Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Arup Kumar Goswami CJ and N K Chandravanshi J. dismissed the petition and declined to issue a writ of habeas corpus.

The facts of the case are such that the petitioner’s daughter’s marriage was solemnized with respondent 7 in the year 2011 because of love affair between them. They were blessed with a female child, but after some time, respondent 7 and his family members started raising suspicion alleging that she is suffering from an evil soul and used to torture her physically and mentally. A complaint was filed in police thana and during counselling the husband and his family agreed to take Juhi with them since that day there is no information about the well being of Juhi Sahu. Thus instant writ in the nature of habeas corpus, was filed seeking directions to the respondents/authorities to produce her missing daughter, Juhi Sahu, before this Court.

The order mentions that statements of relatives of both sides of the missing person were recorded, but nothing substantive was found with regard to her whereabouts.

The Court observed that perusal of record would show that during the course of hearing, this Court issued various directions in respect of the investigation to trace out the missing person Juhi Sahu, and in compliance of various orders, respondents 1 to 6/ police officials have filed various status reports/affidavit in respect of investigation of the matter, in which, they have categorically stated that despite their all possible efforts, they were not able to trace out the missing Juhi Sahu

The writ of habeas corpus is an effective means of immediate release from the unlawful detention, whether in prison or in private custody. Physical confinement is not necessary to constitute detention. Control and custody are sufficient. For issuance of a writ of habeas corpus, the applicant must show a prima facie case of unlawful detention of the subject.

The Court relied on judgment Kanu Sanyal v. District Magistrate, Darjeeling (1973) 2 SCC 674 and traced the history, nature and scope of the writ of habeas corpus. It was observed “it is a writ of immemorial antiquity whose first threads are woven deeply “within the seamless web of history and untraceable among countless incidents that constituted a total historical pattern of Anglo-Saxon jurisprudence”.

The Court observed that the constitutional Courts across the country predominantly held in catena of judgments that establishing a ground of “illegal detention” and a strong suspicion about any such “illegal detention” is a condition precedent for moving a Habeas Corpus petition and the Constitutional Courts shall not entertain a Habeas Corpus petition, where there is no allegation of “illegal detention” or suspicion about any such “illegal detention”. Cases of missing persons cannot be brought under the provision of the Habeas Corpus petition.

It was further observed that cases of missing persons are to be registered under the regular provisions of the Indian Penal Code and the Police officials concerned are bound to investigate the same in the manner prescribed under the Code of Criminal Procedure. Such cases are to be dealt as regular cases by the competent Court of Law and the extraordinary jurisdiction of the Constitutional Courts cannot be invoked for the purpose of dealing with such cases of missing persons.

The Court held it is not a fit case for issuance of a writ of habeas corpus. Therefore, we decline to exercise the jurisdiction for issuance of writ of habeas corpus, and dismiss the writ petition, leaving it open to the petitioner and respondents to proceed in accordance with law.

[Jaymati Sahu v. State of Chhattisgarh, 2022 SCC OnLine Chh 737, decided on 22-04-2022]


Appearances

For petitioner: Mr. Yogesh Chandra Sharma

For Respondents 1 to 6. : Mr. H.S. Ahluwalia


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsInternational Courts

OHCHR (WGAD): While addressing the issue of alleged arbitrary detention of Ms. Marie-Emmanuelle Verhoeven in Tihar Jail, New Delhi, from the period of February 2015 till July 2016 and her claim for compensation [IPA No 15 of 2018], which is currently pending in the Delhi High Court having been filed by Ms. Verhoeven as a Civil Suit on 24 July 2018 against the Union of India,  the Vice-Chair of the WGAD, Miriam Estrada-Castillo observed that,

Without prejudging the accuracy of these allegations, we express concern that the detention of Ms. Verhoeven, if confirmed, may have been arbitrary, in violation of Article 9 of the Universal Declaration of Human Rights and Article 9 of the International Covenant on Civil and Political Rights”

 

Pertinent Facts: Marie-Emmanuelle Verhoeven is a French citizen who spent a part of her life in Chile from 1985 to 1995. During her stay in Chile, Verhoeven was a member of the Latin American Economic and Social Committee and later joined the United Nations Economic Commission for Latin America and the Caribbean [UNECLAC] or CEPAL [Spain] in Chile. She also participated in Special Human Rights Missions.

Ms. Verhoeven had been visiting India for spiritual reasons in the past. On 16th  February 2015, she entered India from Nepal based on a valid visa issued by the Embassy of India in France. She was arrested in Uttar Pradesh on 16th  February 2015 because of an Interpol Red Corner Notice dated 27th January 2014 at the request of the Chilean Government and was brought to Delhi on February 21, 2015. This Red Corner Notice dated 27th January 2014 formed the subject matter of a previous Extradition Request made by Chile to Germany. By its Judgment of 6 June 2014, the Hanseatic Higher Regional Court at Hamburg, Germany  had declared the Extradition Request of Chile as illegal and set Ms. Verhoeven  free.

 

Legal Trajectory: By an order dated February 24, 2015, the Additional Chief Metropolitan Magistrate, [ACMM] Patiala House District Court, New Delhi,  directed the provisional arrest of Ms. Verhoeven under Section 34B of the Extradition Act, 1962. She was remanded to judicial custody from time to time and was detained at Tihar Jail, New Delhi from February 2015 till July 2016. At the time of her provisional  arrest on 24 February 2015, there was no extradition treaty between India and Chile.

The matter reached Delhi High Court in March 2015. A Gazette of India Notification No. 267, Part II, dated 29th April 2015 and the Order dated 28th April 2015, were issued by the Government  of India  recording the Extradition Treaty between the Republic of India and the Republic of Chile. Ms Verhoeven challenged the constitutional validity of this Notification and contended before the Delhi High Court inter alia that this Extradition Treaty [emerging from this Notification] could not be applied retroactively to her while she was still in detention, as this was based on a Treaty between Great Britain and Chile of 1897. She also argued that there was no record of such a treaty in the official archives  either in India or in Chile.

 

On 21st September 2015,  the Division Bench of G. Rohini, CJ., and Jayant Nath, J., in Verhoeven, Marie-Emmanuelle v. Union of India and another, 2015 SCC OnLine Del 12166, held that Ms. Verhoeven’s detention was illegal. However, she was not released from the prison on 21 September 2015. The Delhi High Court upheld the constitutional validity of the Extradition Treaty between India and Chile.

 

Ms. Verhoeven was re-arrested by the ACMM, Patiala House District Court, New Delhi on September 22, 2015 on the basis of the Note Verbale dated 21 September 2015 of the Chilean Embassy in New Delhi

 

On 29th September 2015, a Habeas Corpus Writ Petition was filed by Ms. Verhoeven in the Supreme Court of India challenging her illegal detention. On 13th October 2015, Ms Verhoeven also challenged [by way of a Special Leave Petition in the Supreme Court of India], the dismissal by the Delhi High Court of her challenge to the Extradition Treaty which had been resuscitated by the Indian Government from 1897 on the basis of the Extradition Treaty between Great Britain  and Chile, [when India was under the British Empire], and was retroactively made applicable to her by the Indian Government  while she was already in detention.

