TASLEEMA Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) THIS is a case where we are called upon to decide whether a mother (the petitioner) should be compensated by the State of Gujarat, as a public law remedy, by way of strict liability, for the adventure undertaken by its police officials in "taking away " her minor son, without reason and without the authority of law, from Delhi to a lock-up in Ahmedabad? And, if so, how do we determine the amount? We are to decide these questions in the backdrop of the allegation that the petitioner as also her husband and children are not citizens of India but, are Bangladeshis. An ancillary issue is also being vigorously pursued by the State of Gujarat which wants us to make a complaint under Section 340 of the Code of Criminal Procedure, 1973 against the petitioner for having filed a false birth certificate of her son along with an amendment application in respect of the present writ petition. To unravel these knotty questions, it would be necessary to examine the underlying circumstances in some detail. We shall do so presently. 1. Initially, this Writ Petition was filed by the petitioner seeking the issuance of a writ, order or direction in the nature of habeas corpus directing the respondents to produce her minor 13 year old son, Shamim, before this Court. It was also prayed that a direction be issued to respondents 1 to 4, through telegraphic/telephonic communication to ensure the physical safety and return of Shamim to New Delhi immediately. The third prayer sought the award of exemplary damages to the petitioner. Since the boy was produced before court pursuant to orders passed herein, as we shall see, it is only the third prayer which survives. The petitioner 's son is "taken away ":

(2.) THE petitioner 's case is that on 25.5.2008 between 9 a.m. and 10 a.m. some men in a white Tavera vehicle which had tinted glasses and a Gujarat registration number GJ 2G 4522 came to her husband 's kabari (Scrap) shop at Seelampur. Her minor son Shamim was present at the shop as his father was away to Gurgaon, Haryana, to collect scrap. Near the said shop, there were others, such as, Salim, Shaidul and Rubel, who either owned or worked in the neighbouring shops. The men in the said white Tavera asked the names of the persons present and as soon as Shamim told them that his father 's name was Mohd Azad, he was picked into the Tavera and taken away. It is further alleged in the writ petition that when asked, the said men in the said white Tavera said that they had come from Gujarat to arrest Shamim 's father.

(3.) ON the first day, i.e. on 29.05.2008, when this writ petition came up for hearing before this Court, a predecessor Bench directed issuance of notice. Notice had been accepted by Ms Mukta Gupta, Standing Counsel for the Government of NCT of Delhi on behalf of respondents 1, 2 and 3. The order dated 29.5.2008 records that the counsel for the petitioner had served an advance copy of the petition on the respondent No.4 (State of Gujarat) through its Standing Counsel, Ms Hemantika Wahi. But, as she was not present, the Court expressed its displeasure by recording "we cannot appreciate her absence in this hearing. " Nevertheless, the Bench issued notice to the respondent No.4, returnable on 30.5.2008.