SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Ashok Kumar Sinha vs The Union Of India on 22 October, 2018

1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 22ND DAY OF OCTOBER, 2018

BEFORE

THE HON’BLE MR.JUSTICE ARAVIND KUMAR

W.P.NOs. 16/2018 249/2018 (GM-RES)

BETWEEN:

ASHOK KUMAR SINHA
S/O LATE RAMJI PRASAD VERMA
AGED ABOUT 62 YEARS
PRESENTLY RESIDING AT
FLAT-H-201,
CITILIGHT RUSTIQUE
ECC ROAD,
NEAR DEENS ACADEMY SCHOOL
WHITEFILED,
BANGALORE-56

ALSO HAVING RESIDENCE AT
BINDAWASINI STREET 20A/329
KADAM KUAN
PATNA-800 003
… PETITIONER

(BY SRI.GOUTHAM SREEDHAR BHARADWAJ, ADV.,)

AND:

1. THE UNION OF INDIA
REP. BY THE SECRETARY
MINISTRY OF HOME AFFAIRS
NORTH BLOCK
NEW DELHI-110001.

2. THE DIRECTOR,
CENTRAL BUREAU OF INVESTIGATION
CGO COMPLEX,
2

LODHI ROAD,
NEW DELHI-110003.

3. STATE OF KARNATAKA
REP. BY THE DIRECTOR
GENERAL OF POLICE
NRUPATHUNGA ROAD,
NUNEGUNDLAPALLI
AMBEDKAR VEEDHI,
SAMPANGI RAMA NAGAR
BENGALURU, KARNATAKA-01.

4. THE STATION HOUSE OFFICER
WHITEFILED POLICE STATION
BESIDE PRESTIGE MEADOWS
WHITEFIELD MAIN ROAD
WHITEFIELD, BENGALURU
KARNATAKA-560 066.
… RESPONDENTS

(BY SRI. H. JAYAKARA SHETTY, CGC FOR R1;
SRI. PRASANNA KUMAR, ADV., FOR R2;
SRI. A.S. PONNANNA, ADDL. ADV., GENERAL
A/W SRI. V. SREENIDHI, AGA FOR R3 R4)

THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA,
PRAYING TO ISSUE A WRIT TO TRANSFER THE PENDING
INVESTIGATION IN FIR NOS. 0486/2017 DATED
20.12.2017 AND FIR NOS.0500/2017 DATED 29.12.2017
VIDE ANNEXURE-A AND B RESPECTIVELY TO R-2 THE
CENTRAL BUREAU OF INVESTIGATION FORTHWITH.

THESE PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
3

ORDER

Petitioner, who is the father of Sri.Kumar Ajitabh,

is seeking for transfer of investigation pending in FIR

No.0486/2017 dated 20.12.2017 and FIR

No.0500/2017 dated 29.12.2017 – Annexures-A and B

respectively to second respondent-Central Bureau of

Investigation (hereinafter referred to as ‘CBI’ for the

sake of brevity).

2. Sri.Kumar Ajitabh son of petitioner was born

in Patna, State of Bihar on 14.11.1988 and on

completion of his graduation in Engineering, B.Tech.

from Manipal University, Karnataka, in the year 2010

joined the services of Tata Consultancy Services and

worked for about 5 years. From April 2017 he has been

working in British Telecom as IT Analyst. He was

residing at Bengaluru since 2010 and has been residing

for the last 4 years at Flat-H 201, Citilight Rustique,

ECC Road, Near Deens Academy School, Whitefield,

Bengaluru – 560056. Annexures-C to E would establish
4

his identity and employment at British Telecom E

Service (India) Pvt. Ltd.

3. Petitioner’s son is said to have secured

admission at Indian Institute of Management, Kolkata

and on account of his purported financial condition not

being sound, he is said to have put up his Maruthi

Suzuki Car (2017 model) bearing registration No.KA 03

NA 1715 for sale by online advertisement in a website

known as ‘OLX’ during the month of November 2017 to

meet part of his tuition fee.

4. According to petitioner his son Kumar

Ajitabh is said to have received a call from an unknown

person on 18.12.2017 around 6.30 p.m., who had

offered to purchase the car put up for sale and as such,

he is said to have left the house to meet the prospective

buyer, who had called him and subsequently thereafter

he had never returned to the utter shock of petitioner

and his family members and has been missing since

then. It is also alleged in the petition that mobile phone
5

of Kumar Ajitabh was switched off since about 7.10

p.m. on 18.12.2017 and attempts to trace about his

whereabouts was futile. Hence, a complaint came to be

lodged before Whitefield Police Station-fourth

respondent, which was registered as FIR No.0486/2017

against unknown persons for the offence punishable

under Section 364 and 34 of IPC vide Annexure-A.

Apprehending that his son had been abducted,

petitioner is said to have lodged one more complaint

with fourth respondent on 29.12.2017 at 7.30 p.m.,

which came to be registered in FIR No.0500/2017 for

the offence punishable under Section 363 IPC vide

Annexure-B.

5. It is also alleged in the petition that print,

electronic and social media has carried various articles

and report in relation about missing of Kumar Ajitabh

and same has remained untraced till date. It is alleged

by the petitioner that fourth respondent has not been

able to trace or find out whereabouts of his son and

fearing his abduction as a part of an organized crime,
6

since his son possessed skills in information technology

and same could be used for anti-national activities and

also expressing his life being in danger and he might

have been made a victim of organ trafficking, petitioner

requested third respondent to transfer the investigation

to second respondent by representation dated

31.12.2017 – Annexure-H alleging that respondents 3

and 4 are unable to trace his missing son Kumar

Ajitabh and all efforts made by the petitioner and other

family members including the friends of missing Kumar

Ajitabh was to no avail. Hence, petitioner has sought

for transferring the investigation of FIR Nos.0486/2017

and 0500/2017 to second respondent.

6. I have heard the arguments of Sriyuths

Goutham Sridhar Bharadwaj, learned counsel for

petitioner, H.Jaikar Shetty, Central Government

Counsel for respondent No.1 and A.S.Ponnanna,

learned Additional Advocate General along with

Sri.V.Sreenidhi, AGA appearing for respondent Nos.3

and 4.

7

7. It is the contention of Sri. Goutham

Bharadwaj, learned counsel appearing for the petitioner

that son of the petitioner has been missing since

18.12.2017 and despite complaints having been lodged

by the petitioner before the jurisdictional police, no

fruitful result has come out of it and he has not been

traced for more than 7 months and thus, the right to life

of the missing person guaranteed under Article 21 of the

Constitution of India is at stake. He would also submit

that threat to missing person is immense, given the

mysterious circumstances under which he has gone

missing/abducted and there has been no significant

leads in the investigation so far conducted so as to

instill confidence in petitioner and family members that

chances of tracing the missing persons being bright is a

ground on which investigation is to be transferred to

CBI.

8. He would also contend that petitioner having

informed second respondent and other senior officers in

the Karnataka State, Home Department, seeking
8

transfer of investigation in FIR Nos.0486/2017 and

0500/2017 to CBI as it is more adept at handling the

investigation, said plea has remained unanswered.

9. He would further elaborate contending that

investigation requires to be transferred to second

respondent so as to instill faith and confidence in the

family members of petitioner and public at large so that

complaint lodged by the petitioner, which has resulted

in investigation being taken up would reach its logical

end. He would also contend that petitioner has

apprehended that abduction of his son is part of a

organized crime since his skills in Information

Technology could be used for anti-national activities or

he may be a victim of organ trafficking. Hence, he has

prayed for allowing the petition. In support of his

submission he has relied upon the following judgments:

(i) (2010) 3 SCC 571: STATE OF WEST
BENGAL AND OTHERS vs. COMMITTEE
FOR PROTECTION OF DEMOCRATIC
RIGHTS, WEST BENGAL AND OTHERS
9

