Punarjani Charitable Trust Vs. Union of India [Kerala High Court, 12-08-2016]

IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.B.SURESH KUMAR, J.

W.P.(C).No.16045 of 2016

Dated 12 th August, 2016

PETITIONER(S)

PUNARJANI CHARITABLE TRUST, A LADY LAWYER’S INITIATIVE, REGISTERED NO. 29/2011, HAVING ITS REGISTERED OFFICE AT 3RD FLOOR, DOOR NO. 301, INDO ARCADE, CHEROOTY ROAD, KOZHIKODE, REPRESENTED BY ITS TRUSTEE SAPNA P.P.

BY ADV. SRI.B.PREMNATH.

RESPONDENT(S)

1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NORTH EAST DIVISION-NE IV, NORTH BLOCK, CABINET SECRETARIAT, RAISINA HILL, NEW DELHI- 110 001.

2. MINISTRY OF EXTERNAL AFFAIRS, GOVERNMENT OF INDIA, SOUTH BLOCK, CABINET SECRETARIAT, RAISINA HILL, NEW DELHI -110 001, REPRESENTED BY ITS SECRETARY.

3. OFFICE OF THE HIGH COMMISSION, PEOPLE’S REPUBLIC OF BANGLADESH, EP-39, DR. S.RADHAKRISHAN MARG, CHANAKYAPURA, NEW DELHI -110 021, REPRESENTED BY ITS CONSULAR.

4. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF SOCIAL JUSTICE, SECRETARIAT, THIRUVANANTHAPURAM -695 001.

5. FOREIGN REGIONAL REGISTRATION OFFICER, FOREIGN REGIONAL REGISTRATION OFFICE, 20/1305, CASTLE VIEW, THIRUVANNUR ROAD, PANNIYANKARA, KALLAYI P.O., KOZHIKODE -673 003.

6. CHILD WELFARE COMMITTEE- JUVENILE JUSTICE, GOVERNMENT OBSERVATION HOME, THAVANOOR, KUTTIPPURAM, THRIKKANAPURAM POST, MALAPPURAM-679 673, REPRESENTED BY ITS CHAIRMAN. WP(C).No. 16045 of 2016 (E)

7. DISTRICT GOVERNMENT PLEADER & PUBLIC INSTRUCTOR, DISTRICT COURTS, MANJERI, MALAPPURAM, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682 031.

8. THE DISTRICT POLICE CHIEF, MALAPPURAM DISTRICT-679 673.

9. THE COMMISSIONER OF POLICE, KOZHIKODE -673 003.

10. GOVERNMENT MAHILA MANDIRAM, VELLIMADAKUNNU, KOZHIKODE-673 001, REPRESENTED BY ITS SUPERINTENDENT.

11. ARM OF JOY, PUBLIC CHARITABLE TRUST, 27/1015, P.O. KUTHIRAVATTAM, KOZHIKODE- 673 016, REPRESENTED BY ITS MANAGING TRUSTEE ANOOP.G.

12. KULSUM @ MOYNA, VILL:1 NO. GHAT KHULNA, WORD NO.21, PS: KHULNA SADAR, DIST: KHULNA, BANGLADESH, NOW RESIDING AT GOVERNMENT MAHILA MANDIRAM, VELLIMADUKUNNU, KOZHIKODE-673 004.

13. RUPA, VILL:MULASHREE PO: PAHARDANGA, PS:NORAGATI, DIST: NORAIL, BANGLADESH, NOW RESIDING AT GOVERNMENT MAHILA MANDIRAM, VELLIMADUKUNNU, KOZHIKODE -673 004.

14. NODIA, VILL: CLUB ROAD, RAJAPUR BAZAR, P.O.:SENER BAZAR, PS:RUPSHA, DIST: KHULNA, BANGLADESH, NOW RESIDING AT GOVERNMENT MHILA MANDIRAM, VELLIMADUKUNNU, KOZHIKODE -673 004.

R1, R2 & R5 BY ADV. SRI.N.NAGARESH, ASSIST. S.G. OF INDIA. R4, R6, R7 TO R10 BY SR. GOVT. PLEADER SRI.P. FAZIL. R11 BY ADV. SRI. N.K. SUBRAMANIAN R12 TO R14 BY ADV. SMT.K.P.REGHA.

