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SCR.A/2538/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 2538 of 2011
=========================================================
PRAJAPATI
DINESHBHAI MULJIBHAI - Petitioner(s)
Versus
STATE
OF GUJARAT & 6 - Respondent(s)
=========================================================
Appearance :
MR
KIRIT R CHAUDHARI for
Petitioner(s) : 1,
MR KP RAVAL, APP for Respondent(s) : 1 -
3.
RULE NOT RECD BACK for Respondent(s) : 4 -
7.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 08/11/2011
ORAL ORDER
(Per
: HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. The
petitioner has approached this Court with the prayer for writ of
habeas corpus with the grievance and specific allegation that
respondent No.4 herein has, with the aid and abetment of respondent
Nos.5 and 6, forcibly kidnapped the petitioner’s daughter, namely,
Bhumika on 20.07.2011, when she had not even completed 16 years of
age. Since the police authorities had taken no steps for tracing the
whereabouts of their daughter, pursuant to the FIR filed by them, an
application under Section 97 of the Code of Criminal Procedure was
filed in the Court of learned JMFC, Bhiloda, but the search warrant
issued by the Court could not be executed. It is alleged that
respondent Nos.5 and 6 are headstrong persons and having political
influence and economically sound condition. The petition was admitted
on 28.09.2011 and Rule was made returnable on 03.10.2011. On
03.10.2011, hearing was adjourned at the request of learned APP, who
stated, on instructions of the Circle Police Inspector, Bhiloda, that
all possible efforts shall be made to trace respondent Nos.4 and 5 in
the meantime and to produce the corpus. On 18.10.2011, learned APP
stated, on instructions of DSP, Sabarkantha – Mr. D.P. Patel,
who was personally present in the Court, that everything possible
shall be done to see that the corpus could be produced before this
Court on the next date of hearing.
2. Learned
APP has produced affidavit-in-reply of DSP, Sabarkantha and letters
and reports dated 02.10.2011, 17.10.2011 and 07.11.2011. It is stated
in these reports and letters, inter-alia, that respondent No.6
herein is the Sarpanch of Village Shamlaji and he had not allowed the
petitioner to even register their complaint for 12 days. It is
revealed that respondent No.6 has already obtained bail on 06.09.2011
by order of the learned Single Judge of this Court in Criminal Misc.
Application No.12473 of 2011. That order is specifically subject to
the condition that the applicant therein, i.e. respondent No.6 herein
shall maintain law and order and cooperate with the Investigating
Officer and not act in a manner injurious to the interest of the
prosecution. According to the reports submitted before this Court,
respondent No.6 has not only not cooperated with the investigation,
but also not cared to respond to the summons issued to him on
09.10.2011. On the other hand, the investigation has revealed that he
appeared to be in contact with respondent Nos.4 and 5. As and when
the police were trying to locate accused Nos.4 and 5 by tracing their
Mobile call details, either the trail
went cold or they appeared to be contacting the other
persons involved by different Mobile instruments. When the local
residence of respondent No.6 was approached alongwith Panchas and a
Panchnama was being prepared, respondent No.6 was found to be present
and in a drunken condition and a Criminal Case being III-C.R. No.5289
of 2011 has been registered in Modasa Town Police Station. It is also
revealed that even the police custody of respondent No.6 has proved
to be futile and in some earlier cases of similar nature, FIRs were
not allowed to be registered. The respondent Nos.4, 5 and 6 appeared
to be closely related and connected, according to the police report.
It is mentioned in the report dated 02.10.2011, addressed to learned
APP by the Circle Police Inspector, that respondent No.6 is
established as a hardened criminal and about 4 months ago, he was
alleged to have caused kidnapping of a married woman by his brother,
namely, Surendra and after paying Rs.1,11,000/- and threatening the
husband and father-in-law of the victim, not allowed any complaint to
be lodged. That victim and brother of respondent No.6 are also not
found till date. According to the statement recorded on 15.08.2011 of
the husband of that woman, his wife was kidnapped in June 2011.
3. All
the above facts, revealed from the papers produced by the police,
prima facie, indicated that the police officers concerned were
practically helpless and far from sincere in pursuing the matter for
investigating the offences, while young daughter of the petitioner is
not in contact or unable to communicate with the petitioner. The
police reports also revealed that the police officers concerned were
running from one location to another at public expense right upto the
borders of the State, while respondent Nos.4 and 5 may, as well, be
forcibly confining respondent No.7 somewhere in the District of
Sabarkantha itself. Learned APP has advanced lame and unconvincing
excuse that the police is doing needful and even an application for
cancellation of bail of respondent No.6 is proposed to be filed in
the Sessions Court concerned, even as respondent No.6 is granted bail
by this Court. Admittedly, no application under Section 82 of Code of
Criminal Procedure is filed for forcing appearance of the accused
persons. An application for cancellation of bail is not even proposed
to be filed in the High Court, which granted bail to respondent No.6,
subject to the conditions as aforesaid. The mother of the corpus, who
was personally present in the Court has expressed serious
apprehension about safety of her daughter.
4. The
totality of the above circumstances lead to the conclusion that there
is a serious threat to the law and order or rule of law at the
instance of respondent No.6 on account of his influence over the
District constabulary. If married women or unmarried young girls
cannot feel safe in a particular District and if the police
department is so helpless as not to take even necessary legal
measures for securing the person and safety of the ordinary citizen,
it amounts to very serious failure on the part of the State.
5. Even
the order of this Court to call the DSP of Sabarkantha and assurance
by him, as recorded in the order dated 18.10.2011 have so far proved
to be meaningless.
6. Therefore,
taking serious view of the facts of the case and the developments
taking place during the course of investigation, the Court is
compelled to request the Home Secretary, Government of Gujarat to
remain personally present before this Court after looking into the
relevant papers of this case and request learned Government Pleader
to assist the Court in making further orders as may be required in
the circumstances of the case. In the meantime, since respondent No.6
has not remained present before this Court even after issuance of
rule and even the notice of rule is not received back till today, the
office is directed to issue bailable warrant in the sum of
Rs.25,000/- for respondent No.6 for his production before this Court
on the next date of hearing which is fixed on 16.11.2011. S.O. to
16.11.2011.
Learned
APP shall be given a copy of this order immediately for necessary
action and communication.
[D.H.WAGHELA,
J.]
[J.C.UPADHYAYA,
J.]
mrpandya
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