Bombay High Court
Annapurna W/O Harikrishna Mohanty (On ... vs The State Of Maharashtra And Anr on 7 August, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:31482-DB
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MANDIRA MILIND Digitally signed by MANDIRA
MILIND SALGAONKAR
SALGAONKAR Date: 2024.08.08 00:29:52 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3175 OF 2024
Annapurna w/o Harikrishna .. Petitioner
Mohanty
Versus
The State of Maharashtra & Anr. .. Respondents
...
Ms.Devki Sahu with Ms.Jyoti Sahu, Ms.Gauri Joglekar,
Mr.Praful Patil, Ms.Shama Sheikh, Mr.Vipan Kumar and
Mr.Rohit Patil for the Petitioner.
Ms.M.M.Deshmukh, A.P.P. for the State/Respondent.
Ms.Manisha Zhende, Member, Child Welfare Committee,
Thane, present.
Petitioner, Annapurna H. Mohanty, present in person.
...
CORAM: BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
DATED : 07th AUGUST, 2024
ORAL JUDGMENT (Per Bharati Dangre, J.):-
1. Rule. Rule made returnable forthwith. By consent of the
parties, heard finally.
2. Smt.Annapurna Harikrishna Mohanty, the grandmother
of the minor girl 'S', a POCSO victim, has approached this
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Court, seeking issuance of writ of habeas corpus for producing
her before the Court and pursuant thereto, for handing over
her custody to the Petitioner, taking into consideration her
well being, safety and continuation of her studies.
3. The aforesaid Writ Petition is filed in the background that
the minor girl is in custody of Child Welfare Committee, Thane
(for short, "CWC Thane") i.e. Respondent No.2 since
14/06/2024. She was taken in custody by Respondent No.2, in
the peculiar facts, which are narrated in the Petition.
The Petition reveal that the minor girl 'S' was residing
with the Petitioner at Orissa since her birth until she turned
seven and, thereafter, she moved to her parents house at
Bangalore, where she answered her 10 th standard examination.
The Petitioner was attached to child 'S', since she had nurtured
her upto seven years of age, as her parents were unable to care
for her on account of the unemployment of the father and,
therefore, she used to meet and accompany 'S' during all her
vacations, holidays etc. While she was in 10th standard, the girl
'S' requested the Petitioner to be with her while she was
preparing for her Board Examination and that is how
somewhere in the month of September 2023, the Petitioner
visited her in Bangalore.
On a particular day, when the Petitioner got up and went
to wake up her for undertaking the studies, she found her
father inappropriately engaged with her under the same
blanket and when she noticed this inappropriate conduct, she
confronted 'S' with this approach of her father and she started
weeping. On gaining her confidence, she disclosed to her
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grandmother that her father was sexually abusing her since
last two years, by fondling her inappropriately.
When the Petitioner confronted her own daughter, she
attempted to protect her husband, as she was apprehensive
that if she oppose him, she would be thrown out of the house.
Thereafter, the Petitioner discussed this issue with her
two other daughters and immediately after her examination
was over, even the father was confronted in this regard, who
flatly denied, the accusations of his daughter.
4. The aforesaid event and reluctance of the child to stay
with her own parents, constrained the Petitioner to move the
child to Mumbai with the help of her youngest son-in-law, who
was staying in Mumbai and, thereafter, she continued to stay
in Mumbai.
5. Upon arrest of the second daughter of the Petitioner from
Orissa-Bhadrak District on 06/06/2024 in connection of a
complaint filed by her own daughter i.e. mother of 'S',
Bangalore police asked to get the girl from Mumbai to
Bangalore.
The minor girl was, however, not ready to go to
Bangalore, fearing further sexual abuse by her father and,
therefore, the Petitioner accompanied the minor to Manpada
Police Station for filing the complaint against Respondent
Nos.6 and 7 under the POCSO Act. At this time, when she
reported to Manpada Police Station, it was revealed to the
Petitioner that a complaint was filed by her elder daughter
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against her other sisters and herself under Section 363 of IPC
and that is how, she came to be apprehended.
6. This resulted in registration of C.R.No.771 of 2024, being
filed by 'S' against her father resident of Arkavathi, Bangalore,
Karnataka, which invoked Section 354 of IPC and Sections 8,
10 and 12 of POCSO Act and the period of occurrence of the
events was given from 01/06/2020 to 13/04/2024.
Upon registration of the FIR, the custody of the girl was
handed over to CWC, Thane and the girl continued to be in its
custody as 'a child in need of care and protection'.
When the Petitioner gained knowledge that the custody
of the child is being transferred to CWC, Bangalore, she
approached this Court and filed the present Writ Petition,
seeking her production and also transferring her custody in
her favour, considering her welfare and future prospects.
7. Responding to the Writ Petition, we have received two
affidavits, first from the District Child Protection Officer, who
has categorically deposed that as per order dated 15/06/2024
passed by the CWC Thane, Social Investigation Report of the
residence of the victim girl in Bangalore and the house of the
aunt of the girl in Dombivali has been prepared through the
District Child Protection Unit and submitted to Child Welfare
Committee, Thane on 27/06/2024 as per Juvenile Justice
Rules, 2018.
Another affidavit is filed by the Member of CWC Thane,
who has disclosed that the mother of the child has shared the
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letter dated 25/07/2024 to CWC, Thane narrating the disputes
and harassment by child's grandmother and the maternal
aunt and pleading that it is not safe to send the child to her
maternal aunt.
In the affidavit, the Member has categorically narrated
that in furtherance of the order passed on 21/06/2024 to
transfer the child as per the provisions of Sections 81 and 95
of the Juvenile Justice (Care and Protection of Children
Model) Rules, 2016 and also the order to the effect that the
Karnataka police, who visited CWC Thane, will escort the child
to Karnataka, 'S' expressed that her father has sexually
abused her and inspite of informing the said fact to her own
mother, grandmother and maternal aunt, no action was taken
against her father, and she refused to accompany Karnataka
police and visit her parents home.
The Member has further deposed that since the child was
not psychologically ready to go back to Karnataka with
Avalahalli police, the transfer order was cancelled by CWC and
the child continued to stay at Government Girls Home at
Ulhasnagar.
8. We are also informed that Avalahalli Police Station,
Bangalore vide their e-mail communication, have informed
that C.R.No.259 of 2024, which was registered at Manpada
Police Station, is now transferred to Karnataka and a request
was made to CWC Thane to produce the girl before the
Investigating Officer of Avalahalli Police Station for
investigation.
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9. On the earlier date, we had directed the CWC to produce
child 'S' before us in chamber and we have interacted with her
as well as the Petitioner. We had also interacted with the
Counsellor, who is offering counselling session to the victim
girl.
The girl, in no uncertain words, expressed her
apprehension as to why she is not desirous of going back to her
parents, as despite having complained to her mother about the
sexual abuse, which she underwent, her mother did not pay
heed and only after witnessing the incident by the
grandmother, who was in close proximity to her, her father
was confronted and the girl was brought by the grandmother,
who continued to stay with her maternal aunt in Dombivali,
Mumbai. However, 'S' expressed that she would feel herself
safe in the company of grandmother i.e. Petitioner and when
we interviewed the grandmother, she expressed to us that she
will be taking her to Orissa and continue her education, by
admitting her in Junior College.
The child is cared and nurtured by the grandmother till
she attained the age of seven years and we instantly found a
bond of love and affection between the two.
The interest of the child 'S', therefore, lies in handing
over custody to the Petitioner, who is her own maternal
grandmother and the child feel physically and psychologically
safe with her and is confident that her grandmother will take
care of her.
We have also attempted to find out, whether the
Petitioner has financial resources to take care of the child and
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we are satisfied that she can cater her needs, as she is in
receipt of pension, as well as she has house in Orissa, the
portion of which is rented out and which yields income to her.
Instead of continuing the custody of the girl in Mumbai
with her maternal aunt, since the Petitioner has expressed to
take 'S' to Orissa and which she has undertaken to do before
the end of this month i.e. August 2024, so that the girl can be
admitted in the school at Orissa and her education can be
completed, we deem it appropriate to hand over the custody of
the girl 'S' to the Petitioner.
10. However, at the same time, we intend that the child shall
be under the supervision of the Child Welfare Committee and,
therefore, we request CWC Thane i.e. Respondent No.2 to
establish contact with CWC Orissa or any other agency, which
is entrusted with the task of caring for children in need of care
and protection in the State and in co-ordination with such an
agency, the child shall be supervised for a period of one year
from the date of passing of the order.
We would expect the reports from the relevant
committee in Orissa to be forwarded to CWC Thane to be put
before this Court on quarterly basis.
We have directed supervision by the CWC for the very
apparent reason that the girl, who was in state of trauma, on
receiving counsellling has garnered confidence and, therefore,
we expect the counselling to be continued in Orissa and if not
possible physically, through video conferencing by CWC Thane.
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11. As far as the investigation of C.R. registered at the
instance of 'S' against her father is concerned, it is open for the
investigating agency to visit her in Orissa and carry out the
investigation and except for the exceptional circumstances,
when for any limited purpose she is required to be taken on the
spot, she shall be taken to Karnataka, accompanied by the
police officers attached to local police station at Orissa, for the
shortest possible tenure.
12. We, therefore, deem it appropriate to direct the custody
of minor 'S' to be handed over to the Petitioner, who shall
furnish her address and contact number to CWC Thane, which
shall also be transmitted to Orissa CWC, as expressed above.
13. The Writ Petition is made absolute in the aforesaid terms,
by directing that Respondent No.2 shall hand over the custody
of 'S' to her grandmother within 48 hours from passing of this
order, by taking into consideration her welfare and future.
14. We direct the Petition to be listed, under caption 'For
Directions', for submission of CWC Report, on 18/11/2024.
(MANJUSHA DESHPANDE,J.) (BHARATI DANGRE, J.)
M.M.Salgaonkar