(ii) (2016) 4 SCC 160: DHARAM PAL vs.
STATE OF HARYANA AND OTHERS

10. Per contra, Sri. A.S.Ponnanna, learned

Additional Advocate General appearing for State of

Karnataka has drawn the attention of the Court to the

progress of investigation made to contend that

petitioner has not alleged about any lack of interest

having been exhibited by the State Police in conducting

investigation or investigation having not been carried on

in proper and effective manner and as such on the said

ground itself petition is liable to be rejected. He would

also submit that this Court in exercise of power vested

under Article 226 of the Constitution of India should be

slow in directing the CBI to conduct investigation and in

the instant case, initial investigation was conducted by

the Officers of Whitefield Police Station and Unit Officers

of D.C.P., Whitefield between 20.12.2017 to 16.01.2018

and pursuant to order dated 16.01.2018 the Special

Investigation Team (SIT) was formed, which is headed

by Additional Commissioner of Police, East, Bangalore
10

City, and parallely Central Crime Branch (CCB) has

also conducted the investigation and is monitored by

the Commissioner of Police, Bangalore City by issuing

suitable directions and guidelines and wherever any

mistake or error has occurred, suitable instructions for

carrying out further verification has been issued and as

such there has been no lacuna or deficiency in the

investigation and as such there would be no need or

necessity to direct the enquiry being handed over to the

second respondent. He would further elaborate his

submission by contending that in the event of order

being passed to handover investigation to CBI it would

not only demoralize the Officers engaged in the

investigation but would set a bad precedent and CBI

would be flooded with such directions being issued by

the Courts, which in the instant case is not called for.

He would fairly submit that only in case of rarest and

exceptional cases if this Court were to find that it would

be necessary to transfer the investigation to CBI, the

power under Article 226 can be exercised and it cannot
11

be done for the mere asking by the petitioner,

particularly when there is not even an iota of allegation

against the State police. Hence, he prays for rejecting

the writ petition and assures the Court that there would

be no let-up in the investigation taken up by the

jurisdictional police. In support of his submission he

has relied upon the following judgments:

(i) (2010) 3 SCC 571: STATE OF WEST
BENGAL AND OTHERS vs. COMMITTEE
FOR PROTECTION OF DEMOCRATIC
RIGHTS, WEST BENGAL AND OTHERS

(ii) (2002) 5 SCC 521: SECRETARY,
MINOR IRRIGATION RURAL
ENGINEERING SERVICES, U.P. AND
OTHERS vs. SAHNGOO RAM ARYA AND
ANOTHER

(iii) (2016) 7 SCC 597: SUJATHA RAVI
KIRAN vs. STATE OF KERALA AND
OTHERS

(iv) Unreported judgment in
Crl.A.No.1571-72/2017 between
M.K.KUSHALAPPA AND ANR. VS.

12

K.J.GEORGE AND OTHERS disposed of
on 19.10.2016

11. Sri. P. Prasanna, learned counsel appearing

for second respondent-CBI would place reliance on the

following judgments and prays for suitable orders being

passed by this Court:

(i) (2016) 4 SCC 160: DHARAM PAL vs.
STATE OF HARYANA AND OTHERS

(ii) (2015) 12 SCC 531: RASHMI BEHL vs.
STATE OF UTTAR PRADESH AND
OTHERS

(iii) (2016) 7 SCC 597: SUJATHA RAVI
KIRAN ALIAS SUJATASAHU vs. STATE
OF KERALA AND OTHERS

12 Hon’ble Apex Court time and again has

reiterated the circumstances under which transfer of a

criminal case from the State Police to CBI can be

ordered by the High Court. It has been held that mere

apprehension of either the accused being influential or

investigation is not conducted in a proper and effective
13

manner without any supporting material in that regard,

would not be sufficient ground to transfer the case. The

extraordinary power of this Court to direct CBI to

conduct investigation is thus to be exercised rarely in

exceptional circumstances. Said exceptional

circumstances may be lack of confidence in the

investigating agency or investigation having national or

international ramification and in order to do complete

the justice between the parties.

13. Hon’ble Apex Court in the case of STATE OF

WEST BENGAL AND OTHERS vs. COMMITTEE FOR

PROTECTION OF DEMOCRATIC RIGHTS, WEST

BENGAL AND OTHERS reported in (2010) 3 SCC 571

has held judicial review is otherwise essential for

resolving the disputes regarding the limits of

constitutional power and entering the constitutional

limitations as an ultimate interpreter of the

Constitution. It is further held as under:

“52. It is manifest from the language of
Article 245 of the Constitution that all
legislative powers of Parliament or the
14

State Legislatures are expressly made
subject to other provisions of the
Constitution, which obviously would
include the rights conferred in Part III
of the Constitution. Whether there is a
contravention of any of the rights so
conferred, is to be decided only by the
constitutional courts, which are
empowered not only to declare a law as
unconstitutional but also to enforce
fundamental rights by issuing
directions or orders or writs of or “in
the nature of” mandamus, certiorari,
habeas corpus, prohibition and quo
warranto for this purpose.”

