IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.W.J.C. No.302 of 2011 KULDEEP MANDAL, son of Sri Yogendra Mandal, resident of village Sukhsarobar, P.S. Shahkund, District Bhagalpur acting as Regional Director of Bhagalpur Region on behalf of Muskan Project with its Head Office at L.C.T.Ghat, Mainpura, Patna, P.S. Pataliputra, Town and District Patna … Petitioner Versus 1. THE STATE OF BIHAR 2. The Home Secretary, Department of Home Affairs, Bihar, Patna 3. The Director General of Police, Patna 4. The Inspector General of Police, Central Zone, Patna 5. The City Superintendent of Police, Patna 6. The Senior Superintendent of Police, Patna 7. The Officer In-charge, patliputra Police Station, Patna 8. Shri Nirmal Kumar, Investigating Officer of Pataliputra P.S.Case No. 220/10, Patliputra Police Station, Patna … Respondents ----------- 4. 28.4.2011 Heard counsel for the parties. The petitioner in this writ application has prayed for the following relief: “(i) Direction be issued the respondents authorities to make release the person as named in Patliputra P.S.Case No. 220/10 dated 2.12.2010. (ii) Direction be issued to the respondents authorities to produce Rudra Deo (victim) in the court after release. (iii) Direction be issued to the respondents authorities to ensure the true investigation of the case as aforesaid and further to take 2 necessary action forthwith in the interest of justice.” From the reading of the writ application as this Court had found that there was some internal dispute among the office bearers of a non-governmental organization (N.G.O.), namely, Muskan Project, wherein huge amount of the said N.G.O. was misappropriated and defalcated by the alleged kidnapped person, namely, Mr. Rudradeo it had passed the following the order on 15.3.2011: “As prayed on behalf of State, four weeks time is granted to seek instruction from the respondents, particularly the Senior Superintendent of Police, Patna who should also disclose whether the alleged victim Rudra Deo, Director- in-Chief of an organization described as “Muskan” is facing any criminal case or not and what is the information with the police regarding the where-abouts of Rudradeo. Put up under the same heading after four weeks.” Pursuant thereto respondent no.6, the Senior Superintendent of Police, Patna has filed his counter affidavit wherein it 3 has been stated as follows: “7. That several cases were filed at Muzaffarpur, Bhojpur (Ara) and Patna by several persons alleging therein inter alia that fraud was played with them and a huge amount of money were misappropriated by Rudradeo and his associates under different schme of Muskan Project in different district which is as follows: (I) Patliputra P.S.Case No. 54/2010 dated 23.3.2010 was instituted on the basis of written report of Labour Superintendent, Patna for the offences punishable u/s 406/420/34 I.P.C. against Rudradeo, Akhileshwar Singh and Ajay Kumar Pandey. During course of investigation, this case has been found true against the F.I.R. named accused persons. On conclusion of investigation of this case charge sheet No. 209/10 dated 30.9.2010 has already been submitted against all the accused persons. (II) Patliputra P.S.Case No. 50/11 dated 12.3.2011 u/s 406/420/467/468/ 471/421 and 123(B) I.P.C. has been instituted at the instance of the informant namely Ashwani Tiwary against Rudradeo and 12 others (all associates of Rudradeo) alleging therein 4 misappropriation about Rs. 150 crores by the accused persons from different persons to grab of different scheme under Muskan Project. During course of investigation, this case has been found true against the accused persons. Till date 5 F.I.R. named accused persons i.e. 1. Bijendra Tiwary, 2. Ajay Kumar Singh, 3. Akhileshwar Singh, 4. Gyan Prakash and 5. Swami Jitendra have been arrested and forwarded to the Judicial custody. Investigation of this case is underway. (III) Koilwar P.S.Case No. 05/11 dated 7.1.2011 u/s 420/406/34 I.P.C. was instituted against Rudradeo and 8 others on the basis of the report of one Uma Shankar Choudhary of Bhojpur (Ara) District. (IV) Muzaffarpur Sadar P.S.Case No. 90/11 dated 16.3.2011 has been registered against accused Rudradeo Director-in-Chief and others on the basis of written complaint of the informant namely Ashok Kumar Jha, which was forwarded u/s 156(3) Cr.P.C. to S.H.O. Muzaffarpur Sadar through the Superintendent of Police, Muzaffarpur. The complaint/ informant has alleged that he alongwith 49 others who figures in the complaint as witness were 5 cheated by F.I.R. named accused persons and a huge amount was misappropriated by them which has been collected from the complaint and the witness. (V) Another written complaint was filed at Muzaffarpur in the court of C.J.M. by informant namely Kanchan Mala which was forwarded to S.H.O. Sadar Police Station Muzaffarpur to institute F.I.R., accordingly Muzaffarpur Sadar P.S.Case No. 91/2011 dated 16.3.2011 was registered u/s 406/420/34 and 120B I.P.C. against accused Rudradeo and 6 other persons. 8. That it is relevant to mention here that a criminal case has been also found to be registered against Rudradeo in Delhi vide Paharganj P.S.Case No. 536 of 2003 dated 5.12.2003.” Thus, it becomes clear that the alleged kidnapped person whose recovery and production has been prayed by the petitioner has a chequered criminal record and therefore, the possibility of his absconding on his own to save himself from the public gaze and the criminal cases cannot be altogether ruled out. As a matter of fact the Senior 6 Superintendent of Police in his counter affidavit has further explained that the alleged kidnapped person Rudradeo is operating incognito as was found by the Investigating Officer of the police case filed at the instance of the petitioner being Patliputra P.S.Case No. 220/2010. In paragraph 11 of the counter affidavit the Senior Superintendent of Police has stated as follows: “11.That it is pertinent to mention here that the I.O. of Patliputra P.S.Case No. 50/11 has obtained the statement of Bank account of Rudradeo. It is apparent from the bare perusal of the Bank account of Rudradeo that Rudradeo has operated his account and withdrawn money from his account ill 16.3.2011.” We have closely perused the enclosed documents including the Bank statement in the counter affidavit and from them it appears that several transactions have been made by Rudradeo in the period he is said to have been kidnapped as alleged by the petitioner. It has to be noted that in the complaint cum F.I.R. the petitioner has given a specific date of 11.10.2010 since 7 when Rudradeo is said to have been kidnapped and missing but the withdrawal through cheque from his Bank account in the State Bank of India has been made even on 8.3.2011 and 16.3.2011. Thus, it would be difficult for this Court to hold that the alleged Rudradeo is in illegal confinement. This Court, however, would not like to prejudge the issue, inasmuch as the substantive police case has already been registered for the alleged kidnapping of Rudradeo and the police is also investigating the same from all angles. In this context paragraph 9 and 10 of the counter affidavit reading as follows: “9.That with regard to the information with the police regarding the where about of Rudradeo, it is pertinent to mention here that no one family member of the alleged victim Rudradeo has neither informed the concerned Police Station nor instituted any case about the missing/ kidnapping of Rudradeo in any Police Station, rather the petitioner has filed a complaint petition before the C.J.M., Patna in lieu of giving any information to Patliputra Police Station same 8 day with regard to kidnapping of Rudradeo and made accused to his associates. If Rudradeo was really kidnapped than the family members of Rudradeo should have to inform to the concerned Police Station, but the family members of Rudradeo did not do so. However a sincere effort is going on to find out the where abouts of Rudradeo. Investigation of Patliputra P.S.Case No. 220/10 is going on impartially on all point. 10. That the Patliputra P.S.Case No. 220/10 dated 20.12.2010 was registered on the basis of Court complaint petition filed by the informant Kuldeep Mandal the petitioner for the charge of kidnapping of Rudradeo, Director- in-Chief. Muskan Project. The Deputy Superintendent of Police, law and orders Patna has himself supervised this case by visiting the place of occurrence in presence of I.O. of this case. During course of supervision and investigation, no evidence has been found to prove the incident true. During investigation it is found that so many cases have been registered against Rudradeo for the charge of misappropriation of money and forgery and due to that the alleged victim Rudradeo is absconding.” 9 would by itself go to show that the version of kidnapping given by the petitioner has not been found to be true till date by the police. Be that as it may this Court would find it difficult to hold that Rudradeo is in illegal confinement of any person and consequently this writ of Habeas Corpus during the continuance of a criminal case already filed by the petitioner initially by way of a complaint case and later on registered as a police case, Patliputra P.S.Case No. 220/10 dated 20.12.2010 is wholly misconceived. The case of the petitioner before the police is that certain set of named persons had kidnapped Rudradeo and that is how the police has registered the case for offence under sections 364/120/34 of the Indian Penal Code. The petitioner having already made the criminal law to move into action now cannot come out to say by way of writ habeas corpus, inasmuch as it is still to be found out as to whether the allegation of kidnapping of Rudradeo as alleged by the petitioner an official of the N.G.O., Muskan 10 in capacity of the informant against other officials of the aforesaid N.G.O., is correct. The police during the course of investigation as noted above has found that not only Rudradeo to have a chequered criminal history but in fact also very much moving around and operating his Bank account in the State Bank of India. We would therefore not like to comment anything further as with regard to activities of Rudradeo or his whereabouts but this much is clear that all is not well in the petitioner‟s non-governmental organization „Muskan‟ and thus the possibility of criminal case itself being an outburst of personal rivalry between the concerned persons connected with the N.G.O., Muskan can also not be ruled out. We, however, would not like to prejudge the issue involved in the investigation of the criminal case filed by the petitioner and leave him to take recourse before appropriate forum/ court in relation to his pending criminal case. We would, accordingly, also clarify that nothing said in this order will prejudice rights of any 11 of the party to this writ petition. With the aforesaid observation, this application is, accordingly, dismissed. (Shyam Kishore Sharma,J.) (Mihir Kumar Jha,J.) Surendra/