IN THE HIGH COURT OF KARNATAKA, AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE K. N. PHANEENDRA AND THE HON’BLE MR.JUSTICE K. NATARAJAN WPHC No.30/2019 BETWEEN 1. MRS. GOURIBHATRA W/O MR. BAYABHATRA AGED ABOUT 33 YEARS, NOW AT:
FLAT NO.201, BLOCK 2, CONFIDENT LEO APARTMENT, CARMELARAM SARJAPUR MAIN ROAD BENGALURU 560 035 PERMANENTLY R/AT:
DARBUNDHSAHI NABARANGAPUR NABARANGAPUR JHARIGAN ODISHA – 764 059 2. MR. BAYA BHATRA S/O MR. MANABHATRA AGED ABOUT 38 YEARS NOW AT:
FLAT NO.201 BLOCK 2, CONFIDENT LEO APARTMENT, CARMELARAM SARJAPUR MAIN ROAD BENGALURU – 560 035 PERMANENTLY R/AT:
DARBUNDHSAHI NABARANGAPUR NABARANGAPUR JHARIGAN ODISHA -764 059 ... PETITIONERS (BY SRI. V. RANJITH SHANKAR, ADVOCATE) AND 1. STATE BY THE PRINCIPAL SECRETARY HOME AND TRANSPORT DEPARTMENT AMBEDKAR VEEDHI BENGALURU – 560 001 2. STATE BY THE DIRECTOR GENERAL OF POLICE THE OFFICE OF DIRECTOR GENERAL OF POLICE THE POLICE HEADQUARTERS NO.02, NRUPATHUNGA ROAD BENGALURU – 560 001 3. THE COMMISSIONER OF POLICE OFFICE OF THE COMMISSIONER OF POLICE BENGALURU CITY POLICE NO.1 INFANTRY ROAD BENGALURU – 560 001 4. THE INSPECTOR OF POLICE BELLANDUR POLICE STATION BELLANDUR, BENGALURU – 560 103 5. THE CHAIRPERSON CHILD WELFARE COMMITTEE (FOR GIRLS ABOVE 16 YEARS) BESIDE KIDVAI HOSPITAL WELFARE DEPARTMENT COMPLEX DR.M.H.MARIGOWDA ROAD, HOSUR ROAD, DHARAMARAM COLLEGE POST, BENGALURU – 560 029 6. MS. SEEMA DIWAN FATHER’S NAME NOT KNOWN MAJOR, AGE NOT KNOWN CLAIMING TO BE THE FOUNDER PRESIDENT M/S TALAASH ASSOCIATION 171, 1ST CROSS, OFF B. G. ROAD PANDURANGA NAGAR BENGALURU – 560 076 ... RESPONDENTS (BY SRI. SANDESH J. CHOUTA, ADDL.ADV. GENERAL A/W SRI. S. V. GIRIKUMAR, AGA) THIS WPHC IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF HABEAS CORPUS OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION ORDERING THE RESPONDENT NO.1 TO 4 TO PRODUCE THE MINOR DAUGHTER OF THE PETITIONER NAMED MS.PARBOTIBHATRA, AGED SIXTEEN YEARS AND SEVEN MONTHS, LAST KNOWN TO BE RESIDING AT FLAT NO.T- 21, MANA JARDIN, RADHAREDDY LAYOUT, SARJAPUR MAIN ROAD, BENGALURU BEFORE THIS HON’BLE COURT.
THIS WPHC COMING ON FOR ORDERS THIS DAY, K.N.PHANEENDRA J., MADE THE FOLLOWING:
ORDER The petitioners along with their counsel are present before the Court.
2. The detenue by name Kumari Parboti Bhatra is produced before the Court by Smt. Kanthamma, WHC- 8331. Smt. Ramadevi, the Superintendent of Government Children Home (Sarakari Balakiyara Balamandira), situated behind Kidwai Hospital, Bengaluru, (for short, ‘CWC’) is present before the Court.
3. On enquiry, Smt. Ramadevi, the Superintendent of Government Children Home and also the learned Additional Advocate General, it revealed that, Respondent No.6-M/s. Talaash Association found that the minor girl (detenue) was in the house of one Mr. Siba Prasad at Bengaluru as a child labour and therefore, it appears they have lodged a complaint before the Bellandur Police in that regard. In turn the 4th respondent-Police, on the basis of the said complaint, registered a case in Crime No. 25/2019 under the provisions of Juvenile Justice Act, I.P.C., and Child Labour (Prohibition and Regulation) Amendment Act, 2016, and taken the custody of the detenue (minor girl) and handed over the said child to Respondent No.5-CWC. In turn the said child (minor girl) was placed before the Respondent No.5-CWC for appropriate proceedings to be initiated in this regard. The respondent No.5- CWC, after following the procedure, has passed an order dated 19.02.2019 ordering to the concerned Police to transmit the said minor girl (detenue) to the concerned CWC at Odisha for further proceedings and appropriate orders.
3. Though the learned counsel for the petitioners tried to convince the Court by stating that, the child-minor girl (detenue) was sent to the house of Mr. Siba Prasad at Bengaluru for the purpose of her medical care, it was misconstrued and misunderstood by the 6th Respondent-CWC here in this petition and wrongly lodged a complaint before the 4th Respondent-Police and in turn, the said Police have illegally taken the custody of the child- minor girl (detenue) and handed her over to the custody of Respondent No.5-CWC.
4. Learned counsel for the petitioners further submitted that, when once the custody of the said minor girl (detenue) by M/s. Talaash Association becomes illegal, all subsequent custody by 4th Respondent-Police and 6th Respondent- CWC are also illegal. Therefore, the child-minor girl has to be released in favour of the petitioners, who are the parents of the said child-minor girl, present before the Court.
5. Per contra, the learned Additional Advocate General submits that, as on the date of passing of the order before the Court, the Court has to examine whether the custody of the child is legal or illegal. If the Court finds that the child’s custody as on the date of production and passing of the order is legal, then the Habeas Corpus Petition does not survive for consideration. In this regard, the learned Additional Advocate General has cited a ruling reported in 1971(3) SCC 118 [ TALIB HUSSAIN VS. STATE OF JAMMU AND KASHMIR], wherein the Hon'ble Apex Court, at Para No.6, has observed as under:-
“6. In regard to the submission that the petitioner was arrested and deprived of his personal liberty long before the order of his arrest and this invalidated his detention, it is sufficient to point out that in habeas corpus proceedings, the Court has to consider the legality of the detention on the date of hearing. If on the date of hearing, it cannot be said that the aggrieved party has been wrongfully deprived of his personal liberty and his detention is contrary to law, a writ of habeas corpus cannot issue.”
6. In view the above submission of the learned Additional Advocate General, the point, ‘whether the complaint lodged by M/s. Talaash Association and registration of the case by the 4th respondent-Police is valid or not’, cannot be examined by this Court. However, the registration of the FIR and taking custody of the minor girl (detenue) by the said 4th respondent- Police and handing over her to Respondent No.5-CWC are all legally processed and also they are all in accordance with the procedure established by law.
7. In the above facts and circumstances of the case, we do not find that the minor girl (detenue) is in illegal custody of Respondent No.5-CWC. More over the said Respondent No.5-CWC is a Quasi-judicial Authority and it has already followed the procedures established by law and passed an order to transmit the minor girl (detenue) to CWC at Odisha. Hence, that order cannot be interfered with by this Court by exercising powers under Article 226 of the Constitution of India. More over, in Habeas Corpus matters, this court cannot interfere with the Judicial or Quasi-judicial Orders passed by the competent authorities. Therefore, under the above said circumstances, we find no reasons to interfere with the said order. Further added to that, as the Respondent No.5-CWC has already passed an order to transmit the minor girl (detenue) to the CWC at Odisha, it is the duty of the concerned Police to transmit the child (minor girl) and hand over her to the CWC at Odisha, as expeditiously as possible. In order to safeguard the interest of the child and also the anxiety of her parents, we direct the Commissioner of Police, Bengaluru City, to take appropriate immediate action to transmit the said child (minor girl) to the CWC at Odisha on or before 26.02.2019.
8. The child-minor girl (detenue) produced before this Court, is handed over back to the 5th Respondent-CWC for proper further procedures.
With the above observation and direction, this petition is disposed of.
The Registry is hereby directed to send a copy of this order to the Commissioner of Police, Bengaluru City and also the 5th respondent-CWC forthwith, to comply with this order.
SD/- JUDGE SD/- JUDGE KGR*