“68. Thus, having examined the rival
contentions in the context of the
constitutional scheme, we conclude as
follows:

(i) xxxx

(ii) Article 21 of the Constitution in
its broad perspective seeks to
protect the persons of their lives
and personal liberties except
according to the procedure
established by law. The said
article in its broad application
not only takes within its fold
enforcement of the rights of an
accused but also the rights of the
victim. The State has a duty to
enforce the human rights of a
citizen providing for fair and
impartial investigation against
any person accused of
commission of a cognizable
offence, which may include its
15

own officers. In certain situations
even a witness to the crime may
seek for and shall be granted
protection by the State.

(iii) In view of the constitutional
scheme and the jurisdiction
conferred on this Court under
Article 32 and on the High Courts
under Article 226 of the
Constitution the power of judicial
review being an integral part of
the basic structure of the
Constitution, no Act of Parliament
can exclude or curtail the powers
of the constitutional courts with
regard to the enforcement of
fundamental rights. As a matter of
fact, such a power is essential to
give practicable content to the
objectives of the Constitution
embodied in Part III and other
parts of the Constitution.

Moreover, in a federal
constitution, the distribution of
legislative powers between
Parliament and the State
Legislature involves limitation on
legislative powers and, therefore,
this requires an authority other
than Parliament to ascertain
whether such limitations are
transgressed. Judicial review acts
as the final arbiter not only to give
effect to the distribution of
legislative powers between
Parliament and the State
Legislatures, it is also necessary
to show any transgression by each
entity. Therefore, to borrow the
16

words of Lord Steyn, judicial
review is justified by combination
of “the principles of separation of
powers, rule of law, the principle
of constitutionality and the reach
of judicial review.”

(iv) xxxx

(v) Restriction on Parliament by the
Constitution and restriction on
the executive by Parliament
under an enactment, do not
amount to restriction on the
power of the Judiciary under
Articles 32 and 226 of the
Constitution.

(vi) xxxx

(vii) When the Special Police Act itself
provides that subject to the
consent by the State, CBI can
take up investigation in relation
to the crime which was otherwise
within the jurisdiction of the
State police, the Court can also
exercise its constitutional power
of judicial review and direct CBI
to take up the investigation
within the jurisdiction of the
State. The power of the High
Court under Article 226 of the
Constitution cannot be taken
away, curtailed or diluted by
Section 6 of the Special Police
Act. Irrespective of there being
any statutory provision acting as
a restriction on the powers of the
Courts, the restriction imposed
17

by Section 6 of the Special Police
Act on the powers of the Union,
cannot be read as restriction on
the powers of the constitutional
courts. Therefore, exercise of
power of judicial review by the
High Court, in our opinion, would
not amount to infringement of
either the doctrine of separation
of power or the federal structure.”

14. The word of caution sounded by the Apex

Court in the said judgment is ‘apposite’ to note at this

juncture itself, since it would have a direct bearing and

impact of the facts and circumstances unraveled in the

instant case.

“70. Before parting with the case, we
deem it necessary to emphasise that
despite wide powers conferred by
Articles 32 and 226 of the
Constitution, while passing any order,
the Courts must bear in mind certain
self-imposed limitations on the exercise
of these constitutional powers. The
very plenitude of the power under the
said articles requires great caution in
its exercise. Insofar as the question of
issuing a direction to CBI to conduct
investigation in a case is concerned,
although no inflexible guidelines can
be laid down to decide whether or not
such power should be exercised but
time and again it has been reiterated
that such an order is not to be passed
18

as a matter of routine or merely
because a party has levelled some
allegations against the local police.
This extraordinary power must be
exercised sparingly, cautiously and in
exceptional situations where it
becomes necessary to provide
credibility and instil confidence in
investigations or where the incident
may have national and international
ramifications or where such an order
may be necessary for doing complete
justice and enforcing the fundamental
rights. Otherwise CBI would be flooded
with a large number of cases and with
limited resources, may find it difficult
to properly investigate even serious
cases and in the process lose its
credibility and purpose with
unsatisfactory investigations.”

