IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 WP(Crl.).No. 171 of 2009(S) --------------------------- PETITIONER: --------------- HAJAN XAVIER, S/O.AUGUSTINE, RAJANI LAND, CLAPPANA SOUTH, CLAPPANA P.O. BY ADV. SRI.A.N.RAJAN BABU SRI.P.GOPALAKRISHNAN SRI.A.R.EASWARLAL RESPONDENTS: --------------- 1. EMMANUEL EDWARD, E.J.NIVAS, MUKKAD, KAVANAD P.O. KOLLAM. 2. JOOLSY EMMANUEL, MANJUVILASAM, KANAPIPPARAYIL, MUKKAD, KAVANAD P.O. KOLLAM. 3. SUPERINTENDENT OF POLICE, KOLLAM. 4. CIRCLE INSPECTOR OF POLICE, KAVANAD KOLLAM. 5. SUB INSPECTOR OF POLICE, KAVANAD KOLLAM. 6. SUB INSPECTOR OF POLICE, OCHIRA KARUNAGAPPALLY. ADDL. 7.INDIAN AMBASSADOR TO KUWAIT, INDIAN EMBASSY KUWAIT, KUWAIT. (Addl.R7 is impleaded as per order dt.17.08.09 in I.A.No.10041/09) GOVERNMENT PLEADER SMT.SMITHA SUKUMARAN ADV. SRI.V.G.ARUN FOR R2 SRI.T.R.HARIKUMAR FOR R2 SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR ADDL.R7 SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI FOR ADDL.R7 GOVERNMENT PLEADER SRI.C.S.MANU FOR ADDL.RES. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 14/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ W.P(Crl.) No.171 of 2009 ------------------------------------- Dated this the 14th day of December, 2009 JUDGMENT BASANT, J. This judgment will have to be read in continuation of the earlier orders passed in this case resting with the order dt.01.12.2009. The report of the Family Court has been received. The report dt.10.12.2009 indicates that the parties have now settled all their outstanding disputes about the custody of the child and final orders have already been passed by the Family Court in O.P.No.1183 of 2009, which was filed by the petitioner before the Family Court claiming custody of the child. 2. We do not, in these circumstances, think it necessary to proceed further with this Writ Petition though the sequence of events that had taken place in this case is really alarming and disturbing. We need only mention that we dismiss this Writ Petition, but observe that it will be for the police to take appropriate further action in the crime that has already been registered and which is pending investigation. The petitioner W.P(Crl.) No.171 of 2009 2 having already got effective relief does not seek any further relief in this Writ Petition. 3. This Writ Petition is accordingly dismissed with the above observations. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/- W.P(Crl.) No.171 of 2009 3 R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ W.P(Crl.) No.171 of 2009 ------------------------------------- Dated this the 30th day of November, 2009 ORDER BASANT, J. The 1st respondent is not present. The 2nd respondent is present personally in Court. She is represented by a counsel. The mother of the 2nd respondent has today come before this Court with I.A.No.15017 of 2009 with a prayer that she may be W.P(Crl.) No.171 of 2009 4 impleaded in this proceedings and permitted to produce the child before Court. She has produced the missing child also along with her. Notice given. Objections if any of the respondent shall be filed tomorrow (01.12.2009). The petitioner in I.A.No.15017 of 2009 shall appear with the child on 01.12.2009. Notice has been given to the learned Government Pleader and on behalf of respondent Nos.3 to 6, the learned Government Pleader undertakes that it shall be ensured that the petitioner in I.A.No.15017 of 2009 produces the child before Court on 01.12.09. 2. Call on 01.12.2009. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/- R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ W.P(Crl.) No.171 of 2009 ------------------------------------- Dated this the 14th day of October, 2009 ORDER BASANT, J. W.P(Crl.) No.171 of 2009 5 This petition is filed by the petitioner for issue of a writ of habeas corpus to search for, trace and produce his minor child, by name Ajal, aged 3 ½ years. 2. The crux of the grievance of the petitioner is this. The mother of the child/his wife met with an accident and expired on 17.10.08. The petitioner at that time was working abroad. He came back to India along with the 1st respondent, his father in law, ie. the father of the deceased. His wife was permanently residing in India. According to the petitioner after coming to India, on getting information about the death of his wife, he was totally upset and the child continued to be with the 1st and 2nd respondents. 2nd respondent is the sister of his deceased wife. According to him the child is now being illegally detained by respondent Nos.1 and 2. He lodged a complaint before the police on 03.12.2008 about the illegal detention/confinement of his child. But police did not take any useful action. It is, in these circumstances, that the petitioner came to this Court with this Writ Petition on 02.05.09. The petition was admitted by another Bench of this Court on 15.05.09. Thereafter orders have been passed from time to time. The 1st respondent has not been W.P(Crl.) No.171 of 2009 6 served yet. The 2nd respondent, the daughter of the 1st respondent, takes the stand that the child is not available in her custody and that the child has been taken away by the 1st respondent whose whereabouts are not known to her. However, as directed by this Court, she has furnished