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Takhubha Pratapsing Vs. Mahipatsinh Bhavsinh Bhavsinh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1984)1GLR493
AppellantTakhubha Pratapsing
RespondentMahipatsinh Bhavsinh Bhavsinh and ors.
Excerpt:
- - but in this case, despite our best efforts we regret to say, we have been unable to provide relief, the passage of a fairly long time, and our special attention to the case notwithstanding. the failure to pay the promised dowry, deferred for want of funds, has broken up many a home. wives have run away either to rejoin their poor parents or to join the wide world outside to lead a life of shame. evidently life of anandba at her husband's house was not happy. in the letters written by her to her brothers she complained about torture and harassment by her husband and members of his family for the reason that she had not brought adequate dowry with her. at the same time if we feel unhappy that the best has not been done it is our duty to record it here and that duty can be discharged.....p.s. poti, c.j.1. rule. shri p.v. hathi waives service of rule for respondent no. 1 and shri r.m. vin waives service of rule for respondent nos. 2 and 3.2. this is the epilogue of a tragic story. we are distressed at our helplessness. the constraints on the reach of the court leave us in the end with the realisation of our limitations. we have been approached for justice. the power of the court to secure to every person his life and liberty knows no bounds. when these are in peril to assure relief to the aggrieved no cost is too heavy and no effort too excessive. but in this case, despite our best efforts we regret to say, we have been unable to provide relief, the passage of a fairly long time, and our special attention to the case notwithstanding. we have quite often to depend on the.....
Judgment:

P.S. Poti, C.J.

1. Rule. Shri P.V. Hathi waives service of Rule for respondent No. 1 and Shri R.M. Vin waives service of rule for respondent Nos. 2 and 3.

2. This is the epilogue of a tragic story. We are distressed at our helplessness. The constraints on the reach of the Court leave us in the end with the realisation of our limitations. We have been approached for justice. The power of the Court to secure to every person his life and liberty knows no bounds. When these are in peril to assure relief to the aggrieved no cost is too heavy and no effort too excessive. But in this case, despite our best efforts we regret to say, we have been unable to provide relief, the passage of a fairly long time, and our special attention to the case notwithstanding. We have quite often to depend on the executive agency for active investigation when there is a motion for habeas corpus and if that machinery does not view the matter with the gravity it deserves, despite being alerted in no uncertain terms, we can only frown on what appears to us as unconcern, if not indifference. That is the situation here.

3. The story here is not unique. It is commonplace. Our legislations have not changed the social attitude to dowry. It persists. The failure to pay the promised dowry, deferred for want of funds, has broken up many a home. Many have suffered at the hands of in-laws. Many had to give up life. Wives have run away either to rejoin their poor parents or to join the wide world outside to lead a life of shame. Seminars galore and Mahila protests notwithstanding, the situation continues to be what it was.

4. Anandba married Bhavsinh, respondent No. 1 at Taredi about 4 years ago. Anandba would be about 20 years of age by now. Evidently life of Anandba at her husband's house was not happy. It was far from it. In the letters written by her to her brothers she complained about torture and harassment by her husband and members of his family for the reason that she had not brought adequate dowry with her. Apprehensive that the threats held out by them may turn out to be true she returned to her place and later moved maintenance proceedings for herself and her child which had been born in the meanwhile. When the respondent appeared in the said proceedings he is said to have agreed that he would not harass Anandba in any way and would take her back to Taredi. Accordingly he took her back on 7-6-1983. The case in the petition before us moved by her brother Pratapsing, complaining about her sudden disappearance, is that Anandba was unhappy even after the 1st respondent took her back. The suggestion is that the assurance given by him and the preparedness shown by him to take back his wife were only intended as a ruse to meet the maintenance application. Once she was back in his hands the attempt was to see that she somehow disappeared. Whatever that be, there is evidence to show that Anandba felt that her life was in danger and she entreated the petitioner and her mother to make immediate and urgent arrangement for taking her back from her husband's place It is evident that she apprehended that she would lose her life. She said in her letter marked as Annexure A' despatched by post on 23-7-1983 that two Government Officers and one of her brothers may be sent to Taredi to take her back and if there was any delay she and her son may not be alive at all. The petitioner, her brother, took immediate action on receiving this letter. He moved the Chief Judicial Magistrate, Bhavnagar under Section 97 of the Code of Criminal Procedure for issue of search warrant in respect of Anandba and her son. Though the Chief Judicial Magistrate issued a warrant the Police were able to find only Sunil, Anandba's son, aged 2 years at the house of the 1st respondent, Anandba was missing. Evidently, the 1st respondent and his father explained her absence as due to Anandba leaving the house, of her own accord about 5 days earlier. According to him she left to join her parents at Vav Bareja. The husband further told the police that he accompanied Anandba up to Bhavnagar Railway Station, that she boarded the train and thereafter he had returned to Taredi. A report to this effect was submitted by a Police Head Constable of Jamnagar City 'B' Division who had gone with the search warrant. The Magistrate directed the child to be handed over to the petitioner.