15. There cannot be any inflexible rule which

can be prescribed in a straight jacket formula to

determine as to the circumstances under which this

Court would be empowered to exercise the extraordinary

jurisdiction to transfer investigation from State Police

Wing to any other agency. It all depends on the facts

and circumstances of the case. Depending upon the

terrain, the facts may travel, exercise of extraordinary

jurisdiction may be called for in a given case. However,
19

such power will have to be exercised cautiously,

sparingly and in exceptional situations or

circumstances where it becomes necessary to instill

confidence in the victim or the complainant and public

at large in investigating agency. Hon’ble Apex Court in

the case DHARAMPAL vs. STATE OF HARYANA AND

ORS. reported in (2016) 4 SCC 160 has held:

“3. Justice, which is “truth in action”
and “the firm and continuous desire to
render to everyone which is his due”
becomes a mirage for the victim and
being perturbed he knocks at the doors
of the High Court under Article 226 of
the Constitution alleging that principle
of fair and proper investigation has
been comatosed by the investigating
agency, for the said agency has
crucified the concept of faith in the
investigation which is expected to
maintain loyalty to law and sustain
fidelity to its purpose.”

It is further held:

“25. We may further xxxxx
discrimination. We may hasten to add
that the democratic set-up has the
potentiality of ruination if a citizen
feels, the truth uttered by a poor man
is seldom listened to. Not for nothing it
has been said that sun rises and sun
sets, light and darkness, winter and
20

spring come and go, even the course of
time is playful but truth remains and
sparkles when justice is done. It is the
xxxxx “orphan under law.”

16. Thus, it would emerge from the authoritative

pronouncements of Apex Court referred to hereinabove,

the ultimate test would be: whether the facts would

warrant the investigation being transferred from State

Agency to Central Agency and circumstances would

warrant the same? In other words, this Court would

examine as to whether it would be necessary to transfer

the investigation to CBI as sought for by petitioner or

not?.

17. Records on hand would disclose that

petitioner’s son-Sri. Kumar Ajitabh had left his

apartment on 18.12.2017 at 18.22 hrs to sell/show his

car for a prospective buyer, who had made enquiry

through OLX app and since then he has gone missing

from Bangalore. On 20.12.2017 the room-mate of

Mr.Kumar Ajitabh filed a missing complaint at

Whitefield Police Station, which came to be registered in
21

Cr.No.0486/2017. Subsequently on 29.12.2017 the

father of missing person namely, petitioner lodged a

complaint with the Whitefield Police Station registered

in Cr.No.500/2017 under Section 363 of IPC, since it

was alleged in the complaint by the petitioner that his

son had been abducted. A communication dated

31.12.2017 -Annexure-H has been addressed by

petitioner to the Director General of Police, Bengaluru,

to transfer the case registered in FIR Nos.0486/2017

and 0500/2017 to CBI. On 02.01.2018 i.e., after lapse

of 15 days from the date of missing person, the present

petition has been filed for transfer of the investigation

from the State police to CBI.

18. In the instant case, on issuing notice to

respondents of this petition on 03.01.2018, a memo

came to be filed on 08.01.2018 by the learned

Additional Advocate General enclosing certain

documents. Same was taken on record and it was

noted by this Court as under:

22

“The learned Additional Advocate
General has filed a memo dated
08.01.2018 enclosing thereto the
documents to indicate the effort being
made by the respondents No.3 and 4 to
trace the son of the petitioner. The
details would indicate that the teams
consisting of 8 Officers and 60
personnel has been formed and the day
to day effort being made in that regard
is indicated.

The learned Additional Advocate
General would submit that all serious
efforts would be made and the progress
made would be brought to the notice of
this Court.”

19. On 16.01.2018 a memo came to be filed by

the learned Additional Advocate General enclosing

therewith day-to-day report relating to steps taken by

the police in an attempt to trace the son of petitioner

who was missing. It was noticed by this Court that no

break-through in the efforts has been there. Hence, this

Court directed the Commissioner of Police to constitute

a special team of senior officers in whom he has

confidence to conduct proper investigation.

