IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY, THE 22ND DAY OF DECEMBER 2011/1ST POUSHA 1933 WPCR.No. 582 of 2011 (S) ------------------------ PETITIONER(S): ---------------------- ANIL KUMAR V.R., AGED 39, S/O.P.RAMAN PILLAI, BUSINESS, SNEHA SADANAM, MARUTHATHOOR P.O., TRIVANDRUM DISTRICT. BY ADV. SRI.BINDU SREEKUMAR RESPONDENT(S): -------------------------- 1. SATHI KUMARI, AGED 46 YEARS, W/O.VIJAYA KUMAR, 306, PULLIYIL VEEDU, 11 - KODANGAVILA, ATHIYANNUR, NEYYATTINKARA -695 121. 2. SUB INSPECTOR OF POLICE, NEYYATTINKARA POLICE STATION .PIN-695 121. 3. THE STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. R2 & R3 BY DIRECTOR GENERAL OF PROSECUTION SRI.ASIF ALI BY GOVERNMENT PLEADER SMT.KOCHUMOL KODUVATH THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 22-12-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(CR)NO.582/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE MARRIAGE CERTIFICATE DATED 17/12/2011. P2 COPY OF THE RECEIPT DATED 25/09/2011 P3 COPY OF THE I.D.PROOF OF THE 1ST RESPONDENT DATED 20/05/1997. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts THOTTATHIL B.RADHAKRISHNAN & C.T.RAVIKUMAR, JJ. ----------------------------------- W.P(Crl.).No.582 of 2011 ------------------------------------ Dated this the 22nd day of December, 2011 JUDGMENT “C.R.” Thottathil B.Radhakrishnan,J. 1.Petitioner complained to the jurisdictional police that his wife is missing. Police does not dispute that Ext.P2 was issued to him acknowledging receipt of that complaint. Their version is that on the date of receipt of that complaint, the petitioner's wife came to the police station with another woman, Sathikumari; that on counselling by the police, it appeared that the petitioner’s wife is not happy with him and wants to live apart. According to the police, they, therefore, let her go with the aforesaid Sathikumari. Whatever be the impression gathered by the police officers on their interaction with the petitioner, his wife and Sathikumari; we are unable to accept that the course of action adopted by the police was in accordance with law. On WPCR.582/11 2 the face of the petitioner's complaint that a person is missing, what would have happened to the police in connection with that acknowledged reporting of a person missing, if the petitioner's wife cannot be traced thereafter? Why should the uniformed police face such a situation? 2.Section 57 of the Kerala Police Act, 2011, for short, "the Act", prescribes the action to be taken when information is received that a person is missing. That provision reads as follows: “57. Police to attempt to locate missing persons.- (1) Whenever a Station House Officer receives any information from which he reasonably suspects that any person is missing and there are circumstances to believe that,- (a) such person is in danger or not under the protection of lawful guardianship; or (b) such person may be subjected to some dangerous offence; or (c) such person is absconding himself to prevent someone from implementing a lawful right declared by any Court, such officer shall register the information in a manner similar to the procedure prescribed for a cognizable offence and take immediate WPCR.582/11 3 action to locate the missing person. (2) During such enquiries such officer or any officer deputed by him may examine and record the statement of any witness and search any place. (3) All persons shall answer truthfully to any question by a Police Officer enquiring this matter and a copy of such statement recorded by that officer shall be given to the witness and after getting such copy, the witness shall sign and acknowledge that such copy has been received. (4) All searches under this section shall be done in accordance with the provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974). (5) The missing person if found on enquiry shall forthwith be handed over to the responsible guardian or produced before the Magistrate having jurisdiction. (6) Where the person so produced is a woman or a child the Magistrate shall take such steps as are needed to safeguard the privacy and interest of that person.” 3. In terms of sub-section 1 of section 57 of the Act, it is obligatory that the information regarding the missing of a person shall be registered in a manner similar to the procedure prescribed for a cognizable offence. Immediate action has to be then taken, to locate the missing person. WPCR.582/11 4 4. The application of mind that may be called for as a prelude to the registration of the information in terms of sub-section 1 of section 57 of the Act is only to ascertain, from the information given, as to whether there are circumstances to believe the existence of any of the situations enumerated in clauses (a), (b) & (c) of sub-section 1 of section 57 of that Act. In some exceptional cases, there could also be circumstances which may not fall squarely under clauses (a) to (c) of sub-section 1 of section 57 of the Act. The enumeration of the three clauses, (a), (b) & (c), in sub- section 1 of section 57 of the Act is made only to indicate that if there are circumstances to believe that any of those situations exists, the information has to be registered. They are the situations, legislatively conceived; but not exhaustive. It depends on the wisdom of the police. A police officer may see zones beyond the legislative indications. Therefore, the police is not confine to the situations envisaged in the three clauses of Section 57(1) to register a case where a person is, allegedly, missing. WPCR.582/11 5 5.The exercise of formulation of opinion for the purpose of sub-section 1 of section 57 of the Act has to be immediate; on the basis of the complaint, or information given to the police. In the case in hand, when the petitioner had given information that his wife is missing. The Station House Officer had to, inexcusably, register that information. Station House Officer cannot keep any information received in terms of section 57 of the Act, without registering it following the procedure prescribed for a cognizable offence. Following registration of the information, appropriate immediate action has to be taken to locate the missing person. 