Denis Micheal vs Home Department on 13 November, 2017

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WRIT PETITION No. 17668 / 2017
INDORE, Dated : 13/11/2017
Parties through their counsel.
The petitioners before this Court, who are citizens of
India and residing at Indore, have filed this petition of
Habeas Corpus.
The contention of the petitioners is that they belong to
Christianity faith and are practicing Christianity as a
religion. They have filed copies of Identification Proof,
photographs and other relevant documents to establish that
they are Christians and that their children are Christians. It
has been stated in the Writ Petition by them that they
decided to send their children to Mumbai, total 7 in number,
and their seats were booked for train journey well in
advance from Indore to Mumbai on 23/10/2017. It has been
further stated that for safe and secure journey one of the
relatives namely; Anita Joseph was accompanying the
children and while boarding the train, a mob of 100-200
people of a particular group reached the Railway Station,
the children were detained, abused and assaulted by certain
persons in front of Police Personnel on the pretext that the
children were being taken for changing their religion. Their
escorts namely; Anita Joseph and Amrit Kumar were also
detained and they were threatened that criminal cases will
be been lodged against them. The children were taken into
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custody by the Police. The petitioners stated that they
rushed to the Police Station and showed all the documents
establishing that they are the parents of the children, but the
children were not handed over to them which forced the
petitioners to file the present Writ Petition.
This Court on 30/10/2017, as it was a matter relating
to minor children aged about 5 – 17 years, passed the
following order :
WP No. 17668/2017
30-10-2017
Mr K.P. Gangore, learned counsel for the petitioners.
Mr Manoj Dwivedi, learned Additional Advocate General along
with Shri Amit Singh, learned Government Advocate for the
respondents State.

Learned counsel for the petitioners argued before this court
that their children are in illegal confinement and the parents are
being deprived of custody of minor children. All the parents are
present in court.

It has been stated that the children belongs to Christian
Community and they are in illegal detention. As the case relates to
alleged illegal detention of minor children, the Inspector General
of Police, Indore and the Superintendent of Police, Indore is
directed to produce all the children, today itself, at 02:30 PM
before this court. The parents shall also produce relevant
documents and the matter be taken at 02:30 PM.

Learned Additional Advocate General is requested to
communicate this order to the authorities for ensuring compliance.
The Principal Registrar is also directed to communicate this order
right now to the respondents for production of children today itself
at 02:30 P.M.

The matter was listed in the post-lunch session at 2:30
p.m., and the Police Authorities have produced all the
children before this Court. Each and every child was
interviewed by the Division Bench and in open Court room
and all of them have expressed their willingness to go with

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their parents and in those circumstances, custody of the
children was handed over to their respective parents and the
subsequent order passed by this Court on 30/10/2017 reads
as under :

W P No. 17668 / 2017
30/10/2017
Parties through their counsel.

IA No. 14751/2017 is an application for intervention.
The proposed intervenor is neither father nor mother of the
children. The present Writ Petition is a Habeas Corpus petition and
the children in open Court have categorically stated that they wants
to with their parents.

In view of the above, this Court is of the considered opinion
that it is none of the business of the intervenors to restrain the
children to go with their parents and, therefore, the application for
intervention, IA No. 14751/2017, is rejected.

Petitioner No.1 – Dennis Micheal s/o Joseph Micheal and
Petitioner No.2 Sangeeta Micheal w/o Dennis Micheal are present
in person before this Court. They have stated in the Writ Petition
that Priyal, Hursh and Anushka are their children.

Priyal, Hursh and Anushka are also present in person before
this Court. This Court has asked Priyal whether he was being
forcibly taken to Mumbai and he has categorically stated before
this Court that he was going to Mumbai with the consent of the
parents and as per his own sweet-will. Priyal has also stated before
this Court that he wants to go with his parents only. Priyal in open
Court has stated that while he was going to Mumbai and he was
sitting in the compartment, a Police uncle and certain Hindu uncles,
as stated by Priyal, forcibly brought them down from the Coach
and the person accompanying Priyal and other children was
assaulted by the people who have forcibly brought them down. It
has also been stated that when tried to intervene, he was also
assaulted by those people and finally they were taken to the Police
Station.

Similarly, Hursh has also categorically stated that he wants
to go with his parents who are Christian and he is also a Christian.

Anushka is also present in the Court room. She has
categorically stated before this Court that she wants to go with her
parents only, meaning thereby, all the three children who are
present in the Court wants to go with their parents who are their
biological parents.

Learned counsel for the petitioner has identified the parents
who are also present in the Court. Resultantly, it is ordered that the
children namely; Priyal, Hursh and Anushka are permitted to go

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with their parents from the Court room itself.

Varunika is also present in person. She is aged 13 years.
She has narrated the same incident and she wants to go with her
mother Dolly.

Simon, prior to this incident, was residing with his mother.
He is also permitted to go with his mother.

Petitioner Nos. 4 John Hamilton and No.5 Samira w/o John
Hamilton are present in person. They have been identified by their
counsel. Their daughter – Shilpa, aged about 5 years, is present in
person before this Court. Shilpa has categorically stated before this
Court that she wants to go with her parents and they are the
biological parents of Shilpa. Petitioner Nos. 4 John Hamilton and
No.5 Samira w/o John Hamilton are permitted to take their
daughter Shilpa.

Petitioner No.6 Amar Chouhan and No.7 Sophy w/o Amar
Chouhan are present in person. They have also been identified by
their counsel. Their son Saral, aged 5 years, present before this
Court has categorically stated that he wants to with his parents. He
has been identified by his parents also.

In the present case, as stated by the children in the Writ
Petition that they were kept under illegal confinement and,
therefore, let a detailed reply be filed by the respondents stating
that under which provision of law they have detained the children
and they have deprived the custody of the children from their
biological father and mother for almost 7 days.

Let an Affidavit be filed within a week, by the
Superintendent of Police (Railway) and Station House Officer,
Police Station, GRP, Indore stating categorically as to why the
children as well as their escorts were detained and why they were
kept away from their parents for almost 7 days.

It has also been stated that the parents of the children were
assaulted in the Police Station and the Escort was also assaulted in
the Police Station and even a Child was assaulted, who has also
stated the same before this Court namely; Priyal.

The SHO, PS GRP, Indore shall inform this Court as to
what action has been taken by him on the application / FIR
submitted by the petitioners to the SHO.

The Superintendent of Police (Railway) and SHO, PS GRP,
Indore shall remain present before this Court on 06/11/2017.

List on 06/11/2017.

The object of writ of Habeas Corpus is to secure
release of a person who is illegally restrained of his liberty.
The apex Court in the case of Kanu Sanyal Vs. District
Magistrate reported in (1973) 2 SCC 674, in paragraph 4

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has held as under :

It will be seen from this brief history of the writ of habeas
corpus that it is essentially a procedural writ. It 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. The writ is, no doubt, a command addressed to a person
who is alleged to have another person unlawfully in his custody
requiring him to bring the body of such person before the court, but
the production of the body of the person detained is directed in
order that the circumstances of his detention may be inquired into,
or to put it differently, “in order that appropriate judgment be
rendered on judicial enquiry into the alleged unlawful restraint”.
The form of the writ employed is “We command you that you have
in the King’s Bench Division of our High Court of Justice-
immediately after the receipt of this our writ, the body of A.B.
being taken and detained under your custody together with the day
and cause of his being taken and detained-to undergo and receive
all and singular such matters and things as our court shall then and
there consider of concerning hint in this behalf”. The underlined
words show that the writ is primarily designed to give a person
restrained of his liberty a speedy and effective remedy for having
the legality of his detention enquired into and determined and if
the, detention is found to be unlawful, having himself discharged
and freed from such restraint. The most characteristic element of
the writ is its peremptoriness and, as pointed out by Lord Halsbury,
L.C., in Cox v. Hakes,(1) “the essential and leading theory of the
whole procedure is the immediate determination of the right to the
applicant’s freedom” and his release, if the detention is found to be
unlawful. That is the primary purpose of the writ; that is its
substance and end. The production of the body of the person
alleged to be wrongfully detained is ancillary to this main purpose
of the writ. It is merely a means for achieving the end which is to
secure the liberty of the subject illegally detained. In the early days
of development of the writ, as pointed out above, the production of
the body of the person alleged to be wrongfully detained was
essential, because that was the only way in which the courts of
common law could assert their jurisdiction by removing parties
from the control of the rival courts and thereby impairing the
power of the rival (1) [1890] 15 A. C. 506.

courts to deal with the causes and persons before them. The
common law courts could not effectively order release of the
persons unlawfully imprisoned by order of rival courts without
securing the presence of such persons before them and taking them
under custody and control. But the circumstances have changed
long since and it is no longer necessary to have the body of the
person alleged to be wrongfully detained before the court in order
to be able to inquire into the, legality of his detention and set him
free, if it is found that he is unlawfully detained. The question is

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whether in these circumstances it call be said that the production of
the body of the person alleged to be unlawfully detained is
essential in an application for a writ of habeas corpus. We do not
think so. There is no reason in principle why that which was
merely a step in the procedure for determining the legality of
detention and securing the release of a subject unlawfully
restrained should be elevated to the status of a basic or essential
feature of the writ. That step Was essential to the accomplishment
of the purpose of the writ at one time, but it is no longer necessary.
The inquiry into the legality of the detention can be made and the
person illegally detained can be effectively set free without
requiring him to be produced before the court. Why then should it
be necessary that the body of the person alleged to be wrongfully
detained must be produced before the court before an application
for a writ of habeas corpus can be decided by the court ? Would it
not mean blind adherence to form at the expense of substance ?
Why should we hold ourselves is, fetters by a practice which
originated in England about three hundred years ago an account of
certain historical circumstances which have ceased to be valid even
in that country and which have certainly no relevance in ours ? But
we may point out that even in England it is no longer regarded as
necessary to order production of the body of the person alleged to
be. wrongfully detained, in an application for a writ of habeas
corpus.

In the case of Ummu Sabeena Vs. State of Kerala
reported in (2011) 10 SCC 781, the apex Court in
paragraphs 15 to 17 has held as under :

15. In this connection, if we may say so, the writ of Habeas Corpus
is the oldest writ evolved by the Common Law of England to protect
the individual 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.

16. This facet of the writ of Habeas Corpus makes it a writ of the
highest Constitutional importance being a remedy available to the
lowliest citizen against the most powerful authority [see Halsbury,
Laws of England, Fourth Edition, Volume 11, para 1454]. That is
why it has been said that the writ of Habeas Corpus is the key that

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unlocks the door to freedom [see The Common Law in India-1960
by M.C. Setalvad, page 38].

17. Following the aforesaid time-honoured principles, we make it
very clear that if we uphold such technical objection in this
proceeding and send the matter back to the High Court for
reagitation of this question, the same would deprive the detenus of
their precious liberty, which we find, has been invaded in view of
the manner in which their representations were unduly kept pending.
We, therefore, overrule the aforesaid technical objection and allow
these appeals.

In the light of the aforesaid judgments, as the writ of
Habeas Corpus is having the highest constitutional
importance, being a remedy available to the lowliest citizen
against the most powerful authority, the High Court can
always order production of body of a person illegally
detained and can also punish disobedience of its order. This
Court, in the light of the judgment delivered by the apex
Court in the case of Ummu Sabeena (supra) has directed
production of the children and they have been handed over
to the custody of their parents.

The matter was listed on 06/11/2017. An application
was preferred u/S. 340 of the Code of Criminal Procedure,
1973 for initiating action against respondent No.4 – John
Hamilton Suna and No.5 Samira w/o John Hamilton Suna
for misleading this Court as the young girl Shilpa whose
custody was given to petitioners No.4 and 5, on the ground
that a false statement has been made by petitioner Nos. 4
and 5 that Shilpa is their biological daughter.

This Court has carefully gone through the entire Writ

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Petition and nowhere petitioner Nos.4 and 5 have stated that
Shilpa is their biological daughter. Child Shilpa while she
was an infant, was adopted by petitioners No.4 and 5 by
executing a document on 04/02/2013. On 30/10/2017,
Division Bench of this Court has also ascertained the wish
of Shilpa while handing over her to petitioner Nos. 4 and 5
and the young innocent child aged about 5 years unaware of
the fact that she is an adopted child, and was told in a loud
voice by the respondents that she is an adopted child. This
Court really apprehends that the scars and trauma which
child Shilpa has suffered on account of unlawful detention
and the subsequent conduct of the respondents will not
easily fade with time. However, this Court is of the opinion
that the application, IA No. 15291/2017, u/S. 340 of the
Code of Criminal Procedure, 1973 deserves to be dismissed
and is accordingly hereby dismissed.

There is another application for intervention, IA No.
15024/2017, filed by one Kailash Mahajan who is claiming
custody of Kartik Mahajan. Petitioner No.3 Dolly is wife of
Kailash Mahajan and the child in question has been given to
the custody of mother – petitioner No.3 Dolly, after
ascertaining wish of the child. This Court is of the
considered opinion that Kailash Mahajan is claiming
custody of the child, as stated by him, as there is some
matrimonial dispute between the husband and wife, the

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intervenor Kailash Mahajan is certainly free to file a case by
taking shelter of the Guardians and Wards Act. No case for
intervention is made out in the matter. IA No. 15024/2017 is
rejected.

In the present case, the conduct of the Station House
Officer, Police Station, G.R.P. Indore in not handing over
the custody of the children to their parents when they were
brought to the Railway Station raises various doubts over
his way of functioning and discharge of his duties as S.H.O.
Once the documents were shown to him by the parents and
the children wanted to go with their parents, this Court
really does not know as to what prevented the SHO to
handover the children to their parents. Not only this, there is
a total inaction on the part of the Superintendent of Police,
G.R.P., Indore in not taking impartial view of the matter.
Large number of complaints are on record against the
persons who have assaulted the children, as stated in the
Writ Petition and by the children in the open Court, and no
action has been taken at all on the complaint submitted by
the parents of the children.

Resultantly, Mr. Pankaj Kumawat, IPS, Additional
Superintendent of Police, Mhow is appointed as an
Investigating Officer to investigate the offence which has
been registered against Anita Joseph and Amrit Kumar. Not
only this, Mr. Pankaj Kumawat, IPS, Additional

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Superintendent of Police, Mhow will also look into the
complaints made by the parents of the children against the
Authorities and against other persons in accordance with
law keeping in view the statutory provisions as contained
under the Code of Criminal Procedure, 1973.

Before parting, it may be useful to point out that the
present case involves young innocent children and no useful
purpose is going to be served by calling them to the Railway
Police Station for the purpose of investigation. Going to the
Railway Police Station ie., the place where they have faced
the trauma, will revive the scars of horror on those innocent
minds and, therefore, so far as the investigation is
concerned, the entire investigation shall be carried out by
Mr. Pankaj Kumawat, IPS, at the Office of Additional
Director General of Police, Indore. In case any parent /
person is required to give statement, the Investigation
Officer appointed by this Court, will issue a proper Notice,
giving time and date to the persons to attend the Office of
the Additional Director General of Police, for the purpose of
recording statement. The SHO, GRP, Indore shall transmit
the entire record of the case to Mr. Pankaj Kumawat, IPS,
Additional Superintendent of Police, Mhow enabling him to
proceed ahead in accordance with law.

All the interlocutory applications stand disposed of. It
is further made clear that in case anybody else is claiming

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custody of any child on any ground of whatsoever kind, he
shall be free to file an appropriate application before the
Court of competent jurisdiction under the provisions of the
Guardians and Wards Act.

With the aforesaid, the present Writ Petition stands
disposed of.

A copy of this order be communicated to Mr. Pankaj
Kumawat, IPS by the Principal Registrar of this Court for
necessary compliance.

Certified copy, as per Rules.

(S. C. SHARMA) (ALOK VERMA)
JUDGE JUDGE
KR

Kamal Rathor
2017.11.20 13:23:33
-08’00’

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