BADAR DURREZ AHMED, J Preface:

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 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.

2. The petitioner 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 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 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 Shamims father.

3. The other persons, who had watched this incident, narrated the same to the petitioner when she arrived at the shop shortly thereafter. Salim, who was one of the persons who watched the said incident, called the police control room after dialing the number 100. The local police arrived at the scene and was apprised of the fact that Shamim had been taken away by men who appeared to be from Gujarat. The police personnel from police station Seelampur thereupon informed the petitioner that it was the Gujarat police who had taken away the boy. D.D. Entry No 27A dated 25.5.2008 was made at police station Seelampur indicating that the Gujarat police had taken away a boy aged 13 years. On 26.5.2008, the police officers of police station Seelampur told the petitioner that her son was in the custody of the Gujarat police in Ahmedabad, Gujarat and the mobile phone number of the officer who took Shamim into custody was 09825163594. It is alleged that the petitioner was able to get through to the said phone number only on 27.5.2008. The person at the other end did not reveal his name but admitted to the fact that he had Shamim in his custody. It is further alleged that the said person was very rude and accused the petitioner of being a bangladeshi and threatened to deport the child. The petitioner lodged a complaint with the Commissioner of Police, Delhi and also sent a letter by courier to the Commissioner of Police, Ahmedabad. The petitioner stated that she is poor and illiterate and that she finally contacted social service organizations ± Aman Biradari and The Commonwealth Human Right Initiative ²

Click Here to Read the rest of this document