 

In December 2015, during the illegal detention of Ms Verhoeven on the basis of the Note Verbale dated 21 September 2015 of the Chilean Embassy in New Delhi, the Indian Government filed a second extradition proceeding against Ms Verhoeven, based on the India/Chile Treaty.

 

On 28th April 2016, the Division Bench of the Supreme Court of India  comprising  Madan B. Lokur and N.V. Ramana, JJ., in Verhoeven, Marie-Emmanuelle  v. Union of India, (2016) 6 SCC 456 , held that a binding extradition treaty between India and Chile existed and upheld Ms.Verhoeven’s arrest and detention on the basis  of the  Note Verbale of the Chilean Embassy in New Delhi, dated  September 21, 2015.  Her Habeas Corpus Writ Petition was dismissed by the Supreme Court of India by this Judgment.

On 2nd July 2016, Ms Verhoeven was released on bail by the ACMM, Patiala House District Court, New Delhi

On July 26, 2017, the ACMM, Patiala House District Court, New Delhi, discharged Ms. Verhoeven, based on the Indian Government’s request to withdraw the Extradition Case  and she returned to her homeland in France on 27th July 2017.

 

Contentions raised by Ms. Verhoeven:   Ms. Ramni Taneja, Advocate, representing the aggrieved individual, contended before the WGAD, OHCHR, that the detention of Ms. Verhoeven was illegal and arbitrary in nature. She further raised questions on the disputed existence of an extradition treaty between India and Chile and submitted that the extradition treaty was retroactively applied to the case of her client, which is impermissible in law. She further asserted that Ms. Verhoeven’s re-arrest on September 22, 2015 was based on a Note Verbale dated 21st September 2015 issued by the Embassy of Chile in New Delhi and was therefore without legal foundation.

The contentions also drew attention to the poor condition in the prison cells where Ms. Verhoeven was kept and the lack of medical attention, consular rights etc.

Finally, it was argued that the concerned authorities in India should have abided by Interpol’s request on May 30, 2015 that, it erased all files concerning Ms Verhoeven, which meant that she would have been released immediately. It was thus contended by Counsel that Ms. Verhoeven’s detention was without legal basis.

 

Observations of the Working Group: While deliberating upon the matter, the WGAD made it clear that their observations are being made “without prejudging the accuracy of the allegations made by Ms. Verhoeven”. The Working Group-

  • Expressed its concern over the detention of 17 months stating that, “If confirmed, may have been arbitrary, in violation of Article 9 of the Universal Declaration of Human Rights and article 9 of the International Covenant on Civil and Political Rights. The prohibition of arbitrary deprivation of liberty is part of treaty law, customary international law. It constitutes a jus cogens norm and is fully applicable in all situations”.

 

Expressed its concern “at the allegations of poor conditions of detention which Ms. Verhoeven was subjected to, of denial of requested medical attention, of denial of consular rights, and abusive restrictions of family contact, which further contravene several important rights to medical care, to consular assistance and to contacts with family, as codified in the Standards Minimum Rules for the Treatment of prisoners, revised in 2015 as the “Mandela Rules”.

 

With the aforesaid observations, which were issued to the Permanent Mission of India at Geneva by the WGAD on 21st December 2021, clarifications were sought by the WGAD  from the Government of India  in the form of an Urgent Appeal regarding the allegations raised by Ms. Verhoeven.

 

On 16th February 2022, the Government of India submitted its response to the Urgent Appeal of the WGAD, OHCHR. On the website of the OHCHR the following is stated therein:

The Government’s reply is not made public due to its confidential nature.”

[Read the Order HERE ]

 

[Mandate of WGAD, Ref.: AL IND 22/2021, issued on 21-12-2021]


Sucheta Sarkar, Editorial Assistant has put this report together.

Case BriefsHigh Courts

Allahabad High Court: Dr Yogendra Kumar Srivastava, J., while examining the scope of the writ of habeas corpus, expressed that,

The power of the High Court, in granting a writ, in child custody matters, may be invoked only in cases where the detention of a minor is by a person who is not entitled to his/her legal custody.

Petitioner 1 asserted himself to be the father of the petitioner 2 corpus and filed the present habeas corpus petition alleging that the corpus was under illegal custody of his mother-respondent 4.

Writ of Habeas Corpus

Writ of habeas corpus is a prerogative writ and an extraordinary remedy, it is writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown, as held in Mohammad Ikram Hussain v. State of U.P., AIR 1964 SC 1625 and Kanu Sanyal v. District Magistrate Darjeeling, (1973) 2 SCC 674.

The object and scope of a writ of habeas corpus in the context of a claim relating to custody of a minor child fell for consideration in Sayed Saleemuddin v. Dr Rukhsana, (2001) 5 SCC 247, and it was held that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other, the principal consideration for the Court would be to ascertain whether the custody of the child can be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed.

Maintainability of Habeas Corpus Petition

The question of maintainability of habeas corpus petition under Article 226 of the Constitution of India for custody of a minor was examined in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42 and it was held that the petition would be maintainable where detention by parents or others is found to be illegal and without any authority of law and the extraordinary remedy of a prerogative writ of habeas corpus can be availed in exceptional cases where ordinary remedy provided by the law is either unavailable or ineffective.

High Court stated that the exercise of extraordinary jurisdiction for issuance of a writ of habeas corpus would, therefore, be seen to be dependent on the jurisdiction fact where the applicant establishes a prima facie case that the detention is unlawful.

Only where the above-mentioned jurisdictional fact is established the applicant would become entitled to the writ as of right.

Further, the Bench added that the role of the High Court in examining cases of custody of a minor, in a petition for a writ of habeas corpus, would have to be on the touchstone of the principle of parens patriae jurisdiction and the paramount consideration to be the welfare of the child.

In the present matter, petitioner 2 was of the age of 6 years and under the exclusive care and custody of his mother since the time he was an infant of about 2 years of age.

Custody with Mother: Lawful or Unlawful?

High Court stated that, the private respondent was none other than the biological mother of the minor child. This being the fact, it may be presumed that the custody of the child with his mother is not unlawful.

It would only be in an exceptional situation that the custody of a minor may be directed to be taken away from the mother for being given to any other person-including father of the child, in exercise of writ jurisdiction.

 In view of the above discussion, Court did not exercise its extraordinary jurisdiction to entertain the petition seeking a writ of habeas corpus. [Sushil Kumar Tiwari v. State of I.P., 2021 SCC OnLine All 882, decided on 6-12-2021]


Advocates before the Court:

Counsel for Petitioner:- Maqsood Ahmad Beg, Naiyar Masroof Siddiqui

Counsel for Respondent :- G.A.

Case BriefsHigh Courts

Allahabad High Court: Dr Y.K. Srivastava, J., expressed that, in a matter of custody of a minor child, the paramount consideration is the “welfare of the minor” and not rights of the parents or relatives under a statute which are in force.

A claim for guardianship or custody, in a writ of habeas corpus, may not be held to be an absolute right, and would yield to what would appear to be in the interest of the child. In such cases, it is not a question of liberty but of nurture and care.

Instant habeas corpus petition was initially filed by the paternal grandparents seeking custody of the corpus a minor child stated to be of the age of 19 months at that point of time, who was said to be with her maternal grandfather.

It has been stated that despite various requests maternal grandfather was not handing over the custody of the corpus to the paternal grandparents and that the same amounted to illegal detention.

Factual Matrix 

Present habeas corpus petition principally seeks to raise claims with regard to guardianship and custody of the petitioner 1 (corpus) who is girl child stated to have been born on 04.06.2018 and presently aged about three years. It is not disputed that the mother of petitioner 1, upon being seriously ill was taken away by respondent 4 along with the minor child for medical treatment and she died on 31.07.2019 and since then the petitioner 1 is under the care and custody of the respondent 4, her maternal grand­father. The lodging of the FIR under Sections 498­A, 304­B IPC and Section 3/4 Dowry Prohibition Act, 1961, in which the petitioners 2, 3 and 4, are named as accused and the pendency of the criminal proceedings are reflected from the records.

Principal Issue

Whether from the facts of the case, it can be stated that the custody of the child is illegal?

Analysis, Law and Decision

Writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is a writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown as held in Mohammad Ikram Hussain v. State of U.P., AIR 1964 SC 1625 and Kanu Sanyal v. District Magistrate, (1973) 2 SCC 674.

Jurisdiction

The exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would,  be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful.

Object and Scope of Writ of Habeas Corpus

In the case of Syed Saleemuddin v. Dr Rukhsana, (2001) 5 SCC 247, it was held that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed.

In the decision of Walker v. Walker & Harrison, 1981 New Ze Recent Law 257, the question as to what would be dominating factors while examining the welfare of a child was considered and it was observed that while material considerations have their place, they are secondary matters. More important are stability and security, loving and understanding care and guidance, and warm and compassionate relationships which are essential for the development of the child’s character, personality and talents.

Further, elaborating more it was noted that question of a claim raised by maternal grand­father for guardianship of a minor child whose mother had died after giving birth to the child was subject matter of consideration in Shyamrao Maroti Karwate v. Deepak Kisanrao Tekham, (2010) 10 SCC 314, and reiterating that in the matter of custody of a minor child, paramount consideration is welfare of minor and not rights of parents or relatives, it was held that the appointment of the maternal grand­father as guardian, was justified.

Court stated that considering the facts of the case in particular the allegations against the respondent and pendency of a criminal case for an offence punishable under Section 498­A IPC, it was observed in the decision in the case of Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, that one of the matters which is required to be considered by a court of law is ‘character’ of the proposed guardian and that the same would be a relevant factor.

In an earlier decision in the case of Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, (1992) 3 SCC 573,  where in almost similar circumstances the father was facing a charge under Section 498­A IPC, it was held that though the father being a natural guardian, has a preferential right to the custody of the children, but in the facts and circumstances of the case, it would not be in the interest of the children to hand over their custody to the father.

Therefore, in an application seeking a writ of habeas corpus for custody of a minor child, the principal consideration for the Court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether the welfare of the child requires the present custody should be changed and the child should be handed over in the care and custody of somebody else other than in whose custody the child presently is.

Power of the High Court, in granting a writ, in child custody matters, may be invoked only in cases where the detention of a minor is by a person who is not entitled to his/her legal custody.

 High Court observed that,

A writ of habeas corpus, is employed in certain cases, to enable a party to enforce a ‘right to control’ – arising out of a domestic relationship, especially to enable a parent to get custody and control of a child, alleged to be detained by some other person.

 Guardianship v. Welfare of the Child

 Bench expressed that while examining the competing rights with regard to guardianship vis-à-vis welfare of the child, the predominant test for consideration would be – what would best serve the welfare and interest of the child.

The interest of the child would prevail over legal rights of the parties while deciding matters relating to custody.

In Court’s opinion, the custody of a minor child with her maternal grandfather was not in any manner illegal and improper detention.

Reasoning out the above opinion, Court stated that the child from her infancy, when she was of a tender age, appears to be living with her maternal grand­ father. This together with the fact that the father who is claiming custody is named as an accused in a criminal case relating to the death of the mother of the corpus, would also be a relevant factor.

“…in deciding questions relating to custody of a minor child, as in the present case, the paramount consideration would be welfare of the minor and not the competing rights with regard to guardianship agitated by the parties for which the proper remedy would be before the appropriate statutory forum.”

In view of the above petition was dismissed. [Reshu v. State of U.P., Habeas Corpus WP No. 9 of 2020, decided on 22-10-2021]


Advocates before the Court:

Counsel for Petitioner:­ Rajeev Sawhney, Rajiv Lochan Shukla, Ramanuj Yadav, Virendra Kumar Yadav

Counsel for Respondent:­ G.A., Abhinav Gaur, Ankur Verma, Manoj Kumar Rajvanshi, Prakash Chandra Yadav

Case BriefsHigh Courts

Gauhati High Court: Kalyan Rai Surana, J., held that the writ of habeas corpus cannot be invoked unless there is an allegation of illegal detention. The Bench said,

“Establishing a ground of illegal detention and a strong suspicion about any such illegal detention is a condition precedent for moving a habeas corpus petition.”

By filing this writ petition in the nature of habeas corpus, the petitioner had prayed for direction to recover her son, who had gone missing since 04-09-2016 and on failure of the State machinery to trace out the missing son of the petitioner, to pay compensation of Rs.50,00,000 to the petitioner and the wife of the missing person. The petitioner submitted that it was the responsibility of the Government to look after the security of its citizens and as the State could not provide security to her son, the State was duty bound to pay compensation. It was also submitted that more than 5 years had passed but except for submitting status reports, the State Police could do nothing and was clueless about whereabouts of her son.

Stand Taken by the State

The State submitted that the son of the petitioner had not only taken loan from the bank but he had also taken loan from many other private persons and had gone missing thereafter, moreover, the missing person had never approached the police seeking any protection and as such, hence, the State did not owe any duty to keep the son of the petitioner under protective surveillance.

The State argued that compensation could be granted only if right to life protected under Article 21 of the Constitution of India was violated by the State or its employees and public law remedy was not available to direct the State to pay compensation if a person goes missing out of his own volition.

Analysis and Opinion

Noticeably, after the FIR was filed, wide media publicity was given regarding the missing son of the petitioner and his photos were also published. On 19-01-2018, a report was submitted to the Superintendent of Police, that the matter was referred to CID Branch but the missing person could not be traced out.

Considering that there was no material on record to even faintly suggest that the son of the petitioner had gone missing after any action taken by the State Administration including Police, Para-military and Armed Forces, and that there was no material to show that the missing person had any threat perception from any militant or extremist groups and the State Police had never been called upon to provide any police protection to the missing person, the Bench stated that there was there was no material to show that the son of the petitioner had gone missing because of any negligence on part of the Police of State Administration.

