JUDGEMENT
BADAR DURREZ AHMED,J. -
(1.)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 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 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.
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 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:
(3.)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.