Afzal Vs. State of Haryana
[1993] INSC 523 (8 December 1993)
VENKATACHALLIAH,
M.N.(CJ) VENKATACHALLIAH, M.N.(CJ) MOHAN, S. (J) CITATION:
1994 SCC (1) 425 JT 1993 Supl. 176 1993 SCALE (4)624
ACT:
HEADNOTE:
ORDER
1.
These writ petitions have been preferred under Article 32 of the Constitution
of India. The petitioners are citizens of India. It is averred in the + Under
Article 32 of the Constitution of India 426 petitions that on October 11, 1993,
Respondent 4, SHO (Police) GRP Faridabad (H.R.) along
with some police personnel accompanied by third respondent came to Agra at 11
a.m. to the residence of the petitioners. They enquired about Rahim Khan stating that he was wanted in connection with
some criminal cases relating to theft of railway property. Smt
Munni Begum, mother of first petitioner (Afzal Khan) told them that Rahim
Khan was out of station since October 8, 1993. Respondents 3 and 4 along with
other police personnel forcibly entered the house and made a search and broke
glasses of window panes and created terror.
They
damaged various articles like radio and tape-recorder.
The
damage is estimated at Rs 2000. Finding that Rahim Khan was not there, Respondents 3 and 4 became
infuriated and took away the minor petitioners with them notwithstanding the
protest of Munni Begum. Though Munni
Begum made enquiries about the whereabouts of the petitioners she could not
locate them. On October 12, 1993 again Respondents 3 and 4 came and
told Munni Begum that they were taking away the
petitioners with them and they would be returned only when Rahim
Khan was made available. Though a plea was made for the release of the minors
who were not involved in any case that was of no avail. All attempts to procure
their release through complaints to the Governor of Uttar Pradesh and the Home
Minister, Government of India, New Delhi proved futile. When the whereabouts
of the petitioners was not known Munni Begum sent Mr Ismail Khan, an Advocate of
Agra to Faridabad and Ambala.
The said advocate went to Ambala Cantonment and met
Inspector Ishaq Ahmad of GRP (CIA) Ambala Cantt. He saw the
petitioners in the police station. Both the petitioners started weeping on
seeing the advocate who was familiar to them. Ishaq
Ahmad told the advocate that the petitioners were in his custody and would be
released only when Rahim Khan surrendered.
2.On October 24, 1993 Ahmad, father of petitioner 2, Habib,
sent a complaint to District Magistrate, Agra to secure the release of the
petitioners. Inasmuch as the petitioners had not been produced before any
Magistrate for remand and they were in illegal custody, the writ petition for
habeas corpus is filed alleging that there is a violation of Article 21 of the
Constitution of India. By an order dated October 29, 1993 this Court issued notice to the
respondents. A counter-affidavit dated October 30, 1993 was filed on behalf of the third
respondent, M.S. Ahlawat, Superintendent of Police,
GRP (CIA), Ambala Cantonment. It is submitted therein
that the petitioners are guilty of suppressing true and correct facts. The
petition has been filed to preempt investigation being conducted in two cases
wherein the petitioner's father had been implicated in a case of fraud,
forgery, cheating etc. FIRs have been preferred to
the effect that forgery of four railway receipts (sic) and four consignments
were illegally misappropriated. There are also other cases of misappropriation
against Rahim Khan who is the main accused in three
cases of forgery, fraud, cheating and misappropriation. It is denied that the
children were arrested or taken away. They were neither arrested nor illegally
detained.
427
3. The
fourth respondent, Randhir Singh, Station House
Officer, Govt. Railway Police, Faridabad has filed a counter-affidavit to
the effect that the present petition is an abuse of process of the Court. He
also details out the cases against Rahim Khan. When a
search of Rahim Khan's residence was made on October
12, 1993 a
lady of 40 to 45 years of age alone was present in the house. No other person
was present at the residence. That lady informed the search party that Rahim Khan was away in Calcutta. She was evasive about his
whereabouts and return. It is categorically stated that the children of Abdul Rahim Khan were not present at the residence when the
search was conducted.
4. Mr Kalyan Rudra,
Director General of Police, Haryana has filed a
separate affidavit pursuant to the order of this Court dated November 2, 1993
which is as follows :
"Upon
motion, the matter is taken on board.
Ms Indu Malhotra, learned counsel states
that the Home Secretary will not be able to execute the commission since he is
on leave. The order dated November 1, 1993 is, therefore, modified. We direct
that the Director General of Police will make the investigation and file report
by November 5, 1993.
To be
listed on November 5, 1993 at 2.00
5. He
states that he made personal enquiry from a number of persons/officials
concerned both openly and through secret channels. The enquiries revealed that
two cases have been filed against Rahim Khan for
theft of properties belonging to the Railways.
6. His
enquiries further established that Inspector Ishaq
Ahmad of GRP (CIA), Ambala Cantt.
had proceeded to Rohtak and
Faridabad. From Faridabad, the team headed by Mohd. Ishaq, Inspector CIA Ambala Cantt. had
picked up ASI Randhir Singh, SHO, GRPS Faridabad on October 12, 1993 and had proceeded to
Agra. At Agra, they enlisted the assistance of
two constables of Police Post of Sarai Khawaja, Agra and visited the residence of Rahim Khan, who was not located at his residence. His
secret enquiries revealed that while returning from Agra, the Inspector CIA had
picked up two youngsters of the same age group as the petitioners, probably Afzal, son of Rahim Khan and Habib, son of Ahmad Khan, from the residence of Abdul Rahim at Agra and brought them along to Faridabad
on October 12, 1993 and later to Ambala on October
13, 1993 afternoon. Secret enquiries also showed that these two boys, were first kept in GRP, CIA Ambala
Cantt. Unit between October
13, 1993 to
October 17, 1993 and later were removed to
GRPS Kalka on October 17, 1993 after the visit of an advocate to Ambala. Again, on October 30, 1993 they were brought from GRPS Kalka to CIA, GRP Ambala Cantt. and on the night of October
31, 1993, a
police party dispatched them to their residence in Agra.
7. It
is further stated by him that Inspector Mohd. Ishaq, the then Inspector CIA, GRP Haryana,
was primarily responsible for the illegal abduction and confinement of the two
petitioners, Afzal and Habib.
The 428 other police officials including ASI Randhir
Singh did not have any personal stake and acted only at the behest and under
the orders of Inspector Mohd. Ishaq.
8.Since it had come to his notice that Inspector Mohd. Ishaq had indulged in an
illegal act he is ordering an enquiry against the Inspector in accordance with
the service rules and the said Inspector is under suspension.
9.M.S. Ahlawat, Superintendent of Police filed
another counter-affidavit dated November 5, 1993 to the effect that whatever was
stated in the earlier counter-affidavit dated October
30, 1993
was factually wrong. He came to know of this case only on November
2, 1993. On
November 15, 1993 he would go one step further and state that the
earlier affidavit filed purported to be dated October
30, 1993
had not been signed or sworn by him. A preliminary fact finding enquiry into
the matter has been ordered through the Deputy Superintendent of Police GRP, Hissar. He had submitted a report on November
7, 1993 to
the effect that his signature had been forged by one Head Constable Krishan Kumar who had been put under suspension and
transferred to GRP Lines, Ambala City.
10.In this affidavit he comes out with the version that he was
not a member of the police party which visited the house of petitioners on
October II, 1993. He would also give the details of the cases pending against Rahim Khan. He takes the stand that he received a telegram
dated October 17, 1993 on October
19, 1993.
Thereupon he directed the Welfare Inspector to investigate into the complaint
and submit a report. The Welfare Inspector found that Mohd.
Ishaq, Inspector CIA, Ambala
Cantonment and ASI Randhir Singh, Faridabad had gone to the house of
petitioners at Agra on October 12, 1993. They picked up two boys while
coming back from Agra. Two petitioners remained under the supervision of
CIA staff of GRP, Ambala Cantonment from October
12, 1993 to
November 1, 1993. The Welfare Inspector could not find out the
identity of the two boys. On November 6, 1993 a preliminary fact-finding enquiry
into the matter was ordered by him through Shri Sukha Lal, Deputy Superintendent
of Police, Hissar. No telegram alleged to have been
sent to the authorities was ever forwarded to him. Nowhere is it alleged that
this deponent has any role or knowledge of illegal confinement. Even the
affidavit of Ismail Khan, advocate does not attribute
any role to him.
11.Having regard to the above, we are clearly of the view that
it is highly desirable to conduct an enquiry into the veracity of these
allegations and counter-allegations. Only on a factual determination, the truth
of the petitioners' case and the role played by each of the respondents could
be ascertained. For this purpose, we direct the learned District Judge of Faridabad to conduct a detailed enquiry and submit the
report within six weeks from the date of the receipt of the order. The case
will stand over, awaiting the report and the same will
be posted before the Court immediately on receipt of such report.
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