- (1.) THIS habeas corpus writ petition was filed by petitioner Ramji lal, son of Sri Bhullan Singh resident of village Dhanwa, P. S. Teetro, district Saharanpur directing respondents for production of Shiv Kumar who was abducted by respondents on 16-1-1994 and since then he was kept in unlawful custody,
(2.) THE case of the petitioner is that he is a permanent resident of village Dhanwa and had been working as Assistant Agriculture Inspector in the Government department of State of U. P. and at present he is under suspension. His son Sunil was married with Smt. Mamta daughter of Prakasha son of Sri Kundan Singh, resident of village Hasanpur Lohari, P. S Thana Bhawan, district Muzaffarnagar. Respondent Nos. 1 to 9 are all residents of village Hasanpur Lohari and they are closely related to each other. Further case of the petitioner is that a marriage proposal was made by Prakash with his daughther. Smt. Laltesh with Sunil Kumar and after that the marriage propo sal was approval and when the marriage was performed bride was kept under 'parda' and in place of Laltesh actually the girl married was Smt, Mamta and this fact was discovered after the marriage only when the bride came back to the village of the petitioner. That fact gave a deep shock to the petitioner's family. However, since the marriage had already been taken place, the peti tioner kept quite with a thought that Smt. Mamta will also be equally good match for Sunil Kumar but position was worse to find that Smt. Mamta was a patient of mental disorder and all efforts were made by the petitioner for curing her and she was treated by the Doctors in the Mental Hospital, Shahadra, Delhi and that treatment was continued for a year but Doctors failed to cure her and opined that Smt. Mamta was suffering from incurable mental problem. Since the petitioner failed to get cured Smt. Mamta from a mental problem Sunil Kumar had filed a suit for divorce and Smt. Mamta was given in the custody of Prakasha and his family members by the family Court at Muzaffarnagar. The petitioner and his son were forced to take the recourse of handing over Smt. Mamta in the Court to Prakasha and his family members as respondents were very crooked persons and it was apprehended that other wise they might cause any injury to Smt. Mamta and got the petitioner prose cuted under same false charges. The summonses of that divorce suit were served upon the respondents on 9-11-1993 and they prayed on 4-1-1994 before the Civil Judge for the custody of Smt. Mamta. The respondents also gave a false report to the police authorities who rushed to the petitioner's village but found that Smt. Mamta was quite hale and hearty at the petitioner's place. Copy of the Divorce petition of Suit No. 922 of 1993 has been made as Annexure T to the petition.
(3.) FURTHER case of the petitioner is that the divorce suit enraged the respondents and they kidnapped Shiv Kumar and Sushil Kumar, the two sons of the petitioner from village Nichi Nakur on 16-1-1994 and during the illegal custody Sushil Kumar managed to escape and had come back while Shiv Kumar was still being kept under unlawful custody by the respondents in connivance with some Police Officers. Petitioner's elder son Shiv Kumar happens to be a graduate and was making preparation, for P. S. C. Examina tions and his younger son Sushil Kumar went to Nakur tehsil head quarters to obtain a Caste Certificate which was likely to be used in the competitive examinations as the petitioner belonged to backward class. It took a lot of time at Nakur tehsil head quarters and as work was not done on that day, they came back to the house of thoir cousin sister Smt. Sumitra who was married in village Nichi Nakur and they spent the night there and in the morning of 16-1-1994 while Shiv Kumar and Sushil Kumar were making preparation for going to Nakur tehsil headquarters, respondent No. 10 Bugal came to the house of Smt. Sumitra wife of Prem Singh and enquired whether Shiv Kumar and Sushil Kumar were staying there and innocently it was reported that those 2 boys were still there. Then at about 9. 00 A. M. on 16-1-1994 respondent Nos. 1 to 12 being armed with weapons came to the house of Prem, husband of Smt. Sumitra and forcibly took Shiv Kumar and Sushil Kumar and got them a beating and took them into different vehicles under the pretext that they were wanted in some case. Respondent No. Om Singh, a Police Constable disclosed that there were warrants against those boys and thus they forcibly kidnapped those 2 boys by different vehicles. The son of Nathi a resident of village Dhanwa by chance was present at and he was class mate of respondent No, 11 and came to know that those two boys were taken away in that way and that matter was reported to the peti tioner by the said village man of Dhanwa of his return to his village. As it was late evening the petitioner could not take any action but on the next ear v morning on 17-1-1994 when he reached village Nichi Nakur, he came to know about the abduction of his two sons, namely, Shiv Kumar and Sushil Kumar by the respondents. Thereafter the petitioner went to Police Station Nakur to lodge a first information report about the abduction but the respondent No. 13 S. I. Yogendra Sharma refused to 'record a first information report. Yogendra Sharma did not allow the petitioner to lodge a first information report as the petitioner did not agree to pay an illegal gratification of Rs. 5,000 to the said Yogendra Sharma. Petitioner made his best efforts to persuade the said Yogendra Sharma and other Police Officers to get the first information report lodged as the matter was very grave but the Police Officers turned down the requests. It appeared to the petitioner that respondent Nos. 1 to 10 had already influenced the police authorities at Police Station Nakur. Then the petitioner went to Saharanpur with a mind to approach the higher authorities for necessary help but as it was night, petitioner had to stay at Siharanpjr and on 18-1-1994 he mat the Senior Superintendent of Polios and handed over him a written complaint on the basis of the scant information which he gathered by that time regarding the abduction of his two sons. A true copy of the complaint, which was handed over to the Senior Superintendent of Police on 18-1-1994, has been marked as Annexure '2' to the petition. The Senior Superintendent of Police assured the petitioner that he was going to visit Police Station Nakur on that day and so the petitioner on having assur ance, went to Police Station Naisur and waited for the S. S. P. but the S. S. P. did not visit Police Station Nakur and petitioner had to be disappointed. On the next morning that is on 19-1-1994 with some information which he had gathered by that time, filed another complaint before the S. S. P. by registered post and the copies of the said complaint petition were forwarded to Director General of Police at Lucknow and Chief Minister, U. P. and also the District Magistrate, Saharanpur. Copy of the said complaint petition has been marked as Annexure '3' to the petition. When the petitioner met to S. S. P. , he informed him that he had sent that complaint to the Circle Officer with a direction for necessary action and advised him to contact the Circle Officer. After meeting the S. S. P. , the petitioner went, to the office of the Circle Officer and Deputy Superinten dent of Police and requested them to direct the S. O. Police Station Nakur to record his first information report and who in his turn told the petitioner that he should be interested more in recovering his sons rather than getting the first information report lodged and assured him that necessary needful action would follow. The petitioner kept on meeting respondent No. 14 almost every day but without any result. As the petitioner failed to have any result, he again filed a complaint to the S. S. P. , Saharanpur on 21-1-1994 with copies to the Director General of Police at Lucknow, the Chief Minister of U. P. at Lucknow and also to District Magistrate, Saharanpur. In those applications the petitioner further complained about the non-registering of the first infor mation report of the petitioner by the police authorities of Police Station Nakur. Yogendra Sharma was annoyed as the petitioner made complaint against him mentioning the demand of illegal gratification of Rs. 5,000 and he threatened the petitioner with dire. The said Sub- Inspector Yogendra Sharma without getting the report lodged as first information report, Visited the village Nichi Nakur and he was informed by the village people shut the abduction of the petitioner's sons had taken place as alleged but nothing was done by the police authorities of Police Station Nakur. 7 On 22-1-1994 petitioner sent telegrams to the Director General of Police. U. P. , Lucknow, S. S. P. , Saharanpur and D. 1. G. , Meerut apprising them of the abduction of his two sons on 16-1-1994 from village Nichi Nakur and refusal by the police authorities to lodge the first information report Out the two kidnapped boys, Sushil Kumar managed to escape from the clutches of the respondents in the night of 24/25th January, 1994 and on his return he narrated whole story about their abduction. It was further reported that Shiv Kumar and Sushil Kumar were kept in a room near a Tube-well in jungle area from 16- 1-1994 to 24-1-1994 and while the two persons, who were keeping on guard, went to sleep being heavily drunk in the evening of 24-1-1994 Sushil Kumar managed to slip out and he gave the details in what manner he could scope By morning he reached a village which he came to know after enquiry that it was Gyana Majra. Then he went to his sister's place at village Gunm Juddi where from he came to the petitioner's place. 8 Petitioner went to Saharanpur on 28-1-1994 to meet the S. S. P. and District Magistrate but before that he went to the District Courts for consul tation with a lawyer who was known to him and in the court compound, the petitioner was attacked by Bugal son of Musaddi respondent No. 10 and a few of his companions and petitioner was seriously injured. 9 The report of the said incident was lodged by the petitioner at Police Station Sadar Bazar, Saharanpur and Case Crime No. 43 of 1994 under Sections 323 324 and 506, IPC was started. It was learnt later on that Bugal attacked the petitioner so that he may not pursue that abduction matter any further On 29-1- 19s4 the petitioner again made complaints regarding non-recording of his first information report by the police authorities at Police Station Nakur. As nothing was done, again the petitioner made another complaint to all the authorities concerned on 11-2-1994. Then petitioner sent another detailed complaint to the S. S:p. , Saharanpur, D. I. G. , Meerut, Director General of Police, U. P. and Chief Minister, U. P. Lucknow on 17 2 1994 The District Magistrate, Saharanpur was pleased to give suitable instruction on 18-2-1994 to S. S. P. , Saharanpur to take necessary action in the matter. As the police did not take any action, a copy of the complaint dated 17-2-1994 was personally handed over to S. S. P. , Saharanpur on 2-1994 Incident of kidnapping was flashed in the local newspaper and thereafter after receiving the directions from Sri Ram Saran Das, President of the Samaibadi Party and the District Magistrate, Saharanpur, the police authorities of Police Station Nakur lodged that report as a first information date on 6-3-1994 as case Crime No. 69 of 1994 under Section 342, IPC. Since the police authorities at Police Station Nakur were already hobnobbing with the other respondents so report was lodged as first information report under Section 342, IPC in lieu of Section 364, IPC so that the respondents might be enlarged on bail. The S. I. Yogendra Sharma laughed and mocked the petitioner that lodging of a first maturation report and recovering the kidnapped and abducted boys were not the same thing rather it depended on the police and petitioner would hardly get any help from the police. 10. During the course of the hearing of this petition, learned counsel for the respondents submitted that the police filed charge-sheet in case Crime No. 69 of 1994 under Section 364, IPC against the principal answering respon dents for the alleged kidnapping of Sheo Kumar. 11 Learned counsel for the petitioner submitted that since police are in league with the principal respondents to kidnap Sheo Kumar as such the submission of the charge-sheet is, nothing but calculated attempt on the part of the police to see that this proceeding may be dropped as nothing will happen in that trial because the witnesses mentioned in the charge-sheet are men of the camp of the respondents and statements recorded under Section 161, Cr. P. C. have been fabricated to help the respondents and though the informant of the first information report, is also a witness but in view of other materials as submitted the fate of that proceedings under Section 364, IPC can be very well imagined and the court may be pleased to direct the respondents to produce Sheo Kumar in Court and in this regard he referred a decision as reported in 1978 Cr LJ 86, T. V. Secretary to the Ministry of Home Affairs. 12. It has been further submitted that facts of that case and the decision given by the Hon'ble Judges in the reported decision may kindly be taken note of by this court and the Court may be pleased to direct the respondents to produce the alleged detenue Sheo Kumar, Learned counsel while arguing the matter also drew my attention to the anomaly appearing in the statements of the witnesses recorded by the Police Officer under Section 161, Gr. P. C. in connection with the Nakur Police Station in Case Crime No. 69 of 1994 dated 6-3-1994. It has been further submitted that police had no business to make investigation prior to lodging of the first information report and to sit over the matter for few days and then to lodge the first information report which itself should be considered as enough material that police was actively helping the respondents to get out from that case without much difficulty. 13. Learned counsel for the respondents submitted that the respondents never abducted Sheo Kumar or Sushil Kumar as alleged. The respondent Prakasha and his other close relations were very anxious to get back the daughter Mamta who was subjected to torture by the petitioner and his family members for not fulfilling the demand of dowry and as the respondent Prakash declined to give his second daughter in marriage with another son of the petitioner Ramji lal. It has been further submitted that while Mamta was in the house of the petitioner that is in the house of her husband and father-in-law, her husband filed a Divorce Suit. Concealing the material facts and on the prayer of the father of the said Mamta, the said girl was handed over to said Prakasha in court but at the time of the alleged incident since the daughter was in the house of petitioner, it was not possible on the part of the respondents to take any recourse such as kidnapping/abducting Sheo Kumar and Sushil Kumar as alleged. At the instance of the petitioner a meeting was called by the villagers and the close relations of the respondent Prakasha to settle their dispute regarding the unhappy marriage of the daughter of Prakasha namely Manna but instead of turning up on the alleged date at the proposed time of the meeting the petitioner Ramji lal sent his two sons Shoo Kumar and Sushil Kumar to inform the assembly there that Ramji lal was not available due to some urgent business and when insisted upon Sheo Kumar and Sushil Kumar told Prakasha and other persons present there that they would take Prakasha and his son to Saharanpur where the father of Sheo Kumar might be available and so they took Sheo Kumar and Sushil Kumar with them to Saharanpur to the house at Saharanpur where Ramji lal was expected to be present as per version of the said Sheo Kumar and Sushil Kumar and that room was found locked and so Prakasha and his companions took Sheo Kumar and Sushil Kumar to the Police Station, who in their tern, refused to interfere and asked them to go to the concerned P. S, or to meet Ramji lal for settlement of their family disputes and then the respondent Prakasha and his and 2-3 persons along with them, took Sheo Kumar and Sushil Kumar to the house of Sheo Kumar and Sushil Kumar's cousin sister and left them at that place. So there was nothing wrong on the part of the respondents to have such acts done which were very normal for a fellows to do in this situation and in the circumstances in which they were in. 14. It has been submitted that the police has already submitted a charge-sheet under Section 364, IPC and the matter will be decided there after taking due evidences and the de facto complainant may file an application before the learned Sessions Judge concerned holding the trial to summon any witness, if the Court so desires under the provisions of Section 311, Cr. P. C. In view of such position of law the Court should be pleased to drop this proceeding and discharge the respondents from the alleged notice and the Court may be pleased to award adequate costs for harassing the respondents so long unnecessary by filing a false case for the alleged mandate in the nature of habeas corpus for production of Sheo Kumar. 15. Duly considered submissions of the learned counsel for both sides end perused the records minutely. The case cited by the learned counsel for-the petitioner does not tally with the facts and circumstances of this case. In that case the alleged detenue was assaulted by the police in the custody and was made almost unconscious and thereafter where a bouts of the detenue were not available to the petitioner, as such the Hon'ble Court passed the judgment directing the respondents for production of the detenue or to get thorough search for the detenue and file a report regarding it but here according to the respondents the alleged detenue left for his home. Of course there is some anomaly regarding the statements of the witnesses relating to release of Sheo Kumar but, however, since a charge-sheet under Section 364, IPC has been furnished by the police of Nakur Police Station in that Crime and as the learned Sessions Judge while trying the case, if feels necessary, may summon any one as witnesses under Section 311, Cr. P. C. I do not think that any think more should be done in this habeas corpus petition. 16. Accordingly this habeas corpus petition is rejected. I do not order as to costs. Petition rejected. .;