(Prayer: Habeas Corpus Petition is filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, directing the respondent Nos.1 and 2 to produce the body of the petitioner's husband Murugan S/o.Narayanan, aged about 33 years old, petitioner's minor son Vijay S/o.Murugan, aged about 3 years old, petitioner's sister Mariyammal W/o.Guruvan, aged about 28 years old and petitioner's sister's husband Guruvan S/o.Mariappan aged about 36 years old before this Court and set them at liberty.)
1. The petitioner is the wife of one Mr.Murugan S/o.Narayanan, aged about 33 years and mother of one Vijay S/o.Murugan, aged about 3 years. She is the sister of one Mrs.Mariyammal, aged about 28 years. Mr.Guruvan S/o.Mariyappan is the husband of Mrs.Mariyammal. He is aged about 36 years.
2. According to the petitioner, she is residing at Mottamalai, Kalaingar Nagar, Vilacheri, Madurai District, along with her husband and two children by name Karthick, aged about 6 years and Vijay, aged about 3 years. She has further stated that on 19.06.2016, early in the morning, along with her husband, Mr.Murugan and two children Karthick and Vijay, accompanied by her sister Mariyammal and her husband Guruvan went to Nallur and Valaiyangulam Villages with a tricycle for selling toys and dolls in the local festival. The petitioner has further stated that they stayed near the Perumal Temple at Nallur Village on 19.06.2016 and 20.06.2016. She has further stated that on 21.06.2016 around 1.30 a.m. four policemen, in plain clothes, came to the place where they were staying and without disclosing their identity and without informing any reason for taking them into custody, they took into their custody her husband - Mr.Murugan, minor son Vijay, aged 3 years, her sister Mrs.Mariyammal and her sister's husband Mr.Guruvan. The said Policemen took all the four in a TATA Sumo Car, without informing the petitioner as to where they were being taken.
3. On 21.06.2016, in search of the said four persons, according to the petitioner, she went to the second respondent Police Station and enquired. But, there was no proper response from the second respondent Police Station. Therefore, she made a complaint on online on 21.06.2016 itself through an organization known as People's Watch Organization . She received on-line complaint's receipt Reference No.HAP1610294 dated 21.06.2016. Thereafter, she sent a complaint through the postal service on 22.06.2016. Again, she went to the Office of the first respondent and presented a complaint in person. One Mr.M.Karthikeyan, the Additional Superintendent of Police, received the said complaint at his Office.
4. It is the further case of the petitioner that the Police officials from the second respondent Police Station called the petitioner on 22.06.2016 and informed her that on her complaint, a case had been registered in Crime No.201 of 2016. However, according to the petitioner, the second respondent refused to provide a copy of the FIR and told the petitioner that there was some problem with the computer system and so a copy could not be generated. Even after the registration of the case, since the whereabouts of the said four persons (hereinafter referred to as detenu ) were not known, the petitioner was forced to file the present Habeas Corpus Petition on 24.06.2016.
5. This Habeas Corpus Petition initially came up for hearing before a Division Bench of this Court on 26.06.2016. The learned Additional Public Prosecutor took notice for the respondents and the case was adjourned to 01.07.2016. On 01.07.2016 since the detenu were not produced, the case was further adjourned to 21.07.2016.
6. During the hearing on 21.07.2016, it was informed to the Division Bench that the detenu Murugan and Mariyammal were arrested by the Police on 03.06.2016 at 2.30 p.m. in connection with a case in Crime No.484 of 2016 on the file of the Marthandam Police Station and that the Sub Inspector of Police, Marthandam Police Station had effected the arrest. It was also informed to the Court that at the time, when the detenu Murugan and Mariyammal were arrested, the child - Vijay aged 1-1/2 years was in their custody. These two accused were produced before the learned Judicial Magistrate No.I, Kuzhithurai, Kanyakumari District, for judicial remand in connection with the case in Crime No.484 of 2016 on 04.07.2016 at 10.25 a.m. It was further informed to this Court that the learned Magistrate had remanded Mr.Murugan and Mrs.Mariyammal to judicial custody and also allowed Mariyammal to keep the child Vijay with her in prison. It was also contended before this Court that though she made an appeal to the learned Magistrate to hand over the child to her as she is the biological mother of the child, the learned Magistrate sent the child along with Mariyammal. Having heard the said submissions made on either side, this Court, by order dated 21.07.2016, directed the learned Judicial Magistrate No.I, Kuzhithurai, to make appearance before this Court at 4.30 p.m. on 25.07.2016. This Court also directed the Inspector of Police, Marthandam Police Station to be present on the same day.
7. On 25.07.2016, as directed, the child was produced before this Court and the child was handed over to the biological mother viz., the petitioner. As directed, the learned Magistrate appeared before this Court and also produced the original case records pertaining to Crime No.484 of 2016. The earlier Division Bench had the benefit of going through the records of the lower Court. (Xerox copies of the entire records have been retained by the Court and we have gone through the same). This Court, having perused the records, found that the learned Magistrate ought to have taken the matter with a sense of responsibility and little seriousness. Obviously, this Court was irked over the fact that the child was sent to the prison along with Mrs.Mariyammal and the child was not handed over to the biological mother viz., the petitioner. This Court has also found that as per the original records of the Court, the request given by the Police for remand originally contained request for remand of the child also and later on, it was deleted by using whitener. This Court suspected that there should have been some collusion between the Court staff and the Police, in this regard. Therefore, this Court directed the learned Judicial Magistrate to submit his explanation and also this Court directed one Mr.Sibu, the Head Clerk of the Magistrate Court, to submit his explanation in respect of erasing of certain portions in the remand request by means of whitener.
8. In pursuance of the said direction, the learned Magistrate, under D.No.2808/2016, dated 01.08.2016, has submitted his detailed explanation, wherein in paragraph Nos.2 to 5 he explained as follows;
2. The remand report and other documents were put up before me for passing of further orders on the remand report. I perused the remand report, FIR and other connected documents. I enquired the accused about their name, residence and any complaint of ill treatment against the police concerned. Since, one of the accused namely Mrs.Mariyammal was produced along with a male child, I enquired the accused about the child. Both the accused stated that, the child belongs to them. ( Tamil ) However, on perusal of the remand report, I noticed that, one of the accused Murugan is the father of the child and the other accused namely Mrs. Mariyammal was the maternal aunt of the child. Thereafter, I asked the police as well as the accused about the whereabouts of the mother of the child. However, the police replied that they had enquired about the mother of the child in the address given by the accused/father of the child and found that no body was available in the above said address. Thereafter, both the accused stated that, the whereabouts of the child of the mother is not known to them and the mother of the child does not have any mobile number to contact her. On perusal of remand report and other documents, prima facie case was found against the two accused and hence I remanded both accused. However, with respect to the male child, the mother of the child was not present at the time of remand. As the child was seen comfortable with her maternal aunt/accused rather than with his father/accused and the accused Mrs.Mariyammal had also expressed her willingness to take the child along with her, considering the welfare and interest of the male child, I permitted the accused namely Mrs. Mariyammal to take the child along with her to the jail. Further I beg to submit that, I never remanded the child, but due to unavoidable circumstances since no body was claiming the child except the accused produced for remand, I permitted the accused Mrs.Mariyammal to take her sister's child along with her to Jail. On the day of remand I had two options. one is to send the child along with maternal aunt and another is to hand over the child to police. I thought that first option is the better one. I have no intention either to keep the child in jail or to separate it from her mother.
3. I humbly submit that since I did not remand the child, I did not reflect the same in the remand order. But an appropriate arrangement had to be made regarding the custody of the child. Since I genuinely believed that the interest of the child will be better served by permitting the 2nd Accused Mrs.Mariyammal to take the child the along with her, the said fact was duly mentioned in the remand warrant. However, I am now realised that this was not sufficient and that I should have specifically referred to it in the remand order also. I sincerely express my apology and regret for the above said lapse.
4. I humbly submit that in the left side margin of the remand report, the police had originally mentioned the name of the child along with the names of the two persons to be remanded. Since the child was not to be remanded, the police erased the name of the child in the margin and specifically referred to the same in the body of the remand report. There was no obliteration or eraser of any detail or entry after submission of the remand report. Since I was satisfied about the contents of the remand report, it did not occur to me that I should ask the investigating officer to initial near the erased portion in the remand report. I now realized that this is an inadvertent lapse committed by me.
5. I humbly submit that I enquired the 1st accused regarding the age of the child, this was because as per prison rules, a child above 6 years cannot be admitted. Up to the age of 6, a child can be admitted along with the remanded accused. The father of the child told me that the child was 1 years old. Since the child was obviously less than 6 years, I chose to accept the entry regarding the age mentioned in the remand report. It did not occur to me that I should enter the age of the child accurately by conducting further enquiry. That is how the mistake regarding the age of the child took place. I genuinely realize the mistake; I tender my sincere apology for the same.