the address of the 1st respondent in Kuwait to her knowledge to be “Edward Immanuel, P.B.No.1439, Farwaniya Post, Farwaniya, Kuwait”. Attempts were thereafter made to issue notice to the 1st respondent to ascertain whether the minor child is in the custody of the 1st respondent. The 1st respondent has been evading notice and notice has not been served on the 1st respondent yet. According to the 2nd respondent though the 1st respondent is her father and he has been contacting her, such contacts have been from different numbers and she is not in a position to help this Court to give further details about the present whereabouts of the 1st respondent or the child. The 1st respondent's passport number is not furnished by the 2nd respondent on the plea that she does not know the passport number. 3. The fact remains that the whereabouts of the child are not known yet. The attempt to get service effected on the 1st respondent has not been successful. In these circumstances, the W.P(Crl.) No.171 of 2009 7 7th respondent, the Indian Ambassador to Kuwait, was impleaded and was directed to get service effected on the 1st respondent. The learned Assistant Solicitor General of India on behalf of the 7th respondent now submits that it is not possible for the 7th respondent to effect service on the 1st respondent. Thus the Court finds itself in a precarious situation unable to ascertain the whereabouts of the child. Is the child in the custody of the 1st respondent? Under what authority the 1st respondent is keeping the child? Is the child under illegal detention or confinement of anyone else? Where is the child now? Answers to these questions are not forthcoming. The 2nd respondent was directed to file an affidavit and the 2nd respondent has informed the Court unambiguously that the 1st respondent is aware of the pendency of the proceedings and he has already been apprised of the same. 4. This Court cannot be a helpless spectator to this state of affairs. If the 1st respondent does not co-operate with the Court and explain to the Court the whereabouts of the child or his authority to keep the child, appropriate further steps shall have to be taken. The learned counsel for the petitioner now W.P(Crl.) No.171 of 2009 8 submits that a passport is seen to be issued in the name of the child bearing No.E4460467. The learned counsel for the petitioner submits that simultaneously the petitioner is taking steps to file a petition for custody of the minor child before the Family Court. But as the child is under illegal detention and confinement at an unknown place, such proceedings are not likely to be helpful to the petitioner and it is hence that he is pursuing the prosecution of this Writ petition. 5. Admittedly a crime has been registered and the same is pending investigation. The said crime is registered as Crime No.248 of 2009 of Oachira Police Station. 6. In these circumstances, we feel that the following specific directions must be issued. (i) This petition shall be called again on 09.11.2009; (ii) The police shall expeditiously conduct and complete the investigation in Crime No.248 of 2009; (iii) The 3rd respondent, the Superintendent of Police, shall personally monitor and supervise the investigation and shall ensure that the child is produced before the Magistrate having jurisdiction as expeditiously as possible. Needless to say, appropriate steps shall have to be taken by the Investigating W.P(Crl.) No.171 of 2009 9 Officers to proceed against the 1st respondent, who is arrayed as the accused in Crime No.248 of 2009 - to impound his passport and to ensure that the 1st respondent is repatriated to India. The 3rd respondent shall personally supervise and monitor the investigation. If the child is not traced by 09.11.2009, he shall file a detailed statement showing all the steps taken. On that day, the 3rd respondent shall appear before the Court along with the Case Diary to explain to the court the steps that are taken; iv) The additional 7th respondent, who now has the number of the passport of the child and the address of the 1st respondent in Kuwait, shall forthwith verify whether the 1st respondent and the child are available in Kuwait. If they are available in Kuwait, he shall immediately take necessary steps to get the notice of this petition served personally on the 1st respondent. He shall also ensure that the 1st respondent along with the child does not move out of Kuwait without the further directions of this Court. He shall also co-operate with the police to impound the passport and to repatriate the 1st respondent with the child if available in Kuwait to India at the earliest. 7. The petitioner submits that the 1st respondent is likely to come to India on 17.10.09, the date of the death anniversary W.P(Crl.) No.171 of 2009 10 of his daughter, ie. the wife of the petitioner. The needful shall be done by the police to ensure that necessary action is taken if and when the 1st respondent comes to India with the child as reported by the petitioner. 8. Call on 09.11.09. 9. Hand over copies of this order to the learned counsel for the petitioner, the learned Government Pleader and the learned Assistant Solicitor General of India. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-