PURAN CHAND Vs. COMMISSIONER OF POLICE

JUDGEMENT

(1.) In view of the difference of opinion between the two learned Judges of this court the writ petition has been placed before me for disposal. Earlier a Bench of this court heard the matter. While Y.K.Sabharwal,J.tookoneview,S.C.Jain,J. took another view.

(2.) The petitioner seeks a writ in the nature of Habeas Corpus for the production of his two sons-Gian Chand and Bharat Bhushan. However, the prayer relating to Gian Chand does not survive because admittedly he has returned to the petitioner on 6.8.1993. The writ petition was filed on 21.7.1993. Petitioner, his wife, his two sons, his father and 4 brothers and the wife of a brother were living together in GeetaColony,Delhi. lt is stated that on 27.4.1993 petitioner's wife was murdered and the allegation is that a brother of the petitioner committed this murder. According to the petitioner, be was busy in connection with the funeral ceremony of his wife and at that time his two sons were removed from his custody and have been kept at a secret place. When he lodged complaint with the Police no action was taken. In these circumstances he filed the present petition.

(3.) The petitioner alleges that children were taken away by respondents 3 to 7, of whom respondents 2 & 4 are the brothers of the petitioner's wife, the 5th respondent is the son of 4th respondent, the 6th respondent is the father of his wife and the 7th respondent is related to them. In the counter affidavit filed on behalf of the State and the Police it is stated that a first information report was lodged on 27.4.1993 about the killing of the wife of the petitioner. According to the said information the petitioner's wife was killed by his brother Madan Lal in the presence of the petitioner by causing injuries on the neck. In this information it was also stated that the petitioner's son Bharat Bhushan was also an eye-witness to the murder. This counter also states that the police recorded the statement of Bharat Bhushan, in question and answer form because he is a child, wherein Bharat Bhushan stated that his mother was killed by Madan Lal in his presence. When the child was produced before the Metropolitan Magistrate his statement was recorded undersection 164 of the Criminal Procedure Code and after recording of the statement the learned Magistrate asked the child as to where he would like to go. The child seems to have replied that he wanted to go with his maternal uncle, since his mother was killed by Madan Lal. Accordingly, Bharat Bhushan was sent to his maternal uncle. Therefore, there was no illegal detention of Bharat Bhushan. This affidavit refers to one Kishore as the uncle of Bharat Bhushan, an obvious mistake, because I find that Kishore is the son of the 4th respondent. The recorded statements of Bharat Bhushan is found amongst the writ petition papers. In this statement the age of the elder brother of the child is given as 5 years while the age of Bharat Bhushan is stated as 6 years by the said Bharat Bhushan. The learned Magistrate also recorded that the age of the child was about 6 years but he did not give the name of the school and of his friends and that the boy was very slow in answering questions and replied only after asking the questions many times and that he was very reluctant in answering many questions. There is also a reference to Kishore uncle in the statement given by the boy and it is recorded that the said Kishore pacified the boy when the boy started weeping, 4th respondent has filed his affidavit wherein he states that the mother of the child was killed by the brother of the petitioner in the presence of the child and that the child was examined as a witness in the court and that in the course of examination the child informed the . court that he does not want to go to his father. The said statement also is annexed to the affidavit. The 4th respondent gives the following reasons as to why the child should not be given to the petitioner:- a) The mother of the child was murdered in his presence and that would be having horrifying effect on his mind. b) The accused is the brother of the petitioner and they all have been living in a joint family. Obviously, the child would be tortured by the family members and he may even be hurt or something wrong may be done to him for giving evidence against one of the members of the family. c) The petitioner himself who is the father of the child has yet to be examined in the said case. d) The deponent as also other relations with whom the child is residing are related to him from his maternal side. The deponent is his maternal uncle and their relationship with each other has been stated herein above. e) The child has been residing with the deponent for the last over 7 months and is being looked after by the deponent and other members of his family as also the other maternal relations of the child. He is having education in school and at one stage the petitioner informed this Hon'ble Court that he was having some disease and the deponent is regularly getting him checked up from the hospital. The deponent and other maternal relations of the child are thus in a better position to look after the child and hence it is in the interest of justice that the custody of the child be allowed to remain with them rather be given to the petitioner in whose hand the child would not be safe.