IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 WP(Crl.).No. 373 of 2009(S) --------------------------- PETITIONER: ------------- RAJMOHAN M.S, AGED 21 YEARS, S/O.MOHANAN, DEEPA BHAVAN(SREEKALA BHAVAN), PULIMATH POST, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DIST. BY ADV. SRI.J.JAYAKUMAR SRI.S.JIJI SRI.N.M.JAMES RESPONDENTS: ------------------ 1. STATE OF KERALA, REP.BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 3. THE RURAL SUPERINTENDENT OF POLICE, THIRUVANANTHAPURAM. 4. THE DEPUTY SUPERINTENDENT OF POLICE, ATTINGAL. 5. THE S.I.OF POLICE, KILIMANOOR POLICE STATIOON, THIRUVANANTHAPURAM. 6. SULAIMAN.M, S.S.LAND, MELPORUNTHAMON, PULIMATH POST, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DIST. WP(Crl.).No. 373 of 2009(S) 2 ADDL.R7 & R8: ADDL.R7: THE CONSULATE GENERAL, CONSULATE OF INDIA, SHARJAH, UAE. ADDL.R8: UNION OF INDIA, REPRESENTED BY SECRETARY, DEPARTMENT OF EXTERNAL AFFAIRS, NEW DELHI. ARE IMPLEADED AS PER ORDER DATED 15.10.2009 IN I.A.No.12668/09 IN W.P.(Crl.) NO.373/09 BY GOVERNMENT PLEADER SMT.SMITHA SUKUMAR FOR R1 TO R5 ADV. SRI.P.C.SASIDHARAN FOR R6 SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA FOR ADDL.R7-8 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 22/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- W.P.(Crl.)No.373 OF 2009 ----------------------------------------------------- DATED THIS THE 22nd DAY OF DECEMBER, 2009 J U D G M E N T Basant, J. This judgment must be read in continuation of the earlier orders passed by us in the matter resting with the order dated 14.12.2009. By order dated 15th October, 2009 (which decision is reported in 2009(4) KLT 466) we had directed that a writ of habeas corpus be issued to cause production of the alleged detenue- Shamnamol, an adult woman aged above 20 years now (date of birth 20.12.1989). After the said order was passed on 15.10.2009 also the 6th respondent her father who had appeared before this Court through counsel did not bring her down to India. This obliged us to issue further directions on various dates thereafter. It was reported to us that the passport of the alleged detenue and the 6th respondent have been cancelled by the Consulate General, Consulate of India, Sharjah, UAE, the 7th respondent and that steps were taken to get the visas issued to them cancelled. Investigation into Crime No.526/09 was also progressing and we had issued peremptory directions to the W.P.(Crl.)No.373/09 -2- Director General of Police to ensure that proper investigation was conducted. 2. This case actually stands posted to 23.12.2009. The case has been advanced to this date at the request of the learned Government Pleader, after giving notice to all concerned. The learned Government Pleader reported that the alleged detenue and her father the 6th respondent came to India by flight on 19.12.2009 at the Trivandrum Airport. They were intercepted by the police. Police had produced the alleged detenue before the Judicial First Class Magistrate-I, Varkala on 19.12.2009. The learned Magistrate permitted the police to accommodate the alleged detenue at 'Abhaya', Vanchiyoor, Trivandrum with directions to produce her before this Court on 23.12.2009 at 10.30 a.m. As the alleged detenue was accommodated at such a place temporarily, the learned Government Pleader made a motion that the case may be advanced to this day and taken up for consideration. Accordingly, the case was advanced to this date and taken up for consideration. 3. Today, when the case is called, the alleged detenue Shamnamol is produced by the police from 'Abhaya', Vanchiyoor, W.P.(Crl.)No.373/09 -3- Trivandrum where she was accommodated in pursuance of the order of the Magistrate dated 19.12.2009. The petitioner and his counsel are present. The 6th respondent has not chosen to come to Court today also, but he is represented by his counsel. The wife of the 6th respondent, Shamla as also the brother -in-law of the 6th respondent, Zacharia are also present. We permitted the alleged detenue to remain in the Chamber without opportunity for anyone to influence her. 4. After lunch recess, we interacted with the alleged detenue alone initially and later in the presence of her mother and uncle and subsequently in the presence of the petitioner and his father who has come to Court along with him. The leaned counsel for the petitioner, counsel for the 6th respondent as also the learned Government Pleader were also present. 5. The alleged detenue Shamnamol states before Court that she does not want the Court to take any action against her father, the 6th respondent. But, however, she asserts that she wants to return along with the petitioner. She has not chosen to volunteer before us the sequence of events which led to her alleged removal from the house of the petitioner and later W.P.