Case BriefsHigh Courts

Gauhati High Court: Rumi Kumar Phukan, J. allowed a criminal petition filed against the order of the trial court whereby the petitioner-husband was directed to hand over the custody of the minor daughter to the respondent-wife.

The parties were married to each other and a daughter was born to them — presently around 3 years old. After the birth of the daughter, the respondent developed physical ailments for which she had to undergo treatment at various places. It was an admitted fact that presently the parties were residing separately and the respondent was staying at her paternal home. The daughter resided with the father. In January 2019, the respondent was admitted to a hospital and requested the petitioner to bring the daughter to see her. The petitioner did accordingly. However, on the very next day, the respondent went to the petitioner’s house to bring back the daughter with her. She also filed a petition under Section 97 (search for persons wrongfully confined) CrPC, stating that under Section 6 of the Hindu Minority Act, she was the natural guardian of the child and therefore she should be given her custody. The trial court ordered that the custody of the daughter be handed over to the respondent. The said order was affirmed by the Sessions Judge in revision. Aggrieved thus, the petitioner filed the present petition.

A.M. Bora, Advocate made submissions on behalf of the petitioner. While the respondent was represented by Dr B.U. Ahmed, Advocate.

In hIgh Court’s opinion, for invoking the special provision of Section 97, it was to be seen whether the child had been wrongfully confined by the petitioner. In addition to the above facts, it was noted that the child was wrongfully left by the respondent in the custody of the petitioner because of her ill health since 2017. In such circumstances, it could in no way be stated as confinement. It was observed: “… strangely, the learned court treated the matter as if dealing with the custody of the child and gave the custody of the child to the respondent/wife which is beyond the jurisdiction of Section 97 CrPC. The provision of custody of the child can be decided under Section 25 of the Guardian and Wards Act and the same cannot be adjudicated in the petition under Section 97 of the Code. The only question which is to be decided while passing any such order by a court that there was certain wrongful confinement of a person while initiating the proceeding. As has been discussed above, no matter of wrongful confinement has been made out as against the petitioner, who is the natural guardian/father of the child.”

In such view of the matter, it was held that the impugned orders were passed without jurisdiction and were therefore quashed.[Sanjeev Kumar Singh v. O. Mema Devi, 2019 SCC OnLine Gau 2874, decided on 16-07-2019]

High Courts

Calcutta High Court: As a significant development after the Supreme Court declared the Section 66A of the Information Technology Act to be unconstitutional, in a  case regarding the circulation of the cartoon lampooning the Chief Minister of West Bengal in 2012, a bench of Dipankar Dutta J. provided a major relief to the petitioners (chemistry professor of Jadavpur University and his neighbour) by directing the State Government to provide Rs 50000/- as compensatory relief to the petitioners for violation of their human rights by the public servants. The Court directed the release of the petitioners from the wrongful confinement within one month from the date of this judgment and order, and also to initiate disciplinary proceedings against the respondents (police personnel) who had wrongfully arrested the two victims.

In the instant case, the petitioners were beaten mercilessly by the supporters or activists of the ruling dispensation for forwarding the cartoon lampooning the Chief Minister of West Bengal via email and circulating its printouts, after which the respondents came to the spot and arrested the petitioners in the dead of night of 12-04-2012 without any written complaint against them claiming “protective custody” of the petitioners against the agitated mob. WBHRC took suo moto cognizance of the matter on observing the fact that the State Government is supporting the illegal actions of the police. B.R. Bhattacharya, counsel for the petitioner contended that there has been brazen violation of the human rights of the petitioners and WBHRC is justified in its recommendation.

Considering the question regarding the jurisdiction of WBHRC to take suo moto action in the present case, the Court made it clear that as per Section 18 of the Protection of Human Rights Act, 1993, where the recommendation of the HRC regarding violation of human rights is not accepted by the concerned Government, the commission is free to file a writ petition seeking relief for compensation to the victims of human rights violation. The Court found that the petitioners were entitled to compensation as their detention was not in conformity with Section 41 of the CrPC and their precious human rights were trampled over. The Court noted that raising the bogey of “protective custody” by the respondents was mere intention to wriggle out the obvious wide and far reaching ramifications of the illegal arrests of the petitioners. The Court concluded that the award of compensation to the petitioner’s for violation of their human right is just and proper as WBHRC has not committed any error, jurisdictional or in respect of determination of issue of human right violation, and has rightly drew the perception that the State Government has attempted to save the public servants. Ambikesh Mahapatra v. State of West Bengal, 2014 SCC OnLine Cal 4783decided on 10-03-2015