BHAGWAN SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner had filed this writ of habeas corpus for production of his brother who was alleged to be under illegal detention of respondent Nos. 5 to 14. A show cause notice was issued on this writ petition and an order was also passed on 11. 7. 2005 granting one more opportunity to the Addl. govt. Advocate to trace out the missing person and in the event of failure to do so, status report with regard to the case was ordered to be filed which had been registered by the petitioner as FIR No. 132/2004 at police station Masalpur District Karauli. THE habeas corpus petition thereafter has been listed before this court for appropriate orders and Mr. Sandu, the learned Dy. Govt. Advocate, has furnished the status report in regard to the investigation of the alleged detention of Babulal, brother of the petitioner. It has been pointed out that all the persons named in the FIR had been interrogated. Respondent No. 6 Ashok, respondent No. 7 Ramdas, respondent No. 10 Mukesh, respondent No. 11 Mohar Singh, respondent No. 12 Jagannath, respondent No. 13 Pawan and respondent No. 14 Harnivas have already been granted bail by the court of competent jurisdiction. In so far as respondent No. 5 Ishwariya son of Ramswaroop is concerned, the Dy. Govt. Advocate stated that he is not traceable and as per the investigating agency, he is a labourer who has gone out to earn his livelihood and since there is no material as yet to submit charge sheet against him, the same could not be submitted. Yet the respondents are doing their best to trace out petitioner's brother as also to come out with tangible evidence respondent Nos. 5 to 14 have any role in detaining the brother of petitioner.

(2.) WE have to bear in mind as also has to be understood by the counsel for the petitioner that a habeas corpus petition can be held maintainable only to the extent if there is positive material for the petitioner to come out with clear and unimpeachable fact that alleged detenue is in illegal detention of the persons alleged and if after investigation there is no such material before the court to infer with atleast some prima facie material that the detenue is in illegal detention of the alleged accused, the habeas corpus petition cannot be held maintainable. It is well settled that a habeas corpus petition can be held maintainable provided the court is satisfied that it is a definite case where the detenue is under illegal detention of any person or any agency including the police. In absence of any material to that effect, it would be extremely difficult for the court to entertain a habeas corpus petition by practically converting the habeas corpus petition as a monitoring agency of the police case which has been registered. WE may not be misunderstood so as to say that the court would remain a silent spectator in a given situation but the crux of the matter is that the court should have sufficient material to infer that it is a clear case of illegal detention. Where the basic ingredient of a habeas corpus petition regarding illegal detention is missing in a particular petition, then the court cannot convert itself into a monitoring agency and supervise the investigation in pursuance of the First Information Report.