Rajasthan High Court - Jaipur
Ramesh vs State (Home Department)Ors on 22 February, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R D.B. HABEAS CORPUS PETITION NO.37/2013. Ramesh Vs. State of Rajasthan & Ors. Date of order : February 22, 2013. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ HON'BLE MR.JUSTICE JAINENDRA KUMAR RANKA Shri Abdul Rahim Khan for the petitioner. Shri Javed Choudhary, Deputy Government Counsel. ****** BY THE COURT:-
This habeas corpus petition has been filed by petitioner-Ramesh alleging that his daughter Poonam has been abducted by respondent No.4-Satyaveer without any authority of law on 9/12/2012 and since then, she is not traceable. Petitioner lodged first information report being FIR No.12/2013 at Police Station Hindaun, District Karauli on 3/1/2013 for offence u/Ss.363 and 366 IPC but till date, police is not able to trace out his daughter.
This is a petition which though styled as habeas corpus petition but, in fact, complains about inaction on the part of the investigating agency regarding investigation into the F.I.R. lodged by the petitioner. According to provisions contained in the Code of Criminal Procedure, 1973, if and when a first information report is registered in a Police Station, copy thereof is required to be immediately send to the Magistrate as per Section 157 of the Code of Criminal Procedure, 1973.
Section 157 of Cr.P.C. requires that if, from information received or otherwise, an officer in charge of a police station has reason to suspect commission of an offence, which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers, not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender.
Section 159 of Cr.P.C. requires that such Magistrate, on receiving such report, may direct an investigation, or, if he thinks fit, at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of, the case in the manner provided in this Code. Section 173 of Cr.P.C. requires that every investigation under this Chapter shall be completed without unnecessary delay and sub-section (2) thereof provides that as soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. According to sub-section (8) of Section 173, the Magistrate can even direct further investigation into the matter.
We for the purpose of this case may in particular refer to the relevant provisions that are contained in Section 97 and 98 of the Cr.P.C. which for the facility of reference are reproduced hereunder:
97. Search for persons wrongfully confined- If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search-warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.
98. Power to compel restoration of abducted females- Upon complaint made on oath of the abduction or unlawful detention of a woman, or a female child under the age of eighteen years, for any unlawful purpose, a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent, guardian or other person having the lawful charge of such child, and may compel compliance with such order, using such force as may be necessary.
In the scheme of Cr.P.C., we find that the Magistrate has all the competence to deal with the matters of the present nature, which are otherwise being brought to this Court in the shape of Habeas Corpus. All that this Court can direct, can also be directed by the Magistrate in so far as the restoration of abducted women or female child to her husband, parent, guardian or other person having the lawful charge of such child and in doing so, the Magistrate may compel the compliance of his order by using such force as may be necessary.
In our view, therefore, we are not inclined to entertain the present matter in the scope of writ of habeas corpus because the petitioner has already filed a first information report with specific allegation against certain named persons and the police is presently undertaking investigation. Though in appropriate case, this Court, despite lodgment of First Information Report, can still entertain a habeas corpus petition. But, we do not find any such extra ordinary reason to allow this matter to be agitated by way of habeas corpus petition as the investigation into the said first information report is subject to supervision by the Magistrate. We, therefore, require the petitioner to approach the Magistrate having jurisdiction over the area in question in relation to FIR No.12/2013 at Police Station Hindaun, District Karauli dated 3/1/2013 for offence u/Ss.363 and 366 IPC, which Magistrate shall supervise the investigation by police and call for the progress report of the investigation every fortnight. In doing so, as per provisions of Section 98 of Cr.P.C., the Magistrate would be competent to compel compliance of his order even by summoning the Superintendent of Police and if necessary, even the Inspector General of Police concerned. The police shall investigate the matter and submit their report to the Magistrate every fortnight.
The petition is disposed of requiring the petitioner to approach the concerned Magistrate by filing requisite affidavit under Section 98 of the Code of Criminal Procedure, who shall deal with the matter keeping in view the observations made as above.
(JAINENDRA KUMAR RANKA), J. (MOHAMMAD RAFIQ), J. Anil/Suppl.90
All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed Anil Kumar Goyal Sr.P.A. Cum J