J U D G M E N T

Respondents 12 to 14, who are Bangladesh nationals, were subjected to sexual abuse in India and cases registered in connection with the same are pending trial before the Sessions Court (Fast Track-1), Manjeri in S.C.Nos.354 and 443 of 2012. Though the occurrences which are the subject matter of the said cases took place several years back, the trial of the cases are yet to be over. Respondents 12 to 14, in the circumstances, are sheltered by the police at Government Mahila Mandiram, Kozhikkode for the last almost eight years. Respondents 12 to 14 who are living separately from their parents and relatives for the last several years are eager to go back to their country and having regard to their sad plight, the High Commission of Bangladesh in India has already issued travel permits to enable them to go to their motherland. The petitioner is a trust engaged in the rehabilitation of women and children who are subjected to sexual abuses. The case set up by them in the writ petition is that despite the travel permits issued by the High Commission of Bengladesh, respondents 12 to 14 are not permitted to leave India by the fifth respondent, the Foreign Regional Registration Officer of the Government of India on account of the pendency of the criminal cases referred to above. According to the petitioner, respondents 12 to 14 cannot be detained in India for the said reason and if at all their presence is to be secured for the trial of the cases in India, it is for the State to secure their presence by diplomatic intervention. It is also contended by the petitioner that the physical presence of respondents 12 to 14 are not necessary in India for the trial of the cases referred to above and their evidence in the said cases can be secured by video conferencing also. The petitioner, therefore, seeks directions to respondents 1, 2 and 5 to initiate steps to deport respondents 12 to 14 to their country.

2. A statement has been filed in this matter by the fifth respondent contending that the presence of respondents 12 to 14 are required in India for completing the trial of the cases referred to in the writ petition and it is on account of the said reason that they were not deported despite the travel permits issued by the High Commission of Bangladesh.

3. A statement has been filed by the District Police Chief in this matter, wherein, it is stated that though the trial of the cases referred to in the writ petition are not over, respondents 12 to 14 can be deported with the permission of the court.

4. Heard the learned counsel for the petitioner as also the learned counsel for the respondents.

5. Eleventh respondent in the writ petition is also a trust which is supporting the case of the petitioner in this matter. Eleventh respondent has produced a few additional documents in this writ petition. The additional documents produced by the eleventh respondent indicate that the case of respondents 12 to 14 have been taken up before the High Commission of Bangladesh by the eleventh respondent and travel permits have been issued by the High Commission of Bangladesh to respondents 12 to 14 at the instance of the said respondent. Ext.R11(b) communication sent to the eleventh respondent by the High Commission of Bangladesh indicates that the eleventh respondent has been requesting the High Commission to take necessary steps for providing video conferencing support to respondents 12 to 14 for the trial in India so as to enable them to leave for their motherland. The said document also indicates that the eleventh respondent has been informed by the High Commission of Bangladesh that the District Magistrates concerned of the home districts of respondents 12 to 14 have consented to make necessary arrangements for video conferencing for the trial of the cases in India. Exts.R11(c) series are the consent letters issued in this connection by the District Magistrates concerned of the home districts of respondents 12 to 14 in Bengladesh.

6. The materials on record would indicate that since the police could not apprehend all the accused, the trial began only against some of the accused. It is seen that even the said trial is being adjourned from time to time for one or other reason. The materials do not indicate that the trial of the cases will be over soon. As indicated above, respondents 12 to 14 are detained in India for the last almost eight years for the sole reason that their evidence is required in some of the cases pending trial in India. In the circumstances, the question is whether there is any justification for insisting that respondents 12 to 14 should remain in India until the trial of the cases is over. The resolution of this question involves elements of international law as also human rights. Article 3 of the Universal Declaration of Human Rights adopted by the United Nations ensures right to life and liberty to every human being. Article 9 of the said Declaration provides that no one shall be subjected to arbitrary detention. Article 13 of the said Declaration provides that everyone has the right to leave any country including his own. India was a signatory to the Universal Declaration of Human Rights and Part III of our Constitution dealing with fundamental rights and Part IV of the Constitution WPC 16045 of 2016 6 dealing with Directive Principles of State Policy have close resemblances to the Universal Declaration of Human Rights. Further, the International Covenant on civil and political rights adopted by the United Nations on 16.12.1966 has been ratified by India. Article 6 of the said Covenant guarantees right to life and Article 12 guarantees right to liberty and freedom of movement. True, declarations and covenants of the aforesaid nature cannot create a binding set of rules and the same would only inform judicial institutions and inspire legislative action. However, it is seen that the constitutional interpretation in India has always been influenced strongly by such declarations and covenants. In so far as respondents 12 to 14 are detained in India solely for the purpose of securing their presence to be examined as witnesses in some criminal cases pending trial, there cannot be any doubt that their detention in India is arbitrary. Once it is found that the detention of respondents 12 to 14 is arbitrary, necessarily it will have to be held that the inaction on the part of the officials in not deporting respondents 12 to 14 to their motherland is illegal and against the spirit of the Universal Declaration of Human Rights as also the International Covenant on civil and political rights. In the light of the decision of the Apex Court in

State of Maharashtra v. Dr.Praful B. Desai, (2003) 4 SCC 601

there is no impediment now for securing the evidence of respondents 12 to 14 in the cases pending trial in India by video conferencing. Further, as noted above, the High Commission of Bangladesh has already agreed to support respondents 12 to 14 for their video conferencing for the trial of the cases. In the said view of the matter, the petitioner has to succeed.

In the result, the writ petition is allowed and the fifth respondent is directed to deport respondents 12 to 14 to their motherland forthwith.

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