K. Vinod Chandran, J.:— The alleged detenue, Sahee, aged 38 years, who is the subject of the above case has been produced before us by the Police. The statement of facts submitted by the police to the Advocate General's office is also before us by a Memo dated 28.10.2020. It is seen from the statement of facts that the detenue/subject came to Aryancode Police Station on 23.10.2020, by herself and voluntarily surrendered.
2. The statement of facts further reveals that, on a complaint made by the petitioner herein, the husband of the subject, Crime No. 1614/2020 was initially registered under Section 57 of the Kerala Police Act (‘man missing’) and Section 317 of the Penal Code, 1860. Later an offence under Section 75 of the Juvenile Justice Act was also incorporated. The FIR seems to have been registered on the ground that the subject, Sahee, has abandoned her children, one aged 15 years and the other aged 11 years. The offence under Section 75 of the J.J Act has been charged for abandoning the 11 year old child and under Section 317 IPC for abandoning the 15 year old child. The complaint itself shows that the subject had come to the house of the petitioner/husband and after leaving the children in his care, she had gone to the State of Karnataka, allegedly to get some employment.
3. We have interacted with the petitioner and the subject. The subject submits that the petitioner has not been looking after her or their children. The petitioner also has two residences, one in which he is now staying after his return from Saudi Arabia, which is his family house, and the other in which the subject and the two children were housed. It is out of sheer frustration at not being able to maintain herself and her children that the subject left her two children in the care of the petitioner at his family residence and went to Mangalore, where her sister is staying, for eking out a livelihood, is the submission made by the subject before us.
4. Petitioner on the other hand submits that, the subject has been in the habit of leaving the children alone, especially due to her relationship with the 4 respondent. It is also alleged that, thrice before, she had left the marital house and her whereabouts could not be traced for long. There was one complaint registered in 2018 and the FIR was numbered as Crime no. 1209/2018 of Aryancode Police Station.
5. We need not go into the allegations and counter allegations. The subject submits before us that she is now working at Mangalore, on her own free will and she would like to go back to Mangalore. It is also categorically submitted that, she is not under illegal detention of anybody. She had voluntarily surrendered before the Police for reason of the man missing complaint and she was arrested and placed in jail for four days on the charges aforementioned. The petitioner also is not ready to take her back and submits that he will look after the children. The subject also submits before us that though she desires the custody of the children, as of now she is unable to fend for herself, leave alone maintain two children of young age. These are issues best left to the appropriate forum, if the parties so desire. We do not make any observation on that count. We are only concerned with the Habeas Corpus petition and we are of the opinion that the alleged detenue, who has been referred by us as the subject, is not under illegal detention and she has to be left free to decide for herself.
6. Before we leave the matter, we notice that the subject has been charged under Section 75 of the J.J Act and Section 317 of IPC. Prima facie we are not convinced that the provisions are attracted, especially since the subject left the children in the custody of their natural guardian, the father. In any event, since a crime is registered, we are of the opinion that the investigation has to be carried out, however in the meanwhile, there is no reason to detain her in custody. The subject has been brought before this Court by two Police Officers, a Sub-Inspector and a woman Civil Police Officer. The subject shall be taken back to Thiruvananthapuram and for today she shall be housed in the ‘Vanitha Cell’ at Thiruvananthapuram. The Sub Inspector who accompanies the subject, submits that she was released from the jail and she has to be produced back. However we are of the opinion that the subject need not be further harassed by being detained in the jail. In view of the direction issued by us, from the ‘Vanitha Cell’ she shall be taken directly to the jurisdictional Magistrate at Neyyattinkara tomorrow itself by the very same Sub-Inspector or any other officer authorised by the Station House Officer of Aryancode Police Station. The Judicial First Class Magistrate-I, Neyyattinkara, who has jurisdiction over the Aryancode Police Station shall, on production of the subject grant her bail on self bond, without any further condition and without insisting for sureties. The Police shall produce the order of the Magistrate before the jail authorities and the subject shall be let free tomorrow itself after restoring her personal possessions kept in the custody of the SHO or the Jail authorities.
7. The writ petition is disposed of. However the SHO, Aryancode Police Station shall forward a statement of the steps taken in compliance of the directions herein tomorrow itself to the learned Senior Government Pleader, through e-mail, who shall place the same before this Court on 02.11.2020. The Writ Petition shall be posted only for that purpose.
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