IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 WP(Crl.).No. 349 of 2010(S) --------------------------- PETITIONERS: --------------- 1. JOSSY THOMAS, AGED 55 YEARS, W/O.C.V.THOMAS, RESIDING AT CHENNAMPILLIL HOUSE, PIRAVOM KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. 2. JEBIN THOMAS, AGED 27 YEARS, S/O.C.V.THOMAS, RESIDING AT CHENNAMPILLIL HOUSE, PIRAVOM KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.M.S.SAJEEV KUMAR RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE CHEIF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 3. CIRCLE INSPECTOR OF POLICE, PIRAVOM. 4. SUB INSPECTOR OF POLICE, PIRAVOM. 5. JOY, AGED 53 YEARS, S/O.KURIAN, RESIDING AT CHENNAMPILLIL HOUSE, PIRAVOM KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. 6. ALLY GEORGE, AGED 56 YEARS, W/O.GEORGE, RESIDING AT PADIYEDATH HOUSE, SHIVALY, OORAMANA KARA, RAMAMANGALAM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. WP(Crl.).No. 349 of 2010(S) - 2 - 7. KURIAKOSE @ KUNJACHAN, AGED 68 YEARS, S/O.KURIAKOSE, RESIDING AT CHENNAMPILLIL HOUSE, PERIYAPURAM KARA, ONAKKUR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. SR.GOVERNMENT PLEADER SRI.K.J.MUHAMMED ANZAR ADV. SMT.CHINCY GOPAKUMAR FOR DETENUE SRI.A.JAYASANKAR FOR R5-6 SRI.MANU GOVIND FOR R5-6 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 30/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.L.JOSEPH FRANCIS, JJ. *********************** W.P(Crl) No.349 of 2010 ***************************** Dated this the 30th day of September, 2010 JUDGMENT BASANT, J. This judgment must be read in continuation of the earlier order passed by us on 13.09.2010. 2. Respondents 5 and 6 have engaged a counsel and the counsel has appeared today. The petitioners are present. They are represented by their counsel. The alleged detenue has come to Court. 3. First of all we must record that there is a submission by the learned counsel for the alleged detenue and the learned counsel for respondents 5 and 6 that an observation in para.14 of the order dated 13.09.2010 is not correct. We had recorded that interim orders have been passed by the Munsiff's Court, Moovattupuzha in O.S.No.358 of 2010 and that those interim directions occupy the field and there is no threat or risk of any property of the alleged detenue being alienated or transferred in the meantime. The learned counsel for the alleged detenue and respondents 5 and 6 submit that there is no such order in existence. Before us, nothing has been produced to take a W.P(Crl.) No.349 of 2010 2 decision either way. We, in these circumstances, only observe that the said observation crept into the order dated 13.09.2010 only because submissions to that effect were made before us and the same were not controverted on that day. 4. We have interacted with the alleged detenue. The alleged detenue states that he would like to return to his house. He states that his wife and son may not permit him to occupy the same peacefully and the court may grant him protection. He has been advised to seek protection by initiating appropriate proceedings, if he is entitled to any such protection. 5. The learned counsel for the petitioners submits that M.H.O.P No.970 of 2010 has already been filed by the 2nd petitioner before the District Judge, Ernakulam. Interim orders have been sought in the said M.H.O.P. 6. We are satisfied that the alleged detenue is not under any illegal confinement or detention. In a petition for issue of a writ of habeas corpus, we are primarily concerned with the question whether the alleged detenue is under any illegal confinement or detention. We may not, at the moment and with the available inputs, be able to finally pronounce on the soundness of mind of the alleged detenue, but we must say that W.P(Crl.) No.349 of 2010 3 we do not feel that he is under any illegal confinement or detention. 7. Parties can seek appropriate directions from the court concerned in M.H.O.P No.970 of 2010. We are satisfied that it is not necessary for us to issue any further directions in this Writ Petition. 8. Respondents 5 and 6 have filed a counter affidavit today. The alleged detenue has filed I.A.No.13643 of 2010 for a direction of this Court to the petitioners to hand over certain documents which, according to him, have been taken away by the petitioners from his possession. That request is totally beyond the purview of this Writ Petition, which we are now dealing with. The alleged detenue shall be at liberty to take appropriate steps in accordance with law to claim such relief. I.A.No.13643 of 2010 is, in these circumstances, dismissed. 9. In the result: a) This Writ Petition is dismissed; b) The alleged detenue is permitted to leave the Court as a free individual; c) He wants to leave the Court today along with respondents 5 and 6, who have come to Court. We permit him to W.P(Crl.) No.349 of 2010 4 pursue whatever course he thinks is best in his interest. We do not think it necessary to issue any further directions. (R.BASANT, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) rtr/ W.P(Crl.) No.349 of 2010 5 R.BASANT & M.L.JOSEPH FRANCIS, JJ. ********************** W.P(Crl.) No.349 of 2010 ********************* Dated this the 13th day of September, 2010 ORDER BASANT, J. The petitioners have come to this Court with this petition for issue of a writ of habeas corpus to search for, trace and produce their husband/father - C.V.Thomas, S/o.Varkey, now W.P(Crl.) No.349 of 2010 6 aged 58 years, who, according to them, is under the illegal detention and custody of respondents 5 to 7 from 16.08.2010. 2. According to the petitioners, the said C.V.Thomas (hereinafter referred to as `the detenu') had got married to the 1st petitioner, a woman now aged 55 years, on 04.07.1982. For about 17 years, it is alleged that they had lived together as husband and wife. In such marital tie, the 2nd petitioner, now aged 27 years, was born. From the year 1998, the spouses have been residing separately. In 2008, the spouses resumed cohabitation and they were allegedly living together happily. It is the case of the petitioners that on 16.08.2010, the alleged detenu was taken away by respondents 5 to 7 and that thereafter they are keeping the alleged detenu under their illegal confinement/detention. 3. The petitioners have a further case that the alleged detenu is a mentally ill person. They have a further grievance that respondents 5 to 7 are illegally detaining the alleged detenu with the intention of defrauding him and illegally taking away his properties. According to the petitioners, they had lodged Exts.P2 and P3 complaints before the police officials. Though the same was acknowledged under Ext.P4, no effective action W.P(Crl.) No.349 of 2010 7 was taken and it is, in these circumstances, that the petitioners have come before this Court with this petition on 03.09.2010. 4. This petition was admitted on 07.09.2010. Notice was ordered to respondents and the case was posted to this date. 5. Today when the case is called, the petitioners are present. They are represented by their counsel. The alleged detenu has appeared before Court. He is represented by a counsel. Respondents 5 to 7 have appeared before Court. They have not engaged any counsel. They admittedly are cousins of the alleged detenu (ie. respondents 5 and 7). The 6th respondent is admittedly the direct sister of the alleged detenu. For respondents 1 to 4, the learned Government Pleader has entered appearance. 6. The alleged detenu has a totally different version to advance. According to him, he does not suffer from any illness to justify his description as a mentally ill person. According to him, it is true that he had married the 1st petitioner and the 2nd petitioner was born in that wedlock. But according to him, the 1st petitioner had deserted him. She had entered into an agreement of marriage with another person as per a registered W.P(Crl.) No.349 of 2010 8 document executed in 1999. He had resumed cohabitation with the petitioners only in 2008. They had started residing in a residential building in the ancestral property of the alleged detenu. According to the alleged detenu, he was subjected to harassment, ill treatment and torture in the said house. He had occasion to complain to others. Finally on 16.08.2010, he was assaulted and he had to leave the house occupied by himself and the petitioners. He was admitted to a local hospital. Complaints were filed, but no action was taken by the police. In these circumstances, he was residing separately, unable to return to his own house. In his state of helplessness, respondents 5 to 7 had helped him. He was not under the illegal detention or custody of respondents 5 to 7. Respondents 5 to 7 are only friendly relatives who have acted to protect the genuine interest of the alleged detenu. According to the alleged detenu, he does not want to return to the petitioners. He wants to be on his own. He is quite capable of managing himself and his properties. According to him, the anxiety of the petitioners is only to grab his properties and to cause loss to him. He asserts that he has not given any property to respondents 5 to 7. Respondents 5 to 7 assert that they do not want his properties at all. W.P(Crl.) No.349 of 2010 9 7. As the alleged detenu comes to Court allegedly from the custody of/along with respondents 5 to 7, we permitted the alleged detenu to remain in the Chamber without opportunity for anyone to influence him. The petitioners prayed and we granted them opportunity to interact with the alleged detenu. They were thus permitted to interact with the alleged detenu during the pre lunch session. 8. After the lunch recess, we initially interacted with the alleged detenu. Our interactions with the alleged detenu reveal that admittedly he was under the treatment of a Psychiatrist for a fairly long period. But according to him, he does not have any mental disability to describe him as a mentally ill person. We are not experts to pronounce on the mental condition of the alleged detenu. We need only record that the alleged detenu gave us cogent and reasonable answers to the queries which we put to him. We repeat that we do not intend to make any pronouncement on the mental condition of the alleged detenu or his ability to look after himself and his properties. 9. The alleged detenu requested us that he may be permitted to return from Court along with the 6th respondent, his sister. He wants to continue to reside with her for some time W.P(Crl.) No.349 of 2010 10 before he takes a decision about his own future. The 6th respondent submits that she is willing to permit the alleged detenu, her brother, to reside with her. She has no objections against the alleged detenu residing with her for whatever length of time in his discretion. Respondents 5 and 7 submit that they, being relatives of the alleged detenu, had only accepted the request of the alleged detenue to save himself from the hands of the petitioners, who, according to the alleged detenu, were belaboring him and causing harassment and torture to him. They have no objection whatsoever in the alleged detenu taking whatever decision about his future. But both of them submit that they have also been witnesses to and are aware of the improper treatment received by the alleged detenu at the hands of the petitioners. They only request that appropriate orders in the circumstances may be passed by the Court. 10. The learned counsel for the petitioners submits that the petitioners still maintain that the alleged detenu is a mentally ill person. According to the petitioners, the alleged detenu is unable to look after himself and his properties. He admittedly has properties - land, building and deposits. Already W.P(Crl.) No.349 of 2010 11 O.S.No.358 of 2010 has been filed before the Munsiff's Court, Muvattupuzha with the alleged detenu as the plaintiff and his son, the 2nd petitioner, as his next friend. In that proceedings, it is conceded that the alleged detenu has entered appearance and has filed a statement questioning the competence/propriety of his son, the 2nd petitioner, to represent him and file a suit on his behalf. He has filed a memo before the Munsiff's Court, Muvattupuzha, to request the Court to dismiss the suit filed by his son on his behalf as not maintainable. He has requested that the said suit may be dismissed as not pressed. The learned Munsiff, Muvattupuzha, is seized of the said dispute, it is submitted by the counsel for the alleged detenu. 11. The petitioners through their counsel submit that they intend to take steps under the provisions of the Mental Health Act, 1987. Until then, the safety of the alleged detenu may be ensured, requests the learned counsel for the petitioners. 12. We have considered all the relevant inputs. We accept the request of the alleged detenu and the 6th respondent - brother and sister, that the alleged detenu may be permitted today to leave the Court along with the 6th respondent. We accept the submission of the alleged detenu and the 6th W.P(Crl.) No.349 of 2010 12 respondent that the alleged detenu shall appear before the Court on the next date of posting. We accept the submission of the learned counsel for the petitioners that the petitioners or either of them shall be initiating appropriate proceedings before the District Court under Chapter VI of the Mental Health Act, 1987 to secure the true interest of the alleged detenu. 13. We do accordingly post this case to 30.09.2010 to enable the petitioners to initiate appropriate action and to secure necessary orders if any from the Court concerned. We accept the submission of the alleged detenu and the 6th respondent that till 30.09.2010, the alleged detenu shall reside along with the 6th respondent and that the alleged detenu shall appear before this Court on that date. 14. Call this petition again on 30.09.2010. Accepting the request of the alleged detenu and the 6th respondent, the alleged detenu is permitted to return from Court along with the 6th respondent today. We direct that the 6th respondent and the alleged detenu must appear before this Court on 30.09.2010. The petitioners shall also appear on that date. Respondents 5 to 7, if they are so advised, can engage a counsel of their own and W.P(Crl.) No.349 of 2010 13 file appropriate statements if any giving expression to their respective stand. The petitioner shall on that day submit before this Court whether any action has been initiated under Chapter VI of the Mental Health Act. It is submitted before us that interim orders passed by the Munsiff's Court, Muvattupuzha in O.S.No.358 of 2010 occupy the field and there is no risk/threat of any property of the alleged detenu being alienated/transferred in the meantime. 15. Call on 30.09.2010 at 1.45 p.m in the Chamber. 16. The learned counsel for the petitioners requests and we record the submission of the alleged detenu that he is taking medicines regularly as prescribed by Dr.Kuruvila Mathew, a Psychiatrist. The alleged detenu agrees and the 6th respondent undertakes to ensure that the alleged detenu takes the medicines as prescribed by the doctor to avoid any alleged possibility of aggravation of the alleged ailment. (R.BASANT, JUDGE) (M.L.JOSEPH FRANCIS , JUDGE) W.P(Crl.) No.349 of 2010 14 rtr/