9. In respect of the correction in the remand request, the Head Clerk of the learned Judicial Magistrate No.I, Kulizthurai has submitted an explanation, wherein he has stated that erasing of words in the request of the remand with whitener had already been made by the Police and then only, it was produced before the Court. Thus, from this explanation, it is clear that the said correction was not made by any Court officials.
10. The Inspector of Police, Marthandam Police Station in his counter affidavit stated that due to oversight, in the request for remand it was mentioned that the child should also be remanded. Immediately, on realizing the mistake, he corrected the same with whitener and thereafter, only the request for remand was presented.
11. From these explanations by the learned Magistrate and the Head Clerk of the Court and the counter affidavit filed by the Inspector of Police, Marthandam Police Station, it is crystal clear that there was no collusion between the Court staff and the Police in the matter of deleting certain words in the request for remand. We find that these deletions were made by using whitener by the Police and only after such deletion in the whitener, the written request was presented to the Court.
12. Now, turning to the legality of the child having been sent to jail, we wish to deal with the same with a little elaboration. But, on this issue, we feel that we need not catalog all the judgements on this subject pertaining to the law governing the child rights and custody of the children inside the prisons, because the said issue has been very elaborately and lucidly dealt with by the Hon'ble Supreme Court in R.D.Upadhyay Vs. State of A.P. and others, reported in AIR 2006 SC 1946. In paragraph No.64 of the said judgment, on the basis of the various affidavits submitted by the various State Governments and Union Territories as well as Union of India, the Hon'ble Supreme Court felt that the children of the women prisoners who are living in jails requires additional protection. The Hon'ble Supreme Court has further found that these children suffer the consequences of neglect. While some States are taking care to look-after the interest of the children, lot a more requires to be done in the State and Union Territories for looking after the interest of the children. With this observation, the Hon'ble Supreme Court felt the necessity to issue certain directions so as to ensure that the minimum standards are met by all States and Union Territories vis-a-vis the children and the women prisoners living in prisons. The Hon'ble supreme Court in paragraph No.65, in the light of the various reports referred to in the judgment, affidavits of various State Governments, Union Territories, Union of India and submissions made, has issued a number of guidelines as to how a child should be treated when the child is produced along with his mother in the Court while remanding the mother to prison and also as to how the child should be protected in the prison. We do not propose to extract all such directions contained in paragraph No.65 of the judgment for the purpose of this petition except a few.
13. The guideline No.1 states that a child shall not be treated as an under-trial/convict while in jail with his/her mother. Such a child is entitled to food, shelter, medical care, clothing, education and recreational facilities as a matter of right. The guideline No.4 which deals with female prisoners and their children states as follows;
a) Female prisoners shall be allowed to keep their children with them in jail till they attain the age of six years.
b) No female prisoner shall be allowed to keep the child, who has completed the age of six years upon reaching the age of six years, the child shall be handed over to a suitable surrogate as per the wishers of the female prisoner or shall be sent to a suitable institution run by the social welfare department. As far as possible, the child shall not be transferred to an institution outside the town or city where the prison is located in order to minimize undue hardships on both mother and child due to physical distance.
c) Such children shall be kept in protective custody until their mother is released or the child attains such age as to ear his/her own livelihood.
d) Children kept under the protective custody in a home of the Department of Social Welfare shall be allowed to meet the mother at least once a week. The Director, Social Welfare Department, shall ensure that such children are brought to the prison for this purpose on the date fixed by the Superintendent of Prisons.
e) When a female prisoner dies and leaves behind a child, the Superintendent shall inform the District Magistrate concerned and he shall arrange for the proper care of the child. Should the concerned relative(s) be unwilling to support the child, the District Magistrate shall either place the child in an approved institution/home run by the State Social Welfare Department or hand the child over to a responsible person for care and maintenance.
14. The guideline No.5 deals with food, clothing, medical care and shelter and the guideline No.6 deals with the education and recreation for children of female prisoners. The guideline No.7 states as follows;
In may states, small children are living in sub-jails that are not at all equipped to keep small children. Women prisoners with children should not be kept in such sub-jails, unless proper facilities can be ensured which would make for a conducive environment there, for proper biological, psychological and social growth.
15. The guideline No.8 states that the stay of children in crowded barracks amidst women convicts, undertrials, offenders relating to all types of crimes including violent crimes is certainly harmful for the development of their personality. Therefore, the children deserve to be separated from such environments on a priority basis. The guideline No.9 deals with diet for the children. The guideline No.10 is very important one. It is in the nature of the direction. It states as follows:
10. Jail Manual and/or other relevant Rules, Regulations, Instructions, etc. shall be suitably amended within three months so as to comply with the above directions. If in some jails, better facilities are being provided, same shall continue.
The guideline No.13 states that the Courts dealing with the cases of women prisoners, whose children are in prison with their mothers, are directed to give priority to such cases and decide their cases expeditiously.
16. Before the Hon'ble Supreme Court, the Government of Tamil Nadu filed an affidavit informing the Hon'ble Supreme Court as follows;
In Tamil Nadu, children are allowed to live with their mothers upto the age of six years and a special diet and special clothing are available as prescribed by the Medical Officer. Children below three years of age are treated in the creche and those upto the age of 6 years are treated in the nursery. Oil, soap and hot water are available for children. On leaving the jail, in consultation with the District Magistrate, the children are handed over to the relatives or to some trustworthy person, as selected by the District Magistrate himself.
17. After the above directions of the Hon'ble Supreme Court in Upadhyay case, in exercise of the power conferred under Section 59 of the Prisoner Act, 1894, the Governor of Tamil Nadu made amendments to the Tamil Nadu Prison Rules, 1983. As per this amendment, the directions issued by the Hon'ble Supreme Court in Upadhyay case, have been scrupulously implemented in this State. (vide Rule Nos.963 and 964 of the Tamil Nadu Prison Rules, 1983)
18. A perusal of the above judgment and the amendment of the Jail Manual in the State of Tamil Nadu would go to make it very clear that a mother is entitled to keep the child in prison with her until the child attains the age of six years. In the case on hand, the contention of the petitioner is that the child was allowed to be with her sister viz., Mrs.Mariyammal, which, according to her, is illegal. But a perusal of the records and the explanation submitted by the learned Magistrate as well as the counter affidavit filed by Inspector of Police, Marthandam Police Station, would go to show that at the time when Mrs.Mariyammal, the sister of the petitioner and Mr.Murugan, the husband of the petitioner, were arrested, the child was in their custody.
19. The learned Magistrate has stated that when the accused Murugan and Mariyammal were produced before him, the child was in the custody of Mrs.Mariyammal. When he enquired, she claimed that the child was with her at the time of arrest. At that juncture, the learned Magistrate was not required to hold a detailed enquiry and to give any adjudication as to who was entitled to have the custody of the child. The learned Magistrate was concerned with the welfare of the child as the child has got his own fundamental rights. The learned Magistrate should not be expected to force the child to be separated from Mrs.Mariyammal with whom the child was sentimentally and affectionately attached. The learned Magistrate, after having ascertained that the child was very affectionate towards Mrs.Mariyammal and she was attached to her, thought it fit to allow Mrs.Mariyammal to carry the child with her to the prison. More so because, the mother of the child was not present. The learned Magistrate has mentioned in the remand warrant that Mrs.Mariyammal was keeping the child with her and the child was, therefore, allowed to be kept by her in prison.
20. The contention of the petitioner is that the judgment of the Hon'ble Supreme Court of India and the Tamil Nadu Prison Manual do not permit the maternal aunt of the child to keep the child, as only the biological mother could be allowed to take the child to the prison. It is not appealing to us. The expression mother as used by the Hon'ble Supreme Court and as used in the Tamil Nadu Prison Manual cannot be taken narrowly to mean only the biological mother. If we give such a narrow meaning to the said expression, then the Magistrate will be mulcted with the onerous responsibility of holding a detailed enquiry by affording opportunity to all the concerned and then to decide the issue as to whether the child should be allowed to be taken by the prisoner or not. For illustration, when a woman accused is produced along with the child before the Court for judicial remand, if she claims to be the biological mother and another person appears in Court and disputes the same, it would be difficult for the Court to decide the said issue, in a summary proceedings. As we have already pointed out, the Court is concerned with the welfare and protection of the child. In our experience, while dealing with Habeas Corpus Petitions, in many cases, we have seen that when small children were produced in Court, some children refused to go with the biological mother, but willing to go either with the grandmother or with someone else with whom the child was very affectionately and sentimentally attached. In those cases, considering the paramount interest of the child, the Courts do not separate the child against his/her wish and hand over the child to the biological mother. In such cases, the issue is left open to the Civil Court.
21. Similarly, in this case, when the child was visibly, to the satisfaction of the learned Magistrate, attached to Mrs.Mariyammal, both sentimentally and affectionately, in our considered view, the learned Magistrate cannot be expected to force the child to be separated from her or to hold a detailed enquiry and to give a judgment as to who was entitled for the custody of the child. Therefore, in our considered view, the learned Magistrate has not committed any illegality in allowing the child to be taken by Mrs.Mariyammal, when she was remanded to custody.
22. It is contended by the learned counsel for the petitioner that though the petitioner made a claim, the child was not handed over to her by the learned Magistrate. But, this contention is not supported by any material on record. The Inspector of Police in his counter affidavit has stated that when the Police enquired Mr.Murugan and Mrs.Mariyammal about the whereabouts of the petitioner, they said that she had gone out for selling toys and her whereabouts could not be ascertained. In fact, the petitioner was not available in the address given by them. The learned Magistrate has stated in his explanation that the petitioner did not appear before the Court and claimed the child at all. It was only in that situation, the learned Magistrate allowed the child to be taken by Mrs.Mariyammal. Thus, we find no reason to accept the contention of the petitioner that she made a claim for the custody of the child, but it was refused by the learned Magistrate. It is also seen from the records that on a subsequent day, when Mrs.Mariyammal was produced before the Court for extension of remand, the learned Magistrate wanted to hand over the child to the mother, but the petitioner did not appear. Therefore, he passed an order directing the jail authority to hand over the child to the biological mother in the event she appeared before the jail Superintendent. But, she did not make any such claim is the fact.
23. While agreeing with the submission of the learned Additional Advocate General, in the instant case, that there was no illegality in the learned Magistrate allowing Mrs.Mariyammal to take the child with her to the prison, we wish to clarify that invariably, under all circumstances, the learned Magistrates should not allow a prisoner to take a child to prison in a mechanical fashion. Though the enquiry by the Magistrate is summary in nature, the learned Magistrate, keeping in mind the paramount interest of the child, should take every endeavour to avoid the child being taken to prison and the child is kept in the custody of a suitable person provided the mother is willing for the said course. In nutshell, the learned Magistrate is burdened with onerous judicial function to protect the welfare, interest and development of the child, while facing with a situation of this nature. We are hopeful that the subordinate judiciary will scrupulously follow the directions of the Hon'ble Supreme Court and Jail Manual and ensure that the welfare, upkeep, development and protection of the children are safeguarded.
24. The learned counsel for the petitioner would submit that the learned Magistrate did not even care to ascertain the age of the child. The age of the child was mentioned as 1- years in the remand request. It was not disputed by Mrs.Mariyammal or Mr.Murugan. From physical appearance, when the estimation of age of the child is made, depending upon the individual perception, the estimation may vary. In this case, the learned Magistrate had estimated the age as 1- years in which we do not find any illegality, though it may be true that the child was about 3 years of age.
25. In view of the foregoing discussions, we hold that there was no illegality committed by the learned Magistrate in allowing Mrs.Mariyammal to take the child in prison. During the hearing of this case, as directed by us, the Superintendent of the said prison appeared before us and explained to this Court that while the child in question was kept in prison, he was not treated as an adult or as an offender. In the said prison, as directed by the Supreme Court, all facilities for the upkeep of the children have been made. The children are not kept in prison atmosphere and they are provided with all facilities for their, both physical and mental well being. The child in question was thus kept by providing all basic needs. Now, the custody of the child is with the biological mother viz., the petitioner herein.
26. But, during the course of hearing of this case, we were informed that the Press and Electronic Media gave wide coverage of this case and reported as though the learned Magistrate had remanded the child also to custody. If really, the child had been remanded to custody, since it is a serious human rights violation and also violation of the fundamental rights of the child, the matter would have received a very serious action by this Court. But, when the learned Magistrate had not in fact remanded the child to custody, contrary to the said fact, such reporting was made as though the child also had been remanded. This, in our considered view, to some extent, may go to diminish the faith of the litigant public on the judiciary. This should be avoided in future. Therefore, we request the Press and Electronic Media, the fourth pillar of the democracy, to bestow their utmost care, while reporting these kinds of matters for the benefit of the general public, so as to ensure that the faith of the people in the system is not in any manner eroded.
27. In respect of the allegation of illegal custody of Mrs.Mariyammal, Mr.Guruvan and Mr.Murugan, already a case has been registered on the file of Perungudi Police Station and the same is under investigation. The said investigation shall go on. Thus, this Habeas Corpus Petition deserves to be dismissed.
28. In the result, this Habeas Corpus Petition is dismissed. Consequently, connected miscellaneous Petition is also dismissed.