APARI Vs. STATE

JUDGEMENT

(1.) The petitioner has filed this writ petition under Article 226 of the Constitution of India for the issue of a writ of Habeas Corpus to direct the respondents to produce her minor children namely Dhanna, Sardariya and Kalu, alleged to have been kidnapped on 22.8.92 and 23.12.94 respectively. In response to the notice issued to the respondents, Dharmendra Kumar, Deputy Commissioner of Police (South District) filed his counter affidavit dated 10.7.94 stating therein that on 23.12.94, the petitioner lodged a report at the police post Nehru Place (P.S. Kalkaji) to the effect that her son Kalu had been missing for the last 20 days. Consequently, D.D. No. 13 dated 23.12.94 was recorded and the same was entrusted to Head Constable Rajendra for inquiry. On inquiry, it was revealed that Kalu was last seen near fly over, Chiragh Delhi where he used to sell newspapers. It is further stated that after institution of the present writ petition, two cases being F.I.R. No. 2335/95 under Section 363 Indian Penal Code . at Police Station, C.R. Park, New Delhi andF.I.R.No.166/95 under Section 363 Indian Penal Code at Police Station Greater Kailash, New Delhi have been registered in respect of the petitioner's missing children and concerted efforts are being made to trace them out and the investigation is under progress.

(2.) On 18.7.95, after receipt of the affidavit of D.C.P Dharendra Kumar, the petitioner was directed to supply to the Investigating Officer clues and suggestions for facilitating further investigation and the State was directed to file additional counter affidavit, indicating the latest position. On 20.9.95, the learned Standing Counsel for the State informed the Court that one of the three missing children of the petitioner namely, Kalu, aged 11 years has since been recovered from Rajasthan on 1.8.95 and custody of that child has been handed over to the petitioner under orders of the concerned Magistrate and that search for the remaining two children is still going on. Pursuant to the directions of this Court, K.S. Bedi, Assistant Commissioner of Police filed his counter affidavit dated 7.10.95 stating therein that on 29.7.95 S.I. Darban Singh of P.S. C.R. Park, interrogated one GYARASA and on the basis of the information supplied by the said Gyarasa, the police reached at Village Kotiya (Rajasthan) and recovered Kalu from the house of the petitioner's mother and that search for the remaining children is still on.

(3.) Learned Standing Counsel has contended that the petitioner has not come to this Court with clean hands inasmuch as she has made a deliberate concealment of material facts with a view to mislead the Court. We have given our careful consideration to the arguments advanced by the learned Standing Counsel. In the petition dated 21.2.95 initially filed by the petitioner it was pleaded that the petitioner's two minor sons namely Dhanna and Sardariya were kidnapped on 22.8.93 and her third son Kalu was kidnapped on 23.12.94. The tenor of that petition shows that she suspected involvement of one Mullah (name not known) r/o D-47, D.D. Flats, Greater Kailash - 1, New Delhi in her sons' kidnapping. Petitioner has filed a copy of the D.D. No. 23 dated 23.12.94 (Annexure-D), lodged by her at the P.P. Nehru Place. According to the said report, the petitioner's son Kalu had been missing for the last 20 days. Petitioner has also filed a copy of the report dated 6.2.1995 sent to the S.H.O. P.S. Greater Kailash, which shows that Kalu was kidnapped on 23.12.94. Thus, there are material contradictions between these two reports and the petition with regard to the date of the alleged kidnapping of Kalu.