(Crl.)No.373/09 -4- movement of hers to Sharjah and her subsequent return to India. She asserts that she does not want to make any statements against her father and that she only wants to be permitted to return along with the petitioner. The petitioner and his father asserted that they are willing to take the alleged detenue with them. The mother of the alleged detenue states that she is unwilling to let her daughter to go with the petitioner, as she does not approve of the relationship between the alleged detenue and the petitioner. She prays that the alleged detenue may be sent back with her. 6. The alleged detenue states before us that her father had obtained her signatures on documents prepared on stamp paper, etc. stipulating that she shall have no rights whatsoever in their properties and that she shall not have any rights arising from her status as a daughter of her parents. She states that it has been stated in such agreement that she shall not have contacts with any of the relatives. However, learned counsel for the 6th respondent prays that the parents of the girl may be permitted to contact her. 7. We have considered all the relevant circumstances. In W.P.(Crl.)No.373/09 -5- a petition for issue of a writ of habeas corpus the Court need only consider whether the alleged detenue is under any illegal confinement or detention or objectionable restraint. We are satisfied – and we have referred to the facts in detail in the decision reported in 2009(4) KLT 466 that the alleged detenue is under illegal confinement, restraint and detention of her father. She was thus made to go abroad with the 6th respondent against her wishes and desire, we are satisfied. We take note of the repeated request of the alleged detenue that her father may not be put to any difficulties or embarrassment on account of such alleged conduct. But she asserts that she wants to return not with her mother or uncle, but with the petitioner herein. We are in these circumstances satisfied that this Writ Petition deserves to be allowed and the alleged detenue deserves to be permitted to leave the Court along with the petitioner herein. 8. The records show that the alleged detenue was permitted earlier by the learned Chief Judicial Magistrate, Trivandrum, before whom she was produced on 3.9.2009 to go with the petitioner. She and the petitioner were residing together when she was allegedly taken away by force on 9.9.2009. We W.P.(Crl.)No.373/09 -6- are satisfied that the alleged detenue can now be permitted to return from Court along with the petitioner though marriage strictly in accordance with law has not taken place between them. The alleged detenue and the petitioner state and Exhibit P1 produced shows that notice was given for solemnisation/ registration of their marriage under the Special Marriage Act on 5.9.2009. They pray that time may be granted to them to get the marriage solemnised/registered in accordance with the provisions of the Special Marriage Act. If sufficient time is given, they shall produce before this Court the certificate to show such solemnisation/registration of the marriage under the provisions of the Special Marriage Act, submit the petitioner and the alleged detenue. 9. We reckon the said offer to be quite reasonable and fair. We are satisfied that time can be granted to the petitioner and the alleged detenue to produce certificate to confirm solemnisation/registration of their marriage under the Special Marriage Act. Such solemnisation/registration can take place as per the notice already given under Exhibit P1 if the same is legally permissible. Otherwise, fresh notice can be given and the W.P.(Crl.)No.373/09 -7- marriage can be registered. We are satisfied that the case can be posted to a month hereafter for production of such marriage certificate. 10. The petitioner and his father submit that there may be continued harassment and attempt to disrupt peaceful residence of the alleged detenue with the petitioner at their house. The learned Government Pleader undertakes that the needful shall be done by the local police, i.e., the Kilimanoor Police to ensure that there is no attempt to disrupt the peaceful residence of the petitioner and the alleged detenue at the residence of the petitioner. We direct respondents 1 to 5 to ensure that there is no threat to the peaceful residence of the alleged detenue and the petitioner at their residence. The needful shall be done to ensure that such untoward acts as are taken place on 9.9.2009 are not repeated. The learned Governemnt Pleader also submits that the needful shall be done by the police to complete the investigation in Crime No.526/09 in accordance with law. 11. In the result: (a) this Writ Petition is allowed. (b) the alleged detenue Shamnamol who is produced W.P.(Crl.)No.373/09 -8- before Court by the police is permitted to leave the Court along with the petitioner as desired by her. (c) We accept their submission that certificate under the Special Marriage Act shall be produced before Court within a period of one month. Accordingly, we post the case to 29.1.2010 to enable the petitioner and the alleged detenue to produce such certificate. A copy thereof shall be produced by the petitioner and the alleged detenue to be handed over to the counsel for the 6th respondent. (d) We record the submission of the petitioner and the alleged detenue that they have no objection against the parents of the alleged detenue contacting her over the telephone. 