Kerala High Court
Thamseera C K vs District Police Chief, Kasargod on 10 October, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
WP(CRL.) NO. 1273 OF 2022
CRIME NO.1549/2022 OF Hosdurg Police Station, Kasargod
PETITIONER:
THAMSEERA C K
AGED 28 YEARS
D/O MUHAMMED KUNHI,, KOVVAL HOUSE, KOLAVAYAL P O,
KASARGOD DISTRICT, PIN - 671531
M.S.IMTHIYAZ AHAMMED
SHIRAZ ABDULLA
K.ABDUL NASSAR
MUHAMMED BANI M.
RESPONDENTS:
1 DISTRICT POLICE CHIEF, KASARGOD
KASARGOD DISTRICT, PIN - 671123
2 DEPUTY SUPERINTENDENT OF POLICE, KANHANGHAD
KASARGOD DISTRICT, PIN - 671315
3 S H O, HOSDURG POLICE STATION
HOSDURG, KASARGOD DISTRICT, PIN - 671315
4 SHAKEER K P
AGED 34 YEARS
S/O MAMMU, IRFANA MANZIL, PILAVALAPPU, THIMIRI,
VALIYAPOIL P O, KASARGOD DIST., PIN - 671313
5 MAIMOONA K P
AGED 55 YEARS
W/O MAMMU, IRFANA MANZIL, PILAVALAPPU, THIMIRI,
VALIYAPOIL P O, KASARGOD DIST., PIN - 671313
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WP(CRL.) NO. 1273 OF 2022
2
6 BASHEER
AGED 51 YEARS
PILAVALAPPU HOUSE, S/O KUNHAMINA, THIMIRI,
VALIYAPOIL P O, KASARGOD DIST., PIN - 671313
7 THE SECRETARY
GOVERNMENT OF INDIA, MINISTRY OF EXTERNAL AFFAIRS,
SOUTH BLOCK, NEW DELHI - 110001.
8 THE PASSPORT OFFICER
REGIONAL PASSPORT OFFICE, MINI BYPASS ROAD,
ERANJIPALAM, KOZHIKODE - 673006.
9 CONSUL GENERAL
CONSULATE GENERAL OF INDIA, DUBAI, AL HAMRIYA, P O
BOX 737, DIPLOMATIC ENCLAVE, DUBAI, UAE - 500001.
ADDL.R7 TO R9 ARE IMPLEADED AS PER ORDER DATED
10/01/2023 IN I.A 1/2023 IN WP(CRL.)
0 AMBASSADOR OF INDIA ( SOUGHT TO BE IMPLEADED )
EMBASSY OF INDIA, ABUDHABI, UAE ( SOUGHT TO BE
IMPLEADED ) ADDITIONAL RESPONDENT NO. 10 ( SOUGHT
TO BE IMPLEADED ) IS STRUCK OUT FROM THE RESPONDENT
ARRAY IN I.A 2/23 AS PER ORDER DATED 13/01/2023 IN
I.A 2/23 IN WP(CRL.)
11 INDIAN AMBASSADOR ( SOUGHT TO BE IMPLEADED )
EMBASSY OF SULTANATE AT OMAN, JAMIAT AL-DOWAL AL-
ARABIYA STREET, DIPLOMATIC AREA, AL KHUWAIT, P O
BOX NO. 1727, PC 112. SULTANATE AT OMAN ( SOUGHT TO
BE IMPLEADED ) ADDITIONAL RESPONDENT NO.11 ( SOUGHT
TO BE IMPLEADED ) IS STRUCK OUT FROM THE RESPONDENT
ARRAY IN I.A 2/23 AS PER ORDER DATED 13/01/2023 IN
I.A 2/23 IN WP(CRL.)
PUSHPARAJAN KODOTH
SHRI.T.C.KRISHNA, SCGC
P.NARAYANAN
K.JAYESH MOHANKUMAR
VANDANA MENON
VIMAL VIJAY
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WP(CRL.) NO. 1273 OF 2022
3
SMT MINI GOPINATH-CGC;
SRI P M SHAMEER-GP;
SRI SHIRAZ ABDULLA M.S.
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 10.10.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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WP(CRL.) NO. 1273 OF 2022
4
JUDGMENT
The mother of a 9 year old child is before us alleging that
he is being illegally detained by the fourth respondent, however,
conceding that the latter is his father.
2. Certain unusual facts were involved in this case
because, the father and the alleged detenue were abroad; and we
notice that several orders were issued by another Bench of this
Court to ensure his presence before this Court.
3. On 11.07.2024, it was informed by the learned
counsel for the party respondents - Sri.Jayesh Mohankumar, that
the father and the child are unable to return because they are
facing certain problems with their passports and visa abroad; and
we, therefore, issued an order on that day to facilitate the same,
which is as under:
"Even though respondent No.4 is still not
appearing, his mother, namely respondent No.5, through
her learned counsel - Sri.Jayesh Mohan Kumar, says that he
is presently in Dubai, along with the alleged detenu. He
submitted that, though he is not holding brief for the 4th
respondent, he is informed by his client that he is willing to
return to India with alleged detenu, provided arrangements
of the same are made by the official respondents; and that
this is because of the interim order of this Court dated
13.01.2023, through which the passports of both
respondents 4 and the alleged detenu have been
impounded.
2. Though we normally could not have acted as per
the instructions given to the learned counsel for the 5th
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WP(CRL.) NO. 1273 OF 2022
respondent by the said person, we deem it appropriate that
we grant one opportunity for respondent No.4 to return to
India, to submit himself to our jurisdiction, along with the
alleged detenu.
3. We, therefore, order that, notwithstanding the
impounding of the passports of the 4th respondent and the
alleged detenu, necessary arrangements shall be made by
the competent Authorities of the Foreign Officers in Dubai
and India to ensure that they are able to travel back to
Kochi; however, solely for the purpose of appearing before
this Court and subject to further orders to be issued by us.
Necessary arrangements in this regard shall be done, and a
report shall be placed before us by the Passport Officer,
Kozhikode, by the next posting date.
4. We, however, clarify that the indulgence we are
showing to the 4th respondent here is solely for the purpose
of him submitting before us and not for any other purpose;
and therefore, that his travel will be to such extent alone
until we pass further orders.
5. Show the Name of Sri.T.C.Krishna in the Cause
List."
4. Thereafter, a subsequent order was issued on
02.08.2024 to the following effect:
"Read order dated 11.07.2024.
2. Smt.Mini Gopinath - learned Central Government
Counsel, submitted that, since the Passports of the 4th
respondent and the child have already been impounded,
they can be allowed to travel to India only if this Court
orders the same being lifted for a specific period; or directed
to be withdrawn.
3. As is evident from our earlier orders, the intent of
this Court is to allow the 4th respondent to surrender
himself, with the child.
4. In that perspective, we order that the proceedings
of the Passport Officer, impounding the Passports of the 4 th
respondent and his child, will stand frozen for a period of
one month from today. Necessary instructions shall be
issued by the Passport Officer to all concerned, to facilitate
their travel to India.
5. We, however, clarify that this order is only to
facilitate the surrender of the 4th respondent with the child
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before this Court, and not for any other travel.
List on 14.08.2024 for surrender/appearance of the
4th respondent and the child."
5. Even though the order of the Authorities impounding
of the passport of the father was thus frozen, since he could not
travel within the time frame we had fixed the said order revived;
and we, therefore, passed a further order on 14.08.2024, which is
as under:
"It is stated today by Sri.K.Jayesh Mohankumar -
learned counsel for the 5th respondent, that in terms of the
directions of this Court in the orders dated 11.07.2024 and
02.08.2024, his client's travel to India has been facilitated
by the competent Authority of the Government of India. He
added that his client has now applied for Visa and he will be
available in India hopefully by the 29th of this month.
Smt.Mini Gopinath - learned Central Government
Counsel, affirms that the travel restriction on the 5th
respondent has been lifted and that she can come back to
India without any inhibition as of now.
We, therefore, adjourn this matter to be listed on
30.08.2024."
6. Eventually, bearing fruit to all our directions, the
fourth respondent, along with the child, was personally present
before us on 03.10.2024.
7. We had detailed interaction with the parties; and the
fourth respondent agreed that the child can be with the mother,
provided he is taken care well, since he has autism.
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8. We, therefore, indited the fifth order in sequence, on
that day, which is ut infra:
"The 4th respondent is present personally along
with the alleged detenue - his minor son Zaharan.
2. Sri.Jayesh Mohankumar - learned Counsel
appearing for the 5th respondent, submitted that the
alleged detenue was brought to India by the 4th respondent
a few days ago and that, he has been in the custody of the
petitioner ever since.
3. When the parties appeared before us in the
morning today, we referred them to mediation and a report
has been obtained from the Counselor, Family Counselling
Centre, High Court of Kerala, recommending further
counselling; and noticing that the child Zaharan has
"Autism Spectrum Disorder (level 3), and thus requiring
"substantial support".
4. The parties told us that they intend to obtain
assistance for the child Zaharan in one of the better
facilities in Kasaragod or Kanhangad.
5. Obviously, they need time for the afore, as also
to find peace with each other, if possible.
Therefore, we adjourn this matter to be called on
10.10.2024, until which time, we record that the 4th
respondent has handed over the child to the petitioner. "
9. It is in the afore factual scenario, that we are
considering this matter today.
10. Sri.Imthiyaz Ahammed - appearing for the petitioner,
submitted that since the child is already with his client, she does
not intend to press any further charges, or to seek any further
orders, provided she is allowed to remain in his custody
permanently. He agreed that the father can, however, have any
kind of visitation rights over the child; and that liberty can be left
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to him to seek such from the appropriate forum.
11. Sri.Jayesh Mohankumar - learned counsel for the
fourth respondent, submitted that his client intends to leave back
to the UAE and that he does not seek custody over the child as of
now; though praying that his right to do so in future be reserved
in his favour.
12. As regards visitation rights, Sri.Jayesh Mohankumar
submitted that his client will work the same in due course,
depending upon the progress of the child. He then added, that
his client's passport had been impounded only because of the
pendency of this writ petition and on account of the orders issued
by this Court; and therefore, prayed that the same be vacated.
13. Smt.Mini Gopinath - learned Central Government
Counsel, in response, submitted that the Regional Passport Officer
is only acting as per the directions of this Court and nothing more;
and therefore, that they will abide by any further directions to be
issued.
14. In the afore circumstances, we allow this writ
petition, confirming our order dated 03.10.2024.
15. Consequently, we order that all our earlier directions
qua or leading to the impounding of the passport of the petitioner
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will stand vacated; and that he will be free to travel, subject to
every other applicable provision of law, but without being
constrained by any of our earlier directions.
16. It is also needless to say that every remedy to the
fourth respondent, to seek either custody or visitation over the
child, is left open to be initiated, if so advised, before the
appropriate forum.
Axiomatically, we also leave liberty to the petitioner to
move the appropriate Courts, before which any crime against him
qua the allegation of kidnapping of his child, has been registered,
seeking appropriate remedies in it, adverting to our observations
above.
Sd/- DEVAN RAMACHANDRAN
JUDGE
Sd/- M.B. SNEHALATHA
JUDGE
stu
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APPENDIX OF WP(CRL.) 1273/2022
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE REPRESENTATION DTD 09-
11-2022 FILED BEFORE 3RD RESPONDENT
Exhibit P2 A TRUE COPY OF THE RECEIPT DTD 16-11-2022
Exhibit P3 A TRUE COPY OF THE REPRESENTATION DTD 23-
11-2022
Exhibit P4 A TRUE COPY OF THE FIR NO. 1549/2022 DTD
25-11-2022 OF HOSDURG POLICE STATION
RESPONDENT EXHIBITS
Exhibit R5(a) A TRUE COPY OF ORDER DATED 03.09.2024 BY
THE 8TH RESPONDENT ISSUED TO THE 5TH
RESPONDENT HEREIN/4TH RESPONDENT
ExhibitR5(b) TRUE COPY OF ORDER DATED 03.09.2024 BY THE
8TH RESPONDENT ISSUED TO THE CHILD
