MANU/SC/0827/1993

Equivalent Citation: 1994CriLJ1240, JT1993(Suppl.)S.C.176, 1993(4)SCALE624, (1994)

1SCC425, 1994(1)UJ128
IN THE SUPREME COURT OF INDIA
Writ Petition (Crl.) Nos. 356-57 of 1993
Decided On: 08.12.1993
Appellants: Afzal and Anr.
Vs.
Respondent: State of Haryana and Ors.
Hon'ble Judges/Coram:
M.N. Venkatachaliah, C.J. and S. Mohan, J.
Counsels:
M.S. Dahiya, Adv
Subject: Criminal
Acts/Rules/Orders:
Constitution of India - Article 32
Case Note:
Criminal - confinement - Article 32 of Constitution of India - petition had been filed to
pre-empt investigation being conducted in two cases wherein father of petitioner had
been implicated in case of fraud forgery cheating etc - it was highly desirable to
conduct an enquiry into veracity of these allegations and counter allegations - on
factual determination truth of petitioner and role played by respondents could be
ascertained - District Judge directed to conduct detailed enquiry and submit report
within six weeks from date of receipt of Order.

Citing Reference:

Relied On

1
ORDER

1. These writ petitions have been preferred under Article 32 of the Constitution of India. The
petitioners are citizens of India. It is averred in the petitions that on 11.10. 1993 Respondent
No. 4, S.H.O. (Police) G.R.P. Faridabad (H.R.) along with some police - personnel accompanied
by third respondent came to Agra at 11 A.M. to the residence of the petitioners. They enquired
about Rahim Khan stating that he was wanted in connection with some criminal cases relating
to theft of Railway property. Smt. Munni Begum, mother of first petitioner (Afzal Khan) told
them that Rahim Khan was out of station since 8.10.93. Respondents 3 and 4 along with other
police personnel forcibly entered the house and made a search and broke glasses of window
panes and created terror. They damaged various articles like radio and tape-recorder. The
damage is estimated at Rs. 2,000/-. Finding that Rahim Khan was not there, Respondents 3
and 4 became infuriated and took away the minor petitioners with them notwithstanding the
protest of Munni Begum. Though Munni Begum made enquiries about the whereabouts of the
petitioners she could not locate them. On 12.10.93 again Respondents 3 and 4 came and told

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Munni Begum that they were taking away the petitioners with them and they would be returned
only when Rahim Khan was made available. Though a plea was made for the release of the
minors who were not involved in any case that was of no avail. All attempts to procure their
release through complaints to the Governor of Uttar Pradesh and the Home Minister,
Government of India, New Delhi proved futile. When the whereabouts of the petitioners were
not known Munni Begun sent Mr. Ismail Khan, an Advocate of Agra to Faridabad and Ambala.
The said advocate went to Ambala Cantonment and met Inspector Ishaq Ahmed of G.R.P.
(C.I.A.) Ambala Cantt. He saw the petitioners in the police station. Both the petitioners started
weeping on seeing the advocate who was familiar to them. Ishaq Ahmad told the advocate that
the petitioners were in his custody and would be released only when Rahim Khan surrendered.
2. On 24.10.93 Ahmad, father of petitioner No. 2, Habib, sent a complaint to District Magistrate
Agra to secure the release of the petitioners. In as much as the petitioners had not been
produced before any Magistrate for remand and they were in illegal custody, the writ petition
for habeas corpus is filed alleging that there is a violation of Article 21 of the Constitution of
India. By an order dated 29.10.93 this Court issued notice to the respondents. A counter
affidavit dated 30th October, 1993 was filed on behalf of the third respondent, M.S. Ahlawat,
Superintendent of Police, G.R.P. (C.I.A.), Ambala Cantonment. It is submitted therein that the
petitioners are guilty of suppressing true and correct facts. The petition has been filed to preempt investigation being conducted in two cases wherein the petitioner's father had been
implicated in a case of fraud, forgery, cheating etc. F.I.Rs. have been preferred to the effect
that forgery of four railway receipts and four consignments were illegally misappropriated.
There are also other cases of misappropriation against Rahim Khan who is the main accused in
three cases of forgery, fraud, cheating and misappropriation. It is denied that the children were
arrested or taken away. They were neither arrested nor illegally detained.
3. The fourth respondent, Randhir Singh, Station House Officer, Govt. Railway Police, Faridabad
has filed a counter affidavit to the effect that the present petition is an abuse of process of the
Court. He also details out the cases against Rahim Khan. When a search of Rahim Khan's
residence was made on 12.10.1993 a lady of 40 to 45 years of age alone was present in the
house. No other person was present at the residence. That lady informed the search party that
Rahim Khan was away in Calcutta. She was evasive about his whereabouts and return. It is
categorically stated that the children of Abdul Rahim Khan were not present at the residence
when the search was conducted.
4. Mr. Kalyan Rudra, Director General of Police, Haryana has filed a separate affidavit pursuant
to the order of this Court dated 2.11.93 which is as follows:
Upon motion, the matter is taken on board. Ms. Indu Malhotra, learned counsel
stales that the Home Secretary will not be able to execute the commission since he
is on leave. The order dated November 1, 1993 is, therefore, modified. We direct
that the Director General of Police will make the investigation and file report by
November 5, 1993. To be listed on November 5, 1993 at 2.00 p.m.
5. He states that he made personal enquiry from a number of concerned persons/officials both
openly and through secret channels. The enquiries revealed that two cases have been filed
against Rahim Khan for theft of properties belonging to the Railways.
6. His enquiries further established that Inspector Ishaq Ahmad of G.R.P. (C.I.A.), Ambala
Cantt. had proceeded to Rohtak and Faridabad. From Faridabad, the team headed by Mohd.
Ishaq, Inspector CIA Ambala Cantt. had picked up ASI Randhir Singh, SHO GRPS Faridabad on
12.10.93 and had proceeded to Agra. At Agra, they enlisted the assistance of two constables of
Police Post of Sarai Khawaja, Agra and visited the residence of Rahim Khan, who was not
located at his residence. His secret enquiries revealed that while returning from Agra, the
Inspector CIA had picked up two youngsters of the same age group of the petitioners, probably
Afzal, son of Rahim Khan and Habib, son of Ahmad Khan, from the residence of Abdul Rahim at
Agra and brought them along to Faridabad on 12.10.93 and later to Ambala on 13.10.93
afternoon. Secret enquiries also showed that these two boys, were first kept in GRP CIA Ambala
Cantt. Unit between 13.10.93 to 17.10.93 and later were removed to GRPS Kalka on 17.10.93

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after the visit of an advocate to Ambala. Again, on 30.10.93 they were brought from GRPS
Kalka to CIA GRP Ambala Cantt. and on the night of 31.10.93, a police party despatched them
to their residence in Agra.
7. It is further stated by him that Inspector Mohd. Ishaq, the then Inspector CIA, GRP Haryana,
was primarily responsible for the illegal abduction and confinement of the two petitioners, Afzal
and Habib. The other police officials including ASI Randhir Singh did not have any personal
stake and acted, only at the behest and under the orders of Inspector Mohd. Ishaq.
8. Since it had come to his notice that Inspector Mohd. Ishaq had indulged in an illegal act he is
ordering an enquiry against the Inspector in accordance with the service rules and the said
Inspector is under suspension.
9. M.S. Ahlawat, Superintendent of Police filed another counter affidavit dated 5th November,
1993 to the effect that whatever was stated in the earlier counter affidavit dated 30th October,
1993 was factually wrong. He came to know of this case on 2nd of November, 1993. On 15th of
November, 1993 he would go one step further and state that the earlier affidavit filed purported
to be dated 30th of October, 1993 had not been signed or sworn by him. A preliminary fact
finding enquiry into the matter has been ordered through the Deputy Superintendent of Police
GRP., Hissar. He had submitted a report on 7.11.93 to the effect that his signature had been
forged by one Head Constable Krishan Kumar who had been put under suspension and
transferred to GRP., Lines Ambala City.
10. In this affidavit he comes out with the version that he was not a member of the police party
which visited the house of petitioners on 11.10.93. He would also give the details of the cases
pending against Rahim Khan. He takes the stand that he received a telegram dated 17.10.93 on
19.10.93. Thereupon he directed the Welfare Inspector to investigate into the complaint and
submit a report. The Welfare Inspector found Mohd. Ishaq, Inspector CIA., Ambala Cantonment
and ASI Randhir Singh, Faridabad had gone to the house of petitioners at Agra on 12.10.93.
They picked up two boys while coming back from Agra. Two petitioners remained under the
supervision of CIA staff of GRP., Ambala Cantonment from 12.10.93 to 1.11.93. The Welfare
Inspector could not find out the identity of the two boys. On 6.11.93 a preliminary fact finding
enquiry into the matter was ordered by him through Sh. Sukha Lal, Deputy Superintendent of
Police, Hissar. No telegram alleged to have been sent to the authorities was ever forwarded to
him. Nowhere is it alleged that this deponent has any role or knowledge of illegal confinement.
Even the affidavit of Ismail Khan, Advocate does not attribute any role to him.
11. Having regard to the above, we are clearly of the view that it is highly desirable to conduct
an enquiry into the veracity of these allegations and counter allegations. Only on a factual
determination, the truth of the petitioners, case and the role played by each of the respondents
could be ascertained. For this purpose, we direct the learned District Judge of Faridabad to
conduct a detailed enquiry and submit the report within six weeks from the date of the receipt
of the order. The case will stand over, awaiting the report and the same will be posted before
the Court immediately on receipt of such report.

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