AFZAL Vs. STATE OF HARYANA

JUDGEMENT

(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 petitions that on 11.10. 1993 Respondent No. 4, S.H.O. (Police) G.R.P. 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 8.10.93. 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. 2,000/-. 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 12.10.93 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 were not known Munni Begun sent Mr. Ismail Khan, an Advocate of Agra to Faridabad and Ambala. The said advocate went to Ambala Cantonment and met Inspector Ishaq Ahmed of G.R.P. (C.I.A.) 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 24.10.93 Ahmad, father of petitioner No. 2, Habib, sent a complaint to District Magistrate Agra to secure the release of the petitioners. In as much 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 29.10.93 this Court issued notice to the respondents. A counter affidavit dated 30th October, 1993 was filed on behalf of the third respondent, M.S. Ahlawat, Superintendent of Police, G.R.P. (C.I.A.), Ambala Cantonment. It is submitted therein that the petitioners are guilty of suppressing true and correct facts. The petition has been filed to pre-empt investigation being conducted in two cases wherein the petitioner's father had been implicated in a case of fraud, forgery, cheating etc. F.I.Rs. have been preferred to the effect that forgery of four railway receipts 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.

(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 12.10.1993 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.