WP(CRL) Nos.758/08 Page 1 of 59 THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 03.07.2009 + WP(CRL) 758/2008 TASLEEMA ... Petitioner - versus – STATE (NCT OF DELHI) AND OTHERS ... Respondents Advocates who appeared in this case: For the Petitioner : Ms Nitya Ramakarishnan with Mr Trideep Pais For the Respondent No.1-3: Mr Rajat Katyal For the Respondent No.4 : Mr Sidharth Luthra, Sr. Advocate with Ms Hemantika Wahi and Mr Enmatoli Sema CORAM:- HON'BLE MR JUSTICE BADAR DURREZ AHMED HON’BLE MR JUSTICE AJIT BHARIHOKE 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporter or not ? Yes 3. Whether the judgment should be reported in Digest ? Yes BADAR DURREZ AHMED, J Preface: This is a case where we are called upon to decide whether a mother (the petitioner) should be compensated by the State of Gujarat, as a public law remedy, by way of strict liability, for the adventure undertaken by its police officials in ―taking away‖ her minor son, without reason and without the authority of law, from Delhi to a lock-up in Ahmedabad? And, if so, how do we determine the amount? We are to decide these questions in the backdrop of the allegation that the petitioner as also her husband and children are not WP(CRL) Nos.758/08 Page 2 of 59 citizens of India but, are Bangladeshis. An ancillary issue is also being vigorously pursued by the State of Gujarat which wants us to make a complaint under Section 340 of the Code of Criminal Procedure, 1973 against the petitioner for having filed a false birth certificate of her son along with an amendment application in respect of the present writ petition. To unravel these knotty questions, it would be necessary to examine the underlying circumstances in some detail. We shall do so presently. 1. Initially, this Writ Petition was filed by the petitioner seeking the issuance of a writ, order or direction in the nature of habeas corpus directing the respondents to produce her minor 13 year old son, Shamim, before this Court. It was also prayed that a direction be issued to respondents 1 to 4, through telegraphic/telephonic communication to ensure the physical safety and return of Shamim to New Delhi immediately. The third prayer sought the award of exemplary damages to the petitioner. Since the boy was produced before court pursuant to orders passed herein, as we shall see, it is only the third prayer which survives. The petitioner‘s son is ‗taken away‘: 2. The petitioner‘s case is that on 25.5.2008 between 9 a.m. and 10 a.m. some men in a white Tavera vehicle which had tinted glasses and a Gujarat registration number GJ 2G 4522 came to her husband‘s kabari (Scrap) shop at Seelampur. Her minor son Shamim was present at the shop as his father was away to Gurgaon, Haryana, to collect scrap. Near the said shop, there were others, such as, Salim, Shaidul and Rubel, who either owned or worked WP(CRL) Nos.758/08 Page 3 of 59 in the neighbouring shops. The men in the said white Tavera asked the names of the persons present and as soon as Shamim told them that his father‘s name was Mohd Azad, he was picked into the Tavera and taken away. It is further alleged in the writ petition that when asked, the said men in the said white Tavera said that they had come from Gujarat to arrest Shamim‘s father. 3. The other persons, who had watched this incident, narrated the same to the petitioner when she arrived at the shop shortly thereafter. Salim, who was one of the persons who watched the said incident, called the police control room after dialing the number 100. The local police arrived at the scene and was apprised of the fact that Shamim had been taken away by men who appeared to be from Gujarat. The police personnel from police station Seelampur thereupon informed the petitioner that it was the Gujarat police who had taken away the boy. D.D. Entry No 27A dated 25.5.2008 was made at police station Seelampur indicating that the Gujarat police had taken away a boy aged 13 years. On 26.5.2008, the police officers of police station Seelampur told the petitioner that her son was in the custody of the Gujarat police in Ahmedabad, Gujarat and the mobile phone number of the officer who took Shamim into custody was 09825163594. It is alleged that the petitioner was able to get through to the said phone number only on 27.5.2008. The person at the other end did not reveal his name but admitted to the fact that he had Shamim in his custody. It is further alleged that the said person was very rude and accused the petitioner of being a bangladeshi and threatened to deport the child. The petitioner lodged a complaint with WP(CRL) Nos.758/08 Page 4 of 59 the Commissioner of Police, Delhi and also sent a letter by courier to the Commissioner of Police, Ahmedabad. The petitioner stated that she is poor and illiterate and that she finally contacted social service organizations – Aman Biradari and The Commonwealth Human Right Initiative — and it is through their assistance that the present writ petition could be filed before this Court. The Writ Petition is filed and orders passed: 4. On the first day, i.e. on 29.05.2008, when this writ petition came up for hearing before this Court, a predecessor Bench directed issuance of notice. Notice had been accepted by Ms Mukta Gupta, Standing Counsel for the Government of NCT of Delhi on behalf of respondents 1, 2 and 3. The order dated 29.5.2008 records that the counsel for the petitioner had served an advance copy of the petition on the respondent No.4 (State of Gujarat) through its Standing Counsel, Ms Hemantika Wahi. But, as she was not present, the Court expressed its displeasure by recording ―we cannot appreciate her absence in this hearing.‖ Nevertheless, the Bench issued notice to the respondent No.4, returnable on 30.5.2008. 5. The order of 30.05.2008 reads as under:- ―It is not the disputed fact that the child in question, 13 years old Shamim was ―arrested‖ in Seelam Pur, Delhi. The response of Respondent No. 1, 2 & 3 is that their permission or cooperation was not sought and they were given intimation only after the child had been taken into custody and that too Respondent No. 1, 2 & 3 were not informed that the child has been taken into custody. WP(CRL) Nos.758/08 Page 5 of 59 Respondent No. 2 to produce the child Shamim s/o Tasleema, the Petitioner herein, on 2nd June, 2008 before vacation Bench.‖ Status Report of the Delhi Police: 6. It is significant to note that prior to the passing of the said order dated 30.5.2008, a Status Report of the same date signed by the Station House Officer of Police Station Seelampur had been filed in Court by Ms Mukta Gupta, the Standing Counsel (Criminal) Government of NCT of Delhi. The Status Report reads as under:- ―STATUS REPOT Hon‘ble Sir, Brief facts of the case are that on 25.5.2008 at1.10 p.m., S.I. J.M. Bharwad, Police Sub. Insp. SOG, Crime Branch Ahmedabad City, Gujarat alongwith three constables came at P.S. Seelampur and informed that he had come for the investigation of case FIR No. 840/06, U/s 457/380/114 IPC of P.S. Alis Bridge, Ahmedabad City, Gujarat for search of Mohd. Azad and after searching they lodged the information which was recorded vide D.D. No. 22B, dated 25.5.2008, P.S. Seelampur, Delhi. However, they did not seek any help from Delhi Police nor informed that they were taking anyone alongwith them. S.I. J.M. Bharvad also gave a written statement simultaneously that they had come for search of accused Azad S/o Shamsu Ali R/o C- 98, Shastri Park, D.D.A. Flat, Delhi but Azad could not be traced as his house was found locked from outside. S.I. J.M. Bharvad further stated that Azad above is a Bangladeshi National and he was deported to Bangladesh from Delhi but at present he is residing illegally in Delhi. S.I. J.M. Bharvad requested to make search of Azad above and if any clue is found, information be given to Ahmedabad city Police on the Ph. No. 07925630600, Mobile No. 09825163594. Copy of the said written statement is enclosed herewith for the kind perusal of Hon‘ble Court. It is further submitted that on 25.5.2008 at 4.20 p.m. a PCR call vide DD No. 15A was received at P.S. Seelampur, Delhi that a boy aged 13-14 years has been abducted and taken up in vehicle No. GJ-1G 4522 by 5-6 Police Officials in civil dress from Kabari Shop, near Nala, red light Dharampura. The said call was entrusted to ASI. Iftikhar Ahmed for enquiry on which ASI Iftkhar Ahmed made WP(CRL) Nos.758/08 Page 6 of 59 enquiry and it was revealed that a boy has been taken away by Gujarat Police officials, on 26.5.2008 again a PCR Call vide DD No 7A was received at P.S. Seelampur that Shamim S/O Md. Azad who works in a Godown of Kabari at Dharampur has not been returned at his home from 25.05.08 at 10.00 o‘ clock. The said PCR call was entrusted to ASI Gaje Singh and the said DD entry was kept pending and on 29.05.08 she alongwith her son Shamim @ Milan aged 13 years was present at her shop. At about 4.15 PM 5/6 policemen in plain clothes came to her shop and asked about her husband. They stated that Azad had gone to somewhere in Gurgaon. On this they took her son in vehicle NO GJ 1G-4522 at some unknown place. On the basis of the statement of the complainant a case vide FIR No. 212/08 dated 29/05/08 u/s 363/34 IPC was registered at P.S. Seelampur and taken up for investigation. A team has been sent to Gujarat for the investigation of the case. Submitted please Sd/ SHO/Seelampur Dated – 30/05/08‖ 7. The above status report has revealed the following facts:- 1) On 25.5.2008 at about 1.10 p.m., Sub Inspector J.M. Bharwad, Special Operation Group (SOG) Crime Branch, Ahmedabad City, Gujarat along with three constables came to Police Station Seelampur and informed that he had come for the investigation of FIR No. 840/06, U/S 457/380/114 IPC of Police Station Elis Bridge, Ahmedabad City, Gujarat in search of Mohd. Azad. 2) This information was recorded on 25.5.2008 at P.S. Seelampur, vide D.D. Entry No.22B. 3) The said S.I. J.M. Bharwad and the other three constables from Gujarat did not seek any help from Delhi Police nor did they inform Delhi Police that they were taking any person along with them. 4) Sub Inspector J.M. Bharwad also gave a written statement at the Police Station Seelampur. 5) On 25.5.2008 itself a PCR call vide DD No. 15A was received at Police Station Seelampur indicating that WP(CRL) Nos.758/08 Page 7 of 59 the boy Shamim, aged 13-14 years had been abducted and taken in a vehicle No GJ IG-4522 by 5- 6 police officials in civil dress from a Kabari shop near Nala, red light Dharampura. 6) On 26.5.2008 another PCR call vide DD No. 7A was received at P.S. Seelampur that Shamim s/o Mohd. Azad had not returned home from 25.5.2008 at about 10.00 O‘ Clock. 7) On the basis of the statement of Shamim‘s mother (Taslima), the petitioner herein, FIR No. 212/2008 dated 29.5.2008 under Section 363/34 IPC was registered at police station Seelampur and taken up for investigation. 8) A team had been sent to Gujarat for the investigation of case. 8. From the above facts, it became absolutely clear that the petitioner‘s minor son Shamim had been picked up by the Gujarat police. In fact, it became clear that it was Sub Inspector J.M. Bharwad along with other constables who had come from Ahmedabad, Gujarat in search of Mohd. Azad and, not finding Mohd. Azad in Delhi, they, instead, picked up his minor son Shamim and took him into their ‗custody‘. They not only removed him from his place of residence/work but also took him out of Delhi to Gujarat. Sub-Inspector J. M. Bharwad‘s written note submitted at PS Seelampur: 9. It is important to note the contents of the written statement/note given by S.I. J.M. Bharwad, SOG Crime Branch, Ahmedabad City, Gujarat at the police station Seelampur. A copy of the said document has been placed on WP(CRL) Nos.758/08 Page 8 of 59 record. It is in Hindi. The English translation of the said document reads as under:- ―To SHO, Police Station Seelampur, Delhi – 53. Subject: Information regarding search of the accused and for necessary action. Sir, The report/request of S.I. J.M. Bharwad, SOG Crime Branch, Ahmedabad City is as under:- Following is the request on above subject by SI. J.M. Bharwad SOG Crime Branch Ahmedabad City. Accused Sujit Dass @ Alam s/o Tarni Das (+2 =3) persons have been arrested on 16/5/08 at 22.30 PM. Vide CR no 840/06 u/s 457/380/114 IPC PS. Elisbridge Ahmedabad City. On interrogation he disclosed that Azad s/o Samsul Ali Sheikh R/O C-98 Shastri Park DDA Flat had been involved in the above case. As per the disclosure statement of accused arrested search was made at C-98 Shastri Park Delhi but it was learnt that he had left the rented house and shifted to some unknown place. Search was made at the kabari shop of accused at Dharampura red light where one Mohd. Salim s/o Ali Mohd. Sheikh aged 28 years r/o A-469 JJ colony Bawana, Delhi was found present. On enquiry he stated that Mohd Azad s/o Samsu Alam Sheikh is a permanent resident of Gobar Chakar, Khulna, Bangladesh and is presently residing at Sudama Park, gali no. 10 West Babarpur, Delhi and C-58 DDA Flats Shastri Park, Delhi. On search he could not be found and the houses were locked. Mohd. Azad had previously been arrested in a case of house breaking by the Ahmedabad City police. On interrogation he disclosed that he was a Bangladeshi citizen and was deported to Bangladesh as he was found staying in Delhi without a Passport and Visa. He returned back from Bangladesh. Accused if traced, be arrested in above said offence, and information may be given to Ahmedabad city control room on 079 -256-30600. Mobile No. 9825163594 Dt 25/5/08 WP(CRL) Nos.758/08 Page 9 of 59 Sd/- J.M. Bharvad, Police Sub Inspector, SOS Crime Branch, Ahmedabad City Gujarat (State)‖ Production of the boy before this Court: 10. On 2.6.2008, when the matter appeared before the Vacation Bench, Ms Wahi, appearing on behalf of the State of Gujarat (respondent No. 4), produced the child Shamim s/o Tasleema, the petitioner herein. She made a curious submission that ‗the minor boy Shamim accompanied the Gujarat Police willingly of his own accord and that he is not in police custody, since there is no proceeding or FIR registered against him.‘ Ms Wahi also submitted that they were handing over the minor boy to the Delhi Police. The order dated 02/06/08 indicates that Ms Mukta Gupta, appearing on behalf of the Respondent Nos 1 to 3 had no objection to the custody of the child being handed over to his mother, the petitioner herein. She also sought further time to file a status report with regard to the investigation carried out pursuant to FIR No. 212/2008 dated 29.5.2008 registered in connection with the alleged abduction of the minor child. The Vacation Bench also directed the police officer who ―arrested‖ the boy to file an affidavit explaining the circumstances under which they took the boy from Delhi to Ahmedabad. Four weeks‘ time was granted for filing the said affidavit and two weeks‘ time was granted to the petitioner to file the rejoinder. The Bench also directed, in view of the submission made by Ms Mukta Gupta, counsel for the State, that the minor boy be released into the protective custody of his mother, the petitioner herein. WP(CRL) Nos.758/08 Page 10 of 59 Shamim‘s statement under Section 164 Cr. P.C: 11. On the same day, the minor boy Shamim was produced before the learned Metropolitan Magistrate, Karkardooma, Delhi where his statement under Section 164 CrPC was recorded. As per the said statement, Shamim has clearly stated that he had been forcibly taken away to Gujarat by the officials of Gujarat Police and he had been confined in a lock-up in Ahmedabad, Gujarat. His statement under Section 164 CrPC dated 2.6.2008 is in Hindi. An English translation of the said statement is as under:- ―Q. What is your name? A. Shamim. Q. Where do you live? A. Kasim Vihar. Q. What do you do? A. I am doing the work of Kabari. Q. Do you know, where are you sitting? A. In the Court. Q. Are you studying? A. No. Q. How many members are there in your family? A. Mother, Father and three sisters. Q. Do you want to depose? A. Yes. Q. Are you deposing of your own free will? A. Yes. Q. How old are you? A. Thirteen years. Master Shameem @ Milan s/o Mohd. Azad, age about 13 years r/o 32A Kasim Vihar, Loni, Gaziabad, U.P. On 25/04/2008, Gujarat Police came to Dharampura Red Light where I have a Kabari business. Two police men WP(CRL) Nos.758/08 Page 11 of 59 approached me and asked my name. Then they asked my father‘s name which I told them. Then they asked me to take them to my father. Then they put me in a vehicle and left. Apart from me one driver and four police men were sitting in the vehicle. Then I took them to my house to meet my father. My father was not present in the house, so they again took me to my kabari shop. Then they slapped me two three times, and scolded me saying ―you are lying, why did you not take us to your father.‖ Then they said that if I did not tell the truth about my father, they would kill me with the gun. Then by instilling fear in me they forced me to sit in the same vehicle and took me to Seelampur. They stopped the vehicle in front of police station Seelampur and one police man went inside the police station. Then after five minutes, he returned with a red paper in his hand and sat in the vehicle. In the same vehicle they took me to Gujarat. We left in the day and 2-3 times we halted at dhabas to take meals. They also gave me dal roti once. Then after reaching Gujarat they put me in a lock-up. Many other police men were also present there. Then after four days, I was taken out from that lock-up. Along with me, one woman and four other men were also taken out. After removing me from there, they took me into a chamber situated above. There, they slapped me 2- 3 times, abused me and told me that ―you are a Bangladeshi.‖ Then, in one file, after substituting someone‘s Bangladeshi address as my address, told me that now they would definitely send me to Bangladesh. After further questioning, they put me in the same lock- up. Then on the next day, I was taken out from the lock- up and taken into a cabin where one officer told me ―if I loose my job due to you, then I will shoot you and your family.‖ Then they told me that if I went to Delhi then I should say that I returned to Delhi of my own free will to save my father and nobody pressurized me nor did anybody take me anywhere and nobody beat me. I was told to tell this to everybody, whether it was my mother, or advocate or anybody else. Again I was put into the same lock-up. The next day they took me out and took me to a cabin and again told me to say the same thing after reaching there (Delhi), what had been told to me by them. They again put me in the same lock-up. There, they also did not give any proper food to eat. They again told me that when they take me to Court then I should repeat what has been told by them. Yesterday, 01.06.08, WP(CRL) Nos.758/08 Page 12 of 59 we left at 1.00 p.m. We stopped at 2-3 places for tea and twice at dhabas for taking meals and some rest. This morning at 6.30 a.m. we reached Gujarat Bhawan in Delhi. Some police men, driver and one writer (scribe) went upstairs for washing up and bathing etc. There, two senior officers had also come from Gujarat. After freshening up, all left for Court. I was brought to Court in the same vehicle on which I had been taken to Gujarat. We left at about 8 a.m. and reached Court at 10 a.m. Sd/- Shamim Sd/- English (in English) MM RO&AC As the witness is not educated so his thumb impression of left thumb has also been taken which is as under:- LTI. Thumb impression of Shamim.‖ 12. The above statement of the minor boy Shamim, recorded on 2.6.2008 immediately after he had been produced before this Court, clearly indicates that:- 1) he was taken by the Gujarat Police on 25.5.2008 from Delhi and placed in a lock-up in Ahmedabad, Gujarat till 1.6.2008 on which date, he was taken out from the lock-up for the purposes of returning to Delhi. 2) Shamim was produced before this Court on 2.6.2008 by the respondent No. 4. 3) Shamim was forceably taken from Delhi on being given repeated life threats both to him and other family members by the Gujarat Police. 4) Shamim had also been slapped on two occasions. WP(CRL) Nos.758/08 Page 13 of 59 5) Shamim had been instructed by the Gujarat police to narrate a story which had been cooked up by them to the effect that he had voluntarily gone with them. 6) After four days in the lock-up, Shamim was taken to some chamber where he was accused of being a Bangladeshi and threatened that he would be sent to Bangladesh. Sub-Inspector J. M. Bharwad‘s affidavit dated 09.07.2008: 13. In sharp contrast to this horrific tale, the affidavit of J.M. Bharwad, Sub-Inspector of Police, Crime Branch, Ahmedabad, Gujarat dated 9.7.2008 reiterates the submissions made earlier by the counsel for respondent No. 4 that Shamim had voluntarily gone with him and other members of the Gujarat Police to Ahmedabad. In the said affidavit, the said Sub Inspector J.M. Bharwad, inter alia, stated that on 25.5.2008, he along with three constables and the arrested accused, Sujitdas who was in police remand for the purpose of investigation came to Delhi with the intention of arresting Mohd. Azad. He stated that they went to Seelampur Police Station to inform that they were searching for an absconding accused named Mohd. Azad and he asked them to inform him if they had any clue as to his whereabouts. The said affidavit then narrates the factum of Shamim being taken to Gujarat. It would be best to set out the exact words used in the said affidavit:- ―6. That on the same day, we enquired about the whereabouts of Mohammad Azad and went upto his house. However we found the house locked. Thereafter we found a teenage boy named Shamim who was recognized by the arrested accused Sujitdas to be the son of the absconding accused. We enquired from him the whereabouts of his father. 7. That Shamim told us that at present his father is in Ahmedabad but he does not know exactly where his WP(CRL) Nos.758/08 Page 14 of 59 father is staying. However, he informed us that if we take him to Ahmedabad he will take us to the place where his father is staying. He voluntarily agreed to come with us to Ahmedabad and show us the hiding place of his father. 8. That the action