Dr Sabyasachi Dutt vs State Of Meghalaya

WP(Crl) No.2/2015 Dr. Sabyasachi Dutt, S/o Shri. J.B. Dutt, R/o Jatin Villa, Jail Road, Shillong-793001, East Khasi Hills District, Meghalaya Represented by his Attorney Shri.Bapi Rakshit S/o Shri. Ranjit Kr. Rakshit, R/o Elora Tower, Opp.Meghalaya Cooperative Urban Bank Ltd. Lower Jail Road, Shillong-793001, Meghalaya. :::: Petitioner

-Vs-

1. The State of Meghalaya, represented by the Chief Secretary.

2. The Principal Secretary, Home Police, Govt. of Meghalaya.

3. The Director General of Police, Govt. of Meghalaya, Shillong.

4. The Superintendent of Police, East Khasi Hills District, Shillong.

5. The Officer-in-Charge, Sardar Police Station, East Khasi Hills District, Shillong, Meghalaya.

6. W.P./S.I. Kamini R. Marak, Sadar Police Station, East Khasi Hills District, Shillong, Meghalaya.

7. Ms. Bonna M. Kharakor, Sadar Police Station, East Khasi Hills District, Shillong, Meghalaya.

8. Mr. Niranjan Hajong, Sadar Police Station, East Khasi Hills District, Shillong, Meghalaya.

9. The Officer-in-Charge, Rynjah Police Station, East Khasi Hills District, Shillong, Meghalaya.

10. The Chief Registrar of Birth and Deaths, Department of Health & Family Welfare Lachumiere, Shillong, Meghalaya.

11. The Registrar of Birth and Deaths, Department of Health & Family Welfare, Rynjah Dispensary, Rynjah, Shillong, East Khasi Hills District.

Page 1 of 24 12. Smti. B Syiem, presently serving as the Registrar of Birth & Deaths, Department of Health & Family Welfare, Rynjah Dispensary, Rynjah, Shillong.

13. Smti. Susanne Farisha Syiem Dutt, D/o Pushpendra Mehra, C/o Party Decorators, Polo Hills, Shillong, Meghalaya. :::: Respondents

BEFORE HON'BLE MR. JUSTICE UMA NATH SINGH, CHIEF JUSTICE HON'BLE MR. JUSTICE T. NANDAKUMAR SINGH

For the petitioner : Mr. M. Halder, Adv

For the Respondents : Mr. K Paul, Adv for respt.No.13

Date of hearing : 26.11.2015 Date of Judgment & Order : 09.12.2015

JUDGMENT AND ORDER (Justice T. Nandakumar Singh)

Heard Mr. M Halder, learned counsel for the petitioner and Mr.

K Paul, learned counsel for the respondent No.13.

2. The concise fact of the case sufficient for deciding the present

writ petition for Habeas Corpus is recapitulated. The petitioner and the

respondent No.13 were married under the Special Marriage Act, 1954 and

their marriage was registered on 15.12.2011 before the Marriage Officer,

East Khasi Hills, Shillong, Meghalaya. Prior to the said marriage of the

respondent No.13 with the petitioner, the respondent No.13 was married to

one Shri. Namti Tariang and from their wedlock, a son namely Master

Elhanan Jason Syiem was born. The marriage between the respondent

No.13 and the said Shri. Namti Tariang was dissolved by mutual consent

vide order dated 15.06.2009 passed by the Judge, District Council Court.

From the wedlock of the petitioner and the respondent No.13, a son was

born on 27.02.2012 at Bethany Hospital. The parties named the said son as

Page 2 of 24 Master Joy Siddhartha Dutt and obtained a birth certificate under the

Registration of Births and Deaths Act, 1969 from Rynjah Dispensary, Rynjah,

Shillong. The petitioner and the respondent No.13 started residing at New

Colony, Shillong in March, 2014. The parties had relocated to Kolkatta, West

Bengal along with Master Elhanan Jason Syiem and Master Joy Siddhartha

Dutt. Master Elhanan Jason Syiem assumed the petitioner's last name "Dutt"

after the marriage of the petitioner and the respondent No.13.

3. In the month of October, 2014, the respondent No.13 on her

own volition moved out from her matrimonial home along with Master

Elhanan Jason Syiem Dutt and completely parted ways with the petitioner

without any complaint with regard to the custody of the children. The

petitioner remained in Kolkatta with Master Joy Siddhartha Dutt and took

care of the minor child Master Joy Siddhartha Dutt without any interference

from the respondent No.13. The petitioner admitted his minor child Master

Joy Siddhartha Dutt in a reputed school at Kolkatta, which was also known to

the respondent No.13. Master Joy Siddhartha Dutt was blooming with utmost

care and the parental tutelage of the petitioner. The respondent No.13 later

moved to Shillong along with her son Elhanan Jason Syiem Dutt. As the

welfare of their children being of paramount consideration, the petitioner and

the respondent No.13 had entered into a mutual understanding vide Mutual

Settlement Agreement dated 29.11.2014. In that Mutual Settlement

Agreement dated 29.11.2014, the parties mutually agreed to legally dissolve

their marriage one year from the execution of the said agreement without any

monetary claims from one another. Under Clause 2 of the said Mutual

Settlement Agreement dated 29.11.2014, it was agreed that the respondent

No.13 would have sole custody of Master Elhanan Jason Syiem Dutt, who

she bore from her previous marriage and the petitioner would have no right

Page 3 of 24 to his custody or any say or responsibility towards him and since Master

Elhanan Jason Syiem Dutt was a baptized Christian his upbringing would be

done in accordance with the said religion. Further, under Clause 3 of the said

Mutual Settlement Agreement dated 29.11.2014, both the parties agreed that

the petitioner would have sole custody of Master Joy Siddhartha Dutt and the

respondent No.13 would have no right to his custody or any say or

responsibility towards his upbringing and since Master Joy Siddhartha Dutt

was a Hindu, his upbringing would be done in accordance with the said

religion. For convenience, the relevant portions of the said Mutual Settlement

Agreement dated 12.11.2014 are quoted hereunder:-

"MUTUAL SETTLEMENT AGREEMENT

This mutual settlement agreement is signed on this 29 th day of Nov. 2014 at 4A1, Glen Tower, Hiland Park, Kolkatta-700094, West Bengal between Dr. Sabyasachi Dutt as PARTY No.01 and Mrs. Suzanne Farisha Syiem Dutt as PARTY No.02 bearing Passport no. L2178222 and L 2190484 respectively.

That this mutual agreement is signed without any force, physical or mental abuse, trauma or any other reservations and both the PARTIES agrees in the best of health and spirits to abide to the points as mentioned herein in the event of Final Legal Separation/Divorce as established in the eye of Law of the land under the seal of the Competent Authority after 01 (one) year from the date of signing of this mutual settlement agreement and no costs towards any Compensation, Alimony, Legal charges, etc. in whatsoever manner would be demanded by any PARTY to the other PARTY towards any present and or future claims.

Also it is agreed that both the PARTIES have without any force, physical or mental abuse, trauma or any other reservations in whatsoever manner have settled in Kolkatta from Shillong since Mar'14 for the purpose of effecting the best surrounding and atmosphere for the proper upbringing of both the children. Also enclosed Annexure I is the other reason for moving to Kolkatta and to encourage positive settlement of the disputes between the PARTIES. That this MUTUAL SETTLEMENT AGREEMENT and has been mutually signed in good faith, trust and accepted in free WILL and good mental state and being legally consenting two ADULTS who are HUSBAND AND WIFE.

Page 4 of 24

***** ***** *****

(2) That Master Elhanan Jason Syiem Dutt from the wedlock (Annexure-III) of PARTY No.02 would stay with the PARTY No.02 and further PARTY No.01 would have no say, responsibility, access, custody or any demand in whatsoever manner at any point of time. That as Master Elhanan Jason Syiem Dutt is a baptized Christian and his upbringing shall be done in accordance to his assumed Religion and both the PARTIES agrees towards the same.

(3) That Master Joy Siddhartha Dutt from the wedlock (Annexure-IV) would stay with the PARTY No.01 and further PARTY No.02 would have no say, responsibility, access, custody or any demand in whatsoever manner at any point of time. That as Master Joy Siddhartha Dutt is a HINDU and his upbringing shall be done in accordance to his assumed Religion and both the PARTIES agrees towards the same.

***** ***** ***** ***** ***** ***** ***** ***** ***** ***** ***** ***** ***** ***** *****

PARTY No.01 PARTY No.02 Sd/- Sd/- Dr. Sabyasachi Dutt Mrs. Suzanne Farisha Syiem Dutt"

4. To the utter shock and surprise of the petitioner, in the morning

of 03.07.2015 at about 8:00 am, an investigation team from Shillong along

with the Kolkatta Police raided the petitioner's house situated at 4, A1, Glen

Tower, Highland Park, Kolkatta, West Bengal on the basis of the alleged

warrant. The said team led by WP/S.I. Kamini Marak of the Sadar Police

Station consisted of Ms. Bonna M. Kharakor and Mr. Niranjan Hajong of the

Meghalaya Police i.e. respondents No.6-8 herein assisted by 4 (four) male

officers of the Kolkatta Police attached to Survey Park, Police Station,

Kolkatta. It was alleged that the petitioner had unlawfully confined Master

Elan Jayden Syiem, the minor son of the respondent No.13 and they were to

rescue the minor child and produce him before the court at Shillong. The

Page 5 of 24 petitioner had strongly protested that the name of the minor child was Master

Joy Siddhartha Dutt and that he was not aware of any child by the name of

Master Elan Jaden Syiem. WP/S.I. Kamini R. Marak showed a photo copy of

the birth certificate of one Master Elan Jaden Syiem born on 27.02.2012 to

the petitioner and the respondent No.13. The said police team led by WP/S.I.

