RISAL Vs. THE STATE AND OTHERS

JUDGEMENT

(1.) This petition has been filed by the petitioner for issuance of a writ of habeas corpus for production of her husband Dilip for whom initially a report was lodged that he was missing. Thereafter, one FIR was lodged at P.S. Chirawa in the district of Jhunjhunu alleging that her husband was informed to be in the house of one Mahipal in a drunken state and according to the petitioner, Mahipal came to the house of the petitioner and informed her that her husband had come in a drunken state to the house of Mahipal where he was beaten. The petitioner has alleged that thereafter the whereabouts of her husband could not be known due to which she lodged the FIR in the police station.

(2.) The Investigating Officer investigated the matter and gave a final report stating that the husband of the petitioner is not traceable. The petitioner thereafter did not file any protest petition against the FIR but approached the Additional D.G., Crime alleging that a fair investigation in regard to the FIR lodged by her had not been done. The Additional D.G. ordered for reinvestigation of the matter which is going on ever since 2006 but the Investigating Officer has not come out with any breakthrough in regard to the missing of the petitioner's husband. However, it has come to the notice of the court that the investigating Officer interrogated the accused Mahipal and had also made certain arrests. The accused Mahipal has also been sent for polygraphy test but the result of the same is not yet available.

(3.) From the aforesaid facts it becomes apparent that the petitioner has not been able to make out a case for issuance of a writ of habeas corpus as a writ of habeas corpus could have been issued provided the petitioner had come out with a positive case that her husband is alive and is under the illegal detention of the accused persons. This is clearly not the case even as per the averment of the petitioner which leads to the inference that only after investigation of the case based on the FIR, it would reveal as to whether the petitioner's husband is dead or alive. If the petitioner has failed to make out a case that her husband was living in the custody of the accused person, this court is not in a position to issue a writ of habeas corpus as it needs no reiteration that a writ of habeas corpus can be issued only when the detenu is informed to be alive and is in the illegal custody of anyone including the accused person who is named by the petitioner. When the petitioner herself 1 has failed to establish that her husband is in the illegal detention of Mahipal, obviously the remedy lies under the Code of Criminal Procedure on the basis of which the investigation will have to be carried out. The petitioner clearly has a remedy to file a protest petition before the concerned court where the final report is to be submitted and obviously she will be at liberty to pursue 1 the same. In so far as this petition is concerned, we are unable to issue a writ of habeas corpus under the aforesaid circumstance.