Shiv Kumar Sharma, J.
1. Instant Habeas Corpus petition has been filed by the petitioner Prem Chand who is the father of abducted boy Chandra Bhan with the prayer that the direction be issued to the State of Rajasthan to produce Chandra Bhan and driver Bachhu Singh before this Court and their custody be restored to the petitioner.
2. The first information report was lodged by one Rajesh Kumar with the Police Station Kotwali, Bharatpur on 15.6.2000 at 2.00 p.m. in regard to the abduction of Chandra Bhan and Bachhu Singh. The Police Station Kotwali, Bharatpur registered the case under Sections 420 and 365 I.P.C. vide FIR No. 249/2000 against the respondents namely Arvind, Pappu @ Raj Kumar and Rajendra Singh.
3. It is averred in the petition that the police did not conduct the investigation in the manner required under the law and has so far not recovered either dead or alive, the abducted persons namely Chandra Bhan and Bachhu Singh. A representation was submitted on 18.6.2000, thereafter another representation on 26.6.2000 was made with the prayer that the investigation of the case be entrusted to some another police officer. On 30.6.2000, Home Minister, Government of Rajasthan, Jaipur was approached for taking suitable action in connection with the recovery of abducted persons and the jeep. Another representation on 1.7.2000 was made before the D.I.G., Bharatpur Range and on 2.7.2000, the Director General of Police, Rajasthan was approached. Thereafter Chief Minister, Secretariat, Jaipur was approached from where necessary orders were issued. After being dissatisfied with the investigation of police authorities, the petitioner on 7.5.2001 has instituted the instant writ petition.
4. this Court vide order dated 8.5.2001, directed S.P. Bharatpur and the investigating officer Police Station Kotwali, Bharatpur to remain present before the Court alongwith the reply and progress report of the investigation on the next date. On 22.5.2001, a detailed reply was filed by the respondents alongwith certain annexures. It was pleaded in the reply that the matter was being investigated by an officer to the rank of Addl. Superintendent of Police and one Pappu @ Raj Kumar has already been arrested and sincere efforts are being made to arrest Arvind and Rajendra Singh. Thereafter, the matter was posted on 5.7.2001, 9.7.2001, 10.8.2001 and 14.8.2001, 16.8.2001 and 23.8.2001. On 23.8.2001, last opportunity was granted to the investigating officer to recover the detenues and the case was ordered to be posted today.
5. Mr. R.K. Chauhan, Superintendent of Police, Bharatpur, Mr. Bhal Singh Chaudhary, Addl. S.P., Bharatpur and Mr. Raj Pal Singh, SHO Thana Kotwali, Bharatpur are present in person. Mr. Bhal Singh has filed a detailed affidavit stating therein that serious efforts were made by him and the investigating officer to recover the abducted persons.
6. It is evident that the FIR came to be lodged on 15.6.2000 and after one year and about three months, the abducted persons namely Chandra Bhan and Bachhu Singh have not been recovered so far. Even the accused Arvind and Rajendra Singh named in the FIR have not been arrested. Mr. Suresh Sahni, learned Counsel appearing for the petitioner canvassed that no further opportunity should be granted to the investigating agency in the matter and the case be transferred to the C.B.I.
7. Reliance has been placed in the case of State of Rajathan and Ors. v. Phool Chand Garg and Anr. reported in 1991 CLJ 125, Atibal Singh v. State of Raj. and Ors. reported in 1987(11) RLR 611, State of West Bengal and Ors. v. Sampat Lal and Ors., reported in : 1985CriLJ516 .
8. Per contra, Mr. Ajay Purohit, learned Public Prosecutor contended that fair investigation has been made in the matter and the police is making all efforts to recover the abducted persons, it is the petitioner who is not assisting the investigating agency, therefore, further opportunity may be granted to the investigating agency in the matter. Learned Public Prosecutor invited our attention in the case of State of Maharashtra and Ors. v. Sheela Ramesh Kini and Ors. reported in : (1998)9SCC346 , State of Bihar and Anr. v. Ranchi Zila Samta Party and Anr. reported in 1996 (3) SCC 682, All India Institute of Medical Sciences Employees, Union (Regd.) v. Union of India and Ors. reported in : (1996)11SCC582 , State of Karnataka v. Arun Kumar Agarwal and Ors. reported in : AIR2000SC411 .
9. We have reflected over the rival submissions and scanned the record. Mr. Chauhan, Superintendent of Police, orally stated before us that for the last one month, the police is busy in communal riots matters, therefore, for this period full attention could not be devoted on account of paucity of time.
10. It is well settled that the courts should not pass the order transferring the investigation on public outcry. Decisions cannot be made on the verdict of the numbers and the courts have to maintain their cool and watch the events with a fair amount of objectivity.
11. Before we proceed further, it will be useful to consider the provisions contained in Section 173 of Cr.P.C., which reads as under:
(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government giving details therein. Upon receipt of the report, the Court under Section 190 is empowered to take cognizance of the offence. under Section 173(8), the investigating officer has power to make further investigation into the offence.
12. In the facts and circumstances of the present case, we are satisfied that investigation in the matter has not been completed without unnecessary delay. In the case of All India Institute of Medical Sciences Employees' Union (Regd.) (supra), relied upon the learned Public Prosecutor, the petitioner approached the High Court without adopting the procedure provided under the Code of Criminal Procedure. Under these circumstances, the Lordship of the Supreme Court indicated that without availing of the procedure contained in Code of Criminal Procedure, the petitioner was not entitled to approach the High Court by filing the writ petition and seeking a direction to conduct an investigation by the CBI.
13. At this juncture, we intent to incorporate the observations of the Privy Council in the case of King Emperor v. Khwaja Najir Ahmad reported in AIR 1945 PC 18, wherein he Privy Council observed as under:
The functions of the judiciary and the police are complementary, no overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however the Court's functions begin when a charge is preferred before it, and not until then. It has sometimes been thought that Section 561A (now Section 482) has given increased powers to the Court which it did not possess before that section was enacted. But this is not so, the section gives no new powers, it only provides that those which the courts already inherently possesses shall be preserved and is inserted as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and that no inherent powers had survived the passing of that Act.
14. Coming to the facts of the instant case as already stated, the investigating agency has neither arrested all the accused nor submitted F.R. in the matter before the concerned Magistrate and for a period of one year and three months, abducted persons, dead or alive, have not been recovered. Therefore, the impression that has been gathered by us is that the investigating agency has not properly conducted the investigation and we have no option but to transfer the case to the C.B.I.
15. We, therefore, direct that the investigation of criminal case bearing No. 249/2000 undertions 420 and 365 I.P.C., pending with the Police Station Kotwali, Bharatpur shall be immediately transferred to the C.B.I., Jaipur. Learned Public Prosecutor shall intimate the C.B.I., Jaipur forthwith. A copy of this order may also be transmitted to C.B.I., Jaipur. Superintendent of Police, Bharatpur is directed to transfer all the material to the C.B.I., Jaipur.
16. The writ petition stands disposed of as indicated hereinabove