13-years of long fight, yet State’s investigation unsatisfactory: Whether exemplary costs to a wife fighting for a decade to secure her missing husband’s presence would be granted or not? Read Bom HC’s decision

Bombay High Court: While noting the failure of State Machinery in securing the presence of a person for 13 years, Division Bench of V.K. Jadhav and Shrikant D. Kulkarni, JJ., expressed that,

Article 21 of the Constitution of India guarantees that no person shall be deprived of his life or personal liberty except according to a procedure established by law. Right to life and personal liberty is the primordial right which every human being everywhere at all times ought to have it.

Investigation lacked whole hearted efforts.

Petitioner was the wife of Gangadhar Patil, who was running a proprietary concern dealing with the business of cotton in addition to his profession as an agriculturist. It was stated that he used to purchase cotton from the farmers and sell it to respondent 8 and the said respondent was liable to pay the due of Rs 58,690 and hence the husband of the petitioner requested respondent 8 to pay the outstanding bill.

Respondent 8 threatened the petitioner’s husband to kill him if he demanded the outstanding bill.

Petitioner’s husband went missing and hence her apprehension was that respondents 8 and 9 might have detained her husband by joining hands with respondent 7. Though the police failed to trace out her husband.

In view of the above, the petitioner approached the Court.

Analysis, Law and Decision

High Court stated that it had issued notices to the respondents and the Superintendent of Police was directed to personally monitor the investigation by Court’s order, though the Court had expressed dissatisfaction with the manner in which the investigation had been made so far.

Failure of the State Machinery

Bench expressed that,

We cannot overlook the fact that the State machinery has failed to take effective and concrete steps to secure the presence of the petitioner’s husband.

Court found no satisfactory answer for the unsuccessful exercise to trace out the husband of the petitioner after registration of the crime.

Elaborating further, Bench opined that the investigation lacked the devotion to achieve the goal.

Mere paperwork of investigation seems on record.

For the last 13 years, the petitioner is fighting to secure presence of her husband. The State machinery has failed to produce the petitioner’s husband, even after a decade, it is a sad state of affairs on the part of State machinery.

 In case of Nilibati Behera Alias Lauta Behera v. State of Orissa, (1993) 2 SCC 746, the Supreme Court by exercising Article 32 and 142 was pleased to award compensation having regard to the facts of the case.

In case of D.K. Basu Vs. State of West Bengal, (1997) 1 SCC 416, the  Supreme Court was pleased to issue mandatory directions to the police authorities in respect of custodial violence, torture, etc. and monetary compensation.

In case of Rudul Sah v. State of Bihar, (1983) 4 SCC 141, the Supreme Court was pleased to award interim compensation of Rs 30,000/- to the petitioner.

In view of the High Court, petitioner made out a case to award exemplary costs.

Calling it a case of infringement of the right to life and personal liberty, Court expressed that it is very sad that the petitioner lady after a fight of 13 years also could not get fruits and there seems to be no chance of her securing her husband’s presence anymore.

Noting the long fight of wife for almost a decade to exercise a fundamental right guaranteed under the Constitution, Court granted Rs 50,000 to the petitioner.

Though the investigation is yet to be continued and should not be closed on account of disposal of this petition. [Kamalbai v. State of Maharashtra, 2021 SCC OnLine Bom 3694, decided on 28-10-2021]


Advocates before the Court:

P.P. Mandlik, Advocate for Petitioner

S.J. Salgare, A.P.P. for State/Respondents1 to 6 Mr S.S. Jadhavar, Advocate for Respondents 8 to 10

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