Supreme Court Issues Notice In Plea Challenging Telangana High Court Order In Missing Of 12 Year Old Boy From Madrassa: Parents Seeks Independent Investigation

(Judicial Quest News Network)

A petition seeking the independent investigation of a missing boy from Madrassa was filed in Apex Court Challenging the Telangana High Court Order dated 07.12.2020 which dismissed the habeas corpus petition filed by the parents of the boy seeking investigation and recovery of their kidnapped son who was alleged to be dead as per FSL report dated 05.02.2019.

The bench headed by Chief Justice SA Bobde has issued notice on a petition filed by the mother of the boy against the Telangana High Court order.

It was submitted in the Telangana High Court by the FSL that during the course of investigation the seized sample material objects pertaining to the who was met with a train accident at shad nagar were deposited in the TSFSL and also informed the parents 1) Mohammed Asif Ali and 2) Nazima Begum in the TSFSL to obtain the blood samples for DNA Examination.

The Telangana High Court while relying on the FSL report, ordered that since the petitioner’s missing son was no longer alive, the writ of Habeas Corpus petition cannot be issued by the court.

The petitioner submitted that the Telangana High Court passed the order on an incorrect assumption based on a fabricated FSL report as the dead body so found did not belonged to her kidnapped son.

The represented by Advocate Khaja Aijaz Uddin, alleged that the Telangana High Court has passed the impugned order on the basis of an incorrect assumption by relying on the FSL report as the dead body did not belong to her son.

It is alleged that an improper investigation by the State police is apparent on record and hence to meet the ends of justice, it is necessary for the independent agency to examine and settle the issue on death of petitioner’s son co-relating with the alleged dead body as expeditiously as possible so that the agencies can be directed to reopen the investigation for tracing the missing son of the petitioner.

The Chronology of Events

The petitioner’s son, aged about 12 years, was kidnapped in 2018 by unknown persons from Madras in Dabeerpura Area in Hyderabad. An unknown dead body of a 20-year-old male was later found by the police and a post mortem was conducted. The dead body was later buried in a grave yard.

The petitioner has primarily contended that the order of the Telangana High Court was passed on an” Incorrect Assumption “based on a fabricated FSL Report.

According the submissions of the petitioner that her son was 12-year-old with a height of 4.5 ft whereas the FSL report concluded that the bones of the dead body belonged to a person of 20 years of age with a height of more than 5ft.

The petitioner further contended that the alleged FSL report contradict the post-mortem report, FIR, photographs of dead body, oral evidence of the petitioner and her husband and appears to have been stage-managed by the police in order to close the case.

The petitioner contends that the Hon’ble High Court has misdirected itself in relying only on the TSFSL report especially when the oral and documentary evidence including the other scientific evidence i.e. the post mortem report prepared first in time raise a strong suspicion and questions the reliability and genuineness of the said TSFSL report which is a subsequent document. Post mortem report is prepared by the doctor who actually gets an opportunity to examine the dead body and who prepares the report from a medico legal perspective and who in the instant case observes and examines the dead body to be of 20-year male. It is submitted that that morphological and anatomical changes take place in the body when boy (12-year-old) gets transformed into an adult (20-year-old) and such changes are visible to a naked eye. Further, the

post mortem report can be said to be genuine as when the said post-mortem was done, neither the doctor nor the concerned police were even aware about the kidnap of the petitioner’s son. Looking in this context, it is reiterated that the said FSL report is fake and fabricated and stage managed by the police in order to close the case.

In the light of the above mentioned facts, the petitioner seeks reinvestigation into the case by an independent agency like CBI to examine the matter of fabricated FSL report and also to trace her missing son, which the police authorities have declared to be dead.

It is also submitted that the both mother and father are under going intense mental agony on the account of improper investigation by state police.

QUESTIONS OF LAW:

The following substantial questions of law arise in the instant petition for consideration of this Hon’ble Court:

I. Whether the Hon’ble High Court has misdirected itself in relying only on the FSL report especially

when the oral and documentary evidence including the other scientific evidence i.e. the post mortem report raise a strong suspicion and question the reliability and genuineness of the said FSL report?

II. Whether the said FSL report is fake and fabricated and stage managed by the police in order to close the case?

III. Whether the Hon’ble High Court before passing the impugned order ought to have considered that neither the said dead body is handed over to the relatives nor were the relatives informed about the said FSL report by the IO or the CCTV footage

and/or other attending circumstances by the investigating officer including the exhumation of said dead body any time prior to filing of the counter affidavit by the police before the Hon’ble High Court in the habeas corpus petition and this itself is enough to lay bare the claim of the police as false and suspicious?

IV. Whether the Hon’ble High Court has mis directed itself in closing the writ of Habeas corpus petition instead of directing independent enquiry by any specialized agency in view of the apparent errors by the police showing faulty, suspicious and hasty

investigation?

V. Whether the Hon’ble High Court has failed to appreciate the travesty and mockery of justice caused to the petitioner and her family in the facts and circumstances of the case.

The leave to appeal was sought on following grounds

A. For that the oral and documentary evidence raise a strong suspicion that the FSL report is fake and stage managed by the police in order to close the case.

B. For that the Hon’ble High Court has erred in taking into consideration only the FSL report which is

contradictory in face of the other oral and documentary evidence i.e.contrary evidence of postmortem report, FIR No. 72/2018 and other oral evidence while refusing to interfere in the habeas corpus writ petition and this has resulted in the travesty of justice.

C. For that the Hon’ble High Court ought to have appreciated the contentions of the petitioner made in the rebuttal affidavit that she made no requisition about the DNA test and was not

informedabout the TSFSL report or about the non intimation of the final report and further ought to have given cogent reasons for disbelieving the affidavit before passing the impugned order.

D. For that the Hon’ble Court should take into account that for any case registered under section 174 CrPC, certain procedure as prescribed u/s 175 to 176 CrPC

is required to be followed and in the instant case there is no compliance of the same on the alleged dead body which in itself is suspicious.

E. For that the post mortem report is the scientific examination of the deceased body by a doctor who examines the body from a medico legal perspective.

In the instant case the High Court ought not to have ignored the post mortem reportof the said dead

body a scientific document in favour of another document the FSL report. The post mortem of the alleged dead body found on the railway track shows the same is of a male aged 20 years with height 5 ft

and the said facts cannot be said to be tainted in any manner as this postmortem in FIR No. 72/2018 was done by the doctor independent of the knowledge of existence of FIR No. 101/2018. F. For that the efforts of the petitioner to get her son traced with the help of local police have been futile as they kept on going to the police station and were falsely informed that their son had died in a Train accident and was buried in a Muslim graveyard at Shadnagar area , however when they visited the concerned PS Mehboobnagar, they found that the photograph of the dead body did not match that of their son. During the investigation, the blood samples of the petitioner and her husband was also collected, however they were never informed about the reason why the samples were being taken, nor were they shown the exhumed body and nor the said body was handed over to them. The so called CCTV footage was not shown to them nor they were informed about the results of the forensics. The Action was dropped by the police without the knowledge of the petitioner. All these violate Article 21 of the Constitution of India as the rule of law permits fair investigation only.

G. For that except the alleged FSL report there is nothing to link FIR No. 101/2018 PS Dabeerapura, Hyderabad and FIR No. 72/2018 PS Mehboobnagar District and there is a distance of approx. 95 kms separating the two police stations.

H. For that no notice was given to the petitioner about the filing of final closure report either by the Investigating officer and nor by the Ld. Magistrate till now and it does not bear her signatures and hence filing of final report by the respondent no. 5 is of no legal sanctity at all.

I. For that the Hon’ble Supreme Court in a judgment rendered in 1997 (7) SCC 614 titled Union Public Service Commission Vs. S. Papaiah and Others has held that issuance of notice to the informant by the Magistrate at the time of consideration of the Final Report u/s 173 CrPC is a ‘’must’’ and without this the acceptance of the final report and closure of the case by the Magistrate is bad. It was further held that the withholding of such vital information creates a doubt about the fairness of the investigation. In view of the legal position prevailing, the respondent no. 5 have filed the final

report in April 2019 projecting the case to be closed and action dropped and this itself shows the improper functioning of the respondent no. 5 in the case of such a heinous nature.

J. Because appreciating all the averments made by the petitioner in her reply affidavit pointing out the anomalies in the suspicious investigation, the Hon’ble High Court ought to have transferred the investigation to CBI enabling them to find out about the correct facts and for tracing the missing son of the petitioner.

K. Because the false report has resulted in grave miscarriage of justice to the victims i.e. the petitioner and her family, the missing son and to the society at large and is helping the offenders i.e. the people who kidnapped the child, the police officers and the FSL officers go scott free who deserve to be brought to justice.

L. Because the petitioner submits that respondent no. 6 & 7 had earlier in the year 2014 kidnapped her son and charge sheet had been filed against them and even though the matter was later compromised yet the possibility of them holding the grudge against the petitioner’s son cannot be ruled out especially when the said child was a witness to their deeds and this angle requires to be investigated.

M. For that this Hon’ble Court in 2011 (5) SCC 79 Narmada Bai Vs State of Gujarat has held that where there is improper investigation by the State Police , in order to do complete justice, direction for investigation by an independent and specialized agency like CBI is permissible. Rule of law is investigation by impartial agency.

N. For the last 2 years the petitioner and her husband have been running from pillar to post in search of their son