Kamini R. Marak bluntly insisted that the minor child of the petitioner namely

Master Joy Siddhartha Dutt was Elan Jaden Syiem and forcibly took away

the petitioner's minor child Master Joy Siddhartha Dutt. Before forcibly taking

away the petitioner's minor child Master Joy Siddhartha Dutt, the petitioner

also produced the original birth certificate of his minor child Master Joy

Siddhartha Dutt as well as his original Passport where his name appeared as

Master Joy Siddhartha Dutt. Inspite of repeated demand made by the

petitioner, the said police team did not produce any warrant of any nature.

WP/S.I. Kamini R. Marak of the Meghalaya Police produced the duplicate

birth certificate of the petitioner's minor child Master Joy Siddhartha Dutt

bearing the identical registration No.B/257/12 issued on 15.06.2015 by the

Registrar of Births and Deaths, Govt. of Meghalaya, Rynjah State

Dispensary, East Khasi Hills and that the duplicate birth certificate indicated

that the child was born in Bethany Hospital on 27.02.2012 to the petitioner

and the respondent No.13 and registered with the name Elan Jayden Syiem.

That duplicate birth certificate was a manufactured one issued by

manipulating government records by the respondent No.13 and her relative

Smti. B. Syiem.

5. After forcibly taking away the petitioner's minor child Master Joy

Siddhartha Dutt from his custody, the police team of Meghalaya had

misguided the petitioner by informing him that they would be producing the

minor child Master Joy Siddhartha Dutt at CWC, 89, Elliot Road, Kolkatta at

Page 6 of 24 10:00 am, which was found to be locked when the petitioner visited. But

somehow, the petitioner had located the police team of Meghalaya at Bengal

Lockup at Alipore and the petitioner moved the learned Chief Judicial

Magistrate of the Alipore District Court with a prayer that his minor child

Master Joy Siddhartha Dutt be returned to him. The respondent No.13 along

with the Meghalaya police team were also present in the court premises

along with the relatives of the respondent No.13 namely Ms. Dephiene Syiem

and Mr. Barikupar Syiem. Vide order dated 03.07.2015, the learned Chief

Judicial Magistrate, Alipore permitted custody of the minor child Master Joy

Siddhartha Dutt to be retained by the petitioner for the night with the

arrangement that the petitioner shall travel to Shillong with the police team,

the respondent No.13 and their minor child Master Joy Siddhartha Dutt on

the next day by flight. But on the prayer of the learned counsel for the

respondent No.13 that the petitioner may flee along with the minor child

Master Joy Siddhartha Dutt, the learned Chief Judicial Magistrate, Alipore

had directed the petitioner to deposit the Passports of the petitioner and the

minor child in the Court. On the next day, the Meghalaya police team along

with the petitioner's minor child Master Joy Siddhartha Dutt, the respondent

No.13 and her relatives reached the Kolkatta Airport late and were denied

entry in the Airport due to non-availability of the valid photo identity proof by

the Airport authority. The petitioner immediately moved the court of the

learned Chief Judicial Magistrate at Kolkatta through his counsel and the

learned Chief Judicial Magistrate, Kolkatta directed the Meghalaya police

team to return to the Alipore court along with the minor child Master Joy

Siddhartha Dutt so that the Passports would be released. The Meghalaya

police team did not permit the petitioner to accompany them in their vehicle

and drove to the Alipore court.

Page 7 of 24

6. The Meghalaya police team appeared before the learned Chief

Judicial Magistrate, Alipore and the learned Chief Judicial Magistrate, Alipore

directed the parties to appear at 2:00 pm along with the minor child. The

Meghalaya police team had disobeyed and disregarded the order of the

learned Chief Judicial Magistrate, Alipore and fled away from the court

premises along with the respondent No.13 and the petitioner's minor child

Master Joy Siddhartha Dutt. Vide application dated 04.07.2015, the petitioner

had informed the learned Chief Judicial Magistrate, Alipore that the

Meghalaya police team along with the respondent No.13 and the his minor

child Master Joy Siddhartha Dutt had left for Shillong and the learned Chief

Judicial Magistrate, Alipore vide order dated 04.07.2015 had strongly

deprecated the conduct of the officers of the Meghalaya police and the

manner in which they had taken away Master Joy Siddhartha Dutt in

disobedience of the order of the court (i.e. Chief Judicial Magistrate, Alipore).

7. It was the further case of the petitioner that the respondent No.13

had lodged an ejahar dated 19.06.2015 against him making false allegation

and on the basis of the false ejahar, the police registered an FIR being

Shillong Sadar P.S. Case No.197 (6) 2015 under Sections 341/342/365/498-

A IPC. The petitioner filed another report on 20.06.2015 in continuation to the

said FIR dated 19.06.2015 that the FIR did not allege that the petitioner took

away the minor child from the lawful custody of the respondent No.13 at any

point. Therefore, the question of kidnapping of the minor child does not arise.

WP/S.I. Kamini R. Marak had put up the said FIR dated 19.06.2015 on

20.06.2015. On 23.06.2015 WP/S.I. Kamini R. Marak prayed for treating the

subsequent FIR dated 19.06.2015 as a supplementary FIR. The petitioner

further learnt that on 23.06.2015, WP/S.I. Kamini R. Marak prayed the

Page 8 of 24 learned Chief Judicial Magistrate, Shillong for issuing search warrant under

Section 100 of the Cr.P.C. so as to enable her to conduct house search of

the petitioner to recover the minor child of the respondent No.13 from the

custody of the petitioner. But the WP/S.I. Kamini R. Marak never prayed the

learned Chief Judicial Magistrate, Shillong for issuing search warrant under

Section 97 of the Cr.P.C. For easy reference, Sections 97 and 100 of the

Cr.P.C. are quoted hereunder:-

"97. Search for persons wrongfully confined.- If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search-warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.

100. Persons in charge of closed place to allow search.-

(1)Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

(2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub-section (2) of Section 47.

(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.

(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

(5) The search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such

Page 9 of 24 officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.

(6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.

(7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.

(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 of the Indian Penal Code (45 of 1860)."

8. On application filed by WP/S.I. Kamini R. Marak for issuing

search warrant under Section 100 of the Cr.P.C., the learned Judicial

Magistrate First Class, Shillong passed an order dated 23.06.2015. For easy

reference, the said application dated 23.06.2015 filed by WP/S.I. Kamini R.

Marak for issuing search warrant under Section 100 of the Cr.P.C. is quoted

hereunder:-

"To, The Chief Judicial Magistrate, Shillong Court (Through P/I Shillong Court) Dated Shillong the 22nd June 2015.

Sub: Prayer for issue of search warrant U/S 100 Crpc.

Ref: Shillong Sadar P.S. Case No. 197(6)15 U/341/342/365/498A IPC

Sir,

With reference to the subject cited above I beg to report that on 19-6-15 received FIR from Smti. Suzanne Farisha Syiem D/o P. Mehra of Polo Hills Shillong to the effect that

Page 10 of 24 Smti. Suzanne F. Syiem and Dr. Sabyasachi Dutt got married in Shillong in the year 2011 and on frequent request of her husband they started living in Kolkatta since March 2014. He also promised her that he will start to work in some hospital at Kolkatta but months passed by he did not join any hospital nor start any work. Later she started confronting him to start work, but he got very rude and started physically and mentally torturing her and she was forced to live separately and was not allowed to meet her younger son Elan Jayden Syiem. The younger son named Elan Jayden Syiem was concealed, wrongfully confined and restrained her from meeting her younger son after separating. Due to this she is in state of trauma and depression. She wanted to take her younger son Elan Jayden Syiem with her but he started assaulting her and also threaten her to not to touch her younger son Elan Jayden Syiem. Hence the case.

During the course of investigation the complainant Smti. Suzanne Farisha Syiem was examined and the available witnesses also examined U/s 161 Crpc.

Under the above facts and circumstances I beg to request your Hon'ble Court to kindly issue a search warrant U/s 100 Crpc so as to enable me to conduct house search in the house of Dr. Sabyasachi in Highland park, Glen Tower 4/A/1 Chak Garia Kolkatta-700094 to recover the younger son of the complainant Mr. Elan Jayden Syiem - 3 yrs.

Submitted for favour of your kind information and necessary action.

Yours faithfully, Sd/-

WP/S.I. K.R. Marak of Sadar Police Station Shillong."

9. It appeared that WP/S.I. Kamini R. Marak and the learned

Judicial Magistrate First Class had not fully understood Sections 97 and 100

of the Cr.P.C. On the basis of search warrant under Section 100 of the

Cr.P.C., the Meghalaya police had forcibly taken away the petitioner's minor

child Master Joy Siddhartha Dutt from the custody of the petitioner who is the

biological father and also lawful custodian of his minor child Master Joy

Siddhartha Dutt under the Mutual Settlement Agreement dated 29.11.2014,

Page 11 of 24 relevant portion of which had been quoted above. The petitioner had

challenged the said order dated 23.06.2015 and order dated 05.07.2015 of

the learned Judicial Magistrate First Class and also prayed for quashing the

said FIR by filing an application under Section 482 Cr.P.C. before this Court.

The said application under Section 482 Cr.P.C. had been registered as

Criminal Petition No.19 of 2015. This Court is not making any observation

regarding the merit of the Criminal Petition No.19 of 2015. In the above

factual backdrop, the petitioner filed the present writ petition for habeas

corpus and the prayers sought for in the present writ petition read as follows:-

"i) issue notice upon the Respondents;

ii) issue a writ in the nature of habeas corpus commanding the respondent authorities, their man, agents, associates each of them, including the private respondents to show cause under which legal authority and sanction the Respondent No.13 has taken custody of the minor son of the petitioner from his lawful custody and to produce the corpus of the minor son of the petitioner before this Hon'ble Court and to give custody of the minor son of the petitioner namely Joy Siddhartha Dutt in favour of the petitioner for welfare and wellbeing of the minor son by releasing him from illegal and unlawful detention of the Respondent No.13;

iii) issue a writ in the nature of Mandamus commanding the Respondent authorities, their men, agents, associates, official, assigns and each of them to hand over the investigation in relation to Rynjah Police Station Case No.153(9) of 2015 under Sections 465, 468 of the Indian Penal Code corresponding to G.R. Case No.710(A) of 2015 to any independent, impartial and efficient investigating agency like C.B.I. for proper and adequate investigation;

iv) Call for the records of the birth register for the year 2012 from the office of the Registrar of Births and Deaths, Department of Health, Respondent 11 herein;

v) Call for the register of births pertaining to the birth certificate bearing No.257 dated 06.12.13 issued in the name of Master Joy Siddhartha Dutt by the Registrar of Birth and Deaths, Department of Health and Family Welfare, Government of Meghalaya, Rynjah Dispensary, Shillong, the Respondent No.11 herein;

vi) Call for the periodical return required to be sent by the Respondent No.11 to the Chief Registrar, Births and Deaths,

Page 12 of 24 the Respondent No.10 herein, for compilation under Section 19 of the Act of 1969;

vii) Issue Rule upon the Respondents to show cause as to why an appropriate writ should not be issued setting aside and quashing the duplicate birth certificate bearing No.257 dated 15.06.2015 in the name of Master Elan Jayden Syiem by the Respondent No.11 and removing all manipulations made in the birth register and restoring the name in the said register as Master Joy Siddhartha Dutt and correcting all connected particulars therein;

viii) Pass an interim order restraining the private Respondent No.13 from using the fake and forged birth certificate of the minor son of the petitioner namely Joy Siddhartha Dutt, till disposal of the present writ petition;

ix) And after cause or causes being shown and upon hearing the parties be pleased to make the rule absolute and be further pleased to pass such other orders as Your Lordships may deem fit and proper and for this the petitioner shall every prays."

10. Learned counsel for the respondent No.13 strenuously

contended that the present writ petition for habeas corpus is not

maintainable. Accordingly, this Court had to decide if the present writ petition

for habeas corpus for the prayer mentioned therein is maintainable or not?

The writ of habeas corpus has always been given due signification as an

effective method to ensure release of the detained person from unlawful

custody. In P. Ramanatha Aiyar's Law Lexicon (1997 Edn.), while defining

"habeas corpus", apart from other aspects, had stated:

"The ancient prerogative writ of habeas corpus takes its name from the two mandatory words habeas corpus, which it contained at the time when it, in common with all forms of legal process, was framed in Latin. The general purpose of these writs, as their name indicates, was to obtain the production of an individual."

11. In Secy. of State of Home Affairs v. O' Brien: 1923 AC 603:

1923 All ER Rep 442 (HL), it had been observed that: (AC p.609)

Page 13 of 24 "..... It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I. It has through the ages been jealously maintained by the courts of law as a check upon the illegal usurpation of power by the executive at the cost of the liege."

12. In Ranjit Singh v. State of Pepsu: AIR 1959 SC 843: 1959

Cri LJ 1124, after referring to Greene v. Secy. of State for Home Affairs:

1942 AC 284: (1941) 3 All ER 388 (HL), the Apex Court had observed that:

(Ranjit Singh case: AIR 1959 SC 843: 1959 Cri LJ 1124, AIR pp.845-46,

para 4)

"4. ..... the whole object of proceedings for a writ of habeas corpus is to make them expeditious, to keep them as free from technicality as possible and to keep them as simple as possible."

The Bench quoted Lord Wright who, in Greene case: 1942 AC

284: (1941) 3 All ER 388 (HL), had stated thus: (AC p. 302)

" ..... The incalculable value of habeas corpus is that it enables the immediate determination of the right to the applicant's freedom."

Emphasis was laid on the satisfaction of the court relating to

justifiability and legality of the custody.

13. In Kanu Sanyal v. District Magistrate, Darjeeling: (1973) 2

SCC 674: 1973 SCC (Cri) 980, it was laid down that the writ of habeas

corpus deals with the machinery of justice, not the substantive law. The

object of the writ is to secure release of a person who is illegally restrained of

his liberty.

