Geethu Rajesh v Union of India & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **&** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY,THE 17TH DAY OF SEPTEMBER 2018 / 26TH BHADRA, 1940** **WP(Crl.).No. 200 of 2018** ## **PETITIONER:** **GEETHU RAJESH AGED 25 YEARS, W/O. LNK R RAJESH, VADAKKUZHIYIL HOUSE,POONTHOPPU WARD P.O, AVALOOKUNNU, ALAPPUZHA - 688 006.** ## **BY ADV. SRI.RAJIT** ## **RESPONDENTS:** |**1**|**UNION OF INDIA**| |---|---| ||**REPRESENTED BY THE SECRETARY, MINISTRY OF**| ||**DEFENCE, NEW DELHI-110011.**| |**2**|**DIRECTOR OF WELFARE**| ||**WELFARE COMPLEX, ROOM NO.211, SOUTH BLOCK, IHQ**| ||**OF MOD(ARMY), DISTRICT HEAD QUARTERS, P.O, NEW**| ||**DELHI - 110 011.**| |**3**|**COMMANDING OFFICER**| ||**9 RAPID ENGR REGT, PIN - 914 009, C/O. 56 APO.**| |**4**|**RAJENDRAN**| ||**AGED 60 YEARS, ANARIYIL HOUSE, MURRIKKAN MUDU**| ||**P.O,CHERAVALLI, KAYAMKULAM,**| ||**ALAPPUZHA DISTRICT-686517.**| -:2:- ## **W.P.(Crl) No. 200 /2018** **5 SHEELA AGED 55 YEARS, W/O. RAJENDRAN, ANARIYIL HOUSE, MURRIKKAN MUDU P.O,CHERAVALLI, KAYAMKULAM, ALAPPUZHA DISTRICT-686517.** **ADDL. R6 IMPLEADED:** **6. Superintendent of Police, Alappuzha, Office of the Superintendent of Police, Alappuzha, Kerala-688001.** **(Additional respondent No.6 impleaded as per order dated 12.07.2018 in I.A.No.12531/2018 in W.P.(Crl) No.220/2018)** **BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL** ## **OTHER PRESENT:** **SR.GP.SRI.K.B.RAMANAND** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 17.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(Crl) No. 200 /2018** -:3:- ## **C.K. ABDUL REHIM & R. NARAYANA PISHARADI, JJ.** **----------------------------------------------------W.P.(Crl) No. 200 OF 2018 -------------------------------------------------------** _Dated this the 17[th] day of September, 2018_ ## **J U D G M E N T** ## _**Abdul Rehim, J.**_ In this writ petition filed under Article 226 of the Constitution of India, the petitioner is seeking direction for production of the corpus of her husband, LNK.R. Rajesh and to set him at liberty. 2. Averments in brief are that, the petitioner married LNK. R. Rajesh(hereinafter referred to as 'the alleged detenue') on 28.03.2016 and a male child was born out of their wedlock on 12.02.2017. There existed matrimonial discord between them, with respect to which the petitioner submitted a complaint before the Commanding Officer of the Army Regiment where the alleged detenue was working. On the intervention and mediation of the Army Officials, the alleged detenue took the petitioner and his child to his place of posting at 405 FD ## **W.P.(Crl) No. 200 /2018** -:4:- Company, 9 Engineer Regiment at Allahabad. It is stated that the 3[rd] respondent has arranged counselling to the couple based on the instructions from the Army Welfare Office, New Delhi. Allegation is that, the alleged detenue informed the petitioner on 10.10.2017 that he was directed to attend a course in some other area. But he has not revealed the place where he was required to attend the course. The alleged detenue left the company of the petitioner and the child on 11.10.2017, purportedly for attending the course. According to the petitioner, thereafter there was no communication from the alleged detenue and when she contacted the 3[rd] respondent, the 3[rd] respondent was not giving any proper replies. It is stated that the officials of the Army directed her to vacate the family quarters and therefore she was forced to return to her home. The petitioner is now saddled with the responsibility to bring up the child and there is no one else to support her. Allegation is raised to the effect that the gold ornaments and other valuables given to the petitioner by her parents and others at the time of her marriage was misappropriated by the alleged detenue and ## **W.P.(Crl) No. 200 /2018** -:5:- his parents. Under such context, the petitioner submitted a representation to the 2[nd] respondent making inquiry regarding the details and whereabouts of the alleged detenue, as per Ext.P3. As evident from Ext.P4, the 2[nd] respondent forwarded the complaint to the 3[rd] respondent to take necessary action. Thereafter the petitioner received a letter from the 2[nd] respondent as per Ext.P5 informing that the alleged detenue was declared as a 'deserter' from the Army, with effect from 11.10.2017. The petitioner contends that the respondents 2 and 3 have a duty to inform the details regarding whereabouts of the alleged detenue. According to the petitioner, the alleged detenue is very much attached to respondents 4 and 5, who are his parents, and therefore it can safely be presumed that the respondents 4 and 5 know about his whereabouts. Under such circumstances, the petitioner seeks the relief as mentioned above. 3. The writ petition was initially filed by citing respondents 1 to 5 in the party array. It is pertinent to note that the writ petition does not contain any specific allegation that the ## **W.P.(Crl) No. 200 /2018** -:6:- alleged detenue is under the illegal confinement of either respondents 2 and 3 or respondents 4 and 5. Sum total of the allegations raised is that, despite the requests made by the petitioner, the respondents 2 and 3 are not revealing the whereabouts of the alleged detenue. Further allegation is that the respondents 4 and 5 can be presumed to have knowledge about whereabouts of the alleged detenue. 4. A statement was filed on behalf of the respondents 1 to 3 in which it is mentioned that, the alleged detenue was posted to 9 Engineer Regiment with effect from 01.09.2013 and his marriage took place on 28.03.2016. It is mentioned that the alleged detenue was detailed for the “Refresher Hot Air Ballooning” course from 09.10.2017 to 28.10.2017 at 3 EME Centre Bhopal. Accordingly, on the basis of the movement order issued on 11.10.2017, the alleged detenue moved for attending the course, on 11.10.2017. But the alleged detenue had not attended the course. In reply to a letter of the 9 Engineer Regiment, dated 05.11.2017, the Head Quarters 3 EME Centre had intimated that, he had not reported to their ## **W.P.(Crl) No. 200 /2018** -:7:- Centre, through their letter dated 06.11.2017. Subsequently an apprehension roll was issued from the 9 Engineer Regiment to the Superintendent of Police, Alappuzha on 07.11.2017. The alleged detenue was declared as 'Absent without Leave', with effect from 12.10.2017 by the 9 Engineer Regiment and he was kept on supernumery strength. A 'Court of Inquiry' was held as per the Army Act and the alleged detenue was declared as 'deserter,' with effect from 12.10.2017, as per order dated 20.10.2017[stated to be mistakenly written as 20.10.2018]. It is specifically mentioned in the statement of respondents 1 to 3 that, the alleged detenue is not in the custody of those respondents and that they are not able to trace out him. It is also mentioned that, on an earlier occasion the alleged detenue had absented from duty without leave for 19 days, for which he was awarded rigorous imprisonment for 28 days. On yet another occasion he was awarded 14 days rigorous imprisonment in military custody and also imposed with fine of 14 days pay under Section 54(b) of the Army Act. According to respondents 1 to 3, all those aspects would reveal that the -:8:- ## **W.P.(Crl) No. 200 /2018** alleged detenue was not really interested to serve the nation and was continuously negligent in his duties. It is mentioned in the statement that, the alleged detenue was last seen at Allahabad and that his missing was reported to the Superintendent of Police, Alappuzha with a request made to apprehend him and to handover him to the nearest military station. A copy of the proceedings of the 'Court of Inquiry' conducted with respect to unauthorized absence of the alleged detenue is produced as Ext.R1(a). From the statements of the witnesses examined before the 'Court of Inquiry' it is evident that, the course for which the alleged detenue was deputed is for the period from 9[th] October, 2017 to 28[th] October, 2017 and that his non attendance of the course was brought to notice at 9 Engineer Regiment on 30[th] October, 2017. 