Calcutta High Court (Appellete Side)
Present : The Hon'Ble Justice Jayanta ... vs The Hon'Ble Dr. Mrinal Kanti Chaudhuri on 20 December, 2013
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present : The Hon'ble Justice Jayanta Kumar Biswas.
and
The Hon'ble Dr. Mrinal Kanti Chaudhuri
W.P.No.912(W) of 2013
Kalpana Ranajit
v
The State of West Bengal & Ors.
Mr. Saibal Mondal ...for the petitioner.
Mr. Sundarnanda Pal
Mr. Avijit Sarkar ..for the State
Heard on: December 20, 2013
Judgment on: December 20, 2013
Jayanta Kumar Biswas, J. : The petitioner in this WP under Article 226 of the
Constitution of India dated January 9, 2013 is seeking a writ of habeas corpus directing
the fourth to eighth respondents to produce her minor daughter and to give her custody
of the daughter with visitation rights to the second and third respondents.
The second and third respondents are the following:-
"2. The Superintendent of Police, Purba Midnapore, Post Office-Tamluk, PIN-721636.
3. The Officer-in-Charge, Ramnagar Police Station, PIN-721441."
The fourth to eighth respondents are the following:-
"4. Sk. Hasan Kaji Son of Sk. Abdul Raheku, 5. Sk. Jabbar @ Jambar, 6. Sk. Imran Ahamed @ Imbran, 7.Sk. Abdul Raheku, 8. Mst.Amviya Bibi Wife of Sk.Abdul Raheku All of Village Dakshin Badhia Police Station Ramnagar, District Purba Midnapore, PIN-721446."
Advocate for the petitioner has submitted that the case of the petitioner has been very specifically stated in para.2 of the WP. Paragraph 2 is quoted below:-
"2. That the present petitioner had lodged a complaint with the Officer-in-Charge, Ramnagar Police Station inter alia disclosing commission offences punishable under Sections 363/366 of the Indian Penal Code being committed by the respondent nos.4 to 8. On the bass of the aforesaid letter of complaint lodged by the petitioner, Ramnagar Police Station Case No.9/2012 dated 8.1.2012 was regiatered for investigation which correspondents to G.R. Case No.38 of 2012.2
The averments made in the said complaint are inter alia to the effect that the minor daughter of the petitioner namely Lakshmipriya alias Purnima used to go for tuition three days a week at United Coaching Centre.
It is stated that on 7.1.2012 at about 3-00 p.m. the daughter of the petitioner left for her coaching classes but did not return home at the scheduled time. As such the petitioner visited the aforesaid coaching centre and after contacting her daughter's friends, the petitioner came to know that the respondent no.4 being aided and abetted by his parents being the respondent nos.7 and 8 as also being instigated by and with active help of the respondent nos.5 and 6 abducted the daughter of the petitioner with a view to marry her. Thereafter the petitioner conducted a thorough search for her daughter but could not trace her out.
The petitioner thus prayed for recovery of her daughter and take action against the accused/respondent nos.4 to 8.
A copy of the First Information Report is annexed hereto and marked with the letter 'P2'."
In paras.3 to 7 the petitioner has stated about the orders passed by the criminal court directing the investigating officer to submit report and also about rejection of the anticipatory bail prayer of the fifth respondent, while allowing such bail prayer of the sixth respondent. In para.9 the petitioner has stated that in spite of her repeated visits and requests the officer in charge of Ramnagar police station did not take necessary steps in the matter for tracking down her daughter.
In the written information dated January 8, 2012 addressed to the officer in charge of Ramnagar police station the petitioner stated that with the active help of his parents the fourth respondent kidnapped her daughter with an intent to marry her. She also stated that the fourth respondent fled with her daughter.
It is, therefore, evident that the petitioner's principal allegation is that the private respondents committed offences punishable under the Indian Penal Code, and that the investigating officer had failed to track down her kidnapped daughter. Admittedly, the criminal court that the petitioner approached was overseeing the investigation. But the fate of the investigation is not known.
Advocate for the petitioner has forcefully argued that this WP for a writ of habeas corpus directing the police to track down the petitioner's kidnapped daughter is maintainable, especially when the WP was admitted and at the time of admission no objection regarding its maintainability was raised, and also because this court directed the police to submit report. We are unable to accept the argument.
3A WP for a writ of habeas corpus can be maintained only if a case is stated therein that the person concerning whose liberty the WP has been filed is in the illegal detention of a respondent in the WP. The petitioner in such a petition cannot ask the writ court to interfere in the investigation of a case concerning commission of cognizable offences by the respondent or respondents concerned in the WP.
The investigation of a criminal case can be overseen by a writ court on the basis of a WP alleging inaction on the part of the investigating officer and when the de facto complainant finds reasons to say that the criminal court concerned has not overseen the investigation effectively; but this is not to be done by a writ court by entertaining a habeas corpus petition; for the habeas corpus concept has nothing to do with the investigation of criminal case by an agency empowered to investigate according to the provisions of the Code of Criminal Procedure, 1973.
An accused going into hiding and thus avoiding arrest cannot be brought by the habeas corpus court before it by issuing a notice entertaining a habeas corpus petition. In a habeas corpus petition the question of commission of any offence is not relevant at all. The only question relevant and to be decided in such a petition is the question of legality of the detention and setting the person concerned at liberty, if necessary. Hence we do not find any merit in the argument that since the WP was admitted, it cannot be dismissed at the final hearing stage holding that it is not maintainable.
For these reasons, we dismiss the WP. Nothing herein shall prevent the petitioner from initiating proceedings before any other court or forum seeking relief according to law. Certified xerox.
(Jayanta Kumar Biswas, J.)
kc (Dr. Mrinal Kanti Chaudhuri, J.)