Disposed

Smt Tamil Selvi @ Ammu v. State of Karnataka

Karnataka HC22 Jun 2021WPHC/42/2021

Case brief

AI extract

What is this about?

The High Court of Karnataka disposed of a habeas corpus petition filed to produce a missing son. The court held that habeas corpus is not applicable for tracing a missing person absent allegations of illegal detention, endorsing prior precedent. No writ was issued; instead, the petition was disposed of by directing the investigating officer to furnish a copy of the final investigation report to th

What did the court decide?

Petition disposed; directing Investigating Officer to furnish copy of final report to petitioner.

Smt Tamil Selvi @ Ammu Vs State of Karnataka — Writ and Judicial Review | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF JUNE, 2021

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PRESENT

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THE HON’BLE MR.JUSTICE ARAVIND KUMAR

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AND

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THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA

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WRIT PETITION (HABEAS CORPUS) No.42/2021

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BETWEEN:

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SMT. TAMIL SELVI @ AMMU, W/O VITTAL, AGED ABOUT 47 YEARS, R/AT No.4, 4^TH CROSS, NEAR PANCHAMUKHI TEMPLE, SUBBANNAPALYA, BANGALORE - 560 033.

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… PETITIONER

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(BY SRI. RAJENDRA KUMAR SUNGAY.T.P., ADV.)

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AND:

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STATE OF KARNATAKA, DEPARTMENT OF HOME AFFAIRS, VIDHANA SOUDHA, BANGALORE - 560 001. REPRESENTED BY ITS PRINCIPAL SECRETARY.

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DIRECTOR GENERAL &

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INSEPECTOR GENERAL OF POLICE,

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STATE OF KARNATAKA, NRUPATHUNGA ROAD, BANGALORE - 560 001.

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COMMISSIONER OF POLICE, BANGALORE CITY, INFANTRY ROAD, BANGALORE - 560 001.

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STATION HOUSE OFFICER, BANASAWADI POLICE STATION, BANGALORE CITY.

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SRI. VITTAL, S/O SRINIVASAN, HUSBAND OF TAMIL SELVI @ AMMU, R/AT No.2/122, NEW STREET, THIRUMANI, KATPADI TALUK, VELLORE DISTRICT, TAMIL NADU. PH No. 82488 53008.

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… RESPONDENTS

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(BY SRI. V.S.HEGDE, SPP II FOR R-1 TO R-4; R-5 IS SERVED & UNREPRESENTED)

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THIS WPHC IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, BY THE PETITIONER PRAYS THIS HON’BLE COURT BE PLEASED TO ISSUE A WRIT IN THE NATURE OF HABEAS CORPUS OR ANY OTHER APPROPRIATE WIRT OR DIRECTION DIRECTING RESPONDENTS 1 TO 4 TO PRODUCE XXXXX SON OF PETITIONER PHYSCALLY BEFORE THIS HON’BLE COURT FORTHWITH, ETC.

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THIS WPHC COMING ON FOR ORDERS THIS DAY, ARAVIND KUMAR, J. , MADE THE FOLLOWING:

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ORDER

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Petitioner has invoked extraordinary jurisdiction of

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this Court and has sought for issuance of writ of habeas corpus to direct respondent Nos.1 to 4 to produce her son Sri.Sathish physically before the Court and has also sought for a direction to respondent Nos.1 to 4 to complete the investigation in respect of FIR registered in Crime No.0303/2019 dated 31.05.2019, Annexure-C1 and take action against 5^th respondent in accordance with law.

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Sum and substance of averments made in the petition is to the effect that her missing son Sri.Sathish was born out of her first wedlock with one Sri.Ramakrishna, whom she had two sons and due to certain differences he had abandoned her and returned to

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Tamil Nadu and has married some other lady and living her. In other words, she has contended her 1^st husband abandoned her and his two children at Bengaluru. She

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has further contended that when she has been working as a maid servant to eke out her livelihood and 5^th respondent who was working as a painter came in contact with her and they fell in love and thereafter at the insistence of the 5^th respondent, she married him at Velankani temple in Tamil Nadu in the year 2007 and as such, they continued to live together. Petitioner is said to have admitted her two children in an Orphanage established by the Christian Missionary which provided free boarding, lodging, education etc., She has further stated that 5^th respondent took care of her well for 4 to 5 years and subsequently, in the year 2011, their marriage was also registered.

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She has further contended that 5^th respondent started demanding money and started harassing her and even attempted to kill her and complaint given to the 4^th respondent did not yield any result. Complaint lodged on 13.02.2013 is produced at Annexure-B.

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She further states that 5^th respondent had taken money and gold ornaments of the petitioner in the

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year 2015 and left her company and she came to know that he had married another lady at his native place and leading life with her, with the active support of his family members. She contended that her second son Sri.Sathish who was residing with her went out of the house on 24.03.2019 in the evening as usual and did not return home. All her enquiries with the friends and relatives did not yield any result and she has alleged that she strongly believed that in view of threat given by the 5^th respondent to kidnap her son, it is the 5^th respondent who had deliberately kidnapped her son with an intention to pressurize her to give divorce with the support of his family members.

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Petitioner had lodged a complaint on 31.05.2019 alleging that her son is missing. The said complaint came to be registered by the 4^th respondent in Crime No.0303/2019 and investigation was taken up. On account of the said investigation having not yielded positive result namely missing person having not been

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traced, petitioner has approached this Court after two years by filing present petition.

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On service of notice, respondent Nos.1 to 4 appeared and filed their statement of objections / counter along with memo of documents and perusal of the same would indicate that from day one namely 31.05.2019 when the complaint came to be registered, investigation came to be taken up, enquiries have been made, even statement of the 5^th respondent has also been recorded not once, but twice.

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Perusal of investigation papers does not give rise at an iota of doubt about their being any slackness in the line of investigation that has been carried out by the jurisdictional police. In order to satisfy ourselves about the manner, mode and method in which the investigation has been carried out, we had called upon learned State Public Prosecutor to file the affidavit of Investigating Officer and same has also been filed today. The affidavit filed by the 4^th respondent would disclose that all the

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suspects on whom the petitioner expressed before the Investigating Officer have been roped in for investigation and statements have been recorded which would clearly indicate that investigation has proceeded in a fair manner and as expected to proceed in the normal course.

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It would not be out of context to refer at this juncture itself that at the first instance, complaint was filed by petitioner on 31.05.2019 which is produced at Annexure-C, based upon which FIR in Crime No.0303/2019 was registered. A perusal of said complaint would disclose that there is not even a whisper about 5^th respondent having kidnapped her son and he having kept her second son Sri.Sathish (aged about 24 years) in illegal detention.

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The Co-ordinate Bench after referring to the earlier judgments of this Court in the case of Sudharani

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Vs. The State of Karnataka through Home Secretary

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and Others, ILR 2016 KAR 731 has held, a writ of habeas corpus is not issued if a person is not in unlawful

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detention. In the said case, writ was sought to trace the missing husband after having noticed the law laid down by this Court, it came to be held by the Co-ordinate Bench in Sudharani’s case to the following effect:

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“5. In the present case, it is not the case of the petitioner that her husband has been illegally detained by the State or by any private individual. Accordingly, no writ of habeas corpus could be issued to the respondents”

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10. We are in complete agreement with the views

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expressed by the Co-ordinate Bench, inasmuch as the power under Article 226 of the Constitution of India cannot be exercised to trace a missing person, until and unless it is alleged that said person who is said to be missing is in illegal custody of the State Authorities or even a private individual. Prima facie , the first complaint lodged on 21.02.2019 does not disclose about petitioner having alleged that her second son Sri.Sathish having been detained illegally by the 5^th respondent or any other person.

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11. Notwithstanding, the aforestated facts, when

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the averments made in the petition and the subsequent statements made by the petitioner when looked into, in a holistic manner it would disclose from the investigation conducted by the jurisdictional police hitherto that entire allegation made by petitioner is against 5^th respondent who is the second husband of the petitioner alleging he has kept her son in his custody to coerce her to grant divorce. There are matrimonial disputes between the petitioner and the 5^th respondent. Though, the State has made an attempt to contend that on account of such matrimonial disputes, the present petition is filed, we are not inclined to either accept the said contention or reject it, as it would not be in the domain of this Court to examine the said issue.

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Be that as it may. Fact remains that there is a matrimonial dispute between petitioner and 5^th respondent. The investigation report filed by the Investigation Officer enclosing the statements of various persons including 5^th respondent recorded during the

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Course of investigation would clearly establish that jurisdictional police have taken all reasonable steps as expected of, in the normal course.

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We do not find any glitch in the investigation conducted and suspects on whom the petitioner has expressed for having any role in the incident of her son missing have also been interrogated and their statements were recorded which would clearly disclose that there is no nexus prima facie . However, it is for the jurisdictional Court to take note of these facts at the time of accepting the final report that would be filed by the jurisdictional police in Crime No.0303/2019.

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Hence, it would suffice to dispose of this petition by directing the Investigating officer to furnish copy of the final report that would be filed before the jurisdictional court to the petitioner, so as to enable her to challenge the same in the event of any ‘B’ report being filed and this direction would suffice and protect the interest of the petitioner also.

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With the aforesaid observations, this writ petition

stands disposed of.

Sd/JUDGE

Sd/JUDGE

Smt Tamil Selvi @ Ammu v. State of Karnataka

Case brief

What is this about?

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Smt Tamil Selvi @ Ammu v. State of Karnataka

Case brief

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