Reliance was placed by the Court on Selvaraj v. The State, H.C.P. 2309/2016, wherein it had been held that, “a Man/Women voluntarily moving from their dwelling house to any other place of his/her own choice, then his/her family members or other person concerned with such a person can file a case for Man missing and on receipt of any such complaint, the Police having jurisdiction has to investigate the matter in the manner known to law. Under these circumstances, question of entertaining a Habeas Corpus Petition by the High Courts would not arise at all. Thus, it is a condition precedent that a person filing a Habeas Corpus Petition should establish that there is a prima facie case of illegal detention or at least a strong and reliable suspicion in respect of such illegal detention.”

Hence, the Bench held that establishing a ground of illegal detention and a strong suspicion about any such illegal detention is a condition precedent for moving a habeas corpus petition. Thus, the Bench stated, the Constitutional Courts would not entertain habeas corpus petitions where there is no allegation of illegal detention or suspicion regarding illegal detention. The Bench clarified that,

“Missing person cases would not come within the ambit of a habeas corpus petition, but such cases are required to be registered under the regular provisions of the Indian Penal Code and the police and other investigating agencies would investigate the same in the manner prescribed under the Code of Criminal Procedure.”

Verdict

Since no apprehension of kidnapping of illegal detention was made when the FIR had been lodged and at no point of time till date any witness examined by the police so far had expressed their apprehension that the son of the petitioner was kidnapped by any person including extremists, the Bench held that there being no iota of doubt that the son of the petitioner had suffered any illegal detention, the habeas corpus petition was held to be not maintainable. [Mamoni Kakoty v. State of Assam, W.P. (Crl.): 2 of 2018, decided on 28-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Advocate B K Bhattacharjee

For the Respondent: GA, Assam

Case BriefsHigh Courts

Allahabad High Court: The Full Bench of Sanjay Yadav, Mahesh Chandra Tripathi and Siddhartha Varma, JJ., in a very significant ruling expressed that:

“…writ of Habeas Corpus is not maintainable against the judicial order or an order passed by the Child Welfare Committee under the J.J. Act.”

Instant writ petition was listed in the reference made by the Division Bench of this Court, in order to consider the various provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 and the law laid down by various Courts.

Following issues were framed by the Division Bench:

“(1) Whether a writ of habeas corpus is maintainable against the judicial order passed by the Magistrate or by the Child Welfare Committee appointed under Section 27 of the Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home?;

(2) Whether detention of a corpus in Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home pursuant to an order (may be improper) can be termed/viewed as an illegal detention?; and

(3) Under the Scheme of the Juvenile Justice (Care and Protection of Children) Act, 2015, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and as such, the proposition that even a minor cannot be sent to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home against his/her wishes, is legally valid or it requires a modified approach in consonance with the object of the Act ?”

Ancillary Issues

Bench noted that apart from the above framed issues there were some ancillary issues attached in cases of elopement of minor girls ad on recovery, sending them to Nari Niketan/Protection Home/Care Home.

Run-away Marriages

Large number of habeas corpus petitions are filed by the parents/guardians or alleged husband for production of their wards or wife, who leave their parental houses in “run-away marriages”.

Court while dealing with habeas corpus petitions are required to ensure that the person whose production is sought is not illegally detained.

Further, elaborating more on the above aspect, Bench expressed that difficulty arises in the cases where the minor girl has entered into matrimonial alliance and is steadfast in her resolve to continue to cohabit with the partner of her choice. —- At times, the girl is even on family way.

On perusal of Section 11 and 12 of the Hindu Marriage Act, it would be seen that contravention of the prescribed age under Section 5(iii) of the Act would not be given as a ground on which the marriage could be void or voidable.

Child Marriage Restraint Act, 1929 aims to restrain performances of child marriages but does not affect the validity of a marriage, even though it may be in contravention of the age prescribed under the Act. Performance of such marriage punishable under the law with imprisonment which can extend up to three months and with a fine. Even Section 12 of the Act provides to issue an injunction to prevent performance of any child marriage.

Supreme Court while considering the provisions of the Child Marriage Restraint Act has observed that contravention of the provisions of the said Act would only lead to punishment and marriage would not be void.

Now coming back to the issues framed, Court addressed the first issue in the following manner:

Nature and scope of the habeas corpus writ has been considered by the Constitution Bench of the Supreme Court in Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674.

In dealing with a petition for habeas corpus, High Court has to see whether the detention on the date, on which the application is made to Court, is legal, if nothing more has intervened between the date of application and the date of hearing …”Ref. A.K. Gopalan v. Government of India, AIR 1966 SC 816.

High Court expressed that: writ of habeas corpus lies against the order of remand made by a court of competent jurisdiction. It is well accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical or wholly illegal manner.

In Serious Fraud Investigation Office v. Rahul Modi, (2019) 5 SCC 266 the Supreme Court cancelled bail granted by the Delhi High Court to Rahul Modi and Mukesh Modi accused of duping investors of several hundred crores through a ponzi scheme run by their Gujarat based other co-operative societies. Both the accused were released by the Delhi High Court in a habeas corpus writ petition even though they were remanded to judicial custody under the orders of a competent court.

Proceeding further to analyse the questions, Bench opined that the Magistrate or the Committee in case directing the girl to be kept in protective home under the J.J. Act the Magistrate or the Committee, should give credence to her wish.

In order to bring more clarity on the matter, Bench referred to the decision of Supreme Court in Raj Kumari v. Superintendent Women Protection House, 1997 (2) A.W.C. 720, wherein it was held that a minor cannot be sent to Nari Niketan against her wishes and the same preposition of law is being incorporated in the orders passed by this Court while entertaining the Habeas Corpus Writ Petition of minor girl, who has been detained in Nari Niketan by a judicial order.

High Court considered an issue as to whether there is any authority for detention of the corpus with any person in law.

Can Magistrate direct the detention of a person?

Corpus was detained in the Nari Niketan under the directions of the Magistrate, the first thing to be determined is – whether the Magistrate can direct the detention of a person in the situation in which the petitioner is. To which the answer was no the magistrate has no absolute right to detain any person at the place of his choice or any other place unless the same could be justified by some law and procedure.

Detention at Nari Niketan

Elaborating further, Bench expressed that no law has been quote with regard to whether the Magistrate may direct detention of a witness simply because she does not like to go to any particular place. Hence, in such circumstances, the direction of the Magistrate that she shall be detained at Nari Niketan is absolutely without jurisdiction and illegal.

It is the paramount responsibility of the Committee to take all necessary measures for taking into account the child’s wishes after making due enquiry, which contemplates under Section 36 of J.J. Act and take final decision.

Therefore, Bench stated that in case corpus is in Women Protection Home pursuant to an order passed by the Child Welfare Committee, which is neither without jurisdiction nor illegal or perverse, the detention of the corpus cannot be said to be illegal and in case petitioner is aggrieved with the Child Welfare Committee or Magistrate’s order, petitioner is at liberty to take recourse or remedy of an appeal or revision under Sections 101 and 102 of the J.J. Act.

