IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 WP(Crl.).No. 535 of 2009(S) --------------------------- PETITIONER(S): --------------- UNNIKRISHNAN NAMBI, S/O.LATE NEELANKANTAN NAMBI, AGED 55 YEARS ALATHIYUR NAMBILLAM, ALATHIYOOR PO THIRUR, MALAPPURAM DIST 676 102. BY ADV. P.VIJAYAKUMAR RESPONDENTS: --------------- 1. SUB INSPECTOR OF POLICE, THIRUR. 2. ISHAQ, S/O.KASMI MOOSAKKANTEPURAKKAL, IDAKADAPPURAM, THANUR MALAPPURAM DIST. 3. KASMI MOOSAKKANTEPURAKKAL,IDAKADAPPURAM ,THANUR MALAPPURAM DISTRICT. BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR ADV. SRI.C.V.MANUVILSAN FOR R3 SRI.P.G.SURESH SMT.K.VIDYA SRI.M.R.VIBIN SRI.M.AJAY FOR R2 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 05/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** W.P(Crl) No.535 of 2009 ***************************** Dated this the 5th day of March, 2010 JUDGMENT BASANT, J. This judgment must be read in continuation of our earlier orders resting with the order dated 25.02.2010 and the directions issued by us earlier on this day. 2. The petitioner had come to this Court with this petition for issue of a writ of habeas corpus to search for, trace and produce his daughter Soumya, an adult major woman, aged 20 years (date of birth 20.05.1989). She was allegedly missing from 11.12.2009. It was the apprehension of the petitioner that she was being illegally detained by the 2nd respondent with the active support and collusion of the 3rd respondent, his father. This petition was admitted on 14.12.2009 by us. Directions were issued by us from time to time. On 22.12.2009, the alleged detenue appeared before this Court along with the 2nd respondent. We gave opportunities to the parties to interact. The alleged detenue was persuaded to go along with the petitioner. The case was posted to 04.01.2010 to enable the W.P(Crl) No.535 of 2009 2 parties to work out a harmonious settlement. The matter came up for hearing again on 04.01.2010. On that day as agreed between the parties, directions were issued by us to facilitate the residence of the alleged detenue Soumya at the Santhi Niketan hostel till 08.02.2010. On that day, it was further agreed, that the marriage between the alleged detenue and the 2nd respondent can be solemnised under the provisions of the Special Marriage Act. Subsequently there was a complaint before us that the alleged detenue was taken from the Santhi Niketan hostel by the petitioner on the plea that she will be taken to the Registrar's office for registration of marriage. But she was taken away by force to some unknown destination. We do not want to continue to narrate the sequence of events. To cut a long story short, the alleged detenue was traced later at Uduppi on 17.02.2010 by the Kerala police with the help of the Karnataka police and she was produced before this Court. Subsequently, on 19.02.2010 the marriage between the alleged detenue and the 2nd respondent was solemnised in accordance with the provisions of the Special Marriage Act. Marriage certificate No.1/2010 dated 19.02.2010 issued by the Marriage W.P(Crl) No.535 of 2009 3 Officer, Thanur, has been produced before this Court to confirm the solemnisation of the marriage between the alleged detenue Soumya and the 2nd respondent Ishaq under the Special Marriage Act. A copy thereof has been furnished to the petitioner also. We issued notice to the petitioner calling upon him to explain why action should not be initiated against him under the Contempt of Courts Act for the indiscretion committed by him in taking away the alleged detenue in illegal detention contrary to the specific directions of this Court. 3. The matter came up for hearing on a couple of occasion later. The petitioner has filed an affidavit dated 01.03.2010 on 02.03.2010. In that affidavit, the petitioner candidly admits the indiscretion committed by him. He unconditionally apologises for the indiscretion committed by him. He prays that he may be spared of further adverse actions against him for the indiscretion committed by him. According to him, he did not have any intention to keep his daughter away from the custody of the Court. He was advised by astrologers/religious pundits that certain poojas etc. had to be performed in an attempt to win over his daughter. It is, in these W.P(Crl) No.535 of 2009 4 circumstances, that in all bonafides he took his daughter on 08.02.2010 to the temples in Karnataka State. It was not his intention to flee from justice at all. Before the marriage was solemnised, he wanted to make a last attempt to persuade his daughter to see the risks involved in the course which she was embarking on. It is only, in these circumstances in all bonafides, that he took the decision to take his daughter to the temples at Mookambika (Kollur), Dharmasthala, Uduppi and Subrahmanyam. He prays that all proceedings against him may be dropped. 4. Today when the case is called, the petitioner and his wife are present. They are represented by a counsel. The counsel, who earlier appeared for the petitioner, had given up his engagement consequent to his inability to appreciate and tolerate the behaviour of the petitioner on 08.02.2010 contrary to the directions of this Court. Subsequently another counsel has been appearing. The counsel repeats the prayer of the petitioner that he may not be subjected to any further adverse action. Appreciating the plight of the parents of the alleged detenue, who are traditional Hindus engaged in poojas in W.P(Crl) No.535 of 2009 5 temples, their inability to accept the matrimony and their anxiety to avoid such marriage at any cost, their plea may be considered sympathetically and action against the petitioner may be dropped, prays the learned counsel. 5. The petitioner and his wife wanted opportunity to interact with the alleged detenue. The alleged detenue was willing and happy to have such interaction. Accordingly we permitted the alleged detenue and her parents to interact till 1.45 p.m. 6. The 3rd respondent, the father of the 2nd respondent, has another tale of woes to narrate. According to him he was never against the marriage between the alleged detenue and the 2nd respondent. He had agreed for the marriage also. But according to the petitioner after the marriage, the 2nd respondent has not been coming home. The 2nd respondent has not taken his wife (ie. the alleged detenue) to the residence of the 3rd respondent. The 3rd respondent and his wife are present before the Court. At their request and as agreed by the 2nd respondent, they were also permitted to interact till 1.45 p.m. W.P(Crl) No.535 of 2009 6 7. After lunch recess at 1.45 p.m, we interacted with all the parties and their counsel at the Chamber. The learned Government Pleader was also present. We now note with satisfaction that the petitioner and his wife have reconciled to the fait accompli. Even though they are not able to welcome the 2nd respondent and the alleged detenue to their residence now, they submit that they have in principle accepted the marriage between the alleged detenue and the 2nd respondent. They only pray that the 2nd respondent may be directed to properly look after and protect the alleged detenue. They agree after their interaction before us that the petitioner and his wife on the one hand and the alleged detenue on the other shall keep contact with each other and they shall try to normalise the relationship to the extent possible. They have exchanged their telephone numbers in which they can contact each other and assured the Court that the needful shall be done to mend the strained relationship at the earliest. 8. The 2nd respondent submits that it is true that he has not been going to his parents. But according to him, that is not a disrespect or irreverence to the parents. The parents reside in W.P(Crl) No.535 of 2009 7 an area where at the moment it is not safe for the 2nd respondent and the alleged detenue to go. They are hence unable to reside with the 3rd respondent and family. This does not mean that they have any strain in their relationship with the 3rd respondent. 9. The 3rd respondent expresses an apprehension that the 2nd respondent has now fallen into the hands of some extremist organisation and he has genuine concern about the future and the mental make up of his son. He hence requests the Court to ensure that the 2nd respondent and the alleged detenue return to his house at the earliest. In the course of their interactions, the 3rd respondent and his wife on the one hand and the alleged detenue and the 2nd respondent on the other have also come to some sort of understanding and agreement. They have also exchanged the phone numbers. The alleged detenue and the 2nd respondent accept that they shall keep in touch with the 3rd respondent and shall attempt to return to the 3rd respondent and family as soon as it is safe for them to do so. 10. We are, in these circumstances, satisfied that no further directions are necessary in this Writ Petition and the proceedings can now be closed. W.P(Crl) No.535 of 2009 8 11. One question survives. Should this Court continue the action against the petitioner under the Contempt of Courts Act for the gross indiscretion committed by him in violating the orders of this Court? We have no hesitation to agree that the conduct of the petitioner is totally unjustified and amounts to an affront to the rule of law and the majesty of law. The petitioner has taken law into his own hands and has acted in gross violation of the law and the specific directions issued by this Court. We are certainly of the opinion that the conduct of the petitioner is reprehensible and must be condemned in unmistakable terms. 12. We take note of the submission of the alleged detenue that notwithstanding the indiscretion committed by her parents and relatives, they may be spared of further action in the interests of harmony returning to their relationship. 13. Having considered all the relevant circumstances, we are of the opinion that it is not necessary to continue proceedings against the petitioner herein under the Contempt of Courts Act. Sanction must be the medicine of law and not its daily diet. Though we are totally dissatisfied with the conduct of the petitioner, in the totality of facts and circumstances, we take W.P(Crl) No.535 of 2009 9 the view that it is not necessary to proceed further against the petitioner. We hence close the contemplated proceedings against the petitioner. 14. In the result, this Writ Petition is dismissed. 15. The learned counsel for the petitioner submits that a crime has been registered against the petitioner. It is prayed that directions may be issued to quash such proceedings against the petitioner. We are not persuaded to agree that any such directions need be issued in this Writ Petition. If the law so permits and the petitioner is so advised, the option of the petitioner to approach the Courts for quashing the proceedings shall remain unfettered by the dismissal of this Writ Petition. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/- W.P(Crl) No.535 of 2009 10 R.BASANT & M.C.HARI RANI, JJ. *********************** W.P(Crl) No.535 of 2009 ***************************** Dated this the 18th day of February, 2010 ORDER BASANT, J. W.P(Crl) No.535 of 2009 11 This order must be read in continuation of our earlier orders in this Writ Petition resting with the order dated 15.02.2010. 2. Today when the case was called, the Superintendent of Police, Malappuram appeared personally. The learned Public Prosecutor on behalf of the Superintendent of Police submitted that the alleged detenue Soumya has been traced at Uduppi and is being brought to this Court. She was traced on 17.02.2010 with the help of the Karnataka police. It was submitted that she was expected to be here in a short while. 3. After some time, the alleged detenu was brought to Court by the police. We permitted her to remain in the Chamber without opportunity for anyone to speak to her or influence her. After lunch recess - after she was permitted to so remain alone for a period of about two hours, we interacted with her. 4. The alleged detenue gives a version in conformity with the version given to this Court by the 2nd respondent in his affidavit filed in support of I.A.No.1946 of 2010. She submits W.P(Crl) No.535 of 2009 12 that her father, mother and uncle Vasudevan had come to Santhi Niketan hostel on 08.02.2010 and had agreed to take her to the office of the Registrar to get the marriage solemnised/registered under the Special Marriage Act. The 2nd and 3rd respondents along with the mother of the 2nd respondent and 2 uncles of the 2nd respondent had also come to the hostel. From there, the alleged detenue was taken along with her father, mother and uncle in a car. In that car, Sarakutty, the mother of the 2nd respondent was also permitted to accompany. 2nd and 3rd respondents and others followed them in another car. Both cars proceeded one after the other with the car in which the alleged detenue was travelling along with her parents, maternal uncle and Sarakutty proceeding in front. According to the alleged detenue, there was improper behaviour to Sarakutty in the car and Sarakutty was constrained to get out from the car at some point of time after the car reached Mathilakam. Subsequently the car proceeded with the alleged detenue, her parents and uncle. According to her, the car had reached a place, a short distance away from the Registrar's office. She is unable to specify the place or the distance. She states that it had crossed W.P(Crl) No.535 of 2009 13 the railway track near the Registrar's office. Thereafter she was not taken to the Registrar's office and was taken away to an unknown place in the locality through some by lanes. From there she was shifted from place to place. She states that she was shifted to Kodungallur, Kanhangad, Mookambika (Kollur), Dharmasthala and Uduppi. According to her along with her parents and maternal uncle another person was also accompanying them. He was with them at all these places. According to her she was informed that she will never be brought back to Kerala and nobody will be able to trace her. According to her, she was not moved with her consent from place to place. She was helpless and was constrained to accompany them. She was traced by the police at Uduppi and has been brought to Court today. 5. The petitioner is not represented. His counsel has reported no instructions already. Respondent Nos.2 and 3 are represented by their counsel. Respondent No.2 is personally present also. The learned Government Pleader is also present. 6. The alleged detenue reiterates her statement that she W.P(Crl) No.535 of 2009 14 wants to go along with the 2nd respondent. The 2nd respondent states that he is willing to get the marriage solemnised/registered immediately as already directed by this Court. He prays that some time may be granted for him to get the marriage performed and to produce the certificate of marriage before this Court. 7. We do, in these circumstances, permit the alleged detenu to go with the 2nd respondent as desired by her. We accept the statement of the 2nd respondent that the marriage under the Special Marriage Act between him and the alleged detenue, for which notice has already been given, shall be performed within 2 days. The learned Public Prosecutor undertakes that the requisite protection shall be afforded to the 2nd respondent and the alleged detenue to proceed to the Registrar's office and to report before this Court on 25.02.2010. The learned Public Prosecutor further undertakes that necessary protection shall be afforded for the alleged detenue and the 2nd respondent to reside in peace at the residence of the 2nd respondent without any interference till 25.02.2010. W.P(Crl) No.535 of 2009 15 8. We are shocked to notice the conduct indulged in by the petitioner. We deem it necessary that notice must be issued to him to show cause why the matter should not be pursued and action should not be initiated against him for contempt of Court. Notice shall hence be issued to the petitioner to appear in person and explain to the Court why action under the Contempt of Courts Act should not be initiated against him. 9. The learned Public Prosecutor assures the Court that the needful shall be done to ensure that the crime already registered regarding the abduction of the alleged detenue is properly investigated. 11. We at the same time make record of the submission of the alleged detenue that her parents are misled by some others and that they may be saved of any adverse proceedings against them. That submission of hers does not persuade us not to issue notice to the petitioner. 12. Call again on 25.02.2010. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) W.P(Crl) No.535 of 2009 16 rtr/- W.P(Crl) No.535 of 2009 17 R.BASANT & M.C.HARI RANI, JJ. *********************** W.P(Crl) No.535 of 2009 ***************************** Dated this the 15th day of February, 2010 ORDER BASANT, J. The learned counsel for the writ petitioner submits that the writ petitioner is not contacting the counsel and it has become impossible to contact him as the cell phone is not responding. In these circumstances, the counsel submits that he is constrained to report no instructions. We make record of the report of non instructions by the learned counsel for the petitioner. 2. The 1st respondent, the Sub Inspector of Police, is personally present. The learned Government Pleader on behalf of the 1st respondent and also on behalf of the Superintendent of Police, Malappuram submits that despite the earnest efforts of the police, the police have not been able to trace the alleged detenue, Soumya, a woman aged above 20 years. We are shocked at the turn of events and the reported inability of the police to trace the alleged detenue. The learned Government W.P(Crl) No.535 of 2009 18 Pleader prays for 2 days' time to enable the police to trace the alleged detenue. We grant such time. But we deem it necessary now to direct the Director General of Police to ensure that the alleged detenue is traced and produced before the Court on the next date of posting. We must say that we are shocked at the manner in which the events have turned out in this case. It is an affront to rule of law if the submissions of counsel for respondents 2 and 3 represent the true state of affairs. 3. Hand over a copy of this or-der to the learned Government Pleader, who shall forthwith communicate the same to the Director General of Police. We grant time to the Director General of Police, the Superintendent of Police, Malappuram and the 1st respondent till 16.02.2010 to produce the alleged detenue before this Court. If the alleged detenue is not produced by that day, the Superintendent of Police, Malappuram shall appear in Court in person and file a statement explaining to the Court the steps taken and the results achieved. 4. Call on 18.02.2010. (R.BASANT, JUDGE) W.P(Crl) No.535 of 2009 19 (M.C.HARI RANI, JUDGE) rtr/-