Writ Petition (Habeas Corpus) No. 13 of 2016. Case: Nirmala Patel Vs The State of Chhattisgarh and Ors.. Chhattisgarh High Court

Case Number:Writ Petition (Habeas Corpus) No. 13 of 2016
Party Name:Nirmala Patel Vs The State of Chhattisgarh and Ors.
Counsel:For Appellant: Parag Kotecha, Advocate and For Respondents: Y.S. Thakur, Addl. Advocate General
Judges:Pritinker Diwaker, Actg. C.J. and Sanjay K. Agrawal, J.
Issue:Code of Criminal Procedure, 1973 (CrPC) - Sections 107, 116; Constitution of India - Articles 21, 226, 32; Indian Penal Code 1860, (IPC) - Sections 294, 323, 34, 506
Judgement Date:February 28, 2017
Court:Chhattisgarh High Court
 
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Order:

Sanjay K. Agrawal, J.

  1. Habeas corpus "ad subjiciendum" means "that you have the body to submit or answer" which is called as Festinum Remedium - A speedy remedy, which has been sought by the petitioner in this instant case. The aforesaid writ of Habeas Corpus has been sought by the petitioner on the following factual backdrop:-

  2. The petitioner has filed this writ petition stating inter alia that she and her husband are residents of Village Tilaervar, Police Station Dongargaon, Distt. Rajnandgaon and her husband went missing since 15-1-2016, his whereabouts are unknown to her since that date and she has lodged report to the official respondents but there is complete inaction and indifferent attitude on the part of the State and its authorities who have not taken any steps to find out her missing husband and she apprehends that respondents No. 6 to 13 had taken away her husband and had done some wrongful act with him, as they used to harass her and her husband. It has been further pleaded that respondents No. 6 to 13 have encroached upon the petitioner's land and started construction over it and they are very politically influential persons and had also withdrawn all the relations with the petitioner and her husband at village level. The petitioner further apprehends that respondents No. 6 to 13 have murdered her husband Ramadheen and the police has only registered missing report and therefore appropriate writ of Habeas Corpus be issued by directing respondents No. 1 to 5 to produce Ramadheen before this Court and also sought registration of criminal case against respondents No. 6 to 13.

  3. On being noticed, the State and its authorities have filed their return clearly stating inter alia that the petitioner and her husband have encroached upon the Government land on which a community hall has to be constructed by the Gram Panchayat but that could not be constructed on account of dispute being raised by the petitioner and her husband. Police Station Dongargaon has filed as many as three istegashas against the petitioner and her husband. Sarpanch of Village Tilaervar - respondent No. 6 has also registered cognizable case against the petitioner and her husband on 11-6-2015 under Sections 294, 506 and 323 read with Section 34 of the IPC. A case under Sections 107 and 116 of the Cr.P.C. has also been registered vide Annexure R-6. It has been said that there is no violation of any fundamental right of the petitioner as alleged by her in the petition, rather the petitioner and her husband are rank encroachers upon the Government land and the petitioner has also filed complaint case before the Judicial Magistrate First Class, Rajnandgaon in which the Judicial Magistrate has directed for enquiry by order dated 17-9-2015 and enquiry report has also been submitted to the Judicial Magistrate which has been filed along with the return.

  4. The private respondents have also filed their return and made averments in line with the return filed by the State Government.

  5. Mr. Parag Kotecha, learned counsel appearing for the petitioner, would submit that respondents No. 6 to 13 are very influential persons and they have encroached upon the Government land. He would further submit that the petitioner's husband is missing since 15-1-2016 and police has not taken any action except registering a missing report and as such, appropriate writ of Habeas Corpus be issued directing respondents No. 1 to 5 to produce petitioner's missing husband Ramadheen.

  6. Mr. Y.S. Thakur, learned Additional Advocate General appearing on behalf of the State/respondents No. 1 to 5, would submit that it is not the case of the petitioner that Ramadheen, the missing person, has been unauthorisedly detained either by the official respondents or by respondents No. 6 to 13 or he has...

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