was examined by the private Doctors. When this matter is put up before this Court, learned counsel for the petitioner has moved for amendment of the petition by amending prayers. The amendment is allowed. The new prayers are as under:
(D) A magistrate/district court may pleased be directed to initiate an inquiry / appropriate legal actions against the respondent/s who have illegally detained the corpus.
(E) CCTV footage of all the police stations may plased be called for where said corpus had been kept from 6-12-2014.
(F) Award / appropriate compensation of Rs.1 for the damages may please be given.Page 2 of 7
R/SCR.A/174/2015 ORDER
3. While substantiating his arguments, learned counsel for the petitioner has referred to chronology of the events which resulted in filing of the present petition.
He has also relied upon two judgments of the Hon'ble Apex Court, which are as under:
(i) In the case of Tirth Ram Saini V/s. State of Punjab and others reported in 1994 Supp (2) SCC 16;
(ii) In the case of Prem Shankar Shukla V/s.
Delhi Administration reported in (1980) 3 SCC 526.
4. On the other hand, learned Public Prosecutor, Mr.Mitesh Amin, representing the respondent-State has submitted that as per reports of private Doctors, fracture of the corpus were more than 6 months old and it is healed fracture.
5. Heard learned advocates for the parties.
6. We may also mention that Corpus was produced from time to time on adjourned date before this Court. It was pointed out during hearing that Corpus is accused in about 20 theft of vehicle cases and after arrest in those cases, he was released on bail. Thereafter, he was detained in PASA.
7. Perusal of the draft amendment shows that applicant Page 3 of 7 R/SCR.A/174/2015 ORDER has prayed for directions to Magistrate to initiate inquiry and/or legal actions against the respondent who have illegally detained the Corpus with further prayer that CCTV footage of all the police stations may please be called for where the said Corpus had been kept from 6.12.2014.
8. Section 154 of the Code of Criminal Procedure, 1973 (herein after referred to as 'Cr.P.C.'), is reproduced as under:
154. Information in cognizable cases- (1) Every information relating to the commission of cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
[Provided that if the information is given by the woman against whom an offence under Section 326A, Section 326B, Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been Page 4 of 7 R/SCR.A/174/2015 ORDER committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:
Provided further that-
(a) in the event that the person against whom an offence under Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at the convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be;
(b) the recording of such information shall be videographed;
(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of Section 164 as soon as possible]
9. If the grievance of the complainant is not redressed or FIR is not registered then the complainant is free to Page 5 of 7 R/SCR.A/174/2015 ORDER approach the Superintendent of Police concerned who in order to be satisfied with such information, can order for further investigation and for registration of FIR. Cr.P.C. has further provided remedy to safeguard the grievance of such complainant under Section 156(3), which reads as under:
156.(3) Any Magistrate empowered under Section 190 may order such an investigation as above-
mentioned.
10. Close perusal of aforementioned provisions leave no doubt that the applicant has been provided remedy under various provisions of Cr.P.C. to approach the concerned authorities if his grievance is not redressed. Asking this Court to conduct inquiry should be last resort after exhausting all the available remedies.
11. Without getting into the merits of this case, we dispose of this petition by granting liberty to the petitioner to approach the concerned Magistrate and file complaint under Section 156(3) as discussed above.
12. If so approached, Magistrate will proceed with the complaint in accordance with law.
13. With these directions, present petition along with draft amendment stand disposed of.
(MOHINDER PAL, J.)
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R/SCR.A/174/2015 ORDER
(R.D.KOTHARI, J.)
ashish
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