Accordingly, Special Investigating team came to be

constituted and a report came to be filed on 22.01.2018
23

and this Court directed further report to be filed on

29.01.2018. Accordingly, the Commissioner of Police,

Bangalore, has filed a report indicating thereunder the

method adopted in the investigation and the

Commissioner of Police had expressed satisfaction with

the progress and as such, matter came to be adjourned.

20. Subsequently on 02.02.2018 further report

came to be filed by the Commissioner of Police, which

was taken on record and it was observed by this Court

to the following effect:

“Learned Additional Advocate
General has filed a memo dated
02.02.2018 enclosing thereto the
further steps taken in the
investigation. Though the
Commissioner of Police has indicated
with regard to the steps taken, the
Court is of the opinion that the
investigating agency should be more
proactive in the investigation as
merely indicating what has been done
would not be sufficient without atleast
securing some leads in the
investigation. Atleast it is hoped that
all steps would be putforth and result
would be indicated by the next date of
hearing.”

24

21. The above observation made by this Court

would disclose that, investigation carried out was

mechanical, not proactive and without any leads in the

investigation. It is in this background, matter came to

be adjourned to 08.02.2018 and after perusing the

report filed on 08.02.2018, this Court had clearly

expressed its dissatisfaction to the investigation carried

out and it was specifically observed:

“Though along with the memo,
the report of the Commissioner is
enclosed, there is no much progress in
the investigation, so as to satisfy this
Court.

List on 15.02.2018.

If no progress is indicated on
that day there would be no other
option for this Court but to hear the
learned counsel for the parties and
pass appropriate orders, based on the
material placed before this Court.”

22. Subsequently when the matter was listed

from time to time i.e., on 26.02.2018, 27.04.2018 at the

instance of State Government, no fruitful results were

forthcoming from the investigation and as such on
25

01.06.2018 it came to be observed by this Court as

under:

“Though reports have been
filed, same has not been upto the
mark namely, no leads have been
found, obviously the progress which
respondents-authorities are claimed
to have been made has not yielded
positive results. Even otherwise, the
manner in which investigation has
been done would not indicate that it
has conducted in a thorough
professional manner as expected of a
investigating team like CID. In fact,
today a memo has been filed by
learned Government Advocate
enclosing a sealed cover, which is
said to have contained the report of
Deputy Inspector of General Police,
CID, Bangalore, disclosing further
enquiry conducted. A perusal of said
report would indicate that
respondents-authorities in its usual
and casual approach and in a
routine manner has sent or
forwarded certain communications to
various authorities, which is
expected of them. Memo is placed on
record.

The complaint lodged by the
petitioner before the Office of Prime
Minister and the Ministry for Law
and Justice, Government of India,
has also received its attention
whereby the Prime Minister’s Office
has forwarded the complaint of
petitioner to the Chief Secretaries of
26

State of Kerala, Maharashtra,
Andhra Pradesh, Tamil Nadu,
Telangana, Goa with a copy to the
respective Director Generals of
Police.”

23. It is no doubt true from the above line of

investigation, petitioner would not be justified in

contending that either the State Police Investigating

Team has exhibited any laxity or shown any undue

favours to the suspected persons or has ignored any

vital clue which would otherwise had missed the link.

In fact, as rightly canvassed by Sri. A.S.Ponnanna,

learned Additional Advocate General there has been no

inch of allegation made against the State Investigating

Agency, but on the other hand, petitioner being the

father of the missing person (son), would be quite

justified in expecting that investigation is taken-up or

being conducted by the State police officers would reach

its logical end. The eternal wait of the family members

expecting their son to return would always be there.

This hope and optimism is the basis or the foundation

on which, it would keep not only the parents but also
27

the members of the missing person’s family alive and

this agony and trauma of ‘wait and watch’ can be

known only by the person who undergoes the same. It is

said: “it is the wearer who knows where his shoe

pinches”. In the Hindu mythological epic-Ramayana

when Lord Rama goes to jungle for 14 years giving up

all the worldly pleasures and his father-Dasharatha,

who is separated by his son and undergoes the pangs of

separation, he exclaims: ‘putra shokam nirantaram’.