Page 14 of 24

14. Speaking about the importance of the writ of habeas corpus,

the Apex Court in Ummu Sabeena v. State of Kerala: (2011) 10 SCC 781:

(2012) 1 SCC (Cri) 426 had observed as follows: (SCC p.786, para 15)

"15. ..... the writ of habeas corpus is the oldest writ evolved by the common law of England to protect the individually liberty against its invasion in the hands of the executive or may be also at the instance of private persons. This principle of habeas corpus has been incorporated in our constitutional law and we are of the opinion that in a democratic republic like India where Judges function under a written Constitution and which has a chapter on fundamental rights, to protect individual liberty the Judges owe a duty to safeguard the liberty not only of the citizens but also of all persons within the territory of India. The most effective way of doing the same is by way of exercise of power by the court by issuing a writ of habeas corpus."

In the said case, a reference was made to Halsbury's Laws of

England, 4th Edn., Vol.11, para 1454 to highlight that a writ of habeas

corpus is a writ of highest constitutional importance being a remedy available

to the lowliest citizen against the most powerful authority.

15. The writ of habeas corpus was devised for production of an

individual in case of illegal restraint or confinement. It is of the highest

constitutional importance to provide a swift and expedient remedy by

determining the petitioner's right to freedom and to protect the individual's

liberty against arbitrary action of the executive or by private persons. Its main

objective is to release persons illegally detained or confined. It is a well-

accepted principle that a habeas corpus petition cannot be entertained when

a person is committed to judicial custody or police custody by the competent

court by an order which prima facie does not appear to be without jurisdiction

or passed in an absolutely mechanical manner or wholly illegal. The Court is

required to scrutinize the legality or otherwise of the order of detention which

has been passed. Unless the Court is satisfied that a person has been

Page 15 of 24 committed to jail custody by virtue of an order that suffers from the vice of

lack of jurisdiction or absolute illegality, a writ of a habeas corpus cannot be

granted. [Ref: Manubhai Ratilal Patel through Ushaben v. State of

Gujarat & Ors: (2013) 1 SCC 314].

16. The Apex Court in Manubhai Ratilal Patel's case (Supra)

further held that while remanding accused, it is obligatory on the part of the

Magistrate to apply his mind to the facts and not to pass remand order in a

mechanical manner. Paras 24, 25, 26 and 31 of the SCC in Manubhai

Ratilal Patel's case (Supra) read as follows:-

"24. The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner.

25. It is apt to note that in Madhu Limaye, In re (1969) 1 SCC 292 it has been stated that: (SCC p.299, para 12)

"12. Once it is shown that the arrests made by the police officers were illegal, it was necessary for the State to establish that at the stage of remand the Magistrate directed detention in jail custody after applying his mind to all relevant matters."

26. In CBI v. Anupam J. Kulkarni: (1992) 3 SCC 141: 1992 SCC (Cri) 554: AIR 1992 SC 1768 it has been stated that:

(SCC p.153, para 7)

Page 16 of 24 "7. ..... '16. ..... Where an accused is placed in police custody for the maximum period of fifteen days allowed under law either pursuant to a single order of remand or more than one order, when the remand is restricted on each occasion to a lesser number of days, the further detention of the accused, if warranted, has to be necessarily to judicial custody and not otherwise.'*"

(emphasis in original in Anupam J. Kulkarni case: (1992) 3 SCC 141: 1992 SCC (Cri) 554: AIR 1992 SC 1768).

Thus, the exercise of jurisdiction clearly shows that the Magistrate performs a judicial act.

31. ..... It is well-accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. As has been stated in B. Ramachandra Rao: Col. B. Ramachandra Rao v. State of Orissa: (1972) 3 SCC 256:

1972 SCC (Cri) 481 and Kanuy Sanyal: Kanu Sanyal v. District Magistrate, Darjeeling: (1974) 4 SCC 141: 1974 SCC (Cri) 280, the court is required to scrutinize the legality or otherwise of the order of detention which has been passed.

Unless the court is satisfied that a person has been committed to jail custody by virtue of an order that suffers from the vice of lack of jurisdiction or absolute illegality, a writ of habeas corpus cannot be granted. It is apposite to note that the investigation, as has been dealt with in various authorities of this Court, is neither an inquiry nor trial. It is within the exclusive domain of the police to investigate and is independent of any control by the Magistrate. The sphere of activity is clear cut and well demarcated. Thus viewed, we do not perceive any error in the order passed by the High Court refusing to grant a writ of habeas corpus as the detention by virtue of the judicial order passed by the Magistrate remanding the accused to custody is valid in law."

17. The writ of habeas corpus can be filed by wife against her

husband for unauthorizedly taking away the child from her legal custody. But

the question as to whether the husband had unauthorizedly taken away the

child from the legal custody of the wife depends on the facts and

circumstances of the case. In the present case, the Court is of the prima

facie view that Master Joy Siddhartha Dutt, son of the present petitioner was

Page 17 of 24 in the authorized and lawful custody of the petitioner. The Apex Court in

Capt. Dushyant Somal v. Smti. Sushma Somal & Anr: (1981) 2 SCC 277

held that Court can entertain the writ of habeas corpus under Article 226 of

the Constitution of India despite availability of alternative remedy. The fact of

the case in Capt. Dushyant Somal's case (Supra) was that the minor child

was in the unauthorized custody of the appellant (Capt. Dushyant Somal)

and disregarded of the Court's order, the child was continued to be in his

custody; the court had entertained the writ of habeas corpus under Article

226 of the Constitution of India filed by wife against her husband. Paras 4 & 7

of the SCC in Capt. Dushyant Somal's case (Supra) read as follows:-

"4. The submission made on behalf of the appellant-petitioner that a petition for the issue of the writ of habeas corpus was not appropriate in cases where he was also charged with a criminal offence, in respect of the very person in respect of whose custody the writ was sought is without substance. In support of this submission reliance was placed upon the following observation of Hidayatullah, J in Mohd. Ikram Hussain v. State of U.P.: (1964) 5 SCR 86: AIR 1964 SC 1625: (1964) 2 Cri LJ 590: "It is of course singularly inappropriate in cases where the petitioner himself is charged with a criminal offence in respect of the very person for whose custody he demands the writ." It is obvious that the submission made on behalf of the appellant-petitioner is based on a misunderstanding of what was observed by Hidayatullah, J. What Hidayatullah, J. pointed out was that it would be inappropriate to issue a writ at the instance of a person against whom an offence was alleged, in respect of the person detained. Hidayatullah J.'s observation was not about the issue of the writ to a person against whom an offence was alleged.

7. It was argued that the wife had alternate remedies under the Guardians and Wards Act and the Code of Criminal Procedure and so a writ should not have been issued. True, alternative remedy ordinarily inhibits a prerogative writ. But it is not an impassable hurdle. Where what is complained of is an impudent disregard of an order of a court, the fact certainly cries out that a prerogative writ shall issue. In regard to the sentence, instead of the sentence imposed by the High Court....."

Page 18 of 24 18. The Apex Court in Mohd. Ikram Hussain v. the State of Uttar

Pradesh & Ors: AIR 1964 SC 1625 held that husband could file the writ of

habeas corpus for production of his wife in a trial case but not in the cases

where issues of fact first have to be established. Para 13 of the AIR in Mohd.

Ikram Hussain's case (Supra) reads as follows:-

"13. Exigence of the writ at the instance of a husband is very rare in English Law, and in India the writ of habeas corpus is probably never used by a husband to regain his wife and the alternative remedy under S.100 of the Code of Criminal Procedure is always used. Then there is the remedy of a Civil suit for restitution of conjugal rights. Husbands take recourse to the latter when the detention does not amount to an offence and to the former if it does. In both these remedies all the issues of fact can be tried and the writ of habeas corpus is probably not demanded in similar cases if issues of fact have first to be established. This is because the writ of habeas corpus is festinum remedium and the power can only be exercised in a clear case. It is of course singularly inappropriate in cases where the petitioner is himself charged with a criminal offence in respect of the very person for whose custody he demands the writ."

19. For the foregoing reasons, we are of the considered view that

the present writ petition for habeas corpus is maintainable.

20. It is well settled principle of law that in an application seeking a

writ of habeas corpus for custody of minor children, the paramount

consideration for the court is welfare and wellbeing of a minor child and not

the legal rights of the parents. The Apex Court in Syed Saleemuddin v. Dr.

Rukhsana & Ors: (2001) 5 SCC 247 clearly held that in a habeas corpus

petition seeking transfer of custody of children from father to mother or vice

versa, the paramount consideration should be the welfare of the children. The Apex Court in Syed Saleemuddin's case (Supra) held that the

paramount consideration in habeas corpus petition for transfer of custody of

children would be welfare of the children and directed the petitioner seeking

Page 19 of 24 writ of habeas corpus for custody of minor children to approach the Family

Court, and till the Family Court disposes of the petition, father shall be

allowed to visit the children. Para 11 of the Syed Saleemuddin's case

(Supra) reads as follows:-

"11. From the principle laid down in the aforementioned cases it is clear that in an application seeking a writ of habeas corpus for custody of minor children the principal consideration for the court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that the present custody should be changed and the children should be left in the care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration for the court. Unfortunately, the judgment of the High Court does not show that the Court has paid any attention to these important and relevant questions. The High Court has not considered whether the custody of the children with their father can, in the facts and circumstances, be said to be unlawful. The Court has also not adverted to the question whether for the welfare of the children they should be taken out of the custody of their father and left in the care of their mother. However, it is not necessary for us to consider this question further in view of the fair concession made by Shri.M.N.Rao that the appellant has no objection if the children remain in the custody of the mother with the right of the father to visit them as noted in the judgment of the High Court, till the Family Court disposes of the petition filed by the appellant for custody of his children."

21. The Apex Court had reiterated that the paramount

consideration of the court in a habeas corpus petition for custody of the child,

would be the welfare of the child in Gaurav Nagpal v. Sumedha Nagpal:

(2009) 1 SCC 42. Para 30, 34, 43, 46, 47 & 50 of the SCC in Gaurav

Nagpal's case (Supra) read as follows:-

"30. Sometimes, a writ of habeas corpus is sought for custody of a minor child. In such cases also, the paramount consideration which is required to be kept in view by a writ court is "welfare of the child".

Page 20 of 24 34. In Howarth v. Northcott: 152 Conn 460: 208 A 2nd 540:

17 ALR 3rd 758 it was stated:

"In habeas corpus proceedings to determine child custody, the jurisdiction exercised by the court rests in such cases on its inherent equitable powers and exerts the force of the State, as parens patriae, for the protection of its infant ward, and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a court of equity."

It was further observed:

"The employment of the forms of habeas corpus in a child custody case is not for the purpose of testing the legality of a confinement or restraint as contemplated by the ancient common law writ, or by statute, but the primary purpose is to furnish a means by which the court, in the exercise of its judicial discretion, may determine what is best for the welfare of the child, and the decision is reached by a consideration of the equities involved in the welfare of the child, against which the legal rights of no one, including the parents, are allowed to militate."

(emphasis supplied)

It was also indicated that ordinarily, the basis for issuance of a writ of habeas corpus is an illegal detention; but in the case of such a writ sued out for the detention of a child, the law is concerned not so much with the illegality of the detention as with the welfare of the child.

43. The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the "welfare of the child" and not rights of the parents under a statute for the time being in force.

46. In Rosy Jacob v. Jacob A. Chakramakkal: (1973) 1 SCC 840 this Court held that object and purpose of the 1890 Act is not merely physical custody of the minor but due protection of the rights of ward's health, maintenance and education. The power and duty of the court under the Act is the welfare of minor. In considering the question of welfare of minor, due regard has of course to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship.

47. Again, in Thirty Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka: (1982) 2 SCC 544: 1982 SCC (Cri) 505, this Court reiterated that the only consideration of the court in deciding the

Page 21 of 24 question of custody of minor should be the welfare and interest of the minor. And it is the special duty and responsibility of the court. Mature thinking is indeed necessary in such a situation to decide what will enure to the benefit and welfare of the child.

50. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mausami Moitra Ganguli case: (2008) 7 SCC 673: JT (2008) 6 SC 634, the court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others."

22. The Apex Court in Gaytri Bajaj v. Jiten Bhalla: (2012) 12 SCC

471 held that:

"14. From the above it follows that an order of custody of minor children either under the provisions of the Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956 is required to be made by the court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the parent concerned to take care of the child are some of the relevant factors that have to be taken into account by the court while deciding the issue of custody of a minor. What must be emphasized is that while all other factors are undoubtedly relevant, it is the desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the court."

23. For deciding the welfare, interest and desire of the child Master Joy

Siddhartha Dutt, this Court required both oral and documentary evidence to

be produced by the parties. Even if the present writ petition is maintainable,

the writ proceeding is not the proper forum inasmuch as disputed fact is

required to be decided after allowing the parties to produce both oral and

Page 22 of 24 documentary evidence in support of their respective case. Section 7 of the

Family Courts Act, 1984, more-fully prescribed the jurisdiction of the Family

Court. For easy reference, Section 7 of the Family Courts Act, 1984 is quoted

hereunder:-

"7. Jurisdiction.- (1) Subject to the other provisions of this Act, a Family Court shall-

(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.

Explanation.- The suits and proceedings referred to in this sub- section are suits and proceedings of the following nature, namely:-

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-

(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife,

Page 23 of 24 children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and

(b) such other jurisdiction as may be conferred on it by any other enactment."

24. This Court is of the considered view that the appropriate forum

for the remedy sought for in the present writ petition would be the suit or

proceeding as contemplated under the Family Courts Act, 1984 before the

concerned Family Court. Accordingly, the petitioner is directed to approach

the Family Court. However, it is made clear that in the event of approaching

the Family Court by the writ petitioner as directed by this Court, the

concerned Family Court shall allow the petitioner to meet Master Joy

Siddhartha Dutt (Master Elan Jayden Syiem according to the respondent

No.13) in the appropriate place/time to be fixed and decided by the Family

Court till the suit or proceeding in relation to the Guardianship / or custody of

Master Joy Siddhartha Dutt is finally decided by the Family Court. The

learned Family Court is further directed to finally decide and dispose of the

said suit or proceeding within 4 (four) months from the date of filing the same

by the present writ petitioner.

25. With the above observations and directions, this writ petition is

disposed of.

JUDGE CHIEF JUSTICE

Lam

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