12. Call this petition again on 29.1.2010. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn W.P.(Crl.)No.373/09 -9- R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- W.P.(Crl.)No.373 OF 2009 ----------------------------------------------------- DATED THIS THE 2nd DAY OF DECEMBER, 2009 O R D E R Basant, J. This order must be read in continuation of the earlier orders passed by this Court resting with the order dated 16.11.2009. To put it a nut shell, the grievance of the petitioner is that the alleged detenue who was permitted to be with him as per a valid unchallenged order passed by the learned C.J.M., Trivandrum has been forcibly taken away from his custody by miscreants including the 6th respondent. It is alleged that she has been forcibly taken away to Sharjah, UAE by her father the 6th respondent. Directions were issued from time to time by this Court to the Director General of Police, Kerala, as also the 7th respondent, the Consulate General, Consulate of India, Sharjah. It is evident now that the alleged detenue and the 6th respondent, who is responsible for the kidnapping and illegal detention of the alleged detenue are available in Sharjah. In accordance with the directions of this Court, the Court is now informed by the learned W.P.(Crl.)No.373/09 -10- ASGI that the passport issued to the alleged detenue and the 6th respondent have been impounded by the Consulate. It is further informed that steps have been taken to cancel the visas issued to both the 6th respondent and the alleged detenue. But the directions of this Court specifically has been to make them available before this Court. That direction has not been carried out. The learned ASGI submits that it is not for the Consulate General to bring them back to India. It is for the authorities of the interior Ministry in Sharjah, UAE to deport the alleged detenue and the 6th respondent who admittedly are continuing in the country without a valid passport and visa now. 2. We accept the submissions of the learned ASGI on that aspect. But, we still feel that the 7th respondent Consulate General has not done the needful to ensure that this Court is properly assisted by him as an Officer of the Union of India. The two statements filed on behalf of the 7th respondent do not unfortunately show what steps have been taken by the 7th respondent to ensure that the alleged detenue and the 6th respondent are made available to the Court to proceed further in the matter. The least we would have expected from the 7th W.P.(Crl.)No.373/09 -11- respondent was to take necessary active steps to ensure that the alleged detenue and the 6th respondent who are continuing in Sharjah, UAE without a valid visa and passport are deported by the said country to India to be made available for the Investigators in this case as also to enable this Court to proceed further in the matter. The learned ASGI assures that the needful shall be done. We expect that to be done by the 7th respondent forthwith. The action taken shall be reported to this Court by an affidavit personally sworn to by the 7th respondent, on 14.12.2009. We may make it clear that we expect the 7th respondent to ensure that the alleged detenue and the 6th respondent are deported and are available before this Court by 14.12.2009. Await the affidavit of the 7th respondent. 3. Call on 14.12.2009. 4. In spite of the directions issued to the Director General of Police, we find that the needful has not yet been done by the Kerala police to ensure that the alleged detenue and the 6th respondent are deported/repatriated to India. We direct the Additional Director General of Police to look into the matter personally and file an affidavit by 14.12.2009 to apprise this W.P.(Crl.)No.373/09 -12- Court of the steps taken. 5. We must say that the Director General of Police and the 7th respondent Consulate General must also have an interest in duly maintaining and upholding the rule of law. They must be equally concerned to implement the directions of this Court to ensure that a person who has been forcibly taken away from India contrary to the directions of the learned Magistrate are brought here and are made available for the legal process here. We expect inspire action on the part of the Director General of Police and the 7th respondent to ensure that the alleged detenue and the 6th respondent are made available before this Court on 14.12.2009. If such presence is not ensured, appropriate further directions shall be issued on 14.12.2009. 6. Hand over copy of this order to the learned ASGI and the learned Government Pleader for immediate communication to the Director General of Police and the 7th and 8th respondents. The Registry shall transmit these directions directly to respondents 7 and 8 as requested by the learned ASGI. The Registry shall communicate the same to respondents 7 and 8 forthwith by fax, e-mail and post simultaneously. W.P.(Crl.)No.373/09 -13- R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn