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CASE NO.: Appeal (crl.) 520  of  2001

PETITIONER: SYED SALEEMUDDIN

       Vs.

RESPONDENT: DR.RUKHSANA & ORS.

DATE OF JUDGMENT:       19/04/2001

BENCH: D.P. Mohapatra & Brijesh Kumar

JUDGMENT:

D.P.MOHAPATRA, J.

       Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  appellant  is the husband of the  respondent  no.1. They  were married on 7.12.1993.  They have two children,  a daughter  named  Ayesh Fathima aged 6 years and a son  named Sayeed  Zaiduddin  aged  5  years.    The  appellant  is   a businessman  and the respondent No.1 is a doctor  practising Ayurvedic medicine.  On 26th March 2000, the respondent no.1 sustained  burn injuries when she was in her house.  On  the next  day she was admitted in Princess Duru Shehvar Children & General Hospital, Hyderabad.  On receiving intimation from the  incharge of the hospital Sub-Inspector Ravindra of  the Police  Station  Habeeb  Nagar  went  to  the  hospital  and recorded   the  statement  of   the  respondent.   The  said statement  was  registered as FIR No.54/2000 on  28th  March 2000 at 7.30 p.m.  with Habeeb Nagar Police Station.

   Thereafter  on  10.4.2000 the first respondent  filed  a writ petition, writ petition No.6017/2000, in the High Court of A.P.  with the following prayer :

   For  the reasons and in the circumstances stated in the accompanying  Affidavit, the petitioner herein prays in  the interests of justice, that this Honble Court may be pleased to issue an order or direction more in the nature of Writ of Habeas  Corpus,  directing the release of  the  petitioners minor children namely Ayesh Fathima and Syeded Zaiduddin who are  under the custody of the 3rd respondent at present  and set them at liberty and pass such other and further order or orders  as this Honble Court may deem fit and proper in the circumstances of the case.

   The State of Andhra Pradesh represented by its Principal Secretary  (Home)  Police  Department,   the  Station  House Officer of Habeeb Nagar Police Station and Syed Saleemuddin, the  appellant herein, were cited as the respondents 1 to  3 respectively  in  the writ petition.  In the writ  petition, the  respondent  No.1 sought intervention of the  Court  for

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getting  custody  of the children who were then living  with their  father,  the appellant.  The High Court by its  order dated 12.4.2000 directed the SHO Habeeb Nagar Police Station to  produce the appellant along with two children before the Court  on  17.4.2000 at 10.30 a.m.  In compliance  with  the said  order the appellant and the two children were produced before  the  Court on the date fixed.  On the same  day  the High  Court  directed  the   Metropolitan  Sessions   Judge, Hyderabad  along  with the Secretary of the  Andhra  Pradesh High  Court  Legal Services Committee to go to the  hospital and  meet respondent no.1.  The Sessions Judge in compliance with  the  said order went to the hospital and recorded  the statement of the respondent no.1.

   The  High  Court  disposed of the case by  the  judgment rendered  on  18.4.2000.   In para 3 of the judgment  it  is stated  that  the  Habeas Corpus petition was moved  at  the instance  of  the maternal uncle of the children  i.e.   the younger  brother of Dr.  Rukhsana Saleem stating that it was a  case  of dowry harassment and consequent attempt  of  the appellant  to  kill  her  by setting her  afire  by  pouring petrol.   In para 4 of the judgment the High Court took note of  its  order  dated 17.4.2000  deputing  the  Metropolitan Sessions  Judge and the Secretary of the Andhra Pradesh High Court  Legal  Services  Committee  to go  to  Princess  Duru Shehvar  Children & General Hospital, Hyderabad and  examine the  lady and also noted that the lady had given a  detailed statement  which  was recorded by the Metropolitan  Sessions Judge.   As noted in the judgment of the High Court the lady also stated that the previous statement recorded by the S.I. of Police Ravindra was made under threat.  In paragraph 5 of the judgment the High Court discarded the report of the Sub- Inspector  of Police, Habeeb Nagar Police Station, Ravindra. Paragraphs  6  to 10 in which directions given by  the  High Court  to  different  authorities of the  State  are  quoted hereunder:

   6.   Having  given  our anxious  consideration  to  the matter,  we direct the Station House Officer of Women Police Station,  CCS,  to  register the statement  which  is  being handed  over  as FIR by giving the appropriate Crime  number and  then  investigate  into the matter and  take  necessary action in accordance with law.

   7.   In  so  far  as  the custody  of  the  children  is concerned,  we  direct that the same shall remain  with  the mother,  namely, Dr.  Rukhsana Saleem, and temporarily  with the  deponent  of  the  third   party  affidavit  i.e.   Mr. Irfanulla,  and we feel that Mr.  Irfanulla, who is no other than  the  maternal uncle of the children will take care  of them.   But  Mr.   Irfanulla has to summon his  mother  from Dubai  as promised by him within two days, so that she takes care of not only the children but also Dr.  Rukhsana Saleem, being a lady and laid up with burn injuries.  We also direct the  Superintendent  of Princess Duru Shehvar  Children’s  & General  Hospital,  Hyderabad to allocate a special room  to Dr.   Rukhsana  Saleem  and whenever she wants  to  see  the children, the children be taken to her by Mr.  Irfanulla.

   8.   Dr.Rukhsana  Saleem  was  a  Practicing  Doctor  in Ayurveda  and she was earning considerable income.  Now  she became  temporarily  incapacitated  because   of  the   burn injuries  sustained by her.  Mr.Syed Saleemuddin, who is the 3rd  respondent herein, is directed to deposit an amount  of Rs.1.00   lakh  with  the   Registrar  (Judicial)  in   four

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instalments  and the first of such instalments shall be made within  one  week and the rest of the installments one  week each thereafter.  The Registrar (Judicial) then will ask the Superintendent of Princess Duru Shehvar Children’s & General Hospital,  Hyderabad  as  to the expenses  incurred  in  the treatment  of  Dr.   Rukhsana Saleem and after  meeting  the same,  the  remaining  amount  shall be  paid  over  to  Dr. Rukhsana  Saleem.   If  the amount as ordered above  is  not deposited,  then the Registrar (Judicial) shall transmit the file  to the Court of the Chief Judge, City Civil Court, who shall execute this order as a decree under the provisions of the  Code  of  Civil Procedure as also the  Civil  Rules  of Practice  and  if  necessary by causing arrest  of  the  3rd respondent.

   9.   For  the  reasons  stated   above,  we  direct  the Commissioner  of Police to initiate appropriate disciplinary proceedings  against Mr.  Ravindra, S.I.  of Police,  Habeeb Nagar  Police  Station, Hyderabad and then Enquire into  the matter after affording opportunity to him and dispose of the same within a period of four months from the date of receipt of a copy of this order.

   10.   Liberty  for the 3rd respondent to  file  petition before  the  Family Court, Hyderabad to visit the  children, after  a  period  of  one   month.   The  writ  petition  is accordingly disposed of.

   This judgment is under challenge in this appeal filed by the  father of the children by special leave.  Shri M.N.Rao, learned senior counsel appearing for the appellant submitted that the High Court has seriously erred in travelling beyond the  scope  of the enquiry in the Writ Petition.   Shri  Rao contended that the writ petition was filed seeking a writ of Habeas  Corpus  and  for  transfer of  custody  of  the  two children  from  their father to their mother.  For  deciding the  case it was not necessary for the High Court to  embark on  an  inquiry about the recording of the statement of  the injured;  nor was it relevant for the purpose of the case to deal  with  the  question relating to investigation  by  the police.   It  is relevant to note here that by the  date  of filing  of the writ petition FIR No.54/2000 had already been registered  at  Habeeb Nagar Police Station on the basis  of the  statement  of the respondent no.1 recorded by the  S.I. of  Police,  Ravindra.  Shri Rao fairly submitted  that  the appellant  has no objection if the children are left in  the custody  of  the  respondent  No.1  till  the  Family  Court considers  the  petition  filed by the appellant  for  their custody.  Shri Rao also fairly stated that the appellant has paid  certain amount for treatment of the respondent No.1 at the  Princess  Duru  Shehvar Children  &  General  Hospital, Hyderabad  and is willing to pay the entire expenditure  for her treatment at the hospital.

   Shri  P.S.Narsimha,  learned counsel appearing  for  the respondent No.1 strenuously urged that this Court should not interfere with the judgment/order under challenge.  The High Court  has merely directed the police to register an FIR  on the basis of the subsequent statement of the respondent No.1 recorded  by the Metropolitan Sessions Judge, Hyderabad  and investigate  into the matter.  He further submitted that  in pursuance  of the directions contained in the Judgment under challenge  the  Police has registered Crime No.108/2000  and recorded  the statement of some persons.  According to  Shri Narsimha  the order passed and the directions issued by  the

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High  Court  are  within its power  and  jurisdiction  while dealing  with the Habeas Corpus petition, and therefore,  no interference with the Judgment is warranted.

   A  Constitution Bench of this Court in the case of  Kanu Sanyal vs.  District Magistrate, Darjeeling and others (1973 (2)  SCC 674) dealing with the nature and scope of a writ of Habeas Corpus observed :

   It  will  be  seen from this brief  history  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 detailed 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  Kings 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  him  in this  behalf.   The italicized 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 (supra),  the  essential  and leading theory of  the  whole procedure is the immediate determination of the right to the applicants  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.

   This  Court  in the case of Gohar Begam v.  Suggi  Alias Nazma  Begam  and  others  (1960(1) SCR 597)  dealt  with  a petition  for  writ  of  Habeas Corpus  for  recovery  of  a illegitimate  female  infant  of an unmarried  Sunni  Muslim mother,  took note of the position under the Mohammedan  Law that the mother of an illegitimate female infant is entitled to  its  custody and the refusal to restore such a child  to the  custody  of  its  mother would  result  in  an  illegal detention  of the child within the meaning of Section 491 of the  Criminal  Procedure  Code.  This Court  held  that  the dispute  as to the paternity of the child is irrelevant  for the  purpose  of the application and the Supreme Court  will interfere with the discretionary powers of the High Court if the  discretion  was not judicially exercised.   This  Court further  held  that  in issuing writs of Habeas  Corpus  the Court  have  power  in the case of an infant to  direct  its custody to be placed with a certain person.

   From  the  principles  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

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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  present  custody  should be changed and  the  children should  be  left in 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 of 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.

   Coming  to  the  observation  made  by  the  High  Court discarding  the statement of the respondent recorded by  the Sub-Inspector  of the Habeeb Nagar Police Station,  Ravindra and  the directions to the SHO of the said Police Station to register  statement  recorded by the  Metropolitan  Sessions Judge  Hyderabad as FIR is clearly unsustainable.  No reason has  been given by the High Court in the order as to why the previous  statement recorded by the Police Officer should be discarded.   Since  the information about the  incident  had already  reached  the  police  and   on  getting  the   said information  the  Police  Officer visited the  hospital  and recorded  the statement and FIR No.54/2000 had already  been registered  on  the  basis of that statement that is  to  be treated  as the FIR in the case and any subsequent statement made  by  the informant/complainant can only be taken  as  a statement  in  course  of the investigation.  No  reason  is stated  and we are at loss to understand why the High  Court felt  that the unusual and extraordinary step of asking  the Metropolitan  Sessions Judge accompanied by another Judicial officer the Secretary of the Andhra Pradesh High Court Legal Services  Authority,  should  be   directed  to  record  the statement of the injured.  The case as noted earlier was one relating  to  custody  of  children for  disposal  of  which neither  was it necessary for the High Court to take such an unusual  step  nor was the matter relating to  investigation into  the criminal case relevant for deciding the case.  The procedure followed by the High Court does not commend us.

   From  the  conspectus  of the discussions made  and  the reasons stated in the aforementioned paragraphs, it is clear that the order of the High Court is unsustainable and has to be  vacated.   Accordingly,  the appeal is allowed  and  the judgment/order   of  the  High   Court  dated  18.4.2000  in W.P.No.6017/2000  is  set  aside.   In   view  of  the  fair concessions  made  by Shri M.N.Rao, learned  senior  counsel appearing  for the appellant, it is ordered that the custody of  the  two children will remain with their mother, who  is respondent  no.1  herein, till the Family Court disposes  of the  petition filed by the appellant for their custody.   It is  further ordered that the appellant shall pay the  amount spent  for treatment of the respondent no.1 in Princess Duru

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Shehvar  Children  &  General Hospital, Hyderabad.   If  any amount  is yet to be paid, the appellant shall pay the  same within  one month.  In the circumstances of the case,  there will be no order for costs.