In the present matter, Bench observed that the petitioner corpus was 17 years, one month and 8 days old, hence was directed to be placed in Women Protection Home, since she came under the ambit of a child as defined under Section 2(12) of the J.J Act.

Once corpus is minor and the girl had refused to go with her parents, then in such situation arrangement has to be made. Her interest in paramount.

Therefore, wish of minor and the wish/desire of girl can always be considered by the Magistrate concerned/Committee and as per her wishes/desire further follow up action be taken in accordance with law under the J.J. Act.

Conclusion

Issue 1: If the petitioner corpus is in custody as per judicial orders passed by a Judicial Magistrate or a Court of Competent Jurisdiction or a Child Welfare Committee under the J.J. Act. Consequently, such an order passed by the Magistrate or by the Committee cannot be challenged/assailed or set aside in a writ of habeas corpus.

Issue 2: An illegal or irregular exercise of jurisdiction by a Magistrate or by the Child Welfare Committee appointed under Section 27 of the J.J. Act, sending the victim to Women Protection Home/Nari Niketan/Juvenile Home/Child Care Home cannot be treated illegal detention.

Issue 3: Under the J.J. Act, the welfare and safety of child in need of care and protection is the legal responsibility of the Board/Child Welfare Committee and the Magistrate/Committee must give credence to her wishes. As per Section 37 of the J.J. Act the Committee, on being satisfied through the inquiry that the child before the Committee is a child in need of care and protection, may, on consideration of Social Investigation Report submitted by Child Welfare Officer and taking into account the child’s wishes in case the child is sufficiently mature to take a view, pass one or more of the orders mentioned in Section 37 (1) (a) to (h).

[Rachna v. State of U.P.,  2021 SCC OnLine All 211, decided on 08-03-2021]


Advocates before the Court:

For the Petitioner: Avinash Pandey, Amicus, Sri Shagir Ahmad

For the Respondent: G.A., JK Upadhyay

Case BriefsHigh Courts

Patna High Court: A Division Bench of Sanjay Karol, CJ. and S. Kumar, J., while allowing the present petition, discussed the issue of unlawful detention and compensation for the same under Article 226, placing reliance on settled legal precedents.

 Background

It is the case of the petitioner that on 29-04-2020, during transportation of milk from one place to another, a milk tanker vehicle was seized in the jurisdiction of Parsa Police Station (Bihar). The tanker was taken to a nearby dairy for milk to be extracted and thereinafter detained at the police station where the detenue was detained in extra-judicial custody. All this was done without lodging of any FIR and/or following the appropriate procedures of recording the detention of the individual or impounding the vehicle, rendering the seizure unlawful and detention illegal. Even till 15-05-2020, the date of filing of this writ petition, the detenue was never presented before the District Magistrate having competent jurisdiction. The present petition is moved against the respondent authorities, so to question the said unlawful detention and further draw the attention of the Court to such practices of gross human rights violation, with special focus on, truck drivers.

 Observations

Illegal Detention and Breach of Fundamental Rights

Considering the submissions made, Court noted, “The facts of the instant case indicate a grim state of affairs where the police officials have acted in contravention and violation of the procedure established by law. The vehicle and detenue were detained and kept in police custody for more than 35 days without either filing of FIR or following any other procedure of arrest prescribed in law, ensuring constitutional protections to all persons… Therefore any detention made by the Police in this case, is completely illegal, unlawful, in contravention of the constitutional and statutory provision and direct violation of detenue’s fundamental rights. This follows from the constitutional protections guaranteed to every person under Articles 21 and 22 of the Constitution.”

 Procedure of Arrest required to be followed

Enumerating the provisions of Chapter V, Code of Criminal Procedure, 1973, the Court raised a few questions which essentially remains unanswered by the police authorities; “(i) why did the Police not register the FIR immediately when the vehicle driven by the detenue was intercepted by the Dariapur police, especially when the interception was made on account of communication of the alleged accident and fleeing away of the driver? (ii) Why was the vehicle not impounded? (iii) why was the drive not produced before the Court? and (iv) why was no action promptly taken against the officials?” The Court further said that when there is no statement of any person witnessing the occurrence of the accident, then how did the police get to know of such facts?

Reliance was also placed on, D.K. Basu v. State of W.B., (1997) 1 SCC 416; wherein the Supreme Court laid down the guidelines which must be followed by every police officer conducting arrest. To highlight the same;

  • The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations.
  • The police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
  • A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
  • The time, place of arrest and venue of custody of an arrestee must be notified by the Police where the next friend or relative of the arrestee lives outside the District or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
  • The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
  • An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
  • The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
  • The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory.
  • Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record.
  • The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
  • A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

Furthermore, the Court referred Joginder Kumar v. State of U.P., (1994) 4 SCC 260, Lalita Kumari v. State of U.P., (2014) 2 SCC 1, Gangaram v. State of Madhya Pradesh, 2020 SCC OnLine SC 623, Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

Detention of vehicle without FIR or Seizure Memo, Power and procedure for detaining vehicles

With respect to detention of vehicle, the Court referred Section 102, Section 451, Section 457 of Code of Criminal Procedure, 1973 and Section 207 of the Motor Vehicles Act, 1988. Also, it placed on record the findings of Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat, (2002) 10 SCC 283, wherein the Court held that the power of disposing of the property seized by police officers should be exercised expeditiously and judiciously, for serving the purpose, namely; (i)Owner of the article would not suffer because of its remaining unused or by its misappropriation (ii)The Court or the Police would not be required to keep the article in safe custody (iii)If the proper panchanama before handing over possession of an article is prepared, it can be used in evidence instead of its production before the Court, in a trial. If necessary, evidence could also be recorded describing the nature of the property in detail and (iv) This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.

The Court conclusively remarked, “The vehicle seized, although without the registration of search memo or an F.I.R under Section 154 of the Code of Criminal Procedure, 1973, is liable to be disposed of as per the provision under section 451 and 457 of the Code. Owing to the same, by our order dated 20th July, 2020, the petitioner was granted liberty to file a petition for provisional release of the vehicle, that is, Milk Tanker.”

Right to Compensation under Articles 32 & 226 of the Constitution of India for Violation of Fundamental Rights

Delving upon the aforementioned issue, the Court identified a catena of judgments including, Rudal Shah v. State of Bihar, (1983) 4 SCC 141, wherein the petitioner was illegally detained for over fourteen years despite his acquittal in a full- dressed trial, the Supreme Court upheld the grant of compensation for illegal detention under a petition of Habeas Corpus, “taking into consideration the grave harm done”. Bhim Singh v. State of J&K, 1984 Supp SCC 504, further reinstated the right of compensation for illegal detention. Similarly, In Nilabati Behara v. State of Orissa, (1993) 2 SCC 746, petitioner’s son was kept in unlawful police custody and his dead body found near the railway tracks. Apparently, he died as a result of the multiple injuries inflicted to him while being in police custody. The Court upheld the grant of compensation to the mother of the deceased for contravention of his fundamental right under Article 21. It further upheld that the enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention.