Putra shoka (grief of son) does not necessarily

mean physical death of the son but would also include

separation that too when whereabouts of the son is not

known by his family members and it would also partake

the character of putra shoka. In other words, family

members would be eternally grieving about their

missing son, either till he is found or till they know

about his whereabouts. The pangs of separation the

family members undergo during this interregnum period

can only be explained by them.

28

24. It would also be apt and appropriate to note

that under Section 13 of the Hindu Marriage Act, 1955

a petition for divorce on the ground that other party has

not been heard of as being alive for a period of 7 years

or more by those persons who would naturally have

heard of it, and that party been alive is a ground on

which such petition for divorce can be filed. In other

words, a statutory recognition of a person not being

alive if he is unheard of for a period of 7 years can be

traced under the said provision. Thus, those persons

who would naturally have heard about missing person

would be father, mother, brother, sister and other close

relatives. They would quite naturally be expecting

either to see the missing person or find him at one point

of time and it is this hope which carries them forward.

25. In the aforestated background, when facts

on hand are examined it would disclose that

investigation has been conducted by SIT not only in the

State of Karnataka but also in other States and for want

of leads from other States, investigation has not
29

proceeded at the pace at which it ought to have

progressed. In fact, the technical team of investigation

is continuing with analysis process of CDR, Internet

Protocol Detail Record (IPDR) of the victim and suspect

and in order to seek the usage details of Whatsapp and

Google accounts of the suspect persons documents

under Section 166A of Cr.P.C. has been prepared and

forwarded to Interpol Liaison Officer (ILO) also. It would

not be out of place to mention here that due to lack of

coordination between the Investigating Agencies of

different States also, no results or leads about missing

person have been traced. It is also on record that the

missing person had completed his Engineering -B.Tech.

from Manipal University and had worked initially with

Tata Consultancy Services and had been working in

British Telecom as IT Analyst and had secured an

admission in a premier educational institution of the

country namely, Indian Institute of Management –

Kolkata and on account of his financial condition not

being so sound, he intended to sell his new Maruti
30

Suzuki Ciaz car to meet his tuition fee and as such had

put up an online advertisement in a website known as

‘OLX’ during 2017 November to sell his car. Thus, the

apprehension expressed by the petitioner namely, father

of the missing person that his son might have been

abducted for making use of his services for anti-national

activities also cannot be ruled-out or for the purposes of

organ trafficking he having been abducted, cannot be

completely ignored or ruled out. The apprehension of

the petitioner and his family members that investigation

made hither to has not yielded any fruitful result, is

fully justifiable and as such this Court in the facts and

circumstances that has been unraveled is of the view

that transferring the investigation from the State Agency

to the second respondent-CBI would be called for.

However, it is explicitly made clear that investigation is

not being transferred either on account of laxity in the

investigation by the State police or inaction of the

investigating agency and it is transferred only on the

ground of investigation till date has led to multiple leads
31

across the country and for better coordination between

different wings of the investigating wings or agencies of

other States and the Central Agency like CBI being in a

higher pedestal, it would be able to coordinate, collate

and collect all such leads to ensure the investigation is

taken to its logical end. Yet, another reason to transfer

the investigation is to instill confidence in the petitioner

and his family members and for enforcement of Article

21 of the Constitution of India namely, Right to Life of

the missing person Sri.Kumar Ajitabh i.e., son of the

petitioner.

26. Hence, I proceed to pass the following:

ORDER

(i) Writ petition is hereby allowed.

(ii) Investigation pending in FIR

Nos.0486/2017 dated 20.12.2017 and

FIR No.0500/2017 dated 29.12.2017 –

Annexures-A and B respectively with

Special Investigating Team (SIT) of
32

Karnataka State Police is transferred to

second respondent-Central Bureau of

Investigation (CBI) forthwith.

(iii) Special Investigation Team (SIT) shall

handover all the case papers including

CDs, reports, etc. relating to the

investigation of FIR Nos.0486/2017

and 0500/2017 conducted hitherto

and which is in their care and custody

to the second respondent forthwith.

(iv) Second respondent-CBI shall continue

the investigation and ensure that the

investigation relating to the missing

person Sri.Kumar Ajitabh is taken to

its logical end.

(v) No order as to costs.

SD/-
JUDGE
DR

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation