IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.485 of 2008 MD. TALIB ……………. PETITIONER Versus 1. STATE OF BIHAR 2. INSPECTOR GENERAL OF POLICE BHAGALPUR 3. DEPUTY INSPECTOR GENERAL OF POLICE, BHAGALPUR 4. SUPERINTENDENT OF POLICE, BANKA 5. OFFICER-INCHARGE AMARPUR, JAHAGIR ALAMKHA …RESPONDENTS ----------- For the petitioner: Mr. Jajesh Kumar Singh Mr. Rajiv Ranjan Singh, Advocates For the respondents : Mr. S.K.Ghose, AAG – II Mr. G.G.Tiwari, JC to AAG - II --- P R E S E N T Hon'ble the Chief Justice And Hon'ble Mr. Justice Kishore K. Mandal --- Dated, the 22nd October, 2008 Md. Talib has filed this petition for habeas corpus seeking production of Nikhat Praveen and then giving her custody to him. In the writ petition, no specific relationship which the petitioner has with Nikhat Parveen has been stated. Relying upon some documents annexed with the writ petition, it is submitted that the petitioner is duly married husband of Nikhat Parveen. 2. According to the petitioner, on 27th September, 2007 some persons entered his house and forcibly took away Nikhat Parveen. The petitioner is also said to have filed a criminal case at Amarpur Police Station being P.S. Case no.220 of 2007. 3. In the writ petition, the petitioner has alleged that Nikhat Parveen’s father was also kidnapped by these very persons; they demanded a sum of rupees two lacs from him but the said 2 amount could not be given as it was not possible for her father to pay that amount. 4. The petitioner has also alleged that the accused persons (they have not been made party in this petition) always tortured the victim’s family and the petitioner and his family members. Few letters have been annexed with the writ petition. It is stated that by failing to protect Nikhat Parveen, the authorities have violated Article 21 of the Constitution of India. 5. The matter came up before us on 24th June, 2008. On that day Additional Advocate General – II prayed for time for filing counter affidavit. He also submitted that all efforts shall be made to trace Nikhat Parveen and, if possible, produce her before the court on 17th July, 2008. Counter affidavit was filed on 16th July, 2008 by the Superintendent of Police, Banka. Inter alia, in the counter affidavit, the following statement has been made in paragraphs – 11,12, 13 & 14: “11. That it is submitted that the process against the absconding Md. Rizwan @ Tinku has been obtained. The effort is being made to arrest Md. Rizwan. A task force has been organized by the S.P. Banka vide memo no.1388 dt. 25.6.08 and every effort is being made to recover the victim lady. Several raids have been made on receipt of information in and around Banka, Bhagalpur and Munger districts. 12. That it is submitted that the force unit has also sent to Delhi vide memo no.1610/CR dt. 29.6.08 to recover the victim lady. 13. That it is further submitted that the aforesaid force unit informed that the victim lady is not in Delhi and has been moved to Mumbai. Immediately the same force unit was directed to rush for Mumbai. From Mumbai the 3 force unit returned as they were unable to trace the lady. 14. That with a view to comply the Hon’ble Court’s order to produce the lady, the S.P.Banka vide memo no.1753 dt. 12.7.08 constituted another team under the headship of S.D.P.O. Banka. This team is on job as of today.” 6. In the light of the allegations in the writ petition, which appeared to us to be quite serious, by our order dated 17th July, 2008, we directed the police authorities to make all efforts in tracing Nikhat Parveen for her production before this court. The matter was adjourned to 4th August, 2008. A supplementary counter affidavit was filed by the Superintendent of Police, Banka on 4th August, 2008, wherein the details of the steps taken by the police authorities in tracing Nikhat Parveen were set out. We adjourned the matter to 26th August, 2008. On 26th August, 2008, a further time of four weeks was granted to the police authorities for production of Nikhat Parveen before this court. When the matter came up before us on 26th September, 2008, an affidavit by Barmeshwar Prasad Singh, Deputy Superintendent of Police (Headquarters), Banka was handed in, wherein the following statement was made in paragraphs 8, 9 & 10: “8. That it is submitted that after receipt of requisition vide memo no.1308 dated 01.09.2008 from the Sub-Divisional Police Officer, Banka it was directed to Sub-Inspector Sanjay Kumar Pandey, Assistant Sub- Inspector S.N. Singh and one lady constable were directed to proceed for Mumbai for recovery of the victim lady by keeping top secrecy by the respondent no.4. 9. That it is submitted that a progress report was submitted by the Sub-Divisional Police Officer, Banka on 4 02.09.2008. It appears from the perusal of the said report that charge-sheet has been submitted against the first information report named accused Md. Halim and also against non-first information report named accused Md. Anwar and Md. Azam alias Kala Munna showing named accused Md. Rizwan alias Tinku as absconder and the case is still pending for the recovery of Nikhat Praveen. During investigation and inquiry by the respondent no.4 in the village of the complainant and the accused it transpired through informant and witnesses that the near relatives of accused Md. Rizwan at present reside in Mumbai and kidnapped victim lady and accused Md. Rizwan alias Tinku are also residing secretly. It was directed to Investigating Officer for arresting non-first information report accused whose complicity appears during investigation and also to recover the kidnapped victim lady. 10. That it is further submitted that vide memo no.1361/08 dated 20.20.2008 the Sub-Divisional Police Officer, Banka has again submitted a progress report from 21.08.2008 to 18.09.2008. It appears from the progress report that best efforts have been taken by special task force to procure the kidnapped victim lady Nikhat praween by making different raids at different places and maternal uncle of Md. Rizwan alias Tinku namely Jaffu Khan alias Jafar Khan has been arrested in Mumbai with the help of Mumbai Police. Maternal uncle of the accused Md. Rizwan was produced before the court of learned Additional Chief Metropolitan Magistrate (XI) Kurla, Mumbai and on remand said accused was brought at Banka. At present raid is being conducted by the police personnel of special task force namely Sanjay Kumar Pandey in Mumbai after getting information of possible hide outs.” 7. In the light of the aforenoticed affidavit of Barmeshwar Prasad Singh, Deputy Superintendent of Police (Headquarters), Banka, we adjourned the matter for today. 8. Mr. S.K.Ghosh, Additional Advocate General – II, at the outset today handed in another affidavit of Barmeshwar Prasad 5 Singh, wherein the following statement has been made in paragraphs 6,7,8 & 9: “6. That it is submitted that prior to receipt of the Hon’ble Court’s order, on 24.9.2008 the victim lady was recovered by the I.O., on secret information, from Banka Bus-Stand and the I.O. produced the victim lady before the learned Chief Judicial Magistrate, Banka, and a requisition for recording statement of the said kidnapped victim lady under section 164 of the Cr.P.C. was filed before the learned Chief Judicial Magistrate, Banka, by the I.O. On the said requisition learned Chief Judicial Magistrate, Banka directed Sri Janardan Tripathi, Judicial Magistrate, Ist Class, Banka to record the statement of victim. 7. That the statement of kidnapped victim was recorded on 24.9.2008 by Sri Janardan Tripathi, Judicial Magistrate, Ist Class, Banka. 8. That it is humbly stated that on 25.09.2008 learned Chief Judicial Magistrate, Banka, has passed order and allowed the victim to live with her sister on executing personal bond. It has also been mentioned in said order that brother-in-law of kidnapped victim has been kept as witness in the said bond. This has already been mentioned in para 123 of the supplementary case diary. 9. That it is necessary to mention here that in the aforesaid writ petition date was fixed on 26.9.2008 and victim was recovered by the I.O. of this case on 24.9.2008. After recovery of the victim it was essential for the I.O. to record her statement under section 164 Cr.P.C. Since the victim lady, Nikhat Praveen was in advanced stage of pregnancy, it was very difficult to produce her in the Hon’ble Court on 26.09.2008. It is pertinent to mention here that the victim lady delivered a baby on 28.09.2008 i.e., just 03 (three) days after her being recovered. Now as the lady and the baby are in better condition, she is being produced before the Hon’ble Court.” 9. Nikhat Praveen is present before us. To our query, she stated that she has married Rizwan Khan resident of Sultanpur, Police Station Amarpur, District, Banka on 8th November, 6 2007, and since then she has been residing there. That she is major is not in dispute. She further stated that from the date of her marriage i.e., 8th November, 2007, she has been residing with her husband Rizwan Khan and that she desires to reside with him only. She has also delivered a child on 27th September, 2008 fathered by Rizwan Khan. 10. Having bestowed our thoughtful consideration to the entire matter and the statement of Nikhat Praveen, we have no hesitation in observing that the process of habeas corpus has been abused by the petitioner. From the statement of Nikhat Praveen which is categorical, unambiguous and clear, no doubt is left that she contracted marriage with Rizwan Khan and has been residing with him since 8th November, 2007. The marriage contracted by Nikhat Praveen with Rizwan Khan which may not be to the liking of her father and the petitioner, a false case of kidnapping and ransom has been set up and bogey voiced that liberty of Nikhat Praveen has been jeopardized. Since the matter related to the liberty of a young woman, all efforts were being made by the police authorities to trace her out and as a matter of fact the Special Task Force was constituted. However, since the allegations in the writ petition appear to us to be false, we are of the considered opinion that to contain such frivolous petitions before this court, exemplary cost deserves to be imposed on the petitioner for having abused the 7 process. We quantify the cost at Rs.25000/-. 11. Writ petition is, accordingly, dismissed with cost. The petitioner is directed to deposit the cost of Rs.25000/- with the registry of this court within four weeks from today. Upon deposit of the said amount, it will be open to the respondents to withdraw that amount. In case the petitioner fails to deposit the amount of cost within four weeks, the respondents shall be free to recover the said amount from the petitioner as arrears of land revenue. R. M. Lodha, CJ. Kishore K. Mandal, J. Neyaz/- 8