5. The petitioner apprehends, particularly in the background of the letter written to him by his sister, that she would not have left the house of respondent No. 1 of her own accord and it is likely that her whereabouts must be known to the 1st respondent and the members of his family. It is further pointed out that the case of Anandba voluntarily leaving her husband's place is quite unlikely when there was a two-year old child, a child towards which, according to Anandba, no affection was shown by the 1st respondent or his people. When in the letter she had pointed out that the 1st respondent was trying to do away with her and with the small child, it was, according to the petitioner, quite unlikely that she would have voluntarily left the house and the 1st respondent would have escorted her to Bhavnagar Railway Station to see her off. From the background of the case particularly the attitude of the 1st respondent and his family towards Anandba the petitioner apprehends that something serious must have happened and Anandba must have been secreted by the 1st respondent somewhere or other. Anandba had not returned to her parental home or to any place of her relatives and more that that the 1st respondent did not show any anxiety to trace her. His conduct in remaining inert or unconcerned with the disappearance also led the petitioner to entertain genuine apprehension of risk and danger to Anandba's life. He sent repeated telegrams to the District Superintendent of Police, Bhavnagar and Inspector General of Police, Respondents 4 and 3 respectively, requesting them to enquire about the matter. Finding that there was no response and seeing that the police was not taking up the matter seriously and attempting to trace Anandba he approached this Court with a prayer to direct the 1st respondent to produce Anandba in Court and also directing respondents 2 and 3 to use the police machinery to trace her whereabouts.

6. As we said earlier this Court has no machinery other than that of the State Police which it could make use of to further the cause of the petitioner. Despite the very specific orders passed by this Court successively disapproving what appeared to be the unconcerned approach of the police this Court must regretfully record that nothing much has been done. If the police has undertaken some sort of an investigation it would seem that even that was only because they were made to comply with the orders of the Court passed from time to time. To understand the picture fully and to appreciate that we are making these remarks only because of a sense of distress it is necessary to record here the history of the orders passed and the compulsions imposed by this Court repeatedly to activise the police machinery in order to see whether something worthwhile will turn out of the investigation. In other words, we do not want to comment upon the reports without objectivity. At the same time if we feel unhappy that the best has not been done it is our duty to record it here and that duty can be discharged only by faithfully noticing our orders and the reports pursuant thereto.

7. When the case came up before the Court for the first time on 1-9-1983 a Division Bench of the Court while directing notice to the 1st respondent to produce his wife Anandba on 5-9-1983 further directed the Public Prosecutor to send an intimation to the District Superintendent of Police, Bhavnagar through the Police wireless machinery in the course of the day for securing the enforcement of the order. The court further directed at that time that the 3rd respondent, the Director General and Inspector General of Police. Gujarat State and the 4th respondent, the District Superintendent of Police, Bhavnagar will cause a special search to be made for the person of Anandba. If she was not to be found at the place of her husband they were to report to the Court the further steps taken in the matter on 5-9-1983. The sense of urgency felt by this Court will be evident from this order.