6. Sub-section 5 of section 57 of the Act provides that the missing person, if found on enquiry, shall forthwith be handed over to the responsible guardian or produced before the Magistrate having jurisdiction. Whether a person, who may come and claim to be the “responsible guardian” of one who is traced out, is one who can be treated as a responsible WPCR.582/11 6 guardian for the purpose of sub-section 5 of section 57 of the Act, may also, in a given case, be a matter on which a decision may be required. In cases where the identity of the person who comes claiming to be the “responsible guardian” is doubtful, that issue could be considered and resolved only by a judicial authority since it is that institution, the judiciary, which has the power to adjudicate on such controversies. It would only be advisable that the handing over of the missing person to the so-called “responsible guardian” is done only after ascertaining the identity of the guardian, to the satisfaction of the jurisdictional Judicial Magistrate. Having regard to the format of Part III of the Constitution, particularly, Articles 21 and 14, we see no other way to protect the fundamental human rights of the person concerned against all challenges that we visualise. Therefore, in all cases where the information of the missing of a person is registered and the said person is traced out, the police shall proceed under sub-section 5 of section 57 of the Act and that person shall be produced before the Judicial WPCR.582/11 7 Magistrate having jurisdiction. It is the unbuilt mandate of law that the missing person, on being found, shall not be released off by the Station House Officer; but shall be produced before the jurisdictional judicial Magistrate. 7. While ensuring production in terms of what is stated above, the police is duty bound to ensure that all statutory requirements, safeguards and protection, including as to privacy and interest of the person being so produced, are maintained, while presenting that person, before the judicial Magistrate who, on such a production, shall also take care of such relevant matters, as are indicated in sub-section 6 of section 57 of the Act. Any violation of this requirement could also result in breach of human rights norms. 8. Failure to follow due procedure established by law is nothing but defiance of law. The foundation of Section 57 of the Act can be traced to different provisions of the Constitution of India, securing the fundamental rights of the WPCR.582/11 8 citizens, particularly as to liberty and equality in terms of Articles 21 and 14 thereof. Liberty issues arise not only in connection with detentions. The State is bound by the Constitution and the laws to guard zealously, the pristine and basic right of any languishing citizen, to be traced out of any illegal detention. 9.Why should police, which is merely a limb of the executive, under the existing system of governance, take upon itself the responsibility to finally answer the issue as to whether a particular person was on illegal detention or not? It is the judiciary alone that can be vouchsafed with the pivotal authority to clarify and state with authority as to whether a particular person, who is allegedly missing, has, either surfaced, or, has been traced out to the satisfaction of the constitutional conscience of the system of governance in terms of the Indian Constitution. Judicial determination excludes allegations of administrative despondency, WPCR.582/11 9 including that of the police. This is necessary to preserve the confidence of the People in the system. 10.Therefore, for all intents and purposes in terms of the Constitution and the Act, which has fallen for consideration, it is declared, directed and ordered that in all cases of information relating to missing of any person, the jurisdictional police, through the appropriate Station House Officer, is duty bound to register that information following the procedure that has to be adopted for registering a cognizable offence in terms of the Code of Criminal Procedure. It is further ordered that upon the registration in terms of what is aforesaid, the police shall take all efforts to trace the missing person; and, upon being traced, that person shall be produced, without fail, before the jurisdictional Judicial Magistrate, including to decide on the question whether the said person has to be released or permitted to go with a person who claims to be the “responsible guardian” of the person so traced out. WPCR.582/11 10 11. For the aforesaid reasons, it is directed that the second respondent shall look into the information, of which Ext.P2 is the receipt; take necessary action forthwith for considering its registration in accordance with the statutory directions contained in section 57 of the Act, to obtain enquiry in terms of that provision and deal with the matter in accordance with law, and if found necessary, close the matter, ultimately, only in terms of the relevant provisions of law as enunciated above. If the person reported to be missing is traced out, she shall be produced before the jurisdictional Judicial Magistrate, in accordance with sub- section 5 of section 57 of the Act. Let this be done without fail, at any rate, within three weeks of the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. WPCR.582/11 11 This judgment having been dictated in the presence of the Director General of Prosecutions, we request him to ensure its contents gain attention of all the police officers throughout the State of Kerala, through appropriate Circular that may be issued by the State Police Chief. We are sure that this shall be done without fail. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- C.T.RAVIKUMAR, Judge. tks/kkb.