T.C. Pathak v. State of U.P., (1995) 6 SCC 357, bears close connection with the facts of the present case as the detainee herein was kept in police custody for days without any registered FIR or informing any ground of arrest against him. The father filed a writ of Habeas Corpus for production of his son, forcibly taken away from the shop. Supreme Court held that even though the detainee was released and the prayer in Habeas Corpus petition did not survive, nevertheless, on account of denial of the right of personal liberty guaranteed under Article 21, the detainee deserved to be compensated. Dhananjay Sharma v. State of Haryana, (1995) 3 SCC 757, was further cited by the Court, to put forth the effect of illegal detention upon the alleged police officials. Supreme Court, in this case, directed initiation of contempt proceedings and perjury cases against the police officials who were, by way of affidavits to the Court, acting to cover up their acts of illegal detention of the petitioners.

Upon balancing the facts and circumstances of the given case, the Court observed, “The instant case is one that is fit for hefty compensation to be levied on the State for violation of the fundamental right to life and liberty by way of illegal detention of Jitendra Kumar @ Sanjay Kumar, the detenue.”

Court conclusively summarized the law expounded by judicial pronouncements under the following principles

LIBERTY

“Right under Article 21 cannot be kept in abeyance for convicts, undertrials and prisoners. Allowing Police to violate fundamental rights of such persons would amount to anarchy and lawlessness, which cannot be permitted in a civilized society.”

BALANCE BETWEEN NATIONAL SECURITY AND INDIVIDUAL LIBERTY

“Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them.”

ARREST

“Violation of fundamental rights under Article 21 and 22(2) – Police officers who are custodians of law and order should have greatest respect for the personal liberty of citizens and should not become depredators of civil liberties. Their duty is to protect and not to abduct.” 

DUTY AND POWER TO REGISTER F.I.R.

“While prompt registration of FIR is mandatory, checks and balances on power of Police are equally important. Power of arrest or of investigation is not mechanical. It requires application of mind in the manner provided. Existence of power and its exercise are different. Delicate balance has to be maintained between the interest of society and liberty of an individual.”

TORTURE/CUSTODIAL DETENTION AND/OR DEATH

“Torture involves not only physical suffering but also mental agony. It is violation of human dignity and destructive of human personality under Articles 21, 22 and 32 – Custodial Violence – Torture/rape, death in police custody/lock-up infringes Article 21 as well as basic human rights. State terrorism is no answer to terrorism.” 

HABEAS CORPUS JURISDICTION/ RIGHT TO GRANT COMPENSATION

“The refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention.”

 BALANCE TO BE MAINTAINED WHILE GRANTING RELIEF OF BAIL TO THE ACCUSED

“The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first — the criminal or society, the law violator or the law abider.”

 RIGHT OF ACCUSED

“(i) An arrested person has a right to know of his entitlement of supply of information of detention to friend, relative or other person told that he has been arrested and where he is being detained (ii) Period of detention under section 151 Cr. P.C. cannot exceed 24 hours and in absence of anything else, after expiry of that period the detainee must be released (iii) An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly. (iv) Fair and Independent investigation is crucial to preservation of rule of law and is the ultimate analysis of liberty itself.”

 REPUTATION

“Since arrest and detention can cause irreparable damage to a person’s reputation a police officer must be guided and act according to principles laid down by the Courts when deciding whether to make an arrest or not.”

 SENSITIZING POLICE

“Police need to be trained and sensitized all of rights of citizens and maintaining law and order in a civilized manner.”

 PROCEEDINGS AGAINST POLICE OFFICIAL

“Mandatory Requirements as sated in D.K. Basu case, to be followed by police personnel while arresting or detaining a person are in addition to constitutional and statutory safeguards. Non-compliance with the same would make official liable for departmental action.”

 ROLE AND PROBLEMS OF TRUCK DRIVERS

“The drivers of commercial vehicles, especially the Truck Drivers, in India occupy a very unique and vital place in the immense Transportation sector which serves as the backbone of the Indian Economy. The road transport sector contributes almost 85-90% of passenger traffic 60-65% of freight traffic. Drivers of commercial vehicles are uniquely tasked with the supply of nearly all goods required for daily sustenance across the whole nation. Their life is defined by great hardship and sacrifice. Some of the issues faced by truck drivers can be highlighted as follows: a) Lack of guidelines and regulations regarding the working hours and payment who suffer from unstable and poor personal relationships due to the high-pressure job requirements b) Lack of proper facilities of hygiene, rest and proper food c) pressures of the job, leads to various physical and mental health issues including obesity, diabetes and heart diseases. There is an immediate need to improve the conditions of truck drivers in the State of Bihar as well as across the country. It is apparent that they are invaluable to the movement of the Economy and face widespread discrimination and constant hardships. The State ought to consider constituting a body to address these issues. There is an immediate need to address the human rights violations faced by them.”

 Decision

While allowing the present petition, the Court issued necessary directions to the respondent authorities, including, payment of compensation to the tune of Rs 5,00,000 for the violation of the petitioner’s Fundamental Right under Article 21.[Sumit Kumar v. State of Bihar, 2020 SCC OnLine Pat 2700, decided on 22-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has refused to interfere with Allahabad High Court’s decision quashing Dr. Kafeel Khan’s detention.

The Court has, however, made clear that the observations in the judgment will not determine the outcome of the prosecution and that the criminal cases will be decided on their own merits.

After the Citizenship Amendment Act received President of India’s assent on December 12, 2019, which triggered protests across several parts of the country, Dr. Kafeel Khan and Dr. Yogendra Yadav addressed a gathering of protesting students at Aligarh Muslim University, Aligarh. On December 13, 2019, a criminal case was lodged against Dr. Khan under Section 153-A of the Indian Penal Code at Police Station Civil Lines, Aligarh. The offences under Section 153B, 109, 505(2) Indian Penal Code were added subsequently, and Dr. Khan was arrested on January 29, 2020.

Despite the release order by the Chief Judicial Magistrate, Aligarh dated February 10, 2020, Dr. Khan was neither released nor was produced before the Magistrate. Hence, another release order was issued on February 13, 2020.

However, on February 13, 2020 itself the District Magistrate passed an order to detain Dr. Khan in – accordance with National Security Act, 1980 after a request was made for the same by the Deputy Inspector General of Police/Senior Superintendent of Police, Aligarh.

The Allahabad High Court, in its judgment dated 01.09.2020, calling the detention illegal, said,

“In absence of any material indicating that the detenue continued to act in a manner prejudicial to public order from 12.12.2019 up to 13.02.2020 or that he committed any such other or further act as may have had that effect, the preventive detention order cannot be sustained. In fact, the grounds of detention are silent as to public order at Aligarh being at risk of any prejudice in February, 2020 on account of the offending act attributed to the detenue of the date 12.12.2019. What remains is a mere apprehension expressed by the detaining authority without supporting material on which such apprehension may be founded.”

The High Court also noticed that the grounds for detention along with material were to be supplied to Dr. Khan in light of clause (5) of Article 22 of the Constitution of India enabling him to submit representation to the competent authorities at earliest. However, the material so given was a compact disk of the speech delivered by Dr. Kafeel Khan on December 12, 2019 at Bab-e-Syed gate of Aligarh Muslim University. No transcript of the speech was supplied to the detenue. The High Court hence observed,

“The non-supply of transcript would have been of no consequence, if a device would have been supplied to the detenue to play the compact disk. It is the position admitted that no such device was made available to the detenue.”

Further, noticing that the orders of extension were never served upon the detenue, the High Court concluded that neither detention of Dr. Kafeel Khan under National Security Act, 1980 nor extension of the detention are sustainable in the eye of law.

It is pertinent to note that Dr. Kafeel Khan was also arrested in September, 2017 after an unfortunate incident resulted into the deaths of 50 children 2017 due to unexpected shortage in supply of liquid oxygen at the B.R.D. Medical College, Gorakhpur in the intervening night of 10/11 August. Dr. Khan was released on bail in April, 2018 by the Allahabad High Court.

[State of Uttar Pradesh v. Nuzhat Perween,  2020 SCC OnLine SC 1033, order dated 17.12.2020]

For Petitioner: Solicitor General Tushar Mehta

For Respondent: Senior Advocate Indira Jaising

Case BriefsHigh Courts

Madhya Pradesh High Court, Gwalior Bench: S.A. Dharmadhikari, J., while addressing an issue with regard to the custody of a child held that the welfare of child is of paramount importance.

The instant petition was filed to seek habeas corpus direction respondents 1 to 5 to produce the corpus Yatharth before the Court who is alleged to be in illegal detention of respondents 6 to 8.

Brief Facts

Matrimonial dispute between the petitioner and respondent 6 was going on. Respondent 6 used to harass and beat the petitioner and demanded a dowry of Rs 5 lakhs from the petitioner.

Due to some altercation between the husband and wife, respondent 6 had locked the petitioner in a room and took away the minor child Yatharth along with him.

Corpus Yatharth is 15 months old child and has been illegally snatched by the respondent 6/husband and her in-laws from the possession of the petitioner, who is living in her parental house.

When the petitioner requested her husband to hand over the corpus to her, the respondent 6/husband beat the petitioner along with her brother and mother and had tied them with rope. In these circumstances, the petitioner was left with no other option, but to file an FIR.

Analysis and Decision

First Issue: Whether the Habeas Corpus petition is maintainable or not in respect of custody of a minor child, who is in the custody of the father and grandparents at Gwalior?

Court referred to the decision of the Supreme Court in Dushyant Somal v. Sushma Somal, (1981) 2 SCC 277 which dealt with the jurisdictional aspect with regard to the issuance of Habeas Corpus writ in respect of illegal custody of a child.

In view of the above decision, High Court is of the opinion that a writ petition for issuance of a writ in nature of Habeas Corpus under Article 226 in the peculiar facts and circumstances of the case is certainly maintainable.

Further, keeping in view the welfare of the child and other factors, the Court opined that the child has to be in the custody of the mother.

Decision

In the present case, the child is aged about 15 months and this Court keeping in view Section 6 of the Hindu Minority and Guardianship Act, 1956 is of the opinion that the child has to be given in the custody of the mother.

Bench is of the opinion that the welfare of a child is of paramount importance and the mother/petitioner, who has nurtured the child for 9 months in the womb, is certainly entitled to custody of the child keeping in view the statutory provisions governing the field.

Hence, the Court directed the respondent 6 to 8 to handover the custody of the child to the petitioner.

Accordingly, the instant petition stands allowed. [Madhavi Rathore v. State of M.P., 2020 SCC OnLine MP 1992, decided on 05-09-2020]

Case BriefsHigh Courts

Delhi High Court: Navin Chawla, J., held that Police Commissioner to decide whether peace protest and demonstration under the banner of IPOB and #Black Lives Matter, at Uttar Pradesh Bhawan building can be held or not.

Present Petition was filed inter-alia praying for the following reliefs:

  • Direct respondents to allow the petitioner to hold police peace protest and demonstration under the banner of IPOB and #Black Lives Matter, at Uttar Pradesh Bhawan building  on 23rd June, 2020or any date immediately thereafter against the illegal detention of the two members of the IPOB
  • Direct respondent 2 to allow peaceful protest and demonstration at Uttar Pradesh Bhawan and make appropriate arrangement for the participants and allow relatives and advocates of illegally detained members of IPOB to meet them.
  • Direct respondents to produce before the Court all documents related to illegal detention of two members of IPOB.
  • Pass an order Directing the respondent Delhi Police as well as MHA to take appropriate Decision allowing the Peaceful protest.

With regard to illegal detention of two IPOB members, Court stated that it does not have the territorial jurisdiction to entertain such prayers.

With regard to peaceful protest, respondent 1 is directed to consider the contents of the petition as a representation of petitioner for seeking permission for the said purpose. Within 3 days a decision shall be communicated to the person concerned.

In view of the above terms, petition was disposed of. [Indigenous People of Biafra (IPOB) v. Commr. of Police, 2020 SCC OnLine Del 656 , decided on 19-06-2020]

Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of C.K. Abdul Rehim and T.V. Anil Kumar, JJ. dismissed a petition seeking a writ of habeas corpus for production of petitioner’s friend – one Sumayya – ruling that there was no basis for allegations of illegal detention.

It was alleged that as per Sumayya’s facebook posts, she had been confined at a hospital by her mother and was being given unnecessary medications. When the petition came for admission, the Court directed the police to conduct a discreet enquiry into allegations of the petitioner, obtain a detailed medical report from the hospital regarding the mental status of Sumayya and also the details of treatment administered to her. Accordingly, a medical report, medical certificate and statements recorded from Sumayya were submitted to the Court.

It was diagnosed that Sumayya had a manic episode in the context of bipolar affective disorder and she was unlikely to receive treatment outside a hospital as she believed that her hospitalization was masterminded by her mother and hospital authorities were siding with her mother to “make her mentally ill”. At the time of the admission, Sumayya lacked the capacity to take an intelligent decision and faced a risk of untreated illness. However, after hospitalization, she had stabilized and regained her capacity for mental healthcare decisions. She was taking medication and had agreed to continue the same and also get psychological help.

She also stated that she has not been confined in the hospital by anyone and that she had only instructed the petitioner to file the instant petition as she intended to lead an independent life.

After interaction with Sumayya in Chambers, the Court opined that she was mentally stable and comfortable with her mother as well as with the atmosphere of the hospital where she was staying.

In view of the above, the petition was dismissed.[Manoj Joseph v. State of Kerala, 2018 SCC OnLine Ker 5265, decided on 11-12-2018]

Case BriefsHigh Courts

Uttaranchal High Court: A Single Judge Bench comprising of Sudhanshu Dhulia, J. dismissed a writ of habeas corpus filed by the petitioner-mother for the custody of her 5 year old son.

Petitioner’s case was that she was married to Respondent 4 and they had a son born out of the wedlock. The respondent harassed her for dowry, and she left the matrimonial home along with her son and started living at her parent’s home. One day her husband and mother-in-law came to her parent’s home and requested her to send the child with them only for ten days. However, the child had not been returned to her since. Moreover, she is not even allowed to talk to her son. According to the petitioner, Respondent 4 was a businessman, remained out of the house, there was no one to take care of the child.

The High Court was not inclined to grant prayer as prayed for by the petitioner. Petitioner’s counsel was asked how the custody of the child with his father could said to be unlawful. The Court held that the child was in custody of his father who was a natural guardian (as was his mother). Further, the petitioner was not able to show that the child was under illegal detention or in illegal custody. Under such circumstances, the Court held that the prayer of the petitioner could not be granted, accordingly, the petition was dismissed. [Akansha Budhiraja v. State of Uttarakhand,2018 SCC OnLine Utt 598, dated 25-06-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission (NHRC): The NHRC has taken suo motu cognizance of media reports that a 14 year old girl was detained at a police chowki and a police station in Noida for eight days. She was beaten, burnt with cigarettes and electrocuted there. Reportedly, the girl, a domestic help, was detained after her employer accused her of theft.

The Commission has observed that the contents of the media reports, if true, indicate cruelty of the police personnel for which the deserve exemplary punishment so that a message could be given that such inhuman acts by a public servant cannot be accepted at any cost. The law does not empower the police personnel to humiliate and harm the innocent citizens. Accordingly, it has issued a notice to the Director General of Police, Uttar Pradesh, calling for detailed report in the matter within 4 weeks. He is also expected to send the report about the steps taken for counselling/ rehabilitation of the victim.

According to the media report carried today on 31st May, 2018, the family members of the victim girl have stated that she was detained by the police on the 14th May, 2018, at Salarpur police Chowki, where she remained till 16th May, 2018. They were not allowed to meet her and she was released on the 16th May, 2018. The police again picked up the girl, the next day and this time her 17 year old brother was also taken into custody. Both of them were finally released in the night of the 22nd May, 2018, following the intervention by an NGO, Bachpan Bachao Andolan and an order from the Child Welfare Committee (CWC).

Reportedly, the CWC, on the 23rd May, 2018, also ordered a medical examination of the girl. The medico legal case report has revealed discoloured “brown-shaped circular discolorations” near her left and right wrists linking these to burnt marks. The report also mentions abrasions on the right forearm near the elbow and three discoloured abrasions on both wrists. The report specifically clarified that all injuries are more than 10 days old, caused by hard and blunt object.

The SHO of Police Station Sector-39, Noida has, reportedly, denied the allegations of illegal detention and torture. He has also claimed that the girl was not a minor. The MLC however, confirms that the girl is a minor. On a complaint filed by the NGO, the National Legal Services Authority (NALSA) has sought a report from the Senior Superintendent of Police, Noida through Noida District Legal Services Authority. As mentioned in the news report, the girl has alleged that the employer himself came to their house and demanded that she work as their domestic help and when she protested, he took away her on his scooter in front of the neighbours.

National Human Rights Commission

Case BriefsSupreme Court

Supreme Court: Giving major relief to Champion Sangma, the Chairman and Commandar-in-Chief of Garo National Liberation Army (GNLA), the bench of Dr. AK Sikri and Ashok Bhushan, JJ ordered immediate release of Sangma and said that the manner in which the State of Meghalaya proceeded in the matter

“is clearly impermissible, violative of the rule of law and offends the petitioner’s right under Article 21 of the Constitution as he has been detained in custody by adopting totally faulty and illegal process.”

Background of the case:

  • Several criminal cases have been registered against Sangma and in most of these cases, he is either acquitted or discharged.
  • In all the other pending cases, he has been granted bail expect in one case instituted under Section 364A read with Section 34 of the Penal Code, 1860 in the year 2011. Sangma was declared an absconder in 2012. As on January 2018, the position was that the petitioner had been granted bail in the pending cases against him and, therefore, in normal course, he should have been released from custody.
  • On 24.01.2018, orders were passed by the Additional District Magistrate (Judicial) allowing the prayer of the prosecution to arrest Sangma.

Conclusion:

The Court declared the order dated 24.01.2018 as non-est, nullity and without any jurisdiction and hence, the custody of Sangma, who has otherwise been released on bail in all other cases, is clearly illegal.

The important aspects that were taken note of by the Court to reach this conclusion were:

  • Though the prosecution has moved an application before the Court of Additional District Magistrate (Judicial), North Garo Hills, opposing the bail application made by the petitioner in the Court, in fact, no such bail application was ever filed by the petitioner. There was no question of filing any bail application in the first place as the petitioner was never arrested in this case.
  • When the aforesaid application of the prosecution purportedly opposing the bail application of the petitioner was filed, the learned Additional District Magistrate (Judicial) did not have any records of the case except the application which was put up before him and the averments made therein.
  • No notice of this application was ever served upon the petitioner. The application was considered exparte and treating the averments made in the said application as gospel truth, the prayer made in the application was allowed.

The Court also noticed that the State failed to respond to it’s query as to under what provision, in the aforesaid circumstances, the application should be filed when there was no formal arrest of the petitioner, though nobody prevented the respondent to arrest the petitioner in the aforesaid case. It said:

“We have not understood the manner in which the prosecution has acted in this case.”

As a result, the Court ordered the release of Sangma. It, however, made clear that it has not restrained the State from taking any appropriate legal steps in the aforesaid FIR/chargesheet, which are permissible in law. [Champion R. Sangma v. State of Meghalaya, 2018 SCC OnLine SC 262, order dated 20.03.2018]

High Courts

Rajasthan High Court: Disposing of a writ petition, a division bench comprising of A.K. Jain and Govind Mathur, JJ provided directions to the State of Rajasthan for expeditious and effective investigation of missing persons/ persons under illegal detention, and to produce a progress report for the compliance of the same.

In the present case, several writ petitions were filed for the delay in investigation and action of the authorities regarding missing persons/illegal detention of persons, on which the counsel for the respondents contented that authorities are making their best efforts, however delay is due to lack in resources as well as co-operation from other State authorities. The Court accepted the contention of the respondent and directed the State of Rajasthan to establish a missing person cell at least at every divisional headquarter to monitor and co-ordinate investigation, and to provide necessary budget to the police/missing person cell for publication of photograph and necessary details of the missing persons for wide publicity through print media, posters, pamphlets, electronic media etc. The Court ordered the Government of Rajasthan to immediately get sanction from the Department of Home Affairs for cellular call interception; to provide necessary budget for immediate movement of the police personal if required during investigation; to provide adequate facility of polygraph test in the State; as well as to revise the amount of reward to the informer for the people to come forward to assist the investigation agency for expeditious investigation of missing persons/ persons under illegal detention. Gulab Bai v. State of Rajasthan, D.B. Civil Writ (Habeas Corpus) Petition No. 12898 of 2012, decided on April 4, 2014.

To read the full judgment, click here