IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 9TH FEBRUARY 2011 / 20TH MAGHA 1932 WP(Crl.).No. 514 of 2010(S) ------------------------------------ PETITIONER(S): ---------------------- ROY, AGED 52 YEARS, S/O.MATHAI, VENDUVAZHIMALIYIL HOUSE, KOTHAMANGALAM, ERNAKULAM DISTRICT. BY ADV. SRI.K.SUNILKUMAR RESPONDENT(S): ----------------------- 1. C.M.VEERAKUTTY, CHIRAPULLY HOUSE, NOONELY KARA, ASAMANNOOR.P.O., KUNNATHUNADU TALUK. 686 691. 2. THE SUB INSPECTOR OF POLICE, KOTHAMANGALAM POLICE STATION, ERNAKULAM. PIN-686 691. 3. THE CIRCLE INSPECTOR OF POLICE, KOTHAMANGALAM POLICE STATION, ERNAKULAM. PIN-686 691. 4. STATE OF KERALA, REPRESENTED BY THE HOME SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 696 001. ADDL.5. SAIDU MUHAMMED, AGED 70 YEARS, S/O.MUHAMMED, PAYAMPILLIL HOUSE, PALLARIMANGALAM P.O., KOTHAMANGALAM. (Additional 5th respondent is impleaded as per order dated 3.2.2011 in I.A.No.1886/2011) R2 TO R4 BY SR GOVERNMENT PLEADER SRI.KAMAPPU. R5 BY ADV.SMT.S.KARTHIKA THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 09/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPCR NO.514/2010: PETITIONER'S EXHIBITS: EXT.P1.PHOTOCOPY OF THE COMPLAINT DATED 28.12.2010 FILED BY THE PETITIONER BEFORE THE SI OF POLICE, KOTHAMANGALAM. K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ W.P.(CRL) No.514 of 2010-S ---------------------------------------------- Dated, this the 9th day of February, 2011 J U D G M E N T K.M.Joseph, J. This writ of Habeas Corpus is filed seeking a direction to respondents 2 and 3 to search the alleged detenu by name Muhammadali who is a close friend of the petitioner and to produce him before this Court and to set him at liberty. 2. Briefly put, the case of the petitioner is as follows: Petitioner is a close friend of Muhammadali who is alleged to be under the illegal detention of the Ist respondent. The Ist respondent is stated to be the father-in-law of the alleged detenu. There are various allegations made. It is inter alia stated that the alleged detenu has filed an application for anticipatory bail and that the alleged detenu was residing in a rented house and the Ist respondent and hired gundas reached the rented house and assaulted the alleged detenu and thereafter they abducted the alleged detenu. 3. A counter affidavit is filed by the Ist respondent denying the allegations. The father of the alleged detenu has also come forward and got himself impleaded as additional respondent. WPCR 514/2010 -2- 4. A statement is filed stating that the alleged detenu is undergoing treatment for mental illness at the Ideal Mind Care Hospital at Vengola near Perumbavoor. 5. The petitioner had filed an application to depute an Advocate Commission. We have deputed an Advocate Commission. The Advocate Commissioner filed the report. Noticing discrepancies we directed production of the alleged detenu. We interacted with the alleged detenu. We also interacted with the Ist respondent and also the father of the alleged detenu. We also heard the learned counsel for the parties including the learned Government Pleader. Learned counsel for the petitioner would point out certain discrepancies in the report. According to him, the doctor in the report would say that the alleged detenu does not require inpatient treatment and he can be managed with meditation and entry in the record relating to the detenu dated 8.1.2011 would show that it was the insistence of the father and brother of the alleged detenu that the alleged detenu should continue for two more months. From this he would point out that there is illegal detention. He would further say that the manner in keeping the records itself raises suspicion as the entry on 8.1.2011 comes after the entry on 22.1.2011. We can not be oblivious of the fact that the alleged detenu was admitted in a clinic and he was undergoing treatment. We do not think that we can characterize this case as a case where a writ WPCR 514/2010 -3- of Habeas Corpus should be issued on the ground of illegal detention of the alleged detenu and we could direct him to be set free. As to whether the alleged detenu is fit for release or whether he should be continued under treatment are matters to be decided by the Medical expert under whose supervision the alleged detenu is being treated. It is for the doctor to decide having regard to all facts and circumstances whether the detenu is to be released or not. It may not be appropriate for the writ Court in its Habeas Corpus jurisdiction in the facts of this case and particularly at this juncture of time to direct release of the alleged detenu. In such circumstances we decline to issue further directions in this matter and we close this case. However, we make it clear that it may be open to the petitioner if he is so advised and circumstance so warrants to approach this Court in the matter. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS