IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.WP No.5 of 2008 Decided on: March 3, 2009. Yogesh Kumar …..Petitioner. VERSUS State of H.P & Ors. …..Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K.Ahuja, Judge Whether approved for reporting?1No For the Petitioner: Mr. Ajay Sharma, Advocate. For the Respondents: Mr. R.M. Bisht, Dy.Advocate General for respondents No.1 to 4. Deepak Gupta,Judge (Oral) The petitioner filed the present Criminal Writ Petition in this Court under Article 226 of the Constitution of India praying that a writ of habeas corpus be issued directing the respondents to produce his wife Smt.Archana Menon and his daughter Ms.Nandini. The factual background is that the petitioner was married to Archana Menon on 1.3.2002. His wife is a well qualified person. She is a post-graduate and was employed as a teacher in the D.A.V Senior Secondary School, Ambota. The petitioner himself is also employed as a chemist. Out of this wedlock, one child Kumari Nandani was born who is about six years old at present. 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2. According to the petitioner, he and his family were living happily and leading a normal marital life in the house of one Mast Ram Thakur at Gagret. According to him on 27.6.2008 when he went to attend his job, his wife and daughter were ready to go to school. The petitioner returned home at about 6.30 p.m. and was shocked and surprised to note that neither his wife nor his daughter are present. Thereafter, the petitioner made inquiries about their whereabouts from relatives, friends and nearby villagers. He also contacted his in-laws but could not trace them. On 30.6.2008, according to the petitioner, he came to know that respondent No.5 Amit Kumar had come to his house and the petitioner’s wife and daughter had left with him. Thereafter, on 2.7.2008 the petitioner allegedly made a report to the police station, Gagret but according to him, no serious action was taken by the police. The FIR was lodged by the police only on 4.7.2008. The petitioner alleges that the police under some political pressure, is not carrying out the investigation properly. Hence he filed the present criminal writ petition. In the petition, it was also alleged that the respondent No.5 has illegally confined the wife and daughter of the petitioner at Hubli in Karnataka. 3. When the petition was initially filed, the learned Advocate General sought time to obtain instructions. Thereafter, the petitioner was directed to make himself available for investigation to the police. Accordingly, the petitioner joined the investigation. On 27.8.2008 this Court had passed the following order:- “Pursuant to the directions issued on 14.8.2008, the Investigating Officer ASI Daljit Singh Thakur is present in person. He has also produced the record and has filed the report which is taken on record. A perusal of the report shows that as per the investigation done by the police till date, the wife of the petitioner, namely, Archana Menon was found to be living with one Amit Kumar respondent No.5 at the house of Sh.Chhote Lal at Hubli in the State of Karnataka in the early part of July, 2008. Thereafter, as per the investigation both Archana and Amit Kumar have left Hubli and were reported to have gone towards Goa. It is stated that the police team is still investigating the matter and trying to apprehend them. According to the police, it appears that Ms.Archana has gone with Amit Kumar out of her own accord. At this stage, we are not deciding the matter whether Archana went with Amit Kumar willingly or not. However, be that as it may, the fact remains that there is minor child of the petitioner who is also involved. This child Kumari Nandini was studying in the school at Ambota. We have to ensure that she is traced out so that she is properly looked after. The police is directed to investigate this matter and trace the minor child at the earliest.” 4. When the matter came up before this Court on 16.9.2008, the learned Deputy Advocate General informed the Court that though the police had sent three teams to Karnataka, Bombay and Goa, neither Mrs.Archana nor Kumari Nandini could be traced out. He also placed on record a fax message purported to have been received from Ms.Archana. This document appears to be a photocopy of an affidavit purportedly sworn by Ms.Archana stating therein that she has left the house of her husband of her own free will. Keeping in view the above facts, we had passed the following order on 16.9.2008:- “As we had already indicated in our order, dated 27.8.2008, this Court is more interested in finding out the whereabouts of Kumari Nandini, the minor child, who has been taken out of the State of Himachal Pradesh. We are not sure that she is studying in some school or not. We are surprised not note that the police has failed to trace out Ms.Archana or the minor child Kumari Nandini, till date. We, therefore, direct the Superintendent of Police, Una to ensure that adequate steps are taken to produce Ms.Archana and the minor child Kumari Nandini on the next date i.e. 30th September, 2008. In case they are not produced before this Court on the said date, the Superintendent of Police, Una shall remain personally present in the Court on the next date.” 5. On 30.9.2008, the Superintendent of Police, Una was present in the Court alongwith his other subordinate police officers. On that date, the police produced before us an affidavit signed by Mrs.Archana in which she had stated that she had left her marital home at her own free will. This Court also observed that probably Mrs.Archana might have gone of her own free will. This Court however, observed that Kumari Nandini is still in the company of Amit Kumar and Mrs.Archana. Thereafter, the Director General of Police, Himachal Pradesh was directed to personally supervise the investigation and find out ways and means to trace out the missing lady and minor daughter and was given liberty to constitute a special investigation team, if necessary. The Director General of Police was also required to file personal affidavit in this regard. This affidavit was filed by the Director General of Police on 14th October, 2008 wherein he stated that he had constituted a special team under the charge of Shri Venugopal, Superintendent of Police, Una. He enumerated various steps which had been taken by the police to trace out Mrs.Archana Menon and her daughter Nandini. On 15.10.2008 we had expressed satisfaction in respect of the manner of investigation and directed the respondents to complete the same within three weeks. 6. However, the investigation was not completed and on 5.11.2008 we had passed an order expressing dis-satisfaction with the investigation since the investigating team had not looked into the details of the withdrawals made by Amit Kumar using his ATM Card. Thereafter, another status report was filed by the Superintendent of Police supporting by an affidavit that on inquiry made by the police from Sh.Gagan Sharma, they had come to know that Amit Kumar alongwith Archana Menon and her daughter Nandini had stayed in Gagan Sharma’s house at Hubli in Karnataka between 3.7.2008 to 7.7.2008. The details of the mobile phone of Amit Kumar were traced and it was found that he had called his friend Arun Kumar from Madanpur, District Patiala. The said phone number was kept under observation. The police investigated the ATM card of Naresh Kumar, father of Amit Kumar and found that no transaction had been done by Amit Kumar. The relatives of Amit Kumar were interrogated but they could not give the whereabouts of Amit Kumar. 7. Another status report was filed by the Superintendent of Police on 6.1.2009. The Investigation Officer mainly interrogated the relatives of Amit Kumar. He also interrogated a number of Taxi drivers who had worked alongwith Amit Kumar who was also a Taxi driver. The Police team also went to Gaziabad. According to the police, despite investigation being conducted, the whereabouts of Mrs.Archana Menon and her daughter Nandini could not be traced out. Even the parents of Archana Menon have been unable to give the details regarding the whereabouts of their daughter. Wide publicity has also been made but neither Archana nor her daughter Nandini could be traced out. This Court on 8.1.2009 perused the report submitted by the police and on the same date rejected the prayer made by the learned counsel for the petitioner to change the Investigating Officer. Fresh status report has been filed by the police on 25.2.2009 giving further details of the investigation. On inquiry from the relatives and friends of the missing Amit Kumar, Archana Menon and her minor daughter Nandini, no new clues were discovered. 8. Shri Ajay Sharma, learned counsel for the petitioner has again prayed that the Investigating Officer should be changed. In view of order passed on 8.1.2009 rejecting the same prayer such an argument cannot be accepted. 9. Shri Ajay Sharma has also contended that we should continue with this petition till Archana Menon and Kumari Nandini are produced in Court. We are unable to accept this argument also. A perusal of the record of this case shows that this Court has been giving directions to the police from time to time and has been monitoring the progress in the case for the last almost eight months. This Court cannot continue to monitor such proceedings endlessly. It appears from the record that Mrs.Archana has left the petitioner and has eloped with Amit Kumar of her own free will. 10. We are of the considered view that it is the duty of the police to make all attempts to trace out the minor child. We are concerned with the welfare of Kumari Nandini who has been taken out of the custody of her father. However, it is apparent that the minor is in the custody of mother who is also her natural guardian. We are of the considered view that no fruitful purpose will be served by continuing the monitoring of the investigation. 11. We, therefore, dispose of this writ petition with a direction to the respondents to ensure that investigation is carried out in right earnest and not in a mechanical manner. We further direct the respondent No.2-Director General of Police, Himachal Pradesh, Shimla to personally monitor the investigation. The child Kumari Nandini’s future is at stake. We are not even sure whether she is attending school for the last one year. We are of the view that it would be a sad day if the Himachal Pradesh Police gives up and states that they cannot trace out the minor child. Neither Amit Kumar nor Kumari Archana Menon are hardened criminals. Such persons cannot change their identity nor can they keep hiding for eternity. The police should be able to trace out such persons. We further direct that the respondents shall complete all the investigation within three months from today and will file a challan in the Court concerned within this period. In case the petitioner is aggrieved by the report of the police, he can take appropriate action in accordance with law. The petition is disposed of with the aforesaid observations. ( Deepak Gupta ) Judge. (V.K.Ahuja) March 3, 2009(m) Judge