8. When the case came up on 5th September, 1983 Anandba was not produced. The Division Bench which heard the matter on 5th September observed:

The Court has perused the papers of investigation produced by the learned Public Prosecutor. The Court is not satisfied regarding the investigation and is of the opinion that more intensive investigation is necessary having regard to the facts and circumstances of the case.

By that order the 3rd respondent, Director General and Inspector General of Police, was directed to entrust further investigation in the case to the Additional Inspector General of Police, C.I.D. with instructions to depute forthwith an officer of the rank of the District Superintendent of Police working under him for investigation on the spot. His reports of investigation were to be submitted to the Court from time to time, the first of such reports to be submitted on 12-9-1983. The Court further observed by its order on 5th September, 1983.

The Court desires the investigation to commence within twenty-four hours from now.

9. When the matter came up on 12th September, 1983 the Court had before it the first report. That elaborated the 1st respondent's version. The story given out by the 1st respondent was that on 26th of July 1983 he along with his wife left Taredi village at 9 A.M. to go to Jamnagar. It is well to remember here that Anandba had sent her letter to her brother apprehending personal harm three days earlier, on 23-7-1983 and wanted them not to be late by more than a week. This would suggest that she would not have voluntarily left without waiting for a week. They came to village Bhadrod, a distance of 3-4 kilometres by foot. From there an autorikshaw is said to have been hired and they are said to have gone to Mahuva. At around 12 noon they are said to have taken a bus to Bhavnagar. It was also mentioned that two ladies of their village were present in that bus. The husband's version is that they reached Bhavnagar around 15 hours in the afternoon and after waiting for 4-5 hours at Bhavnagar State Transport Stand, by about 8 P.M. they went to Bhavnagar Railway Station in an autorikshaw. Since there was a train to Jamnagar around 8 O'clock the 1st respondent is said to have left his wife at the entrance of the Railway Station. As an explanation for not seeing her off he is reported to have told the police:

According to him his wife insisted that he need not come on to the platform as he might be delayed and might miss the last bus back to Mahuva.

He is said to have given his wife 40 rupees and saw her walk past the exit gate on to the Railway platform without having a ticket. According to him he returned to Bhavnagar taking the bus to Mahuva and at Patia Hanuman stop which is not a scheduled stop he requested the conductor to stop the bus. He returned to his house at 12 O'clock in the mid-night. Having noted this story in the report the investigating officer immediately went on to state:

The story put forth by Mahipat Sing about his movements on that day does not appear to be false.

Though the investigating officer noticed that there were few contradictions in the story put forth by the 1st respondent he observed in the report:

The only flaw in the whole story is that between 3-30 in the afternoon and 8 in the night no one had seen Mahipat Sing with his wife. One tends to accept his story on the face of it because the other parts of his story do not appear to be contradictory.

It would appear from the report, though this was termed as a 'preliminary first report,' that the investigating officer on such material had made up his mind as appears from his observation in the report:

Subject to the condition that the story of the husband is totally true one tends to believe that the girl got into a wrong coach by mistake at Bhavnagar or got lost at Rajkot, feeling totally bewildered that the train is not taking her to Jamnagar. Even if she has got lost being a girl of 20, she could by taking the assistance of someone return home by now unless she is being wrongfully confined by some unscrupulous elements.

10. Naturally it was not this conclusion that the Court wanted. It was an investigation more serious and earnest and evidently, therefore, the Court, on 12th September, 1983 directed the Superintendent of Police, C.I.D., Crime, to submit a second report on or before September 19, 1983.

11. The second report which must have been sometime before the third report filed on 23-9-1983 mentions that verification was made of the movements of the 1st respondent between 3-30 P.M. and 8 P.M. on 26-7-1983. The 1st respondent's case was that from the time he reached Bhavnagar (which was found to be 2-15 P.M. and not 3 P.M.) till 8 P.M. he and his wife were sitting on two concrete benches in the S.T. Stand. Later he is said to have travelled in an autorikshaw. As a result of attempt made to verify this the conclusion reached is that:

Thus efforts to trace the movements of Mahipath Singh between 3-30 and 8 P.M. were not fruitful.

The photograph of the girl was said to have been shown to railway porters at Bhavnagar Railway Station, T.T.Es. and tea stall owners and none recollected having seen the girl. The T.T.E. on the train, Padalia, had also not seen the girl on that day though he had checked all the four ordinary compartments in the train that day and there was no case of ticketless travel. In short there was no useful material in the second report which would help to trace the whereabouts of the girl.

12. When the case came up before the Court on 26th September, 1983 there was also the third report which, after having noticed that the investigation had not revealed any role of the husband or parentsin-law of Anandba in the disappearance, took the view that the investigation would then lie in trying to locate any unidentified dead bodies recovered in any part of the State. It was said that action to identify such bodies was being taken. The Court directed further report of investigation to be filed on 10-10-1983. The matter came up again before the Court on 11th October, 1983. By that time the fourth report was also filed in Court. That did not show any progress or any serious attempt to trace Anandba. The Court was not happy that the investigation was centred round attempting to close the case by being anxious to locate some unidentified body as that of Anandba. In its order dated 11th October this Court said inter alia:

We have gone through the reports and we are not happy with the way in which the investigation has proceeded. We find that there has been a casual approach. We would have directed the investigation entirely in a different manner by being entrusted a some higher authority; but D.S.P. (Crime) who is present today before us pursue it to our order, submits that he would do his best to intensify the investigation and submit a report. It is not merely the results but the steps taken in the matter of investigation that would necessarily empress a Court as to what has been done in the matter of the habeas corpus petition before us. We are giving t me to the D.S.P. to file a further report after further investigation.

The matter was adjourned to 24th October, 1983. The case was again heard on 26th October, 1983. On that day the fifth report dated 25-10-1983 was also there before the Court. That was mainly a reiteration of what was said earlier. What could be said further was that:

Since the disappearance of this lady, no unidentified dead body of any woman has been found in above Police Stations of Bhavnagar; so no information was coming forth in Bhavnagar City.

Evidently a number of persons in the Railway Station were seen to have been contacted. They were shown the photograph of Anandba and:

None of them gave any useful information and said that they have not seen the lady nor they know any thing about her whereabouts. At Railway Station, Bhavnagar no trace could be obtained about the said lady.

Further, mention is made of the enquiries made in other Police Stations for unidentified dead body of any woman and the Investigator seems to have been disappointed. Efforts were said to be still in progress. In the order dated 26th October, 1983 we referred to the posting of the cases to 24th October, 1983 and the report filed then. We indicated that in spite of our observation earlier that only a casual approach had been made in the matter of locating Anandba, nothing material has been done thereafter and we observed:

We are particularly distressed at that fact. Though in the penultimate paragraph of that letter, there is reference to somebody having seen the missing lady, there is not even any indication as to who gave that information and how the information was obtained so much so that statement appears like a sop perhaps to soften the attitude of the Court.

In these circumstances, we have to direct the District Superintendent of Police who was investigating the matter to comply with the order of this Court forthwith, to file a report of what he did.

We directed this to be done by 14th November, 1983.

13. We felt that the investigation so far was not satisfactory and it was appropriate that we should bring this to the novice of the Director General and Inspector General of Police to whom we had issued directions on 5th September, 1983. We found, therefore, that it was necessary that:

He goes into the matter personally to assess as to how the direction of the Court has been carried out by the Superintendent of Police to whom the work was entrusted ultimately.

Thereafter we have the sixth report on the file received on 15-11-1983 and the seventh report on 15-12-1983. We have also the remarks of the Director General of Police pursuant to our direction to look into the investigation held so far. After referring to the verious reports filed by the Investigating Officer the Director General expresses his view that perusal of all the enquiry reports indicated that:

The officers concerned had taken all possible measures within the resources at their command to trace the missing woman.

We need only extract here a part of his report before we refer to the sixth and seventh reports:

Perusal of all the enquiry reports indicate that the officers concerned had taken all possible measures within the resources at their command to trace the missing woman. Considering the fact that the inquiries were entrusted to the C.I.D. Crime about six weeks after the disappearance of the missing woman, during which time had she been done away with, the body (identified or otherwise) would have been reported from the area. Similarly if she had taken the wrong train or detrained at some station enroute, her presence in strange environments would have come to notice. The verifiable facts indicated that she had travelled to Bhavnagar with her husband on 26-7-1983 and had reached Bhavnagar at about 1,400 hrs. The fact that her husband travelled alone by the return bus reaching his destination around mid-night has also been confirmed. It is thus clear that whatever happened to her is likely to have occurred between 14-00 hrs. arid 21-30 hrs. when Mahipath Singh claims to have left her at the Railway Station and returned to the S.T. Stand for his return journey. This period of about six hours contemplates a return journey of 3 hours either way in case it is persumed that Mahipath Singh took her to some place and after killing her and disposing of the body returned to Bhavanagar to catch the return bus. Enquiries made in and around Bhavnagar within the area that he could have travelled in have failed to disclose either an unidentified female body or the tracing of any unidentified person. Although this need not completely rule out the possibility of foul play, the balance of probability seems to support Mahipathsingh's contention that she was left by him at the Railway Station and therefore, either she had proceeded to some unknown destination of her own free will or was spirited away with or without her consent to some place or she managed to reach her destination (parents' place) somehow after which her parents knowing of her unhappy married life may have preferred to send her away somewhere - out of the State, perhaps - and then come up with the Habeas Corpus petition to discourage further enquiries by the husband.

14. Now we will refer to the sixth and seventh reports. The investigation which was originally by one Shri K. Nithyanandam, Superintendent of Police, was taken over by R. Benjamin since Nithyanandam had left for Delhi on some errand. The interrogation by Shri Benjamin of the 1st respondent and search of his house yielded some results in that a love letter written to the 1st respondent by a girl named Daksha Bhatt was found in his house and though the date of the letter had been scratched out the postal stamp indicated July 1982 on the inland sheet. The girl aged 16, of village Talaja, had written to the 1st respondent expressing her love to him and mentioning her relationship with him. The 1st respondent and Daksha Bhatt admitted the fact of the letter. Daksha Bhatt also said that the 1st respondent had been going over to Talaja to meet her at S.T. Stand and also at her school. She said that the love affair between herself and the 1st respondent had developed in 1981. The seventh report filed on 15-12-1983 did not advance the matter any further. Suspecting that an accidental death registered in Jamnagar City might have been that of the missing woman attempt was made to identify this dead body and it was not identified as that of Anandba. The Dy. S.P., Bhavnagar is said to have again interrogated the 1st respondent to find out his alibi after he and Anandba came to Bhavnagar Bus Stand at about 15-00 hours. The report mentioned:

Since the conduct of Mahipathsinh's stay of 5 to 6 hours at S.T. Stand is suspicious, this team has investigated the possibility of Mahipathsinh Bhavsinh Vala going for a foul play. But so far it has not possible to establish any foul play by Mahipathsingh. There appears to be no thick relationship, at present, between Mahipatsingh and the girl Daksha with whom he had friendship last year.

The report concluded:

All possible efforts have been made to trace the missing woman Anandba, W/o. Mahipath Singh, but she has not been found so far.

Though we heard the matter on 22-12-1983 we did not deliver judgment up to this date. No constructive purpose would be served by merely holding that nothing could be done in the matter. If, on the other hand, the investigation could be given any further direction or as a result of further investigation we would be in a position to give any constructive shape to our decision we thought that will be better. Hence despite having closed the case in December, 1983 we have waited so far to pronounce the judgment hoping that in the meanwhile there may be some development. At our instance a further report has been filed by the Superintendent of Police, C.I.D. Crime on 22-2-1984 and having gone through the same we feel there is no purpose in keeping this petition on file indefinitely awaiting still further reports. That report also does not help in locating Anandba. It is surprising that while unequivocally noticing that the period of 5 hours when the 1st respondent and Anandba were said to be together in the afternoon on the fateful day of her disappearance remains unexplained to the satisfaction of even the investigating officers no further and deeper investigation is seen to have been made on that part of the case. Of course we admit that we are not the best Judges as to how investigation should be carried out and ultimately the matter must necessarily be left to the police. All the same where in a matter of this gravity we feel that the investigation over the months has not yielded any result, the situation leaves us annoyed. The failure to achieve any result in this case and the failure of the investigating machinery to probe into the truth or otherwise of the case of the 1st respondent of his movements on the fateful day leaves us with a feeling that all that ought to have been done have not been done. We must say that we are in no better position than that of the petitioner, apprehending the worst, but hoping that it may not be true.

15. Perhaps the police have done their best. Perhaps the investigating team 'within the resources at their command' (we fail to appreciate any limitation on their resources in a matter of this importance) have been unable to do anything better. All the same the Court feels dissatisfied with the result. Perhaps it may be because no concrete result has been achieved. We are left with a feeling that had the investigation from the very outset been made with concern and anxiety to get at the truth and purposeful direction given to the investigation, the result would have been different. As the relief we could grant must necessarily depend upon the result of investigation by the executive machinery we are constrained, with regret, to close this petition without being able to give any relief to the petitioner. Therefore, with considerable reluctance we discharge the rule.

16. Though we have closed the case we are tempted to make some observations for the benefit of notice by the Home Ministry of the State Government, if they choose to take notice. We believe the circumstances do call for such a course. It is only for that purpose we sum up in a few words some salient features of the case to obviate the need of going through the whole judgment for coming to grips with the problem arising in the case. Anandba, a girl of 20, has disappeared under mysterious, if not suspicious, circumstances. After a period of stay in her husband's house she had to return to her house evidently because of differences in the matter of dowry and the ill-treatment on account of this. In the proceedings for maintenance when the husband showed readiness to take her back she was unwilling to return to him fearing the worst, but her relatives, including her brother, appear to have pressed her to accept the compromise and go back. The story of suffering seems to have repeated itself even after such return. On 23rd of July, 1983 she writes home to plead with them that within a week she and her child may be taken back as otherwise she may be lost. The brother takes action immediately but to no purpose. The case of the husband is that within three days she left her husband's house along with the husband. The police seems to realise the fact that the husband who has given a story about his movements with his wife between 3 to 8 P.M. on the fateful day, viz., 26-7-1983 was not able to account satisfactorily to them about his movements during that time. In other words, that period remains unexplained to the satisfaction of the police. Equally unsupported and uncorroborated is the story of Anandba having been left at the Railway Station at 8 P.M. and having travelled in the train, a matter about which in spite of investigation the police was unable to gather any detail. So it appeared to us that the investigation ought to have been to find out what really happened to the lady on the 26th and where she was that day after 3 P.M. On that there has been very little of investigation. The successive reports, eight in number, filed in this Court evinced no determined attempt to solve the mystery of Anandba's disappearance. It appeared to us that the police have been making enquiris without any direction. We exercise restraint to say no more. Every citizen in this country has a right to live and it is the solemn duty of the State to secure that right. Bearing this in mind it is for the Government to decide whether investigation should not be handed over to some other agency, if that is possible, or new direction and purpose given to the investigation. The purpose of this addenda is only to alert the Government to the unfairness in closing the case of disappearance of Anandba, simply because we have closed the habeas corpus petition.

A copy of this judgment will be sent to the Home Secretary to the Government of Gujarat.


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