G. M. LODHA, J. - (1.) SMT. Badami wife of Madhoo Naik resident of Karoi Police station Bagore, District Bhilwara has filed this petition dated January 22, 1985 under Article 226 of the Constitution of India. Notice was issued on January 25, 1985 by this court returnable within two weeks.
(2.) IN the petition, Badami's grievance was that on December 5, 1984, her husband Madhoo was arrested by Bagore Police in the night at about 11 p. m. and when Upsarpanch was sent to the Police Station, it was revealed that Madhoo was lying in the Police station and was crying. He wept and stated that he has been beaten severely. On December 14, 1984, Badami moved an application before the Superintendent of Police, Bhilwara, Collector Bhilwara and also sent petitions to the Hon'ble Governor, Home Minister and Chief Minister by registered post but no reply has been received. She met Superintendent of Police several times but no satisfactorily explanation is being given She enquired from the various Police stations whether Madhoo is being detained anywhere but it appears that the Police is keeping her husband in custody at a place which is unknown. She stated that she belongs to the Scheduled casts and she has got four children and she is in a very poor condition and, therefore, she cannot afford to file a habeas corpus petition regularly in the Court. She prayed that her husband is being kept in unlawful detention by the Police and, therefore, orders may be passed for his release and the petition may be treated as a habeas corpus petition. The petition was accompanied by affidavit of Smt. Badami dated January 18, 1985. Alongwith the petition, she has also filed acknowledgement of registered post letters addressed to the Governor, Home Minister, Superintendent of Police and various other dignatories. The respondents have filed a return and stated that in pursuance of the First Information Report of Bilara Tehsil regarding a theft, some investigation and enquiry has to be made. A case was registered under ss. 447 and 380 IPC vide C. R. No. 55/84. During the investigation from Madhoo, it was found that Jivan Ram son of Laxman Ram Suthar is in know of all these facts. When Madhoo was interrogated, it was found that Jivanram and others are dealing in smuggling of opium etc. Madhoo was interrogated by S. H. O. , Bilara at Bagore Police Station on December 8, 1984. On December 8, 1984, S. H. O. , Bilara connected S. H. O. , Bagore and got summoned Madiya for interrogation and interrogated him between 6 P. M. to 11 P. M. and then, he was allowed to go. On December 9, 1984 again, he was interrogated between 7 A. M. to 8 A. M. but no proper clue with regard to the incidents of Bilara could be obtained from him and Madiya stated before the S. H. O. Bilara that his wife was pregnant, he could come at his own accord for interrogation after some days. Thereafter, Madiya came to the Police station, iiara of his own accord on January 17, 1985 for interrogation and then he was daily interrogated from January 17, 1985 to February 1, 1985 between 2 to 5 hours but he was not arrested and was not kept in wrongful detention. Thereafter, S. H. O. Bagore sent a Tehrir to S. H. O. , Bilara that Madiya has been summoned by High Court in Habeas Corpus petition and, therefore, he is to be produced before this Court, Affidavit of Bheem Singh, S. H. O. , Police Station, Bilara has been filed and the police record has also been filed to support the return. Today, when Madiya appeared in the court, he complained that he is under arrest for the last two months and, therefore, he was examined by this Court. Mr. H. N Calla. learned Government Advocate was allowed to cross-examine him Mr. H. N. Calla, learned Government Advocate has also examined Bheemsingh, S. H. O , Police Station, Bilara in rebuttal. Mr. H. N. Calla, learned Government Advocate submits that Madiya was never arrested and kept in unlawful detention. According to him, he was only interrogated from time to time for two theft cases of Bilara and even now, he has been produced in this Court by the Police because the habeas corpus petition was pending, and to meet the allegation that Madiya is missing and is in unlawful detention. The statement of Madiya reveals that from December 6, 1984 till now, the Police at Bagore and the Police at Bilara, later on has kept him in police custody. It is only after February 3,1985, that he was taken to the Police Station, Bagore and was not kept in lock-up by the police and was kept in the Police Station, Bagore in an open place thereafter. Even then he was told that he will have to be produced before the Court and, therefore, he was not allowed to go anywhere and now he has been brought by the police at Jodhpur who has kept him in an inn (Sarai) at Jodhpur and today produced him in Court.
(3.) THE record submitted shows that the statement recorded from Madiya is Ex. R. 10 of four pages and it is dated 18. 1. 85. On a perusal of the statement and the other record submitted by the Police it is clear that the investigation in the form of interrogation from the accused could not have lasted for such a long period from December 8, 1984 to February 1, 1985. The Investigating Officer himself has stated in his statement before this Court that inspite of full investigation we could not find out anything incriminating against Madiya on account of which he could have been arrested. He was not in a position even to say, although the entire record was before him, that for how many days he interrogated himself and for how many days the A. S. I. or the Head Constable interrogated Madiya. This makes it certain that the so called theory that Madiya was not kept in Police lock up and was allowed to go every day and used to voluntarily return on the next day lackes exactitude. It is also against human conduct that a resident particularly belonging to poor scheduled caste of Bhilwara District would voluntarily stay at Bilara of Jodhpur District for such a long period and every day present himself voluntarily in the Police Station and then go in Bilara a place which is unknown to him and where he has got no body to look after him. The statement of Madiya is that he was kept in unlawful confinement throughout from December 6, 1984 till now and only on February 3, 1985 he was sent to Police Station Bagore but there again he was kept in the Thana in open and brought here by Police and till now he is in Police Custody. ;