5. Based on statement filed by respondents 1 to 3, the petitioner had impleaded the Additional 6[th] respondent, whose report was also produced by the learned Government Pleader along with a Memo. It is mentioned that, pursuant to receipt of request from the 3[rd] respondent on 15.11.2017, an inquiry was ## **W.P.(Crl) No. 200 /2018** -:9:- conducted to trace out the alleged detenue and it was revealed that the respondents 4 and 5 are now residing at Murikkinmoodu, within the limits of Kayamkulam Police Station. The police made intensive inquiries in that area and it was revealed that none of the persons residing in the locality had ever seen the alleged detenue since more than the last one year. 6. From the facts narrated as above it is evident that, the alleged detenue was missing from the Army Regiment at Allahabad since 11.10.2017. There is no materials even to have a least suspicion that he is under illegal confinement of either respondents 2 and 3 or respondents 4 and 5. Therefore we are of the considered opinion that this is not a case in which the power vested on this court for issuance of a writ of Habeas Corpus can be invoked. It is pertinent to note that, the petitioner had not approached any police authorities either in Kerala or at Allahabad with any complaint regarding missing of the alleged detenue. She had only submitted a complaint before the Director of Welfare, Army Head Quarters, New Delhi. ## **W.P.(Crl) No. 200 /2018** -:10:- Evidently, the respondents 2 and 3 had given a proper reply to the queries with respect to missing of the alleged detenue and with respect to the proceedings initiated under the Army Act. 7. Learned counsel for the petitioner argued that, this court is competent to direct the respondents 2 and 3 to conduct a detailed inquiry to find out the whereabouts of the alleged detenue. According to the learned counsel, this court can even venture into a probe to verify the facts, in order to bring out the truth or to controvert veracity of the stand taken by respondents 2 and 3. In this regard, learned counsel had placed reliance on a decision of this court in **T.V. Eachara Varier v. Secretary to the Ministry of Home Affairs and others[1977 KLT 335 = 1977 KHC 105]** . But we notice that, it was a case wherein the person missing was stated to have been taken by the police into custody. When the police authorities denied of having taken him into custody, this court ventured to conduct an inquiry into the veracity of such statement by taking evidence and ultimately found that those statements were incorrect. An equivalent situation is not present in the case at hand. Even the petitioner ## **W.P.(Crl) No. 200 /2018** -:11:- does not have a case that the alleged detenue is now kept under illegal confinement either by respondents 2 and 3 or by respondents 4 and 5. At the most, it is a case of missing of the alleged detenue, for which the petitioner is entitled to set the investigating machinery into motion by` approaching the appropriate authorities. If the petitioner is aggrieved by any inaction of such machinery in this regard, she will be at liberty to seek appropriate remedy before the appropriate forum or court. We do not find any material available at present to invoke this court's jurisdiction for issuance of a writ of Habeas Corpus. 8. Consequently, the above writ petition fails and the same is hereby dismissed, by reserving liberty of the petitioner to the extent as mentioned above. ## **Sd/- C.K. ABDUL REHIM, JUDGE** . ## **Sd/- R. NARAYANA PISHARADI, JUDGE** . ul/- [True copy] P.S. to Judge. ## **W.P.(Crl) No. 200 /2018** ## -:12:- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DT. 20.06.2017.** **EXHIBIT P2 TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DT. 06.07.2017.** **EXHIBIT P3 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DT. 16.01.2018 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** **EXHIBIT P5** **TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DT 21.03.2018 ALONG WITH FORWARDING LETTER DT. 1/3/18.**