Madhya Pradesh High Court
Umesh Kumar Bohre vs The State Of Madhya Pradesh on 19 March, 2020
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
THE HIGH COURT OF MADHYA PRADESH
WP. No. 6844/2020
(Umesh Kumar Bohare Vs. State of M.P. and others)
(1)
Gwalior, dated : 19/03/2020
Shri Rohit Jagwani, Advocate for the petitioner.
Shri Rajiv Sharma, Additional Advocate General for
respondent nos. 1 to 5/State.
Shri Shashank Indapurkar, Advocate for respondent no.7. Shri A.S.Tomar, Advocate for the proposed Intervener. With the consent of learned counsel for the parties, the petition is heard finally.
2. This habeas corpus petition, under Article 226 of the Constitution of India, has been filed seeking direction to respondent nos. 1 to 5/State to search and trace Shri Munnalal Goyal, MLA, Constituency - Gwalior (East), whose whereabouts are said to be not known for last nine days. Directions have further been sought for securing his release from illegal detention of respondent nos. 6 and 8. It has also been prayed that the inquiry into the matter be handed over to respondent no.7/CBI.
3. The petition has been filed as an aftermath of a communication dated 16/3/2020 sent by the petitioner to the Police Authorities for tracing Shri Munnalal Goyal. In the said communication, it has been averred that the voters of the constituency including the petitioner are perturbed over sudden disappearance of Shri Munnalal Goyal.
4. So far as the locus standi of the petitioner to file the instant THE HIGH COURT OF MADHYA PRADESH WP. No. 6844/2020 (Umesh Kumar Bohare Vs. State of M.P. and others) (2) habeas corpus petition is concerned, in the entire petition, petitioner has not stated himself to be a relative/friend of Shri Munnalal Goyal. He claims to be a voter of the constituency and hence concerned. In this behalf, the Apex Court in the case of Charanjit Lal Chowdhury Vs. The Union of India (AIR 1951 SC 41) has held that a writ for a relief under Article 226 of the Constitution, though not at the instance of an utter stranger, is at least available through a friend or relation of the detenu, who can apply for a writ of habeas corpus questioning the detention. Relying upon the same, a five Judge Bench of the High Court of Punjab and Haryana in the case of Ram Kumar Vs. District Magistrate, Delhi (AIR 1966 P&H 51 = 1966 CriLJ 153) has answered the question as to maintainability of a writ of habeas corpus at the instance of a person who is neither a friend nor a relation of the detenu in the following terms:-
"11. The second question does not present much difficulty because in Charanjit Lal Chowdhury v. Union of India, AIR 1951 SC 41, Mukherjea and Das JJ. have been of the opinion that a writ for a relief under Article 226 of the Constitution, though not at the instance of an utter stranger, is at least available through a friend or relation of the detenu, who can apply for a writ of habeas corpus questioning the detention. In Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal, AIR 1962 SC 1044, their Lordships observed that "The right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or THE HIGH COURT OF MADHYA PRADESH WP. No. 6844/2020 (Umesh Kumar Bohare Vs. State of M.P. and others) (3) modified". So that a petition for writ of habeas corpus under Article 226 can of course be filed by the person in detention or custody, and it can also be filed, on his behalf, by a friend or relation for this reason that such a person is in a position to make an affidavit that the detenu himself is not able to move in the matter and with regard to the facts and circumstances rendering illegal the detention or custody. An utter stranger cannot possibly help the Court in this. He cannot explain why the detained person is himself not able to move in the matter and he cannot possibly make an affidavit with regard to the facts and circumstances which go to show whether or not the detention or custody is illegal. The answer to the question is that petition for writ of habeas corpus is ordinarily moved by the person detained or in custody and can be moved also by a friend or relation, but for the reasons stated, not by an utter stranger. In the rarest of cases, where the Court has been apprised of material which immediately and obviously establishes the illegality of the detention or custody, of course the Court will for the ends of justice, proceed to issue the necessary writ, direction or order and in such rare cases a stranger may come in, but such a contingency should appear to be so rare as to be almost nonexistent. In the present case, the question as framed in broad terms does not arise, because the petitioner claims to be a friend of the detenu and there is nothing to show the contrary."
(Emphasis supplied) The petitioner is neither a relative nor a friend, but can only be placed under the category of "stranger". In view of the above settled legal position, in the opinion of this Court, he lacks the locus to move the present petition.
5. Further, it has been brought to the notice of this Court that the point in issue is sub judice before the Apex Court in the case of Madhya Pradesh Congress Legislature Party Vs. Union of THE HIGH COURT OF MADHYA PRADESH WP. No. 6844/2020 (Umesh Kumar Bohare Vs. State of M.P. and others) (4) India and others, a writ petition filed under Article 32 of the Constitution of India, wherein specific pleadings have been made with regard to illegal detention of respondent nos. 5 to 19 (therein), which includes the name of the corpus as respondent no.12. As such, when the question with regard to illegal detention of the corpus is sub judice before the Apex Court, this Court is proscribed from taking cognizance in the matter.
6. Even otherwise, son of the corpus has moved an intervention application (I.A. No.1536/2020), which is hereby allowed.
The said application has been filed along with an authority letter of the corpus, wherein the corpus has categorically stated that he, on his own volition, is staying in Bangalore (Karnataka) along with his friends.
It has been stated in the intervention application that the petitioner who is a practicing lawyer of this Court is in a habit of filing such vague petitions, without locus, for fulfilling his political intentions.
7. In view of the aforesaid, nothing remains in this habeas corpus petition to adjudicate upon. The same is, accordingly, dismissed as not maintainable.
However, before parting, looking to the conduct of the petitioner, this Court is constrained to saddle an exemplary cost of THE HIGH COURT OF MADHYA PRADESH WP. No. 6844/2020 (Umesh Kumar Bohare Vs. State of M.P. and others) (5) Rs.25,000/- (Rupees twenty five thousand) upon him for wasting the precious time of this Court, to be deposited with the Principal Registrar of this Court within a period of thirty days from today, for being utilized in the up-liftment of the Dispensary located in the High Court campus at Gwalior.
If the cost is not deposited within the period stipulated hereinabove, Registry shall place this matter before this Court for further directions.
(S.A. Dharmadhikari)
(and) Judge
ANAND
SHRIVASTAVA
2020.03